Reflections on ‘the most powerful dissent in American history’ one century later
By: Lisa Hoover
November 10th marked the 100 year anniversary of a very important 1st Amendment decision: Abrams v. United States. The case involved the review of the now infamous Espionage Act.
The 1917 Espionage Act stated that “whoever, when the United States is at war, shall wilfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both,” among other things. (Emphasis added.)
The Abrams case arose when Russian immigrants “circulated literature calling for a general strike in ammunition plants to undermine the US war effort” following the United States’ participation in a military operation in Russia against Germany in 1918. The defendants in the case were convicted under the Espionage Act and sentenced to 20 years in prison. Specifically, the defendants were accused of throwing leaflets from windows that “denounced the war and advocated for the cessation of the production of weapons” and “the sending of American troops to Russia,” according to Oyez.org’s summary.
The US Supreme Court was called on to address whether this particular application of the Espionage Act violated the 1st Amendment’s free speech clause. The majority, consisting of Justices White, McKenna, Day, Van Devanter, Pitney, McReynolds and Clarke held that the leaflets did violate the Espionage Act, and that Congress’ decision that propaganda (such as that distributed by defendants) posed a danger to the war effort that was sufficient to justify prosecution. Free speech protections are lower during war time, the court said.
However, the dissent in the case, called by The Atlantic “the most powerful dissent in American history,” turned out to be the more important opinion. In his dissent, Oliver Wendell Holmes argued that the 1st Amendment protects the right to critique the government, and that right should only be curtailed when there is a “present danger of immediate evil,” which was not the case here. This test, first introduced by Holmes in Schenck v. United States (also about the Espionage Act) earlier that year, is more commonly known as the “clear and present danger” test.
The Schenk and Abrams opinions by Holmes were fairly remarkable for the time. “Despite its centrality to our culture today, the First Amendment in the early 20th century was largely a dead letter. The Supreme Court had never upheld a free speech claim, and lower courts had approved the censorship of books and films, the prohibition of street-corner speeches and bans on labor protests and profanity,” according to Seton Hall Professor Thomas Healy.
Healy argues that Holmes, who had not previously been very supportive of strong free speech, “was troubled by the wave of persecution that swept the country once the dangers of war had passed,” particularly after the experiences of his friends Harold Laski and Felix Frankfurter (a name you may recognize as another eventual Supreme Court justice).
As part of this change, Holmes rejected the previously used “bad tendency test,” moving to the more rigorous “clear and present danger” standard.
In Abrams he argued 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.” Holmes’ view of free speech eventually became the majority view.
His free market metaphor for speech, so reminiscent of economic theory, continues to cause debate today. In libraries, many of us struggle with how to balance the ideal of free exchange of ideas with the protection of our more vulnerable patrons who might be hurt by totally unfettered speech.
Those who argue that not all speech belongs in a library might identify with another statement by Holmes, as interpreted by Healy, that “‘general propositions do not decide concrete cases,’ by which he meant that the law is not a game of logic in which judges reason abstractly from some ‘articulate major premise.’ Decisions, he believed, depend on ‘more subtle’ intuitions and judgments that are informed by experience.”
Holmes seems to be arguing that one size does not fit all, and that some specific incidents might justify deviating from the rule. And, as is so often the case with the law, the “rules” for interpreting free speech claims tend to be open to interpretation anyway.
The very flexibility of case law leaves so many questions for those implementing it. Where is the line? Each librarian must ultimately decide for herself, within the bounds of the law, the Library Bill of Rights and other ethical guidelines, and her own library’s policies. Toward that end, I will leave you with another quote by Holmes from Abrams:
“That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
Cohen, A. (2013) The most powerful dissent in American history. The Atlantic. Retrieved from https://www.theatlantic.com/national/archive/2013/08/the-most-powerful-dissent-in-american-history/278503/ November 12, 2019.
Healy, T. (2019) The Unlikely Birth of Free Speech. The New York Times. Retrieve from https://www.nytimes.com/2019/11/09/opinion/free-speech-holmes-supreme-court.html November 12, 2019.
Oyez.org (2019) Abrams v. United States. Oyez.org. Retrieved from https://www.oyez.org/cases/1900-1940/250us616 November 12, 2019.
Lisa Hoover is a Public Services Librarian at Clarkson University and an Adjunct Professor in criminal justice at SUNY Canton. In addition to her MLS, Lisa holds a JD and an MA in political science. She began her career as an editor and then manager for a local news organization, adjunct teaching in her “spare time.” She teaches courses in criminal procedure, criminal law and constitutional law. She is passionate about 1st Amendment issues. She recently began her career as a librarian, starting at Clarkson University in June 2017 teaching information literacy sessions and offering reference services. Lisa and her husband Lee live in Norwood, New York with their cats Hercules, Pandora and Nyx and pug-mix Alexstrasza (Alex). Find her on Twitter @LisaHoover01.
The literature circulated was against the United States participation in the invasion of Soviet Russia against the Soviet government NOT “the United States’ participation in a military operation in Russia against Germany in 1918.”
Thanks for the feedback, but It doesn’t say that the literature was protesting US participation in 1918:
“The Abrams case arose when Russian immigrants “circulated literature calling for a general strike in ammunition plants to undermine the US war effort” FOLLOWING the United States’ participation in a military operation in Russia against Germany in 1918…. accused of throwing leaflets from windows that “denounced the war and advocated for the cessation of the production of weapons” and “the sending of American troops to Russia,” according to Oyez.org’s summary.”
While you are correct regarding the “Oyez.org summary”, the troops were sent to Archangelsk & Vladivostok in the North and Far East of Soviet Russia – hardly a military operation against Germany as Oyez.org states. This is important given how the Espionage Act has been used since – after WWI against the left (Palmer Raids) & more recently against Whistleblowers & journalists.