One hundred years ago, the Supreme Court embarked on its first serious consideration of the First Amendment’s guarantee of freedom of speech. In 1919, the Court upheld four federal criminal convictions over First Amendment defenses. Three of the majority opinions were written by Justice Holmes. In the fourth, he offered a classic dissent. Two of the cases, Frohwerk v. United States and Debs v. United States, are of middling significance. The other two, Schenck v. United States and Abrams v. United States, are iconic. From these cases have sprung an expansive and complex jurisprudence of free speech. Most law school courses begin consideration of freedom of speech with discussion of the Schenck and Abrams opinions, deservedly so since they have much to teach us. Justice Holmes’s majority opinion in Schenck as well as his dissent in Abrams, at least on the First Amendment issue, are written in classic Holmes style—short, cryptic, and ambiguous—resulting in 100 years of explication and debate. What lessons do these classic cases teach?
Lackland H. Bloom, Jr., The Lessons of 1919, 72 SMU L. Rev. 361 (2019).