On November 10, 1919, the Supreme Court upheld the convictions of a group of Russian-born immigrants in New York whose crime was throwing leaflets out of a window. Three of them had been sentenced to twenty years in federal prison, one to fifteen years and one to three. The vote was 7 to 2. The next day the country marked the first Armistice Day, one year after the guns stopped on the Western Front.
The case is Abrams v. United States (1919), 250 U.S. 616, and it holds a strange place in American law. It is one of the most cited free speech cases ever decided, and almost nobody cites it for what the Court held. People cite the losing side. This post explains what the leafleteers did, why the majority sent them to prison, how Justice Oliver Wendell Holmes Jr. came to argue the other way, and how his dissent became the rule we live under now.
Leaflets over a Manhattan street
In the summer of 1918, the United States sent troops into Russia, to the far north and to Siberia, while the war against Germany was still being fought in France. To a small circle of young anarchists and socialists on the Lower East Side, most of them immigrants from the Russian empire, this looked like an attack on the revolution they had cheered from afar.
So they printed leaflets. One was in English and one in Yiddish. They denounced the intervention, attacked President Wilson in harsh terms, and called on workers to answer with a general strike. The Yiddish leaflet spoke directly to workers in munitions plants, telling them that the weapons they made would be used against Russians as well as Germans. In late August 1918, some of the group tossed copies from an upper-floor window of a lower Manhattan building where one of them worked, and others handed them out.
The defendants included Jacob Abrams, Mollie Steimer, Samuel Lipman, Hyman Lachowsky and Hyman Rosansky. Another member of the group, Jacob Schwartz, died before the trial.
They were charged under the 1918 amendments to the Espionage Act, usually called the Sedition Act of 1918. The law reached far beyond spying. Among other things, it made it a crime to use disloyal, scurrilous or abusive language about the American form of government, and to urge any cutback in the production of things needed for the war with intent to cripple or hinder the war effort. Juries convicted. The defendants appealed, arguing that the law violated the First Amendment and that the evidence did not show the intent the statute required.
What the Court decided
Justice John H. Clarke wrote for the seven-justice majority, which affirmed the convictions. To affirm means the higher court leaves the lower court's judgment in place; here it meant the prison sentences stood.
The First Amendment argument got short treatment. Earlier that year the Court had upheld wartime convictions in Schenck v. United States (1919) and Frohwerk v. United States (1919), and the majority treated the constitutional question as settled by those cases.
The real fight was over intent. The defendants said their goal was to defend the Russian revolution, not to damage the war against Germany. The United States was not at war with Russia, so, they argued, they could not have meant to hinder the war the statute protected. The majority rejected this. Its reasoning was that people are presumed to intend the natural results of what they do. A general strike in munitions plants would necessarily slow the production of weapons needed against Germany, whatever the strikers hoped to achieve in Russia. That was enough.
Notice the mechanism. Under the majority's approach, the government did not have to show that the leaflets had any effect, or were likely to have one. It only had to show that the words urged something that, if it happened, would harm the war effort. That standard could reach almost any antiwar argument.
The same justice, eight months apart
We usually think of a great dissent as a lonely stand by someone who believed the same thing all along. Abrams is more interesting than that. It is a record of a powerful person changing his mind in public, and that is rarer than courage.
In March 1919, Holmes himself had written the Court's opinion in Schenck v. United States (1919), upholding the conviction of socialists who mailed antiwar leaflets to draftees. That opinion gave the country the phrase “clear and present danger” and the famous image of a man falsely shouting fire in a theatre. The same month, Holmes wrote for a unanimous Court in Frohwerk v. United States (1919) and Debs v. United States (1919), upholding the conviction of the Socialist leader Eugene Debs for an antiwar speech. In each case, the speech lost.
Between spring and fall, Holmes heard from critics. Harvard law professor Zechariah Chafee published an article, “Freedom of Speech in War Time,” in the June 1919 Harvard Law Review, arguing that the First Amendment protected far more wartime dissent than the Court had allowed. Holmes also corresponded with Judge Learned Hand, who as a trial judge in Masses Publishing Co. v. Patten (1917) had taken a more protective view of political speech. Historians still debate how much each conversation mattered. What is clear is the result on paper.
