In SCHENCK V. UNITED STATES (1919) Justice OLIVER WENDELL HOLMES introduced the CLEAR AND PRESENT DANGER test in upholding the conviction under the ESPIONAGE ACT of a defendant who had mailed circulars opposing military CONSCRIPTION. Only nine months later, in very similar circumstances, the Supreme Court upheld an Espionage Act conviction and Holmes and LOUIS D. BRANDEIS offered the danger test in dissent. Abrams is famous for Holmes's dissent which became a classic libertarian pronouncement.
Abrams and three others distributed revolutionary circulars that included calls for a general strike, special appeals to workers in ammunitions factories, and language suggesting armed disturbances as the best means of protecting the Russian revolution against American intervention. These circulars had appeared while the United States was still engaged against the Germans in WORLD WAR I. Their immediate occasion was the dispatch of an American expeditionary force to Russia at the time of the Russian revolution. The majority reasoned that, whatever their particular occasion, the circulars' purpose was that of hampering the general war effort. Having concluded that "the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war" and that they urged munitions workers to strike for the purpose of curtailing the production of war materials, the opinion upheld the convictions without actually addressing any constitutional question. The majority obviously believed that the Espionage Act
might constitutionally be applied to speech intended to obstruct the war effort.
Justice Holmes mixed a number of elements in his dissent, and the mixture has bedeviled subsequent commentary. Although it is not clear whether Holmes was focusing on the specific language of the Espionage Act or arguing a more general constitutional standard, his central argument was that speech may not be punished unless it constitutes an attempt at some unlawful act; an essential element in such an attempt must be a specific intent on the part of the speaker to bring about the unlawful act. He did not read the circulars in evidence or the actions of their publishers as showing the specific intent to interfere with the war effort against Germany that would be required to constitute a violation of the Espionage Act.
His Abrams opinion shows the extent to which Holmes's invention of the danger...