“Abrams” – Justice Holmes Delivers Landmark Dissent on Freedom of Speech
In Abrams v. United States, decided on this day, Justice Oliver Wendell Holmes, joined by Justice Louis Brandeis, delivered a historic dissent on the meaning of free speech in a democratic society.
Holmes and Brandeis had earlier upheld the convictions of World War I dissenters in Schenck v. United States, decided on March 3, 1919, holding that the convictions did not violate the First Amendment. Holmes developed the “clear and present danger” test in Schenck, a test that dominated First Amendment jurisprudence for decades.
In Abrams, Holmes had thought about the meaning of the First Amendment in the intervening months, and developed his famous dissent for the case. See the crucial part of his opinion, below.
As Legal historian Thomas Healy, has put it, “the future of free speech was changed forever.” Holmes’s “dissent continues to influence our thinking about free speech more than any other single document.”
Jacob Abrams had been arrested and convicted under the Espionage Act (passed on June 15, 1917) and the Sedition Act (May 16, 1918) for distributing two leaflets opposing U.S. aid to the opponents of the Bolshevik Revolution in Russia. He was sentenced to 10 to 20 years in prison. The Supreme Court upheld his conviction, but the dissent by Holmes and Brandeis marked the beginning of a new interpretation of the First Amendment that eventually influenced the course of Constitutional law.
Justice Holmes: “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. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.”
Must reading: Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind –and Changed the History of Free Speech in America (2013)
Read the full story of the case: Richard Polenberg, Fighting Faiths: The Abrams Case, The Supreme Court, and Free Speech (1987)
Read about the full history of freedom of speech in wartime: Geoffrey Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004)