Adler: Abrams’ Dissent: New Life for Free Speech | Columns

David Adler

The iconic dissenting opinion of Justice Oliver Wendell Holmes in Abrams v. United States (1919) transformed the test of clear and present danger from its status as an excuse for the suppression of speech to the protection of the right, in peace and war, to criticize the government. leadership and authority. With his dissent, Holmes changed the horizons of protected speech.

Rarely in the annals of Supreme Court decisions has a dissenting opinion achieved historic status and paved the way for a commitment to freedom and liberty. In an about-face, just nine months after his pioneering opinion in Schenck v. United States setting out the danger test which virtually denied protection for wartime challenges to governmental authority, Justice Holmes said in Abrams that even during a war, “the principle of the right to free speech is always the same. For Holmes, only “the present danger of immediate harm,” or the intent to cause it, warrants restriction. Holmes’ reformulation of the danger test has become a fundamental tenet of libertarianism.

The facts in Abrams were very similar to those in Schenck. While the United States was still engaged in World War I against Germany, Abrams and three colleagues distributed leaflets calling for a general strike and issued special appeals to munitions factory workers. Abrams was protesting against the deployment of American troops in “White Russia” in the context of the Russian revolution. He argued that the expeditionary force violated international law.

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The Court upheld Abrams’ conviction for violating the Espionage Act of 1917, for the same reason it had upheld Schenck’s Espionage Act conviction. The Court found that the purpose of Abrams’ tracts was to undermine and hinder the overall war effort. Judge John Clarke wrote the court’s opinion, which drew heavily on Holmes’ reasoning in Schenck and said Abrams’ assertion of a First Amendment right to distribute the leaflets was “negative by Schenck “.

Holmes could have written the majority opinion in Abrams, using the danger test to limit, rather than protect speech, as he had done in Schenck, but a summer of reading, reflection and dialogue with his detractors had changed its thinking on the wording of the standard.

Joined in dissent by Judge Louis Brandeis, Holmes’ revised test for determining protection from unprotected speech was to identify a “specific” attempt to produce an unlawful act. Moreover, the danger of an unlawful act cannot be remote, but must be “immediate”. Speech must be protected, Holmes said, “unless immediate control is needed to save the country.” Abrams’ tracts, Holmes concludes, lacked the necessary elements of specificity and immediacy. Any connection between Abrams’ tracts and illegal activity was simply too remote to warrant a conviction under the Espionage Act.

There was another decisive factor in Holmes’ reasoning, one borrowed from a critic of his opinion in Schenck that would resonate in scholarly criticism for decades. Abrams, said Holmes, could not have presented a clear and present danger to the United States since he was only a “puny anonymity”, an “unknown man” – too inarticulate, uninfluenced and unconvincing. – who wrote “a stupid tract” that could not rally the masses to hinder the American war campaign.

Holmes’ final paragraph captures the iconic status of his dissenting opinion. In it he focused on the link between freedom of expression, the search for truth and the value of experimentation in the marketplace of ideas. His language evoked memories of the eloquent defense of free speech provided by John Milton and John Stuart Mill.

“Persecution for the expression of opinions seems to me perfectly logical,” Holmes wrote, “but when men realize that time has upset many warring religions, they may come to believe even more than they believe in very foundations of their own conduct that the ultimate desired good is best achieved through the free exchange of ideas. The best test of an idea’s truth, he asserted, is its ability to gain “acceptance in the competition of the market – and this truth is the only foundation on which their wishes can be safely realized”. In any case, this is the theory of our Constitution. It is an experience, as all life is an experience.

Holmes’ call for tolerance of ideas, even those we hate, precisely because “time has upset many warring religions,” has been called a document of freedom. Premature government interference in discourse will prevent the circulation, consideration and public scrutiny of opinions that fuel the engine of democracy and the formation of ruling majorities.

Of course, there is no guarantee that the best ideas will emerge. It is possible that destructive ideas will gain prominence in the minds of Americans and dominate the market. It is possible that a majority will form that temporarily imposes authoritarianism and censorship and shuts down market competition. There is no safety mechanism that offers protection against dangerous ideas, except more speech, “speech to thwart speech”, as Judge Brandeis wrote in 1927, in Whitney vs. California.

Ultimately, we place our trust in free speech as the means to guide and govern our nation. It is “the theory of our Constitution”, as Holmes wrote. There may be a better alternative, but it hasn’t been suggested yet.

David Adler, PHD, is a renowned author who lectures nationally and internationally on the Constitution, Bill of Rights, and Presidential Power. His academic writings have been cited by the United States Supreme Court and lower courts by Democrats and Republicans in the United States Congress. Adler’s column is supported in part by a Wyoming Humanities grant funded by the “Why it Matters: Civic and Electoral Participation” initiative, administered by the Federation of State Humanities Councils and funded by the Andrew Foundation W. Mellon. Adler can be contacted at [email protected]

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