Centennial Series: Abrams v US

2019 marks the centennial of the Hamilton County Courthouse and I thought I would take a look at landmark cases, legislation and general events of the world from 100 years ago as a reflection on where we were then and where we are now.

Abrams v. US 250 US 616 (1919), 40 S.Ct. 17

This case was decided almost a full 8 months after the Schenck decision. It too focused on citizens’ First Amendment rights under the Espionage Act of 1917, though Abrams dealt more directly with an Amendment to the Espionage Act more commonly known as the Sedition Act of 1918.

If you don’t have time to read my piece on Schenck, here is a quick summary. Justice Oliver Wendell Holmes, in his majority opinion, created what was known as the “clear and present danger” standard for determining whether speech that could possibly incite violence or lawlessness is protected under the First Amendment. This is more commonly known among laypersons as “you can’t yell fire in a crowded theater”. If there is a clear and present danger that a person’s words could incite others to break the law, then that speech is not protected by the First Amendment.

Abrams is one of the tests of the scope of that standard. The case can be summarized as follows:

In 1918, Congress passed an amendment to the Espionage Act of 1917. In part, this amendment made it illegal to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States” or to “willfully ...urge, incite, or advocate any curtailment of production of things and products, to wit, ordnance and ammunition, necessary and essential to the prosecution of the war.”

In the fall of 1918, six Russian emigrants were arrested and charged with violating the Sedition Act. They were accused of printing flyers and circulars of a revolutionary nature and throwing them from the window of a hat factory in lower Manhattan. The flyers were disparaging of the Wilson administration and its support of the Russian government in the Russian Revolution. In his opinion, Justice Clarke summed up their crimes as follows:

“Each of the first three counts charged the defendants with conspiring, when the United States was at war with the Imperial Government of Germany, to unlawfully utter, print, write and publish: In the first count, ‘disloyal, scurrilous and abusive language about the form of government of the United States;’ in the second count, language ‘intended to bring the form of government of the United States into contempt, scorn, contumely, and disrepute;’ and in the third count, language ‘intended to incite, provoke and encourage resistance to the United States in said war.’ The charge in the fourth count was that the defendants conspired ‘when the United States was at war with the Imperial German Government, … unlawfully and willfully, by utterance, writing, printing and publication to urge, incite and advocate curtailment of production of things and products, to wit, ordnance and ammunition, necessary and essential to the prosecution of the war.’”

Justice Clarke does an amazing job of summing up the problematic language and I strongly suggest you read the full opinion to get a clear idea of the issues at hand, but two paragraphs stood out to me as I read it.

“It will not do to say, as is now argued, that the only intent of these defendants was to prevent injury to the Russian cause. Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce. Even if their primary purpose and intent was to aid the cause of the Russian Revolution, the plan of action which they adopted necessarily involved, before it could be realized, defeat of the war program of the United States, for the obvious effect of this appeal, if it should become effective, as they hoped it might, would be to persuade persons of character such as those whom they regarded themselves as addressing, not to aid government loans, and not to work in ammunition factories where their work would produce "bullets, bayonets, cannon" and other munitions of war the use of which would cause the "murder" of Germans and Russians.

Again, the spirit becomes more bitter as it proceed to declare that --

"America and her Allies have betrayed (the Workers). Their robberish aims are clear to all men. The destruction of the Russian Revolution, that is the politics of the march to Russia."

"Workers, our reply to the barbaric intervention has to be a general strike! An open challenge only will let the Government know that not only the Russian Worker fights for freedom, but also here in America lives the spirit of Revolution."

This is not an attempt to bring about a change of administration by candid discussion, for, no matter what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was to create an attempt to defeat the war plans of the Government of the United States by bringing upon the country the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to the conduct of the war.”

With this, the Supreme Court affirmed the determination of the District Court. However, Justice Oliver Wendell Homes, joined by Justice Louis Brandeis dissented. Justice Holmes states:

“It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so…..It is necessary where the success of the attempt depends upon others because, if that intent is not present, the actor's aim may be accomplished without bringing about the evils sought to be checked. An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged.

I do not see how anyone can find the intent required by the statute in any of the defendants' words. The second leaflet is the only one that affords even a foundation for the charge, and there, without invoking the hatred of German militarism expressed in the former one, it is evident from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against the popular government -- not to impede the United States in the war that it was carrying on. To say that two phrases, taken literally, might import a suggestion of conduct that would have interference with the war as an indirect and probably undesired effect seems to me by no means enough to show an attempt to produce that effect.”

He adds:

“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent…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, and that truth is the only ground upon which their wishes safely can be carried out…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.”