Abrams v. United States: Holmes Dissents, Articulates 'Marketplace of Ideas' Free Speech Theory

The Supreme Court upheld the Sedition Act convictions of five Russian Jewish immigrants who had distributed leaflets opposing U.S. military intervention against the Bolshevik Revolution. In a 7-2 decision, the majority found that criticizing American military policy and calling for a general strike satisfied the Sedition Act’s prohibition on speech intended to hinder the war effort. The defendants received sentences of 15 to 20 years for distributing pamphlets.

Justice Oliver Wendell Holmes, joined by Louis Brandeis, authored one of the most influential dissents in constitutional history, reversing his own position from the Schenck case earlier that year. Holmes argued that the “clear and present danger” test required imminent, serious harm, not merely unpopular speech: “Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger.” He articulated the “marketplace of ideas” theory: “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Holmes’s change of heart may have resulted from criticism by legal scholars including Zechariah Chafee and personal conversations with Judge Learned Hand. Whatever the cause, his Abrams dissent planted the seeds for the expansion of First Amendment protections decades later. However, the immediate impact was the opposite: the majority’s broad reading of the Sedition Act authorized continued suppression of radical speech throughout the Red Scare. The Holmes-Brandeis dissents would eventually become constitutional doctrine, but not before immense damage to civil liberties under the original wartime repression framework.