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Abrams v. United States

Clear And Present Danger--phase Two

Holmes dissented, joined by Brandeis. Holmes centered his argument on the government's failure to prove intent. The word intent, he argued, often was vaguely used to mean only that a certain act had a tendency to cause a certain effect. But "when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed." Intent means, in other words, that a person's goal is the proximate and immediate cause of a specific act.

Holmes asserted that he was following the Schenck, Frohwerk, and Debs decisions. In restating the "clear and present danger" standard, however, Holmes significantly revised it, by changing "present" to "imminent" and by adding "forthwith." Congress may punish only speech that "is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils."

Holmes argued there was no danger that the defendants actually could damage the war effort.

Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.
In any case, Abrams and his friends did not intend to harm the United States. Their only intent was to prevent interference with the revolution in Russia.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1918 to 1940Abrams v. United States - Significance, In Uncharted Territory, Creating The Surveillance State, Anarchists And War, Trial And Appeal