Holmes’ Dissent:  Holmes’ dissent, and Brandeis’ concurrence with the dissent, is the first time that both justices dissented in an Espionage Act case.  Why did they dissent?  What did they hold?

a.    An actor does not “intend” a consequence “unless that consequence is the aim of the deed.”  Ds simply had no intent to interfere with the war effort against Germany.

b.    Holmes says that, as a matter of law, Schenck, Frohwerk, and Debs were rightly decided.  In Abrams, Holmes pretends to apply the same analysis as these three previous cases.  But he now calls the test the “Clear and Imminent Danger” test, which he describes: “The U.S. may constitutionally punish speech that produces or is intended to produce a clear and imminent danger that will bring about forthwith [“soon”] certain substantive evils that the U.S. constitutionally may seek to prevent.  It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.”  Under this test, Holmes’ held that D’s conviction must be overturned because he was just an “unknown man” who was “surreptitiously publishing a silly leaflet “ that posed no “immediate danger”.

1.    Dave says this test is different from the “Clear and Present Danger” (or “Bad Tendency”) test of Schenck, Frohwerk, and Debs because it focuses on the proximity between the speech and the act it encourages.  But Dave emphasizes that the test does not go so far as to require “direct incitement.”

c.    Holmes’ dissent is perhaps best known for its more general words about the value of free speech.  He articulated the “Marketplace of Ideas” theory:  he urged the “free trade in ideas,” and argued that “the best test of truth is the power of the thought to get itself accepted in the competition of the market…”