- Abrams v. United States
Infobox SCOTUS case
Litigants=Abrams v. United States
FullName=Jacob Abrams, et al. v. United States
Citation=40 S. Ct. 17; 63 L. Ed. 1173; 1919 U.S. LEXIS 1784
Prior=Defendants convicted, U.S. District Court for the Southern District of New York
Holding=Defendants' criticism of U.S. involvement in World War I was not protected by the First Amendment, because they advocated a strike in munitions production and the violent overthrow of the government.
JoinMajority=White, McKenna, Day, Van Devanter, Pitney, McReynolds
LawsApplied=U.S. Const. amend. I; 50 U.S.C. § 33 (1917)
Brandenburg v. Ohio", ussc|395|444|1969
"Abrams v. United States", 250 U.S. 616 (1919), was a decision of the
United States Supreme Courtinvolving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to criticize the U.S. federal government. The Court ruled 7-2 that the Act did not violate civil rightsunder the First Amendment, with Justices Oliver Wendell Holmes and Louis Brandeisdissenting. The case was overturned during the Vietnam Warera in " Brandenburg v. Ohio".
In this famous dissent, Holmes declared that the issue here was one of fact and degree. He continued with the test that he laid out in the earlier free speech cases such as "
Schenck v. United States", which was to look at whether there is a clear and present dangerthat would justify the regulation of the content of the speech. Without such a danger, regulation of speech content was presumptively invalid. But here, unlike where Holmes wrote for the majority, he didn't defer to the legislature. Some experts point to this as the birthing of modern constitutional law – the court was finally accepting that law and politics were not radically different.
"Government may regulate speech that produces or is intended to produce a clear and imminent danger".Fact|date=October 2008 Here, like in his previous majority opinions, he focused on that intent. The argument for this was that the activity with the intent was more likely to cause such a result than a comparable activity without such an intent. The focuses on intent may have been part of the likelihood of causation of a tangible harm analysis. However, critics claimed that there is another, and very problematic, way of reading this. They focused on Holmes' description of the case, as the "surreptitious publishing of a silly leaflet by an unknown man," and therefore there was not a clear and present danger here. What danger could those “puny” people pose to anyone? The critics claimed that this was not a great way to make the freedom of speech argument, because under such a formula you only got protection if you were poor, puny and irrelevant. For the most part, this type of argument had drifted out of the law.
In explaining why they should not have regulated speech content when there was no imminent danger, Holmes wrote 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.” There is a market, one that tends to produce at least provisionally good results. Therefore, “normally, we should leave the correction of evil councils to time.”
List of United States Supreme Court cases, volume 250
* [http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Abrams_v_US First Amendment Library entry for "Abrams v. United States"]
*cite journal |last=Chafee |first=Zechariah |authorlink=Zechariah Chafee |coauthors= |year=1919 |month= |title=Freedom of Speech in Wartime |journal=Harvard Law Review |volume=32 |issue= |pages=932–973 |doi=10.2307/1327107 |url= |accessdate= |quote=
*cite book |title=Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech |last=Polenberg |first=Richard |authorlink= |coauthors= |year=1999 |publisher=Cornell University Press |location=Ithaca |isbn=0801486181 |pages=
*cite journal |last=Pollock |first=S. F. |authorlink= |coauthors= |year=1920 |month= |title="Abrams v. United States" |journal=Law Quarterly Review |volume=36 |issue= |pages=334 |issn=0023933X |url= |accessdate= |quote=
*cite book |chapter=Schenck v. United States and Abrams v. United States |last=Smith |first=Stephen A. |title=Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions |editor=Parker, Richard A. (ed.) |year=2003 |publisher=University of Alabama Press |location=Tuscaloosa, AL |isbn=081731301X |pages=20–35
* [http://laws.findlaw.com/us/250/616.html Full text of the decision courtesy of Findlaw.com]
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