Holmes in Abrams

Defendants were sentenced to 20 years in prison for sending out circulars criticizing President Wilson and calling upon the “workers of the world” to engage in a general strike in order to interfere with the war effort.

Did the Court conclude that these writings posed a clear and present danger to the war effort?

No. Schenk controls. The Abrams Court added a new wrinkle to the test – speech could be suppressed if it creates a present danger of immediate evil or if the speaker specifically intends to create such a danger. (p.12)

What is interesting about this case is Justice Holmes’ dissenting opinion in which he more fully discusses his “clear and present danger” test (p. 13):

I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. . . . Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command” of the First Amendment.

Is Holmes’ understanding of the clear and present danger test in Abrams consistent with the way he applied the test in Schenck?