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Fighting Faiths: The Abrams Case, The Supreme Court, and Free Speech
Jacob Abrams et al. v. United States is the landmark Supreme Court case in the definition of free speech. Although the 1918 conviction of four Russian Jewish anarchists―for distributing leaflets protesting America's intervention in the Russian revolution―was upheld, Justice Oliver Wendell Holmes's dissenting opinion (with Justice Louis Brandeis) concerning "clear and present danger" has proved the touchstone of almost all subsequent First Amendment theory and litigation. In Fighting Faiths, Richard Polenberg explores the causes and characters of this dramatic episode in American history. He traces the Jewish immigrant experience, the lives of the convicted anarchists before and after the trials, the careers of the major players in the court cases―men such as Holmes, defense attorney Harry Weinberger, Southern Judge Henry DeLamar Clayton, Jr., and the young J. Edgar Hoover―and the effects of this important case on present-day First Amendment rights.
464 pages, Paperback
First published December 3, 1987
About the author
Richard D. Polenberg
28 booksRichard Polenberg is professor of history at Cornell University, where he has received the Clark Distinguished Teaching Award and was appointed Goldwin Smith Professor of American History in 1986. He has been a Fulbright Visiting Professor at Hebrew University in Jerusalem and has published widely on twentieth-century American history, including The World of Benjamin Cardozo: Personal Values and the Judicial Process (1997); Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (1989), for which he won the American Bar Association's Silver Gavel Award and the Gustavus Myers Foundation's Outstanding Book Award; and One Nation Divisible: Class, Race, and Ethnicity in the United States since 1938 (1980).
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February 10, 2012
Abrams et al. v. United States provided Oliver Wendell Holmes with an opportunity to redefine the "clear and present danger" doctrine he had enunciated in the Schenck, Frohwerk, and Debs decisions. The story of the Abrams case and its impact on free speech is engagingly told by Richard Polenberg in Fighting Faiths: The Abrams Case, The Supreme Court, and Free Speech.
During war - World War I being no exception - public officials try to suppress any criticism of their actions perhaps from a sense of insecurity in the correctness of their actions. Even Lincoln was reluctant to permit criticism of his conduct of the war, and his abuse of traditional habeas corpus protection is well known. John Adams and the Federalists attempted to use the original Alien and Sedition Acts to suppress Thomas Jefferson and his Republicans in the early days of the republic. The abuse of personal liberties by the Federalists contributed to their demise, a repercussion that should have given pause to the creators of the Sedition Act of 1918.
Ironically it was a Montana rancher who provided the impetus for the infamous act that was to convict Abrams and his cohorts. Ves Hall was unhappy with Wilson's entry of the United States into World War I and he was quite vocal in his denunciation of both the war and President Wilson. He was charged and tried under provisions of the 1917 Espionage Act which made it a crime to interfere with the armed forces, among other things. A foresighted Montana judge ordered a directed verdict of acquittal declaring that a person's opinions, however false or wicked (or correct for that matter) could not be considered interference. The resulting storm of controversy convinced the Montana legislature in righteous pique to pass a law outlawing profane or abusive language directed at the United States or its institutions (sound familiar?). A similar law became the federal Sedition Act of 1918, which prohibited virtually any criticism of the government.
The Republicans feared the act. They suspected it might disallow their vicious criticism of the Wilson administration, but they supported the bill, afraid to appear "un-American," rationalizing that "true" Republican speech was OK, "false" radical speech was not.
Abrams and his fellow anarchists were arrested for distributing leaflets that opposed American intervention in the Russian Revolution. (Wilson had sent 7,000 troops ostensibly to support 70,000 Czech soldiers who left the Russo-German front after the Bolsheviks signed a peace treaty with the Kaiser.) The anarchists' defense was, in part, that they were not criticizing the war effort with Germany, rather American actions toward the Soviet Union.
The case was brought before Judge Henry Clayton, a passionate believer in pastoralism, paternalism and patriotism. His brother had been killed in the war shortly before the armistice, and he was adamantly against anything German and immigrants in general. The anarchists were promptly sentenced to 20 years in jail. Ironically, their bail while they were awaiting appeal was paid in Liberty Bonds.
