How 2 Supreme Court cases from 1919 shaped the next century of First Amendment law
One hundred years ago, modern First Amendment jurisprudence was born with an opinion called the “great dissent.” Justice Oliver Wendell Holmes—along with Louis Brandeis—dissented in a case called Abrams v. United States, a case involving five Russian immigrants charged with violating the Sedition Act of 1918, a federal law designed to quell criticism of the government.
In 1919, the U.S. Supreme Court grappled with a series of cases involving the speech of political dissidents charged with violating federal laws designed to quell criticism of the U.S. war effort, draft, or policy toward foreign nations. Historian Paul Murphy famously referred to this period with his book titled World War I and the Origin of Civil Liberties in the United States.
Socialists, anarchists, communists, and other political dissidents faced prison time for critical political speech. Some ran afoul of the government for distributing leaflets critical of the war effort, articles criticizing government officials, or even political speeches deemed too incendiary for their time.
Today, politicians say much more about political opponents and don’t go to jail.
“We’ve made extraordinary progress in protecting dissident political speech from official government punishment,” says Seton Hall University law professor Thomas Healy, author of The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America. “It’s unthinkable today that a candidate for president would be imprisoned for criticizing the incumbent administration’s policies.”
The typical approach was that courts would uphold convictions under the Espionage Act of 1917 and a later amendment, the Sedition Act of 1918, for speech that had a tendency to cause harm, explains University of Chicago law professor Geoffrey Stone. For example, socialists Charles Schenck and Elizabeth Baer were convicted under the Espionage Act for their part in distributing leaflets that recited language from the 13th Amendment and stated that a conscript is nothing better than a convict.
Writing for a unanimous court in Schenck v. United States (1919), Justice Holmes affirmed the defendants’ convictions, reasoning that what can be said in times of peace may not be legal during times of war. He also famously reasoned that the First Amendment doesn’t protect all forms of speech, writing: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
Even more importantly, Holmes invoked the terms “clear and present danger,” writing: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Holmes and the court deferred to the government that the leaflets might cause some persons to resist or not report for the draft.
Around the same time in the spring of 1919, the court also affirmed the conviction of five-time presidential candidate Eugene Debs, who delivered an anti-war speech in Canton, Ohio. “You need at this time especially to know that you are fit for something better than slavery and cannon fodder,” may have been Debs’ most famous line. Authorities charged him—like Schenck—with violating the Espionage Act. The Supreme Court unanimously affirmed the conviction. Debs was sentenced to prison for 10 years, although President Warren G. Harding commuted his sentence in 1921.
The outlook for critical speech looked bleak. But, then something remarkable happened during the summer of 1919. Holmes received serious criticism for his opinions from individuals such as Harvard law professor Zechariah Chaffee, political scientist Harold Laski and federal judge Learned Hand.
The effect was monumental upon the great jurist. In the fall of 1919, he dissented in Abrams v. United States—a case in which five Russian immigrants were prosecuted under the Sedition Act of 1918 for written materials highly critical of perceived U.S. militarism towards Russia.
The Supreme Court majority showed little regard for dissident political speech in affirming the convictions. But Holmes—along with Brandeis—did something rather unusual: They dissented in a First Amendment case.
Holmes injected the concept of immediacy into his clear and present test. “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned,” he wrote. Holmes also wrote in oft-quoted language that ideas should be allowed into the marketplace:
“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 conduct that 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, and that truth is the only ground upon which their wishes safely can be carried out.”
This passage forms the basis of the marketplace of ideas, one of the most important concepts and pervasive metaphors in modern First Amendment law—that the government should not censor ideas but allow them into the marketplace. “Our modern First Amendment jurisprudence finds its roots in Oliver Wendell Holmes’ dissenting opinion in Abrams,” says Stone, author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. “It was in that opinion that Holmes first offered a theory of the First Amendment and first articulated a way of thinking about free speech that has shaped our thinking ever since.”
Much progress has been made since the time of Schenck and Abrams. “When you remember that more than 2,000 indictments were brought under the Espionage and Sedition Acts and that people went to jail for 10, 15, or 20 years simply because they expressed disagreement with the government, you realize just how far we’ve come as a society in protecting political dissent,” Healy says.
Stone agrees that the progress has been extraordinary: “Today, a century later, it is unthinkable in the United States that an individual could be punished for such speech unless, at the very least, his speech created a clear and present danger of grave harm to the nation.”
While much progress has been made, the future of the First Amendment remains fragile. “One threat is that government will find other ways to suppress unpopular speech—that instead of punishing speakers for crimes like incitement, it will punish them for providing ‘material support’ to terrorist organizations,” says Healy. “Another threat is that government will use its enhanced surveillance capabilities to chill political expression.”
Stone says that the impact of social media represents a threat to free expression. “In the modern era, social media has increasingly enabled citizens to hear only one side of an issue and instead of opening their minds to a free and open public discourse has tended to reaffirm individual preconceptions. This poses a serious challenge to the notion of a vigorous ‘marketplace of ideas’ and ultimately to the vitality of our First Amendment freedoms.”
David L. Hudson Jr., a regular contributor to the ABA Journal, teaches at Belmont University College of Law.