Appellants
Jacob Abrams, Mollie Steimer, Hyman Lachowsky, Samuel Lipman
Appellee
United States
Appellants' Claim
That they were not legally convicted of conspiracy to violate the Espionage Act of 1917.
Chief Lawyer for Appellants
Harry Weinberger
Chief Lawyer for Appellee
Robert T. Stewart
Justices for the Court
John Hessin Clarke (writing for the Court), William Rufus Day, Charles EvansHughes, Joseph McKenna, James Clark McReynolds, Willis Van Devanter, Edward Douglass White
Justices Dissenting
Louis D. Brandeis, Oliver Wendell Holmes
Place
Washington, D.C.
Date of Decision
10 November 1919
Decision
Upheld the conviction and the Espionage Act as constitutional.
Significance
In his dissent, Holmes advanced a revised version of his own "clear and present danger" standard in Schenck v. United States The new standard gavegreater protection to political speech, even during wartime. Holmes's reasoning was adopted by the Court during the 1930s and serves as the basis for legal doctrines upholding freedom of expression.
During World War I, the Supreme Court, for the first time, debated the meaning of the First Amendment's freedom of expression section, "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . " President Abraham Lincoln's government had sternly subdued opposition during the Civil War. Rather than passing laws to suppress free speech, however, Lincolnhad issued presidential decrees enforced through military power. After declaring martial law in an area, the army shut down or censored the newspapers. Habeas corpus was suspended, and persons accused of disloyal utteranceswere jailed without trial in military prisons.
In Uncharted Territory
Fewer than a dozen cases involving free expression had come before the Supreme Court prior to 1918. In these cases, the Court upheld federal and state laws limiting speech and other forms of expression that "tended" to have a bad effect. In Patterson v. Colorado (1907), for example, Justice Oliver Wendell Holmes had argued that freedom of the press meant merely freedom from censorship prior to publication. He thus had affirmed a state's power to punish even true statements tending to interfere with judicial proceedings. As a result, there were few precedents available when Congress passed the 1917 Espionage Act and the 1918 Sedition Act to curb dissent. These laws led to the first sustained Supreme Court interpretation of the extent to which political speech was to be protected in times of war.
Three cases were decided in March 1919: Schenck v. United States, Frohwerk v. United States, and Debs v. United States. In each of these cases, Justice Holmes wrote the decisions for the unanimous Court. Eightmonths later, in November 1919, the Court decided Abrams v. United States This time, Holmes was almost alone in dissenting from the majority decision.
Creating the Surveillance State
In June of 1917, two months after the U.S. entered the war, Congress passed the Espionage Act. The act established three basic wartime offenses: conveyingfalse information intended to interfere with U.S. military operations, causing insubordination in the military, and obstructing recruiting. In May of 1918, the Sedition Act added nine additional offenses. Taken together, these made it illegal to do, to say, or to write anything that might tend to hinder the war effort, support America's enemies, or bring contempt or disrespect uponthe government, flag, uniform, or Constitution.
The constitutionality of the Espionage Act was upheld in Schenck v. UnitedStates. Charles Schenck was convicted of supervising the printing and distribution of a Socialist Party pamphlet that attacked the military draft. Writing for a unanimous Court, Justice Holmes affirmed Schenck's conviction.
Ignoring earlier free speech decisions, Holmes sketched out his own "clear and present danger" standard. Absolute freedom of speech, Holmes argued, wouldbe absurd. "The most stringent protection of free speech would not protect aman in falsely shouting fire in a theatre and causing a panic."
Holmes then sketched two tests for protection of speech. The first tied protection to circumstances, " . . . whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress had a right to prevent." The second test tied protection to intent. If the speaker intended tobring about those evils, "we perceive no ground for saying that success alone warrants making the act a crime."
A week after the Schenck decision, Holmes rendered two more unanimousopinions in Espionage Act cases. These opinions expressed an extremely limited view of First Amendment rights. They brought into question the meaning of Holmes's "clear and present danger" doctrine.
In Frohwerk, Holmes upheld the conviction of Jacob Frohwerk because his newspaper articles critical of the draft might "be enough to kindle a flameof resistance." In Debs, Holmes held that a speech by Eugene Debs, the Socialist leader, was intended to obstruct recruiting. In these decisions,Holmes did not mention his own "clear and present danger" test. Thus he did not analyze whether the words used might actually cause an "evil effect." It was enough that they might have a "tendency" to so do.
