Abrams v. United States

In June of 1917, two months after the U.S. entered the war, Congress passed the Espionage Act. The act established three basic wartime offenses: conveying false information intended to interfere with U.S. military operations, causing insubordination in the military, and obstructing recruiting. In May of 1918, the Sedition Act added nine additional offenses. Taken together, these made it illegal to do, to say, or to write anything that might tend to hinder the war effort, support America's enemies, or bring contempt or disrespect upon the government, flag, uniform, or Constitution.

The constitutionality of the Espionage Act was upheld in Schenck v. United States. Charles Schenck was convicted of supervising the printing and distribution of a Socialist Party pamphlet that attacked the military draft. Writing for a unanimous Court, Justice Holmes affirmed Schenck's conviction.

Ignoring earlier free speech decisions, Holmes sketched out his own "clear and present danger" standard. Absolute freedom of speech, Holmes argued, would be absurd. "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Holmes then sketched two tests for protection of speech. The first tied protection to circumstances, " . . . whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress had a right to prevent." The second test tied protection to intent. If the speaker intended to bring about those evils, "we perceive no ground for saying that success alone warrants making the act a crime."

A week after the Schenck decision, Holmes rendered two more unanimous opinions in Espionage Act cases. These opinions expressed an extremely limited view of First Amendment rights. They brought into question the meaning of Holmes's "clear and present danger" doctrine.

In Frohwerk, Holmes upheld the conviction of Jacob Frohwerk because his newspaper articles critical of the draft might "be enough to kindle a flame of resistance." In Debs, Holmes held that a speech by Eugene Debs, the Socialist leader, was intended to obstruct recruiting. In these decisions, Holmes did not mention his own "clear and present danger" test. Thus he did not analyze whether the words used might actually cause an "evil effect." It was enough that they might have a "tendency" to so do.

In formulating his "clear and present danger" doctrine, Holmes knew precisely where to draw the line between protected and unprotected speech. He was given a new opportunity to provide a clear demarcation when Abrams reached the court the following October.