[Justice Holmes’s Great Dissent in . . .] Abrams v. United States, 250 U.S. 616 (1919).
Issue: Even though Jacob Abrams’s World War I protests caused him to be convicted under the Espionage Act of 1917 and its “Sedition” amendment of 1918, this case resulted in a might dissent spelling out Justice Oliver Wendell Holmes view of the core meaning of the First. Please note that Holmes is famously remembered for his unanimous 9-0 opinion for the Court in Schenck v. United States (1919). In that case, Holmes asserted that speech not punishable in peacetime could be punished during a war. “The most stringent protefection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”25 Famous statement or not, Holmes’s Schenck majority opinion—which perhaps was written in hopes of protecting some protesters, did not do so. Schenck was convicted under the Espionage Act, as were others. The remainder of the Court moved to more a more punitive approach, gauging the speaker’s intent (a prosecutor’s delight!) and getting past “present danger” to possible danger.
Holmes and another great Justice, Louis D. Brandeis, dissented from this mnoire punitive approach by the Court. Consider this moving excerpt from Holmes’s dissent in Abrams v. United States:26
In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution now vainly invoked by them. [Abrams and co-defendants.] * * I*
Persecution for the expression of opinions seems to me to be perfectly logical. If you have no doubt of your premises or your power and want a certain result you naturally express your wishes in law and sweep away all opposition. * * * But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own beliefs that the ultimate good desired is best reached by free trade in ideas
--that the best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our constitution. It is an experiment, as all life is an experiment. Every year if not every day we wager our salvation upon some prophecy based upon imperfect knowledge.
25 Schenck v. United States, 247 U.S. 47, 51 (1919).
26 Abrams v.United States, 250 U.S. 616, 621 (1919).