Abrams v. United States (1919)

1
Abrams v. United States (1919) Background ?
Abrams and the other defendants were all born in
Russia. They were intelligent and had
considerable schooling. ? Three of them testified
as witnesses in their own behalf, and called
themselves revolutionists and they did not
believe in government of any form and said they
had no interest in the government of the United
States. ? The fourth said he was a socialist and
believed in a proper form of government that was
not capitalistic and in his opinion the U.S.
government was capitalistic. ? The leaflets were
printed in English and Yiddish criticizing
American intervention in the Russian Revolution.
They met in rooms rented by Abrams, who bought a
printing outfit, and installed it in a basement
where the work was done at night. Some of the
leaflets were distributed by throwing them from a
window where one of the defendants was employed.
? WWI was still in progress.
The White Court
Mollie Steimer, Jacob Abrams, Hyman Lachowsky and
Samuel Lipman were immigrant NY anarchists who
were tried by the government under the "Espionage
Act". They dumped anarchist tracts from New
York City buildings, leading to convictions which
the Supreme Court considered in Abrams v U. S.
(Jacob Abrams is at far right.) Source
http//www.law.umkc.edu/faculty/projects/ftrials/c
onlaw/clearpdanger.htm
2
Main Points ? Abrams and his colleagues were
charged on 4 counts of conspiring 1) disloyal
and abusive language about the form of Government
of the United States 2) the language intended
to bring the form of Government of the United
States into

contempt 3)
the language "intended to incite, provoke, and
encourage resistance to the United States in said
war 4) when the United States was at war with
the Imperial German Governmentunlawfully and
willfully ... to urge, incite and advocate
curtailment of production ofordnance and
ammunition, necessary and essential to the
prosecution of the war ? Although it was argued
that the Espionage Act was unconstitutional and
in conflict with the First Amendment, it was
argued briefly and proven otherwise On the
record thus described it is argued, somewhat
faintly, that the acts charged against the
defendants were not unlawful because within the
protection of that freedom of speech and of the
press which is guaranteed by the First Amendment
to the Constitution of the United States, and
that the entire Espionage Act is unconstitutional
because in conflict with that Amendment. This
contention is sufficiently discussed and is
definitely negative in Schenck v. United States.
3
Main Points ? According to Holmes there was not
enough evidence to promote danger or hinder the
success of the government 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. ? They were found guilty by the
original court 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
war...Thus ...the defendants were guilty as
charged...and...the judgment of the District
Court must be Affirmed. ? If in the event the
threat poses no clear and present danger, the
best place to dismiss dangerous or disagreeable
ideas is in the market place of ideas.
Persuasion is more persistent than imprisoning
people with dangerous and disagreeable
ideas. 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 that the best test of truth is
the power of the thought to get itself accepted
in the competition of the market, and that truth
is the only ground upon, which their wishes
safely can be carried out.
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Historical Significance

• Abrams v. United States was during the time while
  America intervening into the Russian Revolution
• The case involved the 1918 amendment to the
  Espionage Act of 1917 which made it a criminal
  offense to criticize the U.S. Federal Government.
• The case was overturned during the Vietnam War
  Era in Brandenburg v. Ohio. The decision was
  based on Holmes argument of clear and present
  danger

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Abrams v. United States

• Work taken from the United States Reports of the
  U.S. Supreme Court
• Argued October 21-22, 1919
• Decided November 10, 1919

6
Court Membership

• Chief Justice was Edward Douglass White.
• Associate Justices Joseph McKenna, Oliver
  Holmes, William Day, Willis Van Devanter, Mahlon
  Pitney, James McReynolds, Lois Brandeis, and John
  Hessin Clarke
• Case opinions Majority by Clarke and Dissent by
  Holmes

7
Defendants

• Jacob Abrams and four colleagues were convicted
  of conspiring to violate the Espionage Act.

8
Main Points

• According to Mr. Justice Clarke and the opinion
  of the courts,
• Abrams and others advocated a strike in
  munitions production and the violent overthrow of
  the Government.
• Courts charge the defendants with conspiring to
  unlawfully utter, print, write and publish
  abusive language about the form of government of
  the United States.
• The manifest purpose of such a publication was
  to create an attempt to defeat the war plans of
  the government, by bringing upon the country the
  paralysis of a general strike, thereby resting
  production of munitions and other things
  essential to the conduct of war.

9
Main Points

• The points of Mr. Justice Holmes dissenting,
• Abrams and others should not be viewed as
  criminals due to their writings
• Advocacy of a general strike do urge curtailment
  of production of things necessary to the
  prosecution of the war within the meaning of the
  Act of 1917. But to make the conduct criminal
  that statute requires that it should be with
  intent by such curtailment to cripple or hinder
  the United States in the persecution of the war.
  
• The first amendment should protect Abrams freedom
  of speech
• I refer to the First Amendment to the
  Constitution that Congress shall make no law
  abridging the freedom or speech.

10
Main Points

• Congress cannot forbid all effort to change the
  mind of the country.
• The principle of the right to free speech is
  always the same. It is only the present danger or
  immediate evil or an intent to bring it about
  that warrants Congress in setting a limit to the
  expression of opinion where private rights are
  not concerned.
• The truth has to be accepted within the
  competition of the market.
• The best test of truth is the power of the
  thought to get itself accepted in the competition
  of the market, and that truth is the only ground
  upon which their wishes safely can be carried
  out.

11
Historical Significance

• Abrams v. United States was during the time while
  America intervening into the Russian Revolution
• The case involved the 1918 amendment to the
  Espionage Act of 1917 which made it a criminal
  offense to criticize the U.S. Federal Government.
• The case was overturned during the Vietnam War
  Era in Brandenburg v. Ohio
• Based on Holmes argument of clear and present
  danger

12
Questions to Consider??

• If we can agree that what Abrams advocates in his
  pamphlet is wrong, how can we most effectively
  discredit his argument?
• When does one cross the line between freedom of
  speech and immediate danger or evil intent?