In formulating his "clear and present danger" doctrine, Holmes knew preciselywhere to draw the line between protected and unprotected speech. He was given a new opportunity to provide a clear demarcation when Abrams reachedthe court the following October.
Anarchists and War
Jacob Abrams and his codefendants--Hyman Lachowsky, Jacob Schwartz, Mollie Steimer, and Samuel Lipman--were Russian-born Jews living in the East Harlem section of New York. They became involved with the Yiddish-language paper Der Shturm (The Storm), which advocated anarchist doctrines and policies. With their fellow anarchists, they sought to destroy capitalism and government and create a collectivist but uncoerced society.
Although anarchists usually rejected Marxist socialism, many initially were dazzled by the Russian Revolution. During August 1918, the Shturm groupreacted with passionate opposition when President Woodrow Wilson sent U.S. troops to Siberia. Samuel Lipman prepared an English pamphlet attacking U.S. intervention, while Jacob Schwartz wrote a much more militant version in Yiddish.
On 22 and 23 August, fellow anarchists distributed the leaflets by scatteringthem from rooftops in Manhattan. The New York police soon traced the leaflets to the Shturm group. Joined by army officers, the police interrogated the prisoners until each confessed. They later accused the officers of beatings and torture, and Jacob Schwartz died in prison the following October.
Trial and Appeal
The trial of Abrams and his associates began on 14 October 1918, before HenryDeLamar Clayton, an Alabama judge temporarily assigned to New York. A formercongressman (author of the Clayton Anti-Trust Act), Clayton hated Germany, especially after his beloved younger brother was killed in France by German soldiers.
Judge Clayton was overtly hostile throughout the trial. Despite a vigorous defense from attorney Harry Weinberger, a fellow anarchist, the jury convictedthe defendants. On 25 October 1918, after delivering a two-hour tirade on theevils of Germany and Bolsheviks, Clayton sentenced Abrams, Lachowsky, and Lipman to 20 years and Steimer to 15 years in prison. Weinberger immediately appealed directly to the Supreme Court.
The Court heard oral arguments in Abrams on 21 October 1919. AssistantAttorney General Robert Stewart contended that the group had attempted to interfere with munitions production and had intended to overthrow the government by force. The First Amendment, he argued, did not apply because it merely protected the press from prior restraints.
Defense attorney Weinberger argued that the evidence did not support a guiltyverdict. Moreover, the Espionage and Sedition Acts were unconstitutional because they violated the natural right of liberty of discussion. In any event,since the United States was not at war with the Soviet Union, the leaflets did not interfere with the war effort.
On 19 November 1919, the Court upheld the conviction of Abrams and his colleagues. Justice Clarke wrote the majority decision. The defendants' contentionthat the First Amendment protected their leaflets, Clarke wrote, "is definitely negated by Schenck."Abrams
Clarke quoted the leaflets selectively to show that there was enough evidenceto convict the defendants. And Clarke tied their actions to the "clear and present danger test" in Schenck. The leaflets had been "circulated in the greatest port of our land," Clarke pointed out, at "the supreme crisis ofthe war." On the question of intent, Clarke brushed aside the argument that the anarchists wanted to protect the Soviet Union and not to help Germany. "Men must be held to have intended . . . the effects which their acts were likely to produce."
Clear and Present Danger--Phase Two
Holmes dissented, joined by Brandeis. Holmes centered his argument on the government's failure to prove intent. The word intent, he argued, often was vaguely used to mean only that a certain act had a tendency to cause a certain effect. But "when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed." Intent means, in other words, that a person's goal is the proximate and immediate cause of a specific act.
Holmes asserted that he was following the Schenck, Frohwerk, and Debs decisions. In restating the "clear and present danger" standard, however, Holmes significantly revised it, by changing "present" to "imminent" and by adding "forthwith." Congress may punish only speech that "is intended to produce a clear and imminent danger that it will bring about forthwithcertain substantive evils."
Holmes argued there was no danger that the defendants actually could damage the war effort.
The Unending Search for Truth
In an eloquent final paragraph, for which the dissent is famous, Holmes discussed the connection between freedom of speech, the search for truth, and thevalue of experimentation. It is perfectly logical to persecute opposing viewsif one assumes one knows the truth.
The reasoning in Holmes' Abrams dissent significantly modifies his Schenck opinion eight months earlier. As Professor Richard Polenberg hasshown in Fighting Faiths, Holmes spent considerable time during the summer of 1919 reconsidering his Schenck reasoning and reading about issues of free expression. Holmes discussed the case with Judge Learned Hand andHarvard Law School professor Zechariah Chafee, Jr., both libertarians on political discussion. He also met with English socialist Harold Laski, a visiting professor at Harvard. As a result, Holmes profoundly revised his Schenck reasoning and developed the more permissive doctrine he advanced in theAbrams dissent, nine months later.
