In Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L. Ed. 1173 (1919), the U.S. Supreme Court applied the CLEAR AND PRESENT DANGER test in upholding the conviction of five anti-war protestors, who had been charged with SEDITION for distributing pamphlets criticizing President WOODROW WILSON during WORLD WAR I. However, the case is remembered more for the lone dissenting opinion written by Justice OLIVER WENDELL HOLMES JR., architect of the original clear-and-present-danger test just eight months earlier. Holmes's dissent argued that
FREEDOM OF SPEECH cases analyzed under the FIRST AMENDMENT to the U.S Constitution must be subjected to a heightened level of judicial scrutiny before legislation abridging free expression could be upheld, a level of scrutiny that was eventually adopted by a majority of the Court for the balance of the twentieth century.
The case began on August 23, 1918, when Jacob Abrams, a Russian immigrant and a professed anarchist, was arrested in New York City with four others. Abrams and his comrades admitted to writing, printing, and distributing two sets of leaflets, one in English and one in Yiddish, assailing President Woodrow Wilson as a "coward" and a "hypocrite" for sending troops to fight the Soviet Union during World War I. The Yiddish leaflet called for a general strike among all workers to protest against Wilson's policy.
Abrams and the other defendants were charged with violating the Sedition Act. This act made it a crime to "willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive" language about the form of government in the United States or language that was intended to bring that form of government "into contempt, scorn, contumely, and disrepute," or language that was "intended to incite, provoke, and encourage resistance to the" U.S. war effort. The act also made it illegal to "willfully urge, incite, or advocate [the] curtailment" of manufacturing and production efforts "necessary and essential to the prosecution of the war."
While the five defendants in Abrams were released on bail during March 1919, the Supreme Court issued two decisions upholding the convictions of several other antiwar protestors. In the first case, the Court affirmed the convictions under the 1917 Espionage Act. SCHENCK V. UNITED STATES, 249 U.S. 47, 39 S.Ct. 247, 63 L. Ed. 470 (1919). In the other case, the Court affirmed the convictions under the 1918 Sedition Act. Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L. Ed. 566 (1919). Both decisions were unanimous, and both decisions were written by Justice Holmes.
In Schenck, Holmes articulated what has become known as the "clear-and-present danger" doctrine, a doctrine by which the constitutionality of laws regulating subversive expression are evaluated in light of the First Amendment's guarantee of free speech. "The question in...