War Prisoners (Darrow)/Dissenting Opinion of Judge Holmes of U. S. Supreme Court in case of Abrams et al vs. U. S.
Dissenting Opinion of Judge Holmes of U. S. Supreme Court in case of Abrams et al vs. U. S.
"I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace, because war opens dangers that do not exist at other times.
"But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. 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. Congress cannot forbid all efforts to change the mind of the country.
"Now, nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man would present any immediate danger that its opinions would hinder the success of the Government arms or have any appreciable tendency to do so.
"I do not see how any one can find the intent required by the statute in any of the defendants' words.***The only object of the paper is to help Russia and stop American intervention there against the popular Government—not to impede the United States in the war that it was carrying on.
"IN THIS CASE, SENTENCES OF TWENTY YEARS' IMPRISONMENT HAVE BEEN IMPOSED FOR THE PUBLISHING OF TWO LEAFLETS THAT I BELIEVE THE DEFENDANTS HAD AS MUCH RIGHT TO PUBLISH AS THE GOVERNMENT HAS TO PUBLISH THE CONSTITUTION OF THE UNITED STATES, NOW VAINLY INVOKED BY THEM.
"Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litimus paper, 1 will add, even if what I think the necessary intent were shown, the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges, but for the creed that they avow a creed that I believe to be the creed of ignorance and immaturity, which, when honestly held, as I know no reason to doubt that it was held here, but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the court.
"Persecution for the expression of opinion seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition.***
"Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and beleve to be fraught with death UNLESS THEY SO IMMINENTLY THREATEN INTERFERENCE WITH THE LAWFUL AND PRESSING PURPOSES OF THE LAW THAT AN IMMEDIATE CHECK IS REQUIRED TO SAVE THE COUNTRY.
"I wholly disagree with the arguments of the Government that the first amendment to the Constitution left the common law as to seditious libel in force. History seems to me against the notion. "Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command: 'Congress shall make no law abridging the freedom of speech'."