Their position was uncomfortable: if their appeal failed, they would be sent to jail for a long time, if it succeeded and their conviction were to be overturned, they would be banished immediately; a xenophobic Congress had legislated that anyone believing in anarchy should be deported immediately.
Schenck had mailed leaflets protesting the draft. Holmes, in a most persuasive argument, denied their right to distribute such a document arguing that during wartime normal standards of free speech did not apply. His famous analogy compared it to the man who shouts "fire" in a crowded theater. It was in this decision that he first enunciated the "clear and present danger" doctrine. The Frohwerk and Debs decisions reinforced this position. The principle was used to limit speech rather than to protect it.
Several other cases on the docket gradually persuaded Holmes to revise this standard. He was beginning to have second thoughts, particularly after reading arguments by Judge Learned Hand and Zechariah Chafee who asserted that while the First Amendment did not protect all speech, it was important for the court to decide where to draw the line. The "clear and present danger" standard needed to be redefined from the standpoint of incitement. Does the "speech" cause direct and imminent dangerous interference with the conduct of the war. For example, publishing the sailing dates of troop ships would clearly present a danger to the safety of those troops.
The Abrams case furnished the opportunity for Holmes to elaborate on his earlier decisions. His (and Brandeis') dissent in Abrams asserted that intent and imminent danger were intrinsically important. The anarchists' pamphlets were clearly not in the same category as publishing sailing dates. "But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market....That at any rate is the theory of our Constitution....I think we should be eternally vigilant against attempts to check expression of opinions that we loathe and believe fraught with death...." Holmes would permit any speech unless "an immediate check is required to save the country."
Such a standard would not have convicted Abrams. Neither would it have convicted Schenck or Frohwerk or Debs, however. The dissent was not enough to prevent the deportation of the anarchists (at their own expense) to Russia where their welcome was not as pleasant as they would have hoped. Russia was cracking down on its own anarchists who were becoming a thorn in the side of the communist bureaucracy. Many were deported. (Ironically, some were sent to the U.S.)
Paradoxically, had President Wilson followed his initial instinct to pardon all the political prisoners there would have been no "clear and present [later revised by Holmes to 'imminent':] danger" standard to provide the foundation for the expansion of freedom of speech. Brandenburg v. Ohio (1969) further defined imminent danger. In this case, which involved a Ku Klux Klan official who had spoken out in favor of violence against blacks et al, the Supreme Court said for speech to be suppressed there must be a close relationship between speech and action; that is, "the constitutional guarantees of free speech...do not permit a state to proscribe advocacy of the use of force or law violation except [emphasis mine:] where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (Encyclopedia of the American Constitution) Thus we have to thank two very unpopular groups, the KKK and anarchists, for their inadvertent expansion of free speech for us all.
During war - World War I being no exception - public officials try to suppress any criticism of their actions perhaps from a sense of insecurity in the correctness of their actions. Even Lincoln was reluctant to permit criticism of his conduct of the war, and his abuse of traditional habeas corpus protection is well known. John Adams and the Federalists attempted to use the original Alien and Sedition Acts to suppress Thomas Jefferson and his Republicans in the early days of the republic. The abuse of personal liberties by the Federalists contributed to their demise, a repercussion that should have given pause to the creators of the Sedition Act of 1918.
Ironically it was a Montana rancher who provided the impetus for the infamous act that was to convict Abrams and his cohorts. Ves Hall was unhappy with Wilson's entry of the United States into World War I and he was quite vocal in his denunciation of both the war and President Wilson. He was charged and tried under provisions of the 1917 Espionage Act which made it a crime to interfere with the armed forces, among other things. A foresighted Montana judge ordered a directed verdict of acquittal declaring that a person's opinions, however false or wicked (or correct for that matter) could not be considered interference. The resulting storm of controversy convinced the Montana legislature in righteous pique to pass a law outlawing profane or abusive language directed at the United States or its institutions (sound familiar?). A similar law became the federal Sedition Act of 1918, which prohibited virtually any criticism of the government.
