Abrams v. United States Russian immigrants convicted under Sedition Act of 1918 for circulating leaflets calling for munitions strike. Charged with publishing.

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Presentation transcript:

Abrams v. United States Russian immigrants convicted under Sedition Act of 1918 for circulating leaflets calling for munitions strike. Charged with 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 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?