Ultimately the revised "clear and imminent danger" standard in Abramsdissent became the position of the Court majority. But Holmes eloquent dissent did little for the Abrams defendants. After many months in prison, they were deported to the Soviet Union in 1921. But their homeland rejected them as well. Samuel Lipman was murdered during one of Stalin's purges, and Abrams and Mollie Steimer fled to lonely exile in Mexico City.
Related Cases
Espionage Act of 1917
The Espionage Act of 1917 outlawed making false statements, in speech or writing, for the purpose of causing insubordination, or for suppressing or obstructing recruitment of men into the U.S. military at times of war. The act prohibited an individual or group from using the mail for transmitting materialscontaining statements outlawed under the act. Postmasters could refuse to distribute such materials.
Congress passed the Espionage Act at the beginning of World War I when national fervor and patriotism were at an unparalleled level. Fears, fueled by thesuccess of the Bolshevick Revolution in Russia, precipitated intolerance foranarchists, foreigners, and pacifists. Any criticism of the government was viewed as criticism of the U.S. war effort and a threat to national security.
Historically, the act was linked with a much stronger law passed the following year, the Sedition Act of 1918. The Sedition Act imposed heavy fines and prison terms for persons speaking or writing anything critical of the government or its symbols such as the flag, the military uniform, or the Constitution.Although a vast majority of Americans supported both laws, some groups and individuals strenuously objected to them on grounds they blatantly disregardedthe First Amendment's free speech guarantee.
Sources
Biskupic, Joan and Elder Witt. Guide to the U.S. Supreme Court. Washington, DC: Congressional Quarterly, 1997.
Jacob Abrams, Mollie Steimer, Hyman Lachowsky, Samuel Lipman
Appellee
United States
Appellants' Claim
That they were not legally convicted of conspiracy to violate the Espionage Act of 1917.
Chief Lawyer for Appellants
Harry Weinberger
Chief Lawyer for Appellee
Robert T. Stewart
Justices for the Court
John Hessin Clarke (writing for the Court), William Rufus Day, Charles EvansHughes, Joseph McKenna, James Clark McReynolds, Willis Van Devanter, Edward Douglass White
Justices Dissenting
Louis D. Brandeis, Oliver Wendell Holmes
Place
Washington, D.C.
Date of Decision
10 November 1919
Decision
Upheld the conviction and the Espionage Act as constitutional.
Significance
In his dissent, Holmes advanced a revised version of his own "clear and present danger" standard in Schenck v. United States The new standard gavegreater protection to political speech, even during wartime. Holmes's reasoning was adopted by the Court during the 1930s and serves as the basis for legal doctrines upholding freedom of expression.
During World War I, the Supreme Court, for the first time, debated the meaning of the First Amendment's freedom of expression section, "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . " President Abraham Lincoln's government had sternly subdued opposition during the Civil War. Rather than passing laws to suppress free speech, however, Lincolnhad issued presidential decrees enforced through military power. After declaring martial law in an area, the army shut down or censored the newspapers. Habeas corpus was suspended, and persons accused of disloyal utteranceswere jailed without trial in military prisons.
In Uncharted Territory
Fewer than a dozen cases involving free expression had come before the Supreme Court prior to 1918. In these cases, the Court upheld federal and state laws limiting speech and other forms of expression that "tended" to have a bad effect. In Patterson v. Colorado (1907), for example, Justice Oliver Wendell Holmes had argued that freedom of the press meant merely freedom from censorship prior to publication. He thus had affirmed a state's power to punish even true statements tending to interfere with judicial proceedings. As a result, there were few precedents available when Congress passed the 1917 Espionage Act and the 1918 Sedition Act to curb dissent. These laws led to the first sustained Supreme Court interpretation of the extent to which political speech was to be protected in times of war.
Three cases were decided in March 1919: Schenck v. United States, Frohwerk v. United States, and Debs v. United States. In each of these cases, Justice Holmes wrote the decisions for the unanimous Court. Eightmonths later, in November 1919, the Court decided Abrams v. United States This time, Holmes was almost alone in dissenting from the majority decision.
