Abrams v. United States

SUPREME COURT OF THE UNITED STATES

250 U.S. 616

ABRAMS et al. v. UNITED STATES.

No. 316. Argued: Oct. 21 and 22, 1919 --- Decided: Nov. 10, 1919.

Mr. Harry Weinberger, of New York City, for plaintiffs in error.

Mr. Assistant Attorney General Robert P. Stewart, for the United States.

The 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the progress of the war. The 1918 Amendment is commonly referred to as if it were a separate Act, the Sedition Act of 1918.

The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building in New York City. One leaflet, signed "revolutionists", denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution and advocated the cessation of the production of weapons to be used against Soviet Russia.

The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were sentenced to 20 years in prison. The Supreme Court ruled 7–2 that the Act did not violate the freedom of speech protected by the First Amendment. Justice John Hessin Clarke used a relatively restrictive speech test – "bad tendency" – to uphold the conviction. Justices Oliver Wendell Holmes and Louis Brandeis dissented and said that the more speech protective standard – "clear and present danger" – ought to be applied to overturn the conviction. The case was ultimately overturned during the Vietnam War era in Brandenburg v. Ohio (1968) where the Court adopted the "incitement to imminent lawless action" standard – a test even more speech protective than "clear and present danger."