ABRAMS v.

UNITED STATES Facts of the Case The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building. One leaflet signed "revolutionists" denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution. The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were sentenced to 20 years in prison. Question Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment? Conclusion No and no. The act's amendments are constitutional and the defendants' convictions are affirmed. In Clarke's majority opinion, the leaflets are an appeal to violent revolution, a call for a general strike, and an attempt to curtail production of munitions. The leaflets had a tendency to encourage war resistance and to curtail war production. Holmes and Brandeis dissented on narrow ground: the necessary intent had not been shown. These views were to become a classic libertarian pronouncement.

Abrams v. United States(1919) It was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the progress of the war. The 1918 Amendment is commonly referred to as if it were a separate Act, the Sedition Act of 1918. The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building in New York City. One leaflet, signed "revolutionists", denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution and advocated the cessation of the production of weapons to be used against Soviet Russia. The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were sentenced to 20 years in prison. The Supreme Court ruled 72 that the Act did not violate the freedom of speech protected by the First Amendment. Justice John Hessin Clarke used a relatively restrictive speech test "bad tendency" to uphold the conviction. Justices Oliver Wendell Holmes and Louis Brandeis dissented and said that the more speech protective standard "clear and present danger" ought to be applied to overturn the conviction. The case was ultimately overturned during the Vietnam War era in Brandenburg v. Ohio (1968), a case against the KKK where the Court adopted the "incitement to imminent lawless action" standard a test even more speech protective than "clear and present danger." Majority Opinion Writing for the majority, Justice John Hessin Clarke asserted that the leaflets were an appeal to violence against the United States government as opposed to peaceful change. In quoting heavily from the leaflets themselves, Clark wrote: "This is not an attempt to bring about a change of administration by candid discussion, for no matter what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was to create

an attempt to defeat the war plans of the government of the United States, by bringing upon the country the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to the conduct of the war." Clark further discussed the purpose behind the leaflets, stating that they "sufficiently show, that while the immediate occasion for this particular outbreak of lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our government sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the government in Europe." Clark explained that the leaflets called for a general strike and the curtailment of munitions production, in violation of the Sedition Act of 1918. Although the distribution of the leaflets did not incite immediate resistance, the materials or speech had a "tendency" to encourage violent resistance, and therefore were not protected by the First Amendment: "...the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war... and, the defendants, in terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions necessary and essential to the prosecution of the war.... Thus it is clear not only that some evidence but that much persuasive evidence was before the jury tending to prove that the defendants were guilty as charged...."

Holmes' Dissent In his dissent, Holmes wrote that although the defendant's pamphlet called for a cease in weapons production, it had not violated the Act of May 16, 1918 because they did not have the requisite intent "to cripple or hinder the United States in the prosecution of the war." Holmes distinguishes Abrams's intent as being only to minimize Russian casualties, with any harm to the United States war efforts being incidental and unintended.[1] Holmes had recently changed his views on the Espionage Act, especially the Sedition Act, and its relationship with free speech, based on his conversations with Zechariah Chafee and other academics. He argued that the First Amendment left no room for the government suppression of dangerous ideas, except where a threat was imminent. The Majority Opinion had held instead that the First Amendment left the common law rule of seditious libel intact. Holmes felt that the founders' expansion of free speech was "an experiment, as all life is an experiment" and he opined that a twenty year sentence against the defendants was an unconstitutional punishment for their beliefs. Holmes wrote: Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition...But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas.