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Abrams v. United States

The Unending Search For Truth

In an eloquent final paragraph, for which the dissent is famous, Holmes discussed the connection between freedom of speech, the search for truth, and the value of experimentation. It is perfectly logical to persecute opposing views if one assumes one knows the truth.

But when men have realized that time has upset many fighting faiths, they may come to believe even . . . that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . That is at any rate the theory of our Constitution . . . Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law abridging the freedom of speech."

The reasoning in Holmes' Abrams dissent significantly modifies his Schenck opinion eight months earlier. As Professor Richard Polenberg has shown in Fighting Faiths, Holmes spent considerable time during the summer of 1919 reconsidering his Schenck reasoning and reading about issues of free expression. Holmes discussed the case with Judge Learned Hand and Harvard Law School professor Zechariah Chafee, Jr., both libertarians on political discussion. He also met with English socialist Harold Laski, a visiting professor at Harvard. As a result, Holmes profoundly revised his Schenck reasoning and developed the more permissive doctrine he advanced in the Abrams dissent, nine months later.

Ultimately the revised "clear and imminent danger" standard in Abrams dissent became the position of the Court majority. But Holmes eloquent dissent did little for the Abrams defendants. After many months in prison, they were deported to the Soviet Union in 1921. But their homeland rejected them as well. Samuel Lipman was murdered during one of Stalin's purges, and Abrams and Mollie Steimer fled to lonely exile in Mexico City.

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