Abrams v. United States: The Evolution of Free Speech

After Schenck, it seemed to many legal analysts that the clear and present danger test would reign in determining legal restrictions on free speech. After all, Holmes’ majority opinion in this case and Frohwerk and Debs had invoked the test with the blessing of a majority of the other Justices. However, a Court case that would seem to banish Holmes’ reasoning was only eight months away. With the case Abrams v. United States, the Court would also uphold a conviction and reaffirm the government’s right to curb certain forms of speech, but with a different line of reasoning known as the bad tendency test.

In 1918, a Russian immigrant named Abrams and four others were convicted of violating the Espionage Act after passing out literature criticizing President Wilson for sending troops to Russia. They also called for a general strike, which they hoped would paralyze the US war economy and prevent her from intervening abroad. They were charged of acting with the intent to “cripple or hinder the United States in the prosecution of war.”

This time, it was Justice Clarke who delivered the majority opinion. Clarke wrote that the intent of the literature was nothing less than “to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution in this country.” The inflammatory and seditious language used, he ruled, had a tendency to bring about highly undesirable and evil consequences, and thus fell within the realm of government suppression. Therefore the Court upheld the conviction against the workers, establishing the bad tendency test. Suddenly, the new standard was whether the words used by defendants had a tendency to bring evil consequences, rather than whether or not the words brought the immediate threat of harm or danger.

Justice Holmes knew that his contribution to constitutional interpretation of freedom of expression had been rejected, and he wrote a futile dissenting opinion in which he argued that the clear and present danger test could be used in a number of contexts to properly protect freedom of speech while also asserting law and order. He was only joined by one other member of the Court, Justice Brandeis.

So why did the Court, which had only months ago seemed to firmly in Holmes’ camp, turn away from the clear and present danger test? Part of the explanation has to lie in the national mood and sense of panic that had befallen America. In a time of patriotic fervor as World War I drew to a close, combined with the rising fear of Communism, everyday people as well as politicians and even Supreme Court Justices felt a strong need for national unity. Crackdowns on dissent and criticism of American policies simply came more naturally to people during these uncertain times.

An even more important cause for the swing may be found in the inherent nature of the Supreme Court. Throughout its history the Court has frequently established tests, only to abandon them and then return to them at a later date. Justices would often clash bitterly with one another, write searing dissenting opinions, and wait for the day that the Court’s ideological bent would change, as it inevitably would. This fluidity in Court doctrine would always give the Court a certain degree of unpredictability in the long term. In 1920, it had ruled on very few cases revolving around free speech. After Clarke’s opinion, it would soon enter unfamiliar territory as it weighed the constitutionality of state, not national, restrictions and how they could fit in a time of unprecedented federal expansion of power.

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