Jacob Abrams was arrested in New York City on 23 August 1918. He and several friends had written, printed, and distributed copies of a leaflet that severely criticized President Woodrow Wilson and the U.S. government. The leaflet disagreed with President Wilson’s decision to send U.S. military forces to Russia during the civil war. Abrams’s leaflet exhorted American workers to walk off their jobs to protest the U.S. government’s decisions. Because of this, Abrams and his cohorts faced violations of the Espionage Act of 1917 and the Sedition Act of 1918. Thus they were arrested by the police. In the decision written by Judge John H. Clarke, Abrams’ claims were denied. Clarke based his decision on the “clear and present danger” and “bad tendency” tests stated by Justice Oliver Wendell Holmes in Schenck v. United States (1919). Justice Clarke wrote that “men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce.”
However, a dissent was issued by Judge Oliver Wendell Holmes, disagreeing with Justice Clarke’s use of the “clear and present danger.” Holmes elaborated that although the government had the right to protect itself against speech that immediately and directly threatens the security and safety of the country, Holmes stated in his Abrams dissent that a “clear and present danger” exists only when speech can be immediately and directly connected to specific actions that cause illegal behavior threatening the safety or security of the United States. In this case, the dissent of Justice Holmes eventually had more influence on the court and the American people. Holmes modified the “clear and present danger” test he had stated in Schenck. If an imminent danger could not be demonstrated, then speech could not be lawfully limited. The Abrams dissent has been called the best defense of free speech ever written by an American.