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Justice Holmes–Dissenting in Abrams v. United States

Citation. 250 U.S. 616, 624, 40 S.Ct. 17, 20, 63 L.Ed. 1173, 1178 (1919).
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Brief Fact Summary.

During WWI, Abrams and his colleagues distributed leaflets supporting Russia against the U.S. and calling upon workers to unite in a general strike. They were convicted for violating the 1917 Espionage Act.

Synopsis of Rule of Law.

The application of the 1917 Espionage Act in this case does not violate the Free Speech Clause of the First Amendment.


During WWI, Abrams and 4 other Russian immigrants living in New York City printed and distributed leaflets condemning U.S. intervention in the Russian civil war involving the Bolsheviks. In the course of an appeal to American workers, one leaflet advocated a general strike and a resort to arms if the U.S. intervened in Russia. Abrams and his colleagues were sentenced to 20 years in prison for violating the 1917 Espionage Act. Abrams argued that the convictions were unconstitutional and in violation of the Free Speech Clause of the First Amendment.


Do the defendants’ convictions violate the Free Speech Clause of the First Amendment?


No, the defendants’ convictions do not violate the Free Speech Clause of the First Amendment and are upheld.


Justice Holmes

The First Amendment protects the right to dissent from the government’s viewpoints and objectives. Protections on speech should not be curtailed unless there is a present danger of immediate evil, or the defendant intends to create such a danger. The evidence in this case consisted of two leaflets, which does not meet the “clear and present danger” test. Nobody can suppose that the publishing of a leaflet by an unknown man, without more, would present any immediate danger such that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.


42 U.S.C. Section 1982 was intended to prohibit all discrimination against blacks in the sale and rental of property, including not only governmental discrimination but also private discrimination. Moreover, the Thirteenth Amendment, which abolished slavery and established universal freedom, gives Congress the authority to eliminate racial barriers to the acquisition of property because they are “badges and incidents of slavery.” When racial discrimination forces certain people into ghettos and makes their ability to buy property turn on the color of their skin, that is a relic of slavery.

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