Abrams v. United States

The trial of Abrams and his associates began on 14 October 1918, before Henry DeLamar Clayton, an Alabama judge temporarily assigned to New York. A former congressman (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 convicted the defendants. On 25 October 1918, after delivering a two-hour tirade on the evils 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. Assistant Attorney 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 guilty verdict. 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' contention that 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 evidence to 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 of the 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."