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Abrams v. United States (1919)
U.S. Supreme Court
Background:
 Abrams and the other defendants were all born in Russia. They were intelligent and had
considerable schooling.
 Three of them testified as witnesses in their own behalf, and called themselves revolutionists
and they did not believe in government of any form and said they had no interest in the
government of the United States.
 The fourth said he was a socialist and believed in a proper form of government that was not
capitalistic and in his opinion the U.S. government was capitalistic.
 The leaflets were printed in English and Yiddish criticizing American intervention in the
Russian Revolution. They met in rooms rented by Abrams, who bought a printing outfit, and
installed it in a basement where the work was done at night. Some of the leaflets were
distributed by throwing them from a window where one of the defendants was employed.
 WWI was still in progress.
Main Points:
 Abrams and his colleagues were charged on 4 counts of conspiring:
1) “disloyal and abusive language about the form of Government of the United States”
2) the language “intended to bring the form of Government of the United States into
contempt”
3) the language "intended to incite, provoke, and encourage resistance to the United States in
said war”
4) “when the United States was at war with the Imperial German Government…unlawfully and
willfully ... to urge, incite and advocate curtailment of production of…ordnance and ammunition,
necessary and essential to the prosecution of the war”
 Although it was argued that the Espionage Act was unconstitutional and in conflict with
the First Amendment, it was argued briefly and proven otherwise:
On the record thus described it is argued, somewhat faintly, that the acts charged against
the defendants were not unlawful because within the protection of that freedom of speech and of
the press which is guaranteed by the First Amendment to the Constitution of the United States,
and that the entire Espionage Act is unconstitutional because in conflict with that Amendment.
This contention is sufficiently discussed and is definitely negatived in Schenck v. United States.
 According to Holmes there was not enough evidence to promote danger or hinder the
success of the government:
“Now nobody can suppose that the surreptitious publishing of a silly leaflet by an
unknown man, without more, would present any immediate danger that its opinions would hinder
the success of the government arms or have any appreciable tendency to do so.”
 They were found guilty by the original court:
“by bringing upon the country the paralysis of a general strike, thereby arresting the
production of all munitions and other things essential to the conduct of war...Thus ...the
defendants were guilty as charged...and...the judgment of the District Court must be Affirmed.”
 If in the event the threat poses no “clear and present danger,” the best place to dismiss
dangerous or disagreeable ideas is in the market place of ideas. Persuasion is more
persistent than imprisoning people with dangerous and disagreeable ideas.
“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.”
Question to Consider:
Did Abrams leaflet pose a clear and present danger to the United States?