The Republicans feared the act. They suspected it might disallow their vicious criticism of the Wilson administration, but they supported the bill, afraid to appear "un-American," rationalizing that "true" Republican speech was OK, "false" radical speech was not.
Abrams and his fellow anarchists were arrested for distributing leaflets that opposed American intervention in the Russian Revolution. (Wilson had sent 7,000 troops ostensibly to support 70,000 Czech soldiers who left the Russo-German front after the Bolsheviks signed a peace treaty with the Kaiser.) The anarchists' defense was, in part, that they were not criticizing the war effort with Germany, rather American actions toward the Soviet Union.
The case was brought before Judge Henry Clayton, a passionate believer in pastoralism, paternalism and patriotism. His brother had been killed in the war shortly before the armistice, and he was adamantly against anything German and immigrants in general. The anarchists were promptly sentenced to 20 years in jail. Ironically, their bail while they were awaiting appeal was paid in Liberty Bonds.
Their position was uncomfortable: if their appeal failed, they would be sent to jail for a long time, if it succeeded and their conviction were to be overturned, they would be banished immediately; a xenophobic Congress had legislated that anyone believing in anarchy should be deported immediately.
Schenck had mailed leaflets protesting the draft. Holmes, in a most persuasive argument, denied their right to distribute such a document arguing that during wartime normal standards of free speech did not apply. His famous analogy compared it to the man who shouts "fire" in a crowded theater. It was in this decision that he first enunciated the "clear and present danger" doctrine. The Frohwerk and Debs decisions reinforced this position. The principle was used to limit speech rather than to protect it.
Several other cases on the docket gradually persuaded Holmes to revise this standard. He was beginning to have second thoughts, particularly after reading arguments by Judge Learned Hand and Zechariah Chafee who asserted that while the First Amendment did not protect all speech, it was important for the court to decide where to draw the line. The "clear and present danger" standard needed to be redefined from the standpoint of incitement. Does the "speech" cause direct and imminent dangerous interference with the conduct of the war. For example, publishing the sailing dates of troop ships would clearly present a danger to the safety of those troops.
The Abrams case furnished the opportunity for Holmes to elaborate on his earlier decisions. His (and Brandeis') dissent in Abrams asserted that intent and imminent danger were intrinsically important. The anarchists' pamphlets were clearly not in the same category as publishing sailing dates. "But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market....That at any rate is the theory of our Constitution....I think we should be eternally vigilant against attempts to check expression of opinions that we loathe and believe fraught with death...." Holmes would permit any speech unless "an immediate check is required to save the country."
Such a standard would not have convicted Abrams. Neither would it have convicted Schenck or Frohwerk or Debs, however. The dissent was not enough to prevent the deportation of the anarchists (at their own expense) to Russia where their welcome was not as pleasant as they would have hoped. Russia was cracking down on its own anarchists who were becoming a thorn in the side of the communist bureaucracy. Many were deported. (Ironically, some were sent to the U.S.)
Paradoxically, had President Wilson followed his initial instinct to pardon all the political prisoners there would have been no "clear and present [later revised by Holmes to 'imminent':] danger" standard to provide the foundation for the expansion of freedom of speech. Brandenburg v. Ohio (1969) further defined imminent danger. In this case, which involved a Ku Klux Klan official who had spoken out in favor of violence against blacks et al, the Supreme Court said for speech to be suppressed there must be a close relationship between speech and action; that is, "the constitutional guarantees of free speech...do not permit a state to proscribe advocacy of the use of force or law violation except [emphasis mine:] where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (Encyclopedia of the American Constitution) Thus we have to thank two very unpopular groups, the KKK and anarchists, for their inadvertent expansion of free speech for us all.
