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Abrams v. United States (docket #: 316) (1919)  [Findlaw]

Secondary Link Abrams v. United States  [Legal Information Institute]
Argument Date 10/21/1919
Decided 11/10/1919
Supreme Court Vote 7-2
Note Note: Holmes never used the phrase "marketplace of ideas." After the Abrams case was decided, the famed First Amendment scholar Zechariah Chafee petitioned President Wilson to pardon the defendants.
Supreme Court Ruling First Amendment claim denied.
 
IssueWhether certain provisions of the Sedition Act of 1918 concerning speech critical of the government and subversive of the war effort violated the First Amendment.
 
Case Summary & Additional Resources
Majority Opinion Clarke, J.
Dissenting Opinion Holmes, J. (joined by Brandeis, J.)
Lower Court Ruling First Amendment claim denied
Lawyers
For Petitioner
Harry Weinberger

For Respondent
Assistant Attorney General Robert P. Stewart, for the United States

Briefs
For Petitioner
Harry Weinberger, Brief for Petitioners [curiae.yale.edu]

For Respondent
Robert P. Stewart, Brief for the United States [curiae.yale.edu]

News
" Upholds Sentences of Russian "Reds'; Supreme Court Decides Against Four Who Threw Pamphlets From Rooftops," New York Times, November 11, 1919, p. 2
"Reds to Be Deported: Palmer Speeds Cases to Drive Out 391 Caught in Raids," Washington Post, November 11, 1919, p. 1
Other
Blasi, Vincent, "Holmes & the Marketplace of Ideas," 2004 Supreme Court Review 1
Blasi, Vincent, "Reading Holmes Throught the Lens of Schauer: The Abrams Dissent," 72 Notre Dame Law Review 1343 (1997)
Bollinger, Lee, THE TOLERANT SOCIETY (1986), pp. 15-23, 59-60, 159-161
Chafee, Jr., Zechariah, FREE SPEECH IN THE UNITED STATES (1941)
Cole, David, "Agon at Agora: Creative Misreadings in the First Amendment Tradition," 95 Yale L.J. 857, 875-892 (1986)
Collins, Ronald & Skover, David, "What is War? -- Free Speech in Wartime," 36 Rutgers Law Journal (No. 3, 2005)
Emerson, Thomas, THE SYSTEM OF FREEDOM OF EXPRESSION (1970), pp. 65-66
Geoffrey R. Stone, Perilous Times: Free Speech in Wartime (Norton, 2004)
Greenawalt, Kent, "’Clear & Present Danger’ in Criminal Speech," in Bollinger, Lee & Stone, Geoffrey, ETERNALLY VIGILANT: FREE SPEECH IN A MODERN ERA (2002), pp. 96-119
Gunther, Gerald, "Learned Hand & the Origins of Modern First Amendment Doctrine," 27 Stanford Law Review 719 (1975)
Meiklejohn, Alexander, POLITICAL FREEDOM (1960)
Peck, Robert, "Overview: The First Amendment & Advocacy of Violence"

Pohlman, H.L., JUSTICE OLIVER WENDELL HOLMES: FREE SPEECH & THE LIVING CONSTITUTION (1991), pp. 77-82
Polenberg, Richard, FIGHTING FAITHS: THE ABRAMS CASE, THE SUPREME COURT, AND FREE SPEECH (Viking Press, 1987)
Rabban, David, FREE SPEECH IN ITS FORGOTTEN YEARS (1997), pp. 7, 8, 329-330, 342-343, 346-355
Schwartz, Bernard, "Holmes versus Hand: Clear & Present Danger or Advocacy of Unlawful Action?," 1994 Supreme Court Review 209
Sheldon M. Novick, "The Unrevised Holmes & Freedom of Expression," 1991 Supreme Court Review 303
Smith, Stephen A., "Shenck v. U.S. & Abrams v. U.S." in FREE SPEECH ON TRIAL (2003), Richard A. Parker, ed., pp. 20-35

Smolla, Rodney, "Overview: Freedom of Speech"

Smolla, Rodney, SMOLLA & NIMMER ON FREEDOM OF SPEECH (1994), sect. 4.01[3][A]
The Montana Pardon Project

Tribe, Laurence, AMERICAN CONSTITUTIONAL LAW (2nd ed., 1988), pp. 842-843
White, Edward, "Justice Holmes & the Modernization of Free Speech Jurisprudence," 80 California Law Review 439 (1992)
Wigmore, J. H., "Abrams v. United States," 14 Illinois Law Review 539 (1920)
Commentary
The New Republic, "The Call to Toleration" (Nov. 26, 1919)
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