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This year marks one hundred years since the birth of modern First Amendment jurisprudence. In 1919, as the United States was recovering from the effects of World War I, the U.S. Supreme Court grappled with a series of cases involving the speech of political dissidents charged with violating federal laws designed to quell criticism of the U.S. war effort, draft, or policy toward foreign nations.

The first of the free speech cases that came before the Supreme Court in 1919 was Schenck v. United States. The Schenck defendants were convicted for violating the Espionage Act of 1917 for distributing leaflets that criticized the draft and supported that position by reciting language from the 13th Amendment. Writing for a unanimous court, Justice Oliver Wendell Holmes affirmed the defendants’ convictions, reasoning that what can be said in times of peace may not be legal during times of war. In short, the First Amendment had limits.

Holmes reasoned that, “[t]he character of every act depends upon the circumstances in which it is done,” which he followed with the now-famous hypothetical of “a man in falsely shouting fire in a theatre and causing a panic.” Holmes’s opinion was also noteworthy in that it introduced the “clear and present danger” test which became the test applied by courts in First Amendment cases for the next five decades.

Perhaps the most impactful opinion to come from the 1919 free speech cases was Justice Holmes’s dissent in Abrams v. United States­—a dissent that has come to be known as the “great dissent.” Few could have known at the time Justice Holmes penned his dissent that his words would begin shaping the contours of our understanding of the First Amendment and the freedoms guaranteed by it—freedoms that are considered by many around the world to be quintessentially American.

The Abrams case was not particularly noteworthy. It was in many respects a repeat of Schenck. And like Schenck, the convictions of the defendants charged with violating the Sedition Act of 1918 were upheld. But despite coming only a few months apart, Justice Holmes voted to uphold the convictions in Schenck and to overturn the convictions in Abrams. What was the difference? Continue reading ›