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Past and Present

Past & Present: The Limits Of Free Speech

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On Nov. 10, 1919, the U.S. Supreme Court decided its second First Amendment case in two weeks.

In Abrams v. U.S., the federal government asked the court to uphold the 1918 Amendment to Espionage Act of 1917, better known as the Sedition Act, which made it a criminal offense to suggest ending war-time production. In a 7-2 decision, the court upheld the Sedition Act, applied the two-week-old "clear and present danger" doctrine, and ignited a conversation on the limitations of free speech that extended through the rest of the 20th century.

Within the clear and present danger doctrine, however, the federal government must prove intent. A year earlier, in August 1918, the New York City police arrested Hyman Rosansky for throwing leaflets out of a building in lower Manhattan. The leaflets, written in English and Yiddish, were critical of President Woodrow Wilson’s support of the Russian government during the Russian Revolution. With Rosansky’s help, the police arrested six alleged co-conspirators, including Jacob Abrams, who rented the basement apartment where the flyers were printed.

The majority opinion found the leaflet’s language went beyond simple political speech, citing the explicit call for a general strike at a munitions factory that the court saw as a potential threat to the war effort. However, in his dissent, Justice Oliver Wendell Holmes argued that while the leaflets called for a stoppage of war production, it was unclear if the intent and realistic scope of the leaflets could actually cause this result.

More recently, legal scholars have accepted Holmes’ dissent as the better statement, but the court’s ruling that legislation could criminalize all seditious speech has also been upheld. This mixed message has created an interesting conversation among Congress, the court, and the American public about the limitations of free speech, and how to define intent.