August 16, 2014
In the aftermath of World War I, there was an ideological confrontation in America that illuminated the diverging views of government and the extent to which the First Amendment to the Constitution guaranteed the freedom of speech. This debate was evident in Richard Polenberg's Fighting Faiths, which was a study of Abrams v. United States, and the lives of the defendants--Jacob Abrams, Mollie Steimer, Hyman Lachowsky, and Samuel Lipman. This paper will discuss the differing attitudes of government and the related freedom of speech controversy that emerged from the anarchists' philosophy, the Abrams trial, the Supreme Court appeal and response, and the view of government after the conflict was resolved.
First we must consider the philosophical views of anarchism and the anti-government propaganda that the immigrants published. The genesis of the Abrams controversy centered on the philosophical dogma of anarchism that aligns itself at the polar extreme of capitalism. The attitudes about government that were held by the radical, anarchical immigrants, including Abrams, Steimer, Lachowsky, and Lipman, were based on Peter Kropotkin's The Conquest of Bread and Michael Bakunin's God and the State; these were the bibles of anarchy. Kropotkin believed that property should be held in common, law replaced by mutual agreement, and that government itself should dissolve in this natural anarchical state. Bakunin equated following God to the abdication of human reason and justice, yet called for the spiritual dedication of the anarchists' lives to a non liturgical higher cause. These beliefs were the philosophical background to the anarchists' disagreement with capitalism and the American governments involvement in the Russian revolution.
The manifestation of this philosophy was the anti-American and anti-government English and Yiddish leaflets that became the tangible cause for the arrest of the anarchists. The English leaflet denounced Wilson as insincere and hypocritical but did not attack the United States government, while the Yiddish leaflet was more militant and critical of the American government. The Yiddish leaflet called for a general strike, particularly for the workers at the ammunition factories where they made the bullets that murdered the Russians who fought for freedom. Mollie Steimer said she distributed these leaflets to illuminate the hypocrisy of the United States government which claimed to support national self-determination and yet "sought to crush the Russian revolution and abolish the present government."
The second arena in which differing attitudes about government and the Wilson administration emerged was the Abrams trial. Harry Weinberger, the defendant's attorney, attempted to justify his clients' attack on the United States government for intervention in Russia by proving that Wilson acted illegally by sending troops to Russia without first declaring war. He also sought to establish that the Bolshevik government, which was not pro-German as the Sisson Documents claimed, wanted the economic and military cooperation of the United States. Therefore, the defendants were within their constitutional rights to criticize the American government for ordering troops against a Soviet government that sought our assistance.
The Judge, Henry DeLamar Clayton, who had a bias against the defendants, thought that Weinberger's defense was inappropriate. Clayton decided that to allow this courtroom approach for Sedition Act cases would permit the defendants to claim that they acted with a "superior wisdom to the organized government of the United States." The Judge, influenced from his own preconceived bias, said that the defendants encouraged antagonistic views against the United States government that would prevent it from performing its duties. According to Clayton, no man had the right to do that.
As a result of Clayton's objection to Weinberger's line of defense, yet also wanting to fairly define the case for later appeal, Clayton allowed Weinberger to ask questions of his witnesses and place them on the record but disallowed any response. Therefore, the Abrams Trial presented differing views of the United States government but "provided only a muted sounding board for the critics of the Wilson administration's Russian policy."
We must next consider the reactions and response of the Supreme Court appeal. After the conviction of the defendants, Weinberger appealed to the Supreme Court where he said that it was before them to decide whether citizens had the right to criticize the government. Weinberger believed that the right to criticize was the foundation of government, yet he was of a minority opinion. The Court at this time was very conservative with seven of the nine justices believing that anarchists threatened the government and they did not want an extension of the First Amendment to protect them. Joseph McKenna, one of the conservative justices, stated that the result of this would be that "government...was invoked to justify the activities of anarchy or the enemies of the United States." This would be disastrous because by slandering government it would decrease its authority and would severely weaken the troop's morale.
The two justices who supported a liberal interpretation of freedom of speech were Oliver Wendell Holmes and Louis D. Brandeis. Holmes, who responded to the majority decision in his dissent, established his "clear and present danger" standard and defended his new interpretation of intent to cause harm. He argued that free speech was necessary for the emergence of truth from the chaos of conflict and, as a result, would improve the governing process. Brandeis echoed, and amplified Holmes' remarks by demonstrating the "connection between freedom of speech and the functioning of a democratic government." He believed that a true democracy was dependent on the enlightened voter and that free speech was the vehicle by which the people could be exposed to all opinions, thereby making a rational choice.
