Anniversary of Abrams v. United States: Criminalizing Unpopular Opinion

Today marks the 98th anniversary of the controversial case of Abrams v. United States[1]. In Abrams[2], the Supreme Court upheld the convictions of five defendants under the Espionage Act of 1917. The Court expressly rejected the defendant’s argument that their first amendment rights had been violated by the Espionage Act. This case is particularly noteworthy because revered Justice Oliver Wendell Homes[3]; the author of the opinions which had originally upheld the Constitutionality of criminalizing free speech against the war effort in three prior Court cases, dissented against the majority.


The Case

The case behind Abrams was a product of a different time in American culture and history. On August 12, 1918, just three months before the end of fighting in WWI, Hyman Rosansky was arrested for throwing flyers out of the 4th floor of a hat factory. The flyers, one in English and one in Yiddish called for a general strike by workers, a reduction in the production of munitions being sent to aid White Army soldiers fighting Soviet forces in the Russian Revolution. Police arrested Mr. Rosansky for violating the Sedition Act of 1917, which criminalized the “willfully utter, print, write, or publish, any disloyal, profane, scurrilous, or abusive language about the form of the Government of the United States, or willfully urge, incite, or advocate any curtailment of the production of things necessary to the war efforts.”. Police interrogated Mr. Rosansky for weeks. With Mr. Rosansky’s help, police also arrested Mollie Steimer[4], Jacob Abrams, Hyman Lachowsky, Jacob Schwartz, Gabriel Prober, and Samuel Lipman. The group was all Russian, Jewish immigrants to America and avowed anarchist.

The group was indicted on charges of conspiring to violate the Espionage Act of 1917. Just one day before trial began, Mr. Schwartz died in Bellevue Hospital reportedly due to Spanish flu. Trial began on October 15th, 1918, and ended October 23rd, 1918. The jury found Hyman Rosansky guilty and sentenced him to three years in prison. The jury also found Jacob Abrams, Hyman Lachowsky, and Samuel Lipman guilty and sentenced each of them to twenty years and a $1,000 fine.  The jury further found Mollie Steimer guilty and sentenced her to fifteen years in prison and a $5,000 fine. Lastly, the jury found Gabriel Prober not guilty. The whole group appealed their convictions to the Supreme Court. The Court granted cert in early 1919.

The Arguments

The Supreme Court heard arguments October 21st and 22nd 1919. The defendants argued that their first amendment rights had been violated by the Sedition Act of 1917 because their flyers did not pertain to the American war effort against Germany, and was only targeted at America’s involvement in the Russian Revolution.

The State Argued that the leaflets distributed by the defendants presented a clear and present danger to the United States war efforts against Germany, and as such were not protected free speech under the “Clear and Present Danger” test laid out By Justice Homes in Schenck v. United States[5].

The Decision

The Supreme Court rendered its judgment on November 10th, 1919. The Court, in a 7 – 2 decision the majority including reviled[6] Justice McReynolds[7], led by Justice John Hessin Clarke[8] held that the defendants first amendment rights had not been violated because the flyers had a manifests purpose to defeat the American war effort against the Germans. The Court disregarded the argument that the defendants were only trying to influence the American effort with the Russian Revolution. The Court held that trying to influence the American governments strategic decision to intervene in the Russian Revolution to put pressure on the German eastern front was enough to violate the law. The Court held that the flyers presented a clear and present danger to the United States. Thus, the Court affirmed the defendant’s convictions.

This decision would not be noteworthy as the Supreme Court had consistently upheld the Constitutionality of the Sedition Act in its various forms, except for which Justices dissented. Justice Homes along with Justice Louis Brandeis[9] dissented[10]. Justice Homes argued that the defendant’s convictions should be overturned because the State had failed to prove that the defendants had the intent to cripple or hinder the United States war effort against Germany. This dissent is noteworthy because Justice Homes had been the author of all three prior decisions of the Court upholding the constitutionality of the Sedition Act. The minority argued that the majority had departed from the guidelines set out in the previous cases, and had criminalized speech that was never intended to be criminalized. Legal scholars would later agree that Justice Homes had the better formulation of the clear and present danger test. Scholars would also admire Justice homes eloquent defense of free speech.


The Treaty of Paris, which officially ended WWI ended on January 20th, 1920. The Russian Revolution came to an end June 16th, 1923 with Soviet control of Russia. The Sedition Act would later be repealed in 1920. With the Courts judgment rendered the defendants were taken to prison. Many of the defendants were deported, and others finished their terms and returned to life. The holding in Abrams would slowly fade into obscurity, with Justice Homes dissent overshadowing the significance. The Court would eventually abandon the “clear and present danger” standard for the “Immediate lawlessness” test in Brandenburg v. Ohio[11]. With Experienced Legal Representation, you can make sure your first amendment rights are protected from criminal prosecution.

Written by Hunter J. White

[1] Abrams v. United States, 250 U.S. 616, 40 S. Ct. 17 (1919)




[5] Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247 (1919)






[11] Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827 (1969)