Creating the Surveillance State
In June of 1917, two months after the U.S. entered the war, Congress passed the Espionage Act. The act established three basic wartime offenses: conveyingfalse information intended to interfere with U.S. military operations, causing insubordination in the military, and obstructing recruiting. In May of 1918, the Sedition Act added nine additional offenses. Taken together, these made it illegal to do, to say, or to write anything that might tend to hinder the war effort, support America's enemies, or bring contempt or disrespect uponthe government, flag, uniform, or Constitution.
The constitutionality of the Espionage Act was upheld in Schenck v. UnitedStates. Charles Schenck was convicted of supervising the printing and distribution of a Socialist Party pamphlet that attacked the military draft. Writing for a unanimous Court, Justice Holmes affirmed Schenck's conviction.
Ignoring earlier free speech decisions, Holmes sketched out his own "clear and present danger" standard. Absolute freedom of speech, Holmes argued, wouldbe absurd. "The most stringent protection of free speech would not protect aman in falsely shouting fire in a theatre and causing a panic."
Holmes then sketched two tests for protection of speech. The first tied protection to circumstances, " . . . whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress had a right to prevent." The second test tied protection to intent. If the speaker intended tobring about those evils, "we perceive no ground for saying that success alone warrants making the act a crime."
A week after the Schenck decision, Holmes rendered two more unanimousopinions in Espionage Act cases. These opinions expressed an extremely limited view of First Amendment rights. They brought into question the meaning of Holmes's "clear and present danger" doctrine.
In Frohwerk, Holmes upheld the conviction of Jacob Frohwerk because his newspaper articles critical of the draft might "be enough to kindle a flameof resistance." In Debs, Holmes held that a speech by Eugene Debs, the Socialist leader, was intended to obstruct recruiting. In these decisions,Holmes did not mention his own "clear and present danger" test. Thus he did not analyze whether the words used might actually cause an "evil effect." It was enough that they might have a "tendency" to so do.
In formulating his "clear and present danger" doctrine, Holmes knew preciselywhere to draw the line between protected and unprotected speech. He was given a new opportunity to provide a clear demarcation when Abrams reachedthe court the following October.
Anarchists and War
Jacob Abrams and his codefendants--Hyman Lachowsky, Jacob Schwartz, Mollie Steimer, and Samuel Lipman--were Russian-born Jews living in the East Harlem section of New York. They became involved with the Yiddish-language paper Der Shturm (The Storm), which advocated anarchist doctrines and policies. With their fellow anarchists, they sought to destroy capitalism and government and create a collectivist but uncoerced society.
Although anarchists usually rejected Marxist socialism, many initially were dazzled by the Russian Revolution. During August 1918, the Shturm groupreacted with passionate opposition when President Woodrow Wilson sent U.S. troops to Siberia. Samuel Lipman prepared an English pamphlet attacking U.S. intervention, while Jacob Schwartz wrote a much more militant version in Yiddish.
On 22 and 23 August, fellow anarchists distributed the leaflets by scatteringthem from rooftops in Manhattan. The New York police soon traced the leaflets to the Shturm group. Joined by army officers, the police interrogated the prisoners until each confessed. They later accused the officers of beatings and torture, and Jacob Schwartz died in prison the following October.
Trial and Appeal
The trial of Abrams and his associates began on 14 October 1918, before HenryDeLamar Clayton, an Alabama judge temporarily assigned to New York. A formercongressman (author of the Clayton Anti-Trust Act), Clayton hated Germany, especially after his beloved younger brother was killed in France by German soldiers.
Judge Clayton was overtly hostile throughout the trial. Despite a vigorous defense from attorney Harry Weinberger, a fellow anarchist, the jury convictedthe defendants. On 25 October 1918, after delivering a two-hour tirade on theevils of Germany and Bolsheviks, Clayton sentenced Abrams, Lachowsky, and Lipman to 20 years and Steimer to 15 years in prison. Weinberger immediately appealed directly to the Supreme Court.
The Court heard oral arguments in Abrams on 21 October 1919. AssistantAttorney General Robert Stewart contended that the group had attempted to interfere with munitions production and had intended to overthrow the government by force. The First Amendment, he argued, did not apply because it merely protected the press from prior restraints.
Defense attorney Weinberger argued that the evidence did not support a guiltyverdict. Moreover, the Espionage and Sedition Acts were unconstitutional because they violated the natural right of liberty of discussion. In any event,since the United States was not at war with the Soviet Union, the leaflets did not interfere with the war effort.
