Abrams V. United States - Holmes' Dissent

Holmes' Dissent

In his dissent, Holmes wrote that although the defendant's pamphlet called for a cease in weapons production, it had not violated the Act of May 16, 1918 because they did not have the requisite intent "to cripple or hinder the United States in the prosecution of the war." Holmes distinguishes Abrams's intent as being only to minimize Russian casualties, with any harm to the United States war efforts being incidental and unintended.

Holmes had recently changed his views on the Espionage Act, especially the Sedition Act, and its relationship with free speech, based on his conversations with Zechariah Chafee and other academics. He argued that the First Amendment left no room for the government suppression of dangerous ideas, except where a threat was imminent. The Majority Opinion had held instead that the First Amendment left the common law rule of seditious libel intact. Holmes felt that the founders' expansion of free speech was "an experiment, as all life is an experiment" and he opined that a twenty year sentence against the defendants was an unconstitutional punishment for their beliefs. Holmes wrote:

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...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.