Abrams v. United States

250 U.S. 616 (1919)

Dissenting Opinion by Justice Holmes

Holmes’ dissent in Abrams remains a classic statement of First Amendment principles. Although Holmes claimed to adhere to his previous opinions in Schenck, Frohwerk, and Debs (“I have never seen any reason to doubt that the questions of law that alone were before this Court in [the trilogy] were rightly decided…”), his Abrams dissent forcefully rejected the argument that “the First Amendment left the common law as to seditious libel in force.” AHolmes did not cite Hand’s opinion in Masses to support his view, so the map visualizes this implicit relationship using a dotted arrow. See also Sullivan & Feldman, p. 24, n. 3 (stating Gerald Gunther’s argument about Hand’s influence on Holmes).

Holmes dissent also stands as the first important First Amendment dissent – inaugurating a noble and persistent rhetorical tradition. Many passages of the opinion are quotable. This one is perhaps the best known:

“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. 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. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that 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.”

Justice Brandeis joined this opinion and Holmes and Brandeis would work together to change the doctrine from sanctioning suppression of speech that merely promoted bad tendencies to prohibiting suppression unless speech threatened to imminently incite violence.

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CourtListener (full opinion text)

Oyez (summary)

Review of The Great Dissent (aruging Holmes’ dissent is the greatest in SCOTUS history)