1ABRAMS VS US, 250 US 610 Facts of the Case:
The defendants were convicted on the basis of two leaflets they printed and threw from windowsof a building. One leaflet signed "revolutionists" denounced the sending of American troops toRussia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede theRussian Revolution. The defendants were charged and convicted for inciting resistance to thewar effort and for urging curtailment of production of essential war material. They weresentenced to 20 years in prison.
Do the amendments to the Espionage Act or the application of those amendments in this caseviolate the free speech clause of the First Amendment?
No and no. The act's amendments are constitutional and the defendants' convictions areaffirmed. In Clarke's majority opinion, the leaflets are an appeal to violent revolution, a call for ageneral strike, and an attempt to curtail production of munitions. The leaflets had a tendency toencourage war resistance and to curtail war production. Holmes and Brandeis dissented onnarrow ground: the necessary intent had not been shown. These views were to become a classiclibertarian pronouncement.
2NEAR VS MINNESOTA, 283 US 697 Facts of the Case:
Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, chargingthat they were implicated with gangsters. Minnesota officials obtained an injunction to preventNear from publishing his newspaper under a state law that allowed such action againstperiodicals. The law provided that any person "engaged in the business" of regularly publishingor circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory"newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from furthercommitting or maintaining the nuisance.
Does the Minnesota "gag law" violate the free press provision of the First Amendment?
The Supreme Court held that the statute authorizing the injunction was unconstitutional asapplied. History had shown that the protection against previous restraints was at the heart of theFirst Amendment. The Court held that the statutory scheme constituted a prior restraint andhence was invalid under the First Amendment. Thus the Court established as a constitutionalprinciple the doctrine that, with some narrow exceptions, the government could not censor orotherwise prohibit a publication in advance, even though the communication might bepunishable after publication in a criminal or other proceeding.