In Abrams, Holmes dissented, joined by Justice Louis Brandeis. He kept the phrase “clear and present danger” but gave it teeth. The government could punish speech that produced, or was meant to produce, an immediate danger of serious harm. A secretly distributed leaflet from unknown people posed no such danger. He also took the intent requirement seriously: the statute required intent to hinder the war with Germany, and these defendants were trying to stop the intervention in Russia. He called the sentences far out of proportion to what they had done, and suggested they were being punished for their beliefs.
Then he went further than any justice had gone, and wrote the passage the case is remembered for:
“the ultimate good desired is better 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”
The argument is about humility. People who are sure they are right are tempted to silence those who disagree. Holmes argued that the history of certainty is a history of being wrong, so the Constitution bets on open argument instead. Bad ideas are answered, not jailed, unless they create an immediate danger that leaves no time for an answer.
How the dissent became the rule
The dissent did not win quickly. In Gitlow v. New York (1925), the Court assumed that the First Amendment's free speech guarantee applied to the states through the Fourteenth Amendment, but it still upheld a conviction for publishing a left-wing manifesto. Holmes dissented again, with Brandeis. In Whitney v. California (1927), the Court upheld the conviction of a woman for helping organise a Communist group. Brandeis wrote a concurrence, joined by Holmes, arguing that the answer to dangerous speech is more speech, unless the danger is so immediate there is no time for discussion.
The road was not straight. In Dennis v. United States (1951), the Court upheld the convictions of Communist Party leaders under the Smith Act, using a version of the clear-and-present-danger test that weighed how grave the feared harm was against how unlikely it was. That approach let the government reach advocacy of a distant revolution.
The turn came in Brandenburg v. Ohio (1969). The Court reversed the conviction of a Ku Klux Klan leader under Ohio's criminal syndicalism law and expressly overruled Whitney. The new rule: the government may not punish advocacy of force or lawbreaking unless the speech is directed to inciting or producing imminent lawless action and is likely to produce it. Both parts must be met. Speech that is hateful, revolutionary or ugly is protected unless it meets that narrow test.
That rule is close to what Holmes argued in 1919. Measured against Brandenburg, the Abrams majority's reasoning cannot survive: leaflets urging a general strike, with no showing that one was imminent or likely, would be protected today. As for the defendants themselves, Abrams, Steimer, Lipman and Lachowsky were released in late 1921 on the condition that they be deported to Soviet Russia, and Congress had repealed the Sedition Act of 1918 in December 1920.
Where the law stands now
As of October 2026, Brandenburg remains the governing test for speech that advocates lawbreaking or violence. The Court has not returned to the Abrams majority's view that a bad tendency is enough.
The protection has limits, and the Court has been honest about them. In Holder v. Humanitarian Law Project (2010), it upheld a federal ban on providing “material support” to designated foreign terrorist organisations, even where the support took the form of training and advice coordinated with those groups. National security still pulls hard on free speech, as it did in 1919. The difference is that the government now has to fit its case into narrower categories rather than simply pointing to a war.
The market image has its critics too. Scholars have argued that ideas do not compete on equal terms: some speakers have far louder platforms, and falsehoods can spread faster than corrections. Those arguments have grown sharper in the era of social media. Notice, though, that Holmes's phrase was “free trade in ideas.” The often-quoted “marketplace of ideas” does not appear in his dissent; its first express use in a Supreme Court opinion is usually traced to Justice William O. Douglas's concurrence in United States v. Rumely (1953), which spoke of the “market place of ideas.” The legal rule does not depend on believing that truth always wins. It depends on a narrower claim: that the government is a worse judge of which ideas should be heard than open argument is.
Why it matters on the eve of Veterans Day
Free speech protections rarely get tested in calm times. They get tested in wartime, when dissent feels like disloyalty and the people dissenting are unpopular, foreign-born and easy to dismiss. Abrams was decided one day before the country paused to honour the people who had fought, and it sent people to prison for arguing against how that power was being used.
The protection Americans now have for antiwar speech, including speech that criticises the military, the president or the conduct of a war, was built from a losing opinion about leaflets scattered over one Manhattan street. That is the useful lesson. The rule exists because a justice who had already ruled the other way looked at the record again, said so in writing, and was eventually proved right.
Sources
- Abrams v. United States, 250 U.S. 616 (1919), Etalia SCOTUS research page
- Abrams v. United States, 250 U.S. 616 (1919), Justia
