Americans may take free speech for granted, but they couldn’t do so a century ago. Courts convicted newspapermen, pamphleteers and politicians for nothing more—and sometimes less—than trying to sway the public against U.S. involvement in World War I. On Nov. 10, 1919, the Supreme Court affirmed the conviction of antiwar protesters under a law that made it a crime to “hinder” the war effort. But a dissent in Abrams v. U.S. laid the foundation for today’s robust protection of controversial speech.
The idea that speech could pose a “clear and present danger” to the government, and thus lacked First Amendment protection, came from a quartet of 1919 cases, three of which were unanimous. In March, in Schenck v. U.S., the court, led by archprogressive Justice Oliver Wendell Holmes Jr., upheld the convictions of pamphleteers who encouraged draft-dodging. A week later, Frohwerk v. U.S. upheld the conviction of a newspaperman who criticized U.S. involvement in foreign wars, while Debs v. U.S. affirmed the conviction of Socialist Party leader Eugene Debs for denouncing the war in a speech. (Debs went on to receive 3.4% of the 1920 presidential vote from prison.)
In October the court in Abrams upheld another antiwar protest conviction—but this time not unanimously. Like Charles Schenck, Jacob Abrams was a socialist who had distributed antiwar pamphlets. His group criticized U.S. military support for the anti-Communist White movement in the Russian Civil War. As socialists of the time often did, the pamphleteers urged a general strike in New York, on grounds that workers were making weapons to use against their Bolshevik comrades.