Loading...
Writing the Dissent in Abrams
Post, Robert
Post, Robert
Abstract
Much has been written about how Oliver Wendell Holmes, in November 1919, came to write his pathbreaking dissent in Abrams v.
United States,' which virtually invents First Amendment doctrine. The most complete account may be found in Thomas Healy's superb book, The Great Dissent Holmes's accomplishment in Abrams is all the more astonishing because eight months previously, in March 1919, Holmes had authored decisions sustaining criminal convictions for those who had dared to speak out against World War I. Holmes's friends and supporters were appalled by these opinions, most especially by Debs v. United States, in which Holmes upheld the conviction under the Espionage Act of 19174 of a prominent socialist leader for what amounted to a political speech
opposing American participation in the war.5 In Debs, Holmes deemed First Amendment protections irrelevant if political speech had its "natural tendency and reasonably probable effect to obstruct the recruiting service" of the United States. Virtually all anti-war speeches, and certainly all successful anti-war speeches, have this tendency and effect.
Throughout the spring and summer of 1919, Holmes "was both defensive and defiant" about his opinion in Debs.7 He went so far as to draft (but not send) a letter of protest to Herbert Croly, editor of The New Republic, a magazine normally appreciative of Holmes. But even The New Republic had published an article sharply critical of Debs. Holmes wanted to say to Croly:
I hated to have to write the Debs case ... and I think it quite possible that if I had been on the jury I should have been for acquittal but I cannot doubt that there was evidence warranting a conviction on the disputed issues of fact. Moreover, I think the clauses under consideration not only were constitutional but were proper enough while the war was on. When people are putting out all their energies in battle I don't think it unreasonable to say we won't have obstacles intentionally put in the way of raising troops-by
persuasion any more than by force. But in the main I am for aeration of all effervescing convictions-there is no way so quick for letting them get flat.