The final point is to consider how the government was viewed after the conflict was resolved. Though Abrams, Steimer, Lipman, and Lachowsky were eventually deported, they never gained amnesty by the United States government. Attorney General Palmer was against amnesty and defended the government's incarceration of them by stating that out of 110,000,000 people only 160 were in jail for violating wartime statutes. This showed no "oppression on the part of government...but a most careful discrimination between cases." President Harding was also against amnesty for any criminal who preached "the destruction of the government by force." Weinberger, still contentious in November of 1921, sided with Holmes reiterating his defense that these people had the same right to protest as the United States had to its constitution.
In conclusion, this paper has shown that the Abrams case illuminated differing attitudes about government of which the most extreme was the anarchists' belief in the natural dissolution of government. The more rational confrontation of ideologies was between the liberal and conservative members of the Supreme Court and those that sided with them. On the conservative side, freedom of speech inhibited the authority of government and interfered with its wartime activity. The liberal argument was that a democratic government could not function properly without the freedom of speech necessary to inform and enlighten the people of the United States. The Abrams case is a bench mark for one of the most basic liberties of the American people. Freedom of speech is the constitutional avenue that was paved not only by visionaries like Oliver Wendell Holmes but also by Jacob Abrams, Mollie Steimer, Hyman Lachowsky, and Samuel Lipman, who were willing to sacrifice their lives to speak their mind and condemn the actions of a government with which they never agreed.
June 28, 2017
Way too much background and really extraneous information.
March 8, 2010
Abrams v. United States was a 1919 Supreme Court decision that gave us the famous dissenting view of Oliver Wendell Holmes, who wrote: "“the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. 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 believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” There is a market, one that tends to produce at least provisionally good results. Therefore, “normally, we should leave the correction of evil councils to time.”
Four Russian Immigrants had, during WWI, distributed leaflets urging workers in a munitions factory to stop making bullets. They were arrested and jailed under the Sedition Act. Their case went all the way to the Supreme Court, where the decision was upheld, but it is the famous dissenting opinion that has lived on.
The immigrants were sent back to what had, since they left Russia, become the Soviet Union. They were jailed in Russia, as well. One of them was executed by Stalin. One perished in a concentration camp during WWII, and two of them went into exile, first in Germany, then France before settling in Mexico.
Four Russian Immigrants had, during WWI, distributed leaflets urging workers in a munitions factory to stop making bullets. They were arrested and jailed under the Sedition Act. Their case went all the way to the Supreme Court, where the decision was upheld, but it is the famous dissenting opinion that has lived on.
The immigrants were sent back to what had, since they left Russia, become the Soviet Union. They were jailed in Russia, as well. One of them was executed by Stalin. One perished in a concentration camp during WWII, and two of them went into exile, first in Germany, then France before settling in Mexico.
October 9, 2007
I had to read this book for a class, and for that I'm glad. Briefly, four Russian Jewish anarchists are imprisoned, convicted, and deported for distributing leaflets protesting the U.S.' involvement in the Russian Revolution, which violated the Sedition Act. The case itself is famous for Justice Oliver Wendel Holmes' dissent, which later became seminal in "almost all subsequent First Amendment theory and litigation." Holmes essentially ruled that the pamphlets were protected speech, contravening then-established orthodoxy that "shouting fire in a crowded building is not a riot." Holmes ruled that the pamphlets themselves were not seditious, and that the Sedition Act was unconstitutional, and that the example of "inciting a riot" was an example of "speech so brigaded with action" that it could not logically be called speech. In addition to some legal mid-to-heavy lifting, Polenberg does an excellent job documenting both the hilariously ineffectual anarchists and the overzealous and incipient reign of J. Edgar Hoover. I'd love it if everyone read this book, but unfortunately it's out of print.
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