Abrams vs. United States

The SC held that speech which is intended to provoke resistance to the United States in wartime and to incite curtailment of war production is not protected by the First Amendment, as it creates a clear and present danger of substantive evils Congress has a right to prevent.

During World War I, Congress passed the Espionage Act of 1917, amended in 1918, which criminalized, among other things, conspiring to utter disloyal language intended to incite resistance to the United States in the war, or to urge curtailment of war material production. The defendants, who identified as anarchists and socialists opposed to the U.S. government, printed and distributed leaflets in New York City condemning U.S. intervention in Russia and calling for action to hinder the war effort.

• Filed in the U.S. District Court for the Southern District of New York.
• Defendants were convicted on all four counts of the indictment.
• The case was appealed directly to the U.S. Supreme Court (as was typical for certain federal criminal appeals at the time).
• The SC affirmed the convictions.

• The five defendants were Russian-born immigrants who had not applied for U.S. citizenship. They identified as anarchists, revolutionists, or socialists.
• In August 1918, they conspired to print and distribute two leaflets in English and Yiddish.
• The first leaflet, "The Hypocrisy of the United States and her Allies," denounced President Wilson and U.S. intervention in Russia, calling on "Workers of the World" to rise up against capitalism.
• The second leaflet, "Workers—Wake up," accused the U.S. and Allies of betraying workers and urged Russian emigrants to reject war propaganda. It specifically called on workers in ammunition factories to recognize they were producing weapons to "murder" their comrades in Russia and advocated for a "general strike" in response to U.S. intervention.
• Additional writings found on the defendants, such as "Revolutionists! Unite for Action!", stated the goal was to create disturbances to keep U.S. armies at home and prevent the defeat of the Russian Revolution.

• The acts charged were protected by the First Amendment's guarantee of freedom of speech and press.
• The entire Espionage Act was unconstitutional as it conflicted with the First Amendment.
• There was insufficient evidence to support the verdict; the motion for a directed verdict of acquittal should have been granted.

• The evidence conclusively showed the defendants conspired to publish leaflets with the intent to provoke resistance to the U.S. in the war and to incite curtailment of war production, in violation of the Espionage Act.
• The First Amendment does not protect speech that creates a clear and present danger of such substantive evils during wartime.

• Procedural Issues: N/A
• Substantive Issues:
  • Whether the evidence was sufficient to sustain a conviction under the Espionage Act for conspiracy to utter language intended to incite resistance to the United States in the war and to urge curtailment of war production.
  • Whether the Espionage Act, as applied to the defendants' speech, violated the First Amendment.

• Procedural: N/A
• Substantive:
  • Evidence Sufficiency: The SC found "much persuasive evidence" before the jury. The language of the circulars was "obviously intended to provoke and to encourage resistance to the United States in the war" (satisfying the third count) and "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" (satisfying the fourth count). The judgment could be affirmed if the evidence supported any single count, and it supported at least two.
  • First Amendment: The SC summarily rejected the First Amendment claim, citing its prior decisions in Schenck v. United States, Frohwerk v. United States, and Debs v. United States as having "definitely negatived" this contention.

• Clear and Present Danger Test — The SC applied the test from Schenck, which holds that speech is not protected if the words, given their context and the circumstances of their use, create a clear and present danger of bringing about the substantive evils that Congress has a right to prevent. Here, the wartime context and the leaflets' direct calls for strikes in war industries were found to present such a danger of hindering the war effort.
• Intent and Accountability — The SC held that "men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce." Even if the defendants' primary motive was to aid the Russian Revolution, their chosen plan of action necessarily involved defeating the U.S. war program, and they must be held to intend that result.

• "Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce." — Justice Clarke, for the majority, establishing a broad view of intent based on foreseeable consequences.
• "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..." — Justice Holmes, dissenting, articulating the "marketplace of ideas" theory.
• "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.'" — Justice Holmes, dissenting, advocating for a stricter application of the clear and present danger test.

• Schenck v. United States, 249 U.S. 47 (1919) — Cited by the majority as having definitively settled that the Espionage Act does not violate the First Amendment. This case established the "clear and present danger" test.
• Debs v. United States, 249 U.S. 211 (1919) — Cited by the majority for the procedural rule that a conviction on multiple counts stands if the evidence supports any one count and the sentence is lawful under that count.
• Frohwerk v. United States, 249 U.S. 204 (1919) — Cited by the majority alongside Schenck as precedent upholding the Espionage Act against First Amendment challenges.

• Espionage Act of 1917, § 3 (as amended by Act of May 16, 1918) — The statute criminalized conspiracies to utter disloyal language intended to bring the U.S. government into contempt, to incite resistance to the U.S. in war, or to urge curtailment of war material production with intent to hinder the war. The defendants were charged under this statute.

• Justice Holmes (Dissenting, joined by Justice Brandeis):
  • Argued the evidence failed to show the specific intent required by the statute to "cripple or hinder the United States in the prosecution of the war." The defendants' sole aim was to aid Russia and protest U.S. intervention there; any hindrance to the war was an indirect and undesired effect.
  • Refined the clear and present danger test, stating speech can only be punished if it is "intended to produce" a clear and imminent danger of a substantive evil Congress may prevent, or if it creates such an immediate danger. He found no such intent or danger here, calling the leaflets "silly" and published by an "unknown man."
  • Articulated the marketplace of ideas rationale for free speech, warning against punishing opinions "that we loathe and believe to be fraught with death" unless they pose an immediate, dangerous threat.
  • Concluded the defendants were being punished for their creed (anarchism), not for the specific charges, and that their 20-year sentences were a grave deprivation of their constitutional rights.