Abrams v. United States
250 U.S. 616 (1919)

  • Abrams and four other guys (all Russian nationals and avowed anarchists) were writing leaflets denouncing the US decision to send troops to Russia after the end of World War I, and for impeding the Russian Revolution.
    • The leaflets also called for a general strike, the end of production of munitions, and revolution.
  • Abrams et. al. were arrested and charged with violating the Espionage Act of 1917.
    • The Espionage Act (as amended by the Sedition Act of 1918), basically made it a crime to (among other things), “utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language” intended to cause contempt or scorn for the form of government of the US.
  • The five men were convicted of violating the Espionage Act and sentenced to 20 years in prison. They appealed.
    • They argued that the Espionage Act was an unconstitutional infringement on their 1st Amendment right to free speech.
  • The US Supreme Court upheld the conviction.
    • The US Supreme Court looked to Schenck v. United States (249 U.S. 47 (1919)) and Frowerk v. United States (249 U.S. 204 (1919)) and found there was a clear and present danger exception to freedom of speech.
      • The clear and present danger exception says that a law is constitutional if it can be shown that the language it prohibits poses a “clear and present danger.”
    • The Court found that Abrams et. al. were attempting to defame the US government, and during wartime, those actions were a clear and present danger.
  • In a dissent, it was argued that the leaflets were not serious or widely disseminated enough to actual constitute a danger to the US, and that the laws should be construed as narrowly as possible in order to maintain the “marketplace of ideas.”
    • The dissent differentiated ‘advocacy’ for ‘incitement’, and felt that advocacy was covered by the 1st Amendment.
    • Oddly, the dissent was arguing that you were only guaranteed 1st Amendment protections if you were small and irrelevant.