On 19 November 1919, the Court upheld the conviction of Abrams and his colleagues. Justice Clarke wrote the majority decision. The defendants' contentionthat the First Amendment protected their leaflets, Clarke wrote, "is definitely negated by Schenck."Abrams
Clarke quoted the leaflets selectively to show that there was enough evidenceto convict the defendants. And Clarke tied their actions to the "clear and present danger test" in Schenck. The leaflets had been "circulated in the greatest port of our land," Clarke pointed out, at "the supreme crisis ofthe war." On the question of intent, Clarke brushed aside the argument that the anarchists wanted to protect the Soviet Union and not to help Germany. "Men must be held to have intended . . . the effects which their acts were likely to produce."
Clear and Present Danger--Phase Two
Holmes dissented, joined by Brandeis. Holmes centered his argument on the government's failure to prove intent. The word intent, he argued, often was vaguely used to mean only that a certain act had a tendency to cause a certain effect. But "when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed." Intent means, in other words, that a person's goal is the proximate and immediate cause of a specific act.
Holmes asserted that he was following the Schenck, Frohwerk, and Debs decisions. In restating the "clear and present danger" standard, however, Holmes significantly revised it, by changing "present" to "imminent" and by adding "forthwith." Congress may punish only speech that "is intended to produce a clear and imminent danger that it will bring about forthwithcertain substantive evils."
Holmes argued there was no danger that the defendants actually could damage the war effort.
Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present anyimmediate danger that its opinions would hinder the success of the governmentarms or have any appreciable tendency to do so.In any case, Abrams and his friends did not intend to harm the United States. Their only intent was to prevent interference with the revolution in Russia.
The Unending Search for Truth
In an eloquent final paragraph, for which the dissent is famous, Holmes discussed the connection between freedom of speech, the search for truth, and thevalue of experimentation. It is perfectly logical to persecute opposing viewsif one assumes one knows the truth.
But when men have realized that time has upset many fighting faiths, they may come to believe even . . .that the ultimate good desired is better reached by free trade in ideas--thatthe best test of truth is the power of the thought to get itself accepted inthe competition of the market . . . That is at any rate the theory of our Constitution . . . Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception tothe sweeping command, "Congress shall make no law abridging the freedom of speech."
The reasoning in Holmes' Abrams dissent significantly modifies his Schenck opinion eight months earlier. As Professor Richard Polenberg hasshown in Fighting Faiths, Holmes spent considerable time during the summer of 1919 reconsidering his Schenck reasoning and reading about issues of free expression. Holmes discussed the case with Judge Learned Hand andHarvard Law School professor Zechariah Chafee, Jr., both libertarians on political discussion. He also met with English socialist Harold Laski, a visiting professor at Harvard. As a result, Holmes profoundly revised his Schenck reasoning and developed the more permissive doctrine he advanced in theAbrams dissent, nine months later.
Ultimately the revised "clear and imminent danger" standard in Abramsdissent became the position of the Court majority. But Holmes eloquent dissent did little for the Abrams defendants. After many months in prison, they were deported to the Soviet Union in 1921. But their homeland rejected them as well. Samuel Lipman was murdered during one of Stalin's purges, and Abrams and Mollie Steimer fled to lonely exile in Mexico City.
Related Cases
- Patterson v. Colorado, 205 U.S. 454 (1907).
- Schenk v. United States, 249 U.S. 47 (1919).
- Frohwerk v. United States, 249 U.S. 204 (1919).
- Debs v. United States, 249 U.S. 211 (1919).
Espionage Act of 1917
The Espionage Act of 1917 outlawed making false statements, in speech or writing, for the purpose of causing insubordination, or for suppressing or obstructing recruitment of men into the U.S. military at times of war. The act prohibited an individual or group from using the mail for transmitting materialscontaining statements outlawed under the act. Postmasters could refuse to distribute such materials.
Congress passed the Espionage Act at the beginning of World War I when national fervor and patriotism were at an unparalleled level. Fears, fueled by thesuccess of the Bolshevick Revolution in Russia, precipitated intolerance foranarchists, foreigners, and pacifists. Any criticism of the government was viewed as criticism of the U.S. war effort and a threat to national security.
Historically, the act was linked with a much stronger law passed the following year, the Sedition Act of 1918. The Sedition Act imposed heavy fines and prison terms for persons speaking or writing anything critical of the government or its symbols such as the flag, the military uniform, or the Constitution.Although a vast majority of Americans supported both laws, some groups and individuals strenuously objected to them on grounds they blatantly disregardedthe First Amendment's free speech guarantee.
Sources
Biskupic, Joan and Elder Witt. Guide to the U.S. Supreme Court. Washington, DC: Congressional Quarterly, 1997.
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