On March 3, 1919, the Supreme Court invoked the Espionage Act to uphold the conviction of Charles Schenck, the general secretary of the Socialist Party, for mailing thousands of leaflets opposing the military draft. Delivering the Court’s unanimous opinion, Justice Oliver Wendell Holmes argued that during wartime Congress has the authority to prohibit individuals from using words that create “a clear and present danger” to the safety of the country. Although the trial record failed to show that Schenck’s leaflets had convinced any young men to resist conscription, the Court upheld his conviction under Holmes’s doctrine.
Later in 1919, the Supreme Court demonstrated what a slippery slope the “clear and present danger” test presented for freedom of speech in a case that concerned what many American leaders believed posed a great threat to the nation: the spread of worldwide communism, the system of government that challenged capitalism. The success of the Bolshevik Revolution in Russia in 1917 and the subsequent creation of the Union of Soviet Socialist Republics terrified officials of capitalist countries in western Europe and the United States. Their concerns escalated in 1918, when Russia, until then an Allied power, signed a separate treaty with Germany and pulled out of the war. In response, President Woodrow Wilson ordered U.S. troops to assist anti-Communist Russian forces fighting against the Bolshevik regime.
Wilson’s actions generated vocal opposition from American supporters of the Russian Revolution. In New York City, a small group of anarchists and socialists welcomed the fall of capitalism in Russia and the prospects of a worker-controlled state that would promote economic democracy. Many of these activists were immigrants who had fled from Russia to avoid czarist repression against political dissidents and Jews. In August 1918, a handful of anarchists, including Jacob Abrams, dropped leaflets off a building on the Lower East Side urging workers to protest “barbaric [American] intervention” and calling on them to engage in “a general strike” until the United States removed its troops from Russia. The government prosecuted six defendants, five men and one woman, for violating the Espionage and Sedition Acts; the jury found all of them guilty. On November 10, 1919, in Abrams v. United States, the Supreme Court affirmed the trial verdict, finding the distribution of the incendiary leaflets in wartime illegal. See Document Project 21: The Abrams Case and the Red Scare.