Justice Oliver Wendell Holmes’s iconic dissenting opinion in Abrams v. United States (1919) transformed the Clear and Present Danger Test from its status as an apology for the repression of speech to protection of the right, in times of peace and war, to criticize governmental conduct and authority. With his dissent, Holmes changed the horizons of protected speech.
Seldom in the annals of Supreme Court decisions has a dissenting opinion attained landmark status and pointed the way for a commitment to freedom and liberty. In an about-face, just nine months after his trail-blazing opinion in Schenck v. United States setting forth the danger test that all but denied protection for wartime challenges to governmental authority, Justice Holmes declared in Abrams that even during a war, “the principle of the right to free speech is always the same.” For Holmes, only “the present danger of immediate evil,” or the intent to bring it about, warrants restriction. Holmes’s reformulation of the danger test became a fundamental tenet of libertarianism.
The facts in Abrams were very similar to those in Schenck. While the United States was still engaged in World War I against Germany, Abrams and three colleagues distributed leaflets that called for a general strike and made special appeals to workers in munitions factories. Abrams was protesting America’s deployment of troops to “White Russia” in the context of the Russian revolution. He argued that the expeditionary force violated international law.
The Court upheld the conviction of Abrams for violating the Espionage Act of 1917, for the same reason that it had upheld the Espionage Act conviction of Schenck. The Court concluded that the purpose of Abrams’s’ leaflets was to undermine and obstruct the general war effort. Justice John Clarke wrote the Court’s opinion, which drew heavily upon Holmes’s reasoning in Schenck and declared that Abrams’ assertion of a First Amendment right to distribute the leaflets was “negatived by Schenck.”
Holmes could have written the majority opinion in Abrams, utilizing the danger test to limit, rather than protect speech, as he had in Schenck, but a summer of reading, reflection and dialogue with his critics, had changed his thinking about the formulation of the standard.
Joined in dissent by Justice Louis Brandeis, Holmes’s revised test in determining protected from unprotected speech was to identify a “specific” attempt to produce an unlawful act. The danger of an unlawful act, moreover, could not be remote, but must be “immediate.” Speech should be protected, Holmes held, “unless an immediate check is required to save the country.” Abrams’s leaflets, Holmes concluded, lacked the necessary elements of specificity and immediacy. Any connection between Abrams’s leaflets and illegal activity was simply too remote to justify conviction under the Espionage Act.
There was another decisive factor in Holmes’s reasoning, one borrowed from a critic of his opinion in Schenck that would resonate for decades in scholarly critiques. Abrams, Holmes declared, could not possibly have presented a Clear and Present Danger to the United States since he was but a “puny anonymity,” an “unknown man” – too inarticulate, uninfluential and unpersuasive—who wrote “a silly leaflet” that could not possibly rally the masses to obstruct America’s wartime campaign.
Holmes’s final paragraph accounts for the iconic status of his dissenting opinion. He focused there on the connection between free speech, the search for truth and the value of experimentation in the marketplace of ideas. His language stirred memories of the eloquent defense of freedom of speech supplied by John Milton and John Stuart Mill.
“Persecution for the expression of opinions seems to me perfectly logical,” Holmes wrote, “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 the free trade in ideas.” The best test of the truth of an idea, he asserted, is ability 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. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.”
Holmes’s appeal to the tolerance of ideas, even those that we loathe, precisely because “time has upset many fighting faiths,” has been characterized as a document of liberty. Premature governmental interference with speech will prevent the circulation, consideration and public scrutiny of opinions that power the engine of democracy and the formation of governing majorities.
Of course, there is no guarantee that the best ideas will emerge. It is possible that destructive ideas may gain prominence in the minds of Americans and dominate the marketplace. It is possible that a majority may form that temporarily imposes authoritarianism and censorship and closes the competition of the marketplace. There is no failsafe mechanism that affords protection from dangerous ideas, except for more speech, “speech to counteract speech,” as Justice Brandeis famously wrote in 1927, in Whitney v. California.
In the end, we place our trust in freedom of speech as a means of guiding and governing our nation. That is “the theory of our Constitution,” as Holmes wrote. There may be a better alternative, but it has yet to be suggested.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.