Abrams et al. v. United States provided Oliver Wendell Holmes with an opportunity to redefine the "clear and present danger" doctrine he had enunciated in the Schenck, Frohwerk, and Debs decisions. The story of the Abrams case and its impact on free speech is engagingly told by Richard Polenberg in Fighting Faiths: The Abrams Case, The Supreme Court, and Free Speech.

During war - World War I being no exception - public officials try to suppress any criticism of their actions perhaps from a sense of insecurity in the correctness of their actions. Even Lincoln was reluctant to permit criticism of his conduct of the war, and his abuse of traditional habeas corpus protection is well known. John Adams and the Federalists attempted to use the original Alien and Sedition Acts to suppress Thomas Jefferson and his Republicans in the early days of the republic. The abuse of personal liberties by the Federalists contributed to their demise, a repercussion that should have given pause to the creators of the Sedition Act of 1918.

Ironically it was a Montana rancher who provided the impetus for the infamous act that was to convict Abrams and his cohorts. Ves Hall was unhappy with Wilson's entry of the United States into World War I and he was quite vocal in his denunciation of both the war and President Wilson. He was charged and tried under provisions of the 1917 Espionage Act which made it a crime to interfere with the armed forces, among other things. A foresighted Montana judge ordered a directed verdict of acquittal declaring that a person's opinions, however false or wicked (or correct for that matter) could not be considered interference. The resulting storm of controversy convinced the Montana legislature in righteous pique to pass a law outlawing profane or abusive language directed at the United States or its institutions (sound familiar?). A similar law became the federal Sedition Act of 1918, which prohibited virtually any criticism of the government.

The Republicans feared the act. They suspected it might disallow their vicious criticism of the Wilson administration, but they supported the bill, afraid to appear "un-American," rationalizing that "true" Republican speech was OK, "false" radical speech was not.
Abrams and his fellow anarchists were arrested for distributing leaflets that opposed American intervention in the Russian Revolution. (Wilson had sent 7,000 troops ostensibly to support 70,000 Czech soldiers who left the Russo-German front after the Bolsheviks signed a peace treaty with the Kaiser.) The anarchists' defense was, in part, that they were not criticizing the war effort with Germany, rather American actions toward the Soviet Union.

The case was brought before Judge Henry Clayton, a passionate believer in pastoralism, paternalism and patriotism. His brother had been killed in the war shortly before the armistice, and he was adamantly against anything German and immigrants in general. The anarchists were promptly sentenced to 20 years in jail. Ironically, their bail while they were awaiting appeal was paid in Liberty Bonds.
Their position was uncomfortable: if their appeal failed, they would be sent to jail for a long time, if it succeeded and their conviction were to be overturned, they would be banished immediately; a xenophobic Congress had legislated that anyone believing in anarchy should be deported immediately.

Schenck had mailed leaflets protesting the draft. Holmes, in a most persuasive argument, denied their right to distribute such a document arguing that during wartime normal standards of free speech did not apply. His famous analogy compared it to the man who shouts "fire" in a crowded theater. It was in this decision that he first enunciated the "clear and present danger" doctrine. The Frohwerk and Debs decisions reinforced this position. The principle was used to limit speech rather than to protect it.

Several other cases on the docket gradually persuaded Holmes to revise this standard. He was beginning to have second thoughts, particularly after reading arguments by Judge Learned Hand and Zechariah Chafee who asserted that while the First Amendment did not protect all speech, it was important for the court to decide where to draw the line. The "clear and present danger" standard needed to be redefined from the standpoint of incitement. Does the "speech" cause direct and imminent dangerous interference with the conduct of the war. For example, publishing the sailing dates of troop ships would clearly present a danger to the safety of those troops.

The Abrams case furnished the opportunity for Holmes to elaborate on his earlier decisions. His (and Brandeis') dissent in Abrams asserted that intent and imminent danger were intrinsically important. The anarchists' pamphlets were clearly not in the same category as publishing sailing dates. "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....That at any rate is the theory of our Constitution....I think we should be eternally vigilant against attempts to check expression of opinions that we loathe and believe fraught with death...." Holmes would permit any speech unless "an immediate check is required to save the country."

Such a standard would not have convicted Abrams. Neither would it have convicted Schenck or Frohwerk or Debs, however. The dissent was not enough to prevent the deportation of the anarchists (at their own expense) to Russia where their welcome was not as pleasant as they would have hoped. Russia was cracking down on its own anarchists who were becoming a thorn in the side of the communist bureaucracy. Many were deported. (Ironically, some were sent to the U.S.)

Paradoxically, had President Wilson followed his initial instinct to pardon all the political prisoners there would have been no "clear and present [later revised by Holmes to 'imminent':] danger" standard to provide the foundation for the expansion of freedom of speech. Brandenburg v. Ohio (1969) further defined imminent danger. In this case, which involved a Ku Klux Klan official who had spoken out in favor of violence against blacks et al, the Supreme Court said for speech to be suppressed there must be a close relationship between speech and action; that is, "the constitutional guarantees of free speech...do not permit a state to proscribe advocacy of the use of force or law violation except [emphasis mine:] where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (Encyclopedia of the American Constitution) Thus we have to thank two very unpopular groups, the KKK and anarchists, for their inadvertent expansion of free speech for us all.


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