Transcript Espionage Act of 1917 - University of Missouri School of Law

Abrams v. United States
Russian immigrants convicted under Sedition Act of 1918 for circulating
leaflets calling for munitions strike. Charged with
1.
2.
3.
publishing “disloyal, scurrilous and abusive language” about the
U.S. government
publishing language “intended to incite… resistance” to war effort
and US gov’t during WWI
conspiring “to urge, incite and advocate” curtailment of munitions.
Sedition Act of 1918 prohibited these specific utterances (see p. 31).
Majority upheld convictions citing Schenck.
Justice Holmes (author of Schenck) dissented.
“Clear & Present Danger” in Schenck versus Holmes’s
Abrams dissent

Clear & present danger in Schenck:
 Whether the words used are in such circumstances and of such
a nature that they create a clear & present danger that they will
bring about the evil Congress trying to protect against

Holmes’s version of clear and present danger in Abrams:
 Only the present danger of immediate evil or an intent to bring
it about warrants Congress in setting a limit to the expression
of opinion.
How has the test evolved and why does it matter?
Were the speakers in Abrams as innocent under this test as Holmes
claims?
Holmes & the “Marketplace of Ideas” Justification for
Protecting Speech
 Holmes “marketplace of ideas” theory in Abrams (p. 39):
◦ “The ultimate good desired is better reached by free trade in ideas. ... The
best test of truth is the power of the thought to get itself accepted in the
competition of the market.”
 What does Holmes mean by this passage? Is his vision of truth seeking the
same as J.S. Mill’s (p. 15)?
 What problems arise with any sort of “truth-seeking” justification to
protecting speech?
The Masses Case (p. 39)
 Judge Hand’s approach re when speech violates Espionage Act:
◦ “One may not counsel or advise others to violate the law as it stands.
. . . If one stops short of urging upon others that it is their duty or
interest to resist the law, . . . one should not be held to have
attempted to cause its violation.”
 What does Hand’s focus on the content of the speech provide in terms
of protection of speech compared to the “clear and present danger” test
(which focuses on potential harm)? Disadvantages?
 Is Hand right that we should punish express counseling of law violation
even if it won’t obviously result in harm?