Abrams v. United States (1919)

Facts:
Jacob Abrams and four others (all born in Russia) distributed about 5,000 leaflets in New York City appealing to munitions workers in the U.s. to help the russian Revoluation and fight capitalism by a general strike. The government charged them with conspiracy to violate the Espionage Act.

Substantive Issue:
1. Does distribution of anti-war leaflets constitute a violation of the Espionage Act?

2. If so, did the defendants intend such a violation?

USSC Ruling:
Conviction Affirmed 7-2

• Clarke wrote the majority opinion.
• Holmes and Brandeis dissented.

Reasoning:
Majority relied on the bad tendency test.

Holmes and Brandeis relied on the marketplace metaphor.