Abrams v. the United States Upholds the Sedition Act: Holmes Dissents

Litigants in the Case; Jacob Abrams on Right

Note 1: The Sedition Act of 1918 was an Act of the United States Congress that extended the Espionage Act of 1917 to made it a crime to "willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of the Government of the United States" or to "willfully urge, incite, or advocate any curtailment of the production" of the things "necessary or essential to the prosecution of the war."

Background

In March 1919 the Supreme Court ruled 9–0 to uphold the constitutionality of the 1917 Espionage Act in Schenck v. United States. Oliver Wendell Holmes, who had been appointed to the court by Theodore Roosevelt in 1902, wrote the opinion. In his article “Freedom of Speech in War Time,” published in June 1919, Harvard Law School professor and First Amendment scholar Zechariah Chafee , Jr., criticized Justice Holmes for having done “nothing to emphasize the social interest behind free speech, and show the need of balancing even in war time” in his Schenck opinion. In November the court upheld the convictions of several radicals prosecuted under the 1918 Sedition Act in Abrams v. United States, but this time Holmes dissented, joined by Justice Louis Brandeis, whom President Wilson had appointed in 1916.

Oliver Wendell Holmes: 
from Dissenting Opinion in Abrams v. United States

In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow—a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here, but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court.

Mr. Justice Holmes

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you the result, or that you doubt either your power or your premises. 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. 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. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. 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.” Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

MR. JUSTICE BRANDEIS concurs with the foregoing opinion.
November 10, 1919

Note 2: Subsequent Supreme Court decisions, such as Brandenburg v. Ohio (1969), make it unlikely that similar legislation to the Sedition amendment to the Espionage Act would be considered constitutional today.

Sources:  World War I and America: Library of America Readers; Wikipedia