1. A Far Tougher Clear and Present Danger Doctrine Emerges in Dissent

Abrams v. United States: Background

            In 1918, the United States sent a small armed force to Russia against the newly established Communist Government which had made peace with Germany. Abrams and his co-defendants were anti-German, but pro-Communist and therefore opposed to what they saw as a capitalist attempt to crush the Russian revolution. Abrams disseminated leaflets calling for a general strike. In the leaflets, workers were urged to unite against a common enemy, capitalism. Workers were encouraged to “create so great a disturbance that the autocrats of America shall be compelled to keep their armies at home. . . .”

Abrams and his co-defendants were charged with violating the 1918 amendments to the Espionage Act which prohibited, among other things, publishing disloyal or abusive language intended to cause disrepute as to the form of government of the United States; any language intended to incite resistance to the United States or to promote the cause of its enemies; or language urging curtailment of war production with intent to hinder such production. As the Court interpreted the statute, an intent to interfere with the declared war against Germany (as opposed to the undeclared action in Russia) was necessary. The Court found the intent element satisfied because “[m]en must be held to have intended . . . the effects which their acts are likely to produce.”

During the summer of 1919, Justice Holmes received criticism for his decisions in Schenck and Debs from other academics, from the liberal press, and from judge Learned Hand. Progressive writers were shocked that Holmes, whom they admired for decisions such as his Lochner dissent, had taken such a position. With the war over, Justice Holmes offered what seemed to be a new, more speech protective free speech test. Holmes, however, continued to maintain that the earlier cases had been correctly decided and (following a route suggested by Chafee) found his seemingly more protective approach to be an application of his clear and present danger decision in Schenck. His Abrams dissent was joined by Brandeis who would soon pen his own highly speech protective understanding of the clear and present danger test.

Abrams v. United States

250 U.S. 616 (1919)

Mr. Justice Clarke delivered the opinion of the Court.

On a single indictment, containing four counts, the five plaintiffs in error, hereinafter designated the defendants, were convicted of conspiring to violate provisions of the Espionage Act of Congress.

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. . . .” . . .

On the record thus described it is argued, somewhat faintly, that the acts charged against the defendants were not unlawful because within the protection of that freedom of speech and of the press which is guaranteed by the 1st Amendment to the Constitution of the United States, and that the entire Espionage Act is unconstitutional because in conflict with that Amendment.

This contention is sufficiently discussed and is definitely negatived in Schenck v. United States (1919) and in Frohwerk v. United States (1919).

The claim chiefly elaborated upon by the defendants in the oral argument and in their brief is that there is no substantial evidence in the record to support the judgment upon the verdict of guilty and that the motion of the defendants for an instructed verdict in their favor was erroneously denied. A question of law is thus presented. . . .

The first of the two articles attached to the indictment is conspicuously headed, “The Hypocrisy of the United States and her Allies.” After denouncing President Wilson as a hypocrite and a coward because troops were sent into Russia, it proceeds to assail our government in general, saying:

His [the President’s] shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington and vicinity.

It continues:

He [the President] is too much of a coward to come out openly and say: “We capitalistic nations cannot afford to have a proletarian republic in Russia.”

Among the capitalistic nations Abrams testified the United States was included.

Growing more inflammatory as it proceeds, the circular culminates in:

The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and mine!

Yes! friends, there is only one enemy of the workers of the world and that is CAPITALISM.

This is clearly an appeal to the “workers” of this country to arise and put down by force the government of the United States which they characterize as their “hypocritical,” “cowardly” and “capitalistic” enemy.

It concludes: “Awake! Awake, you Workers of the World! REVOLUTIONISTS.”

The second of the articles was printed in the Yiddish language and in the translation is headed, “Workers — Wake Up.” After referring to “his Majesty, Mr. Wilson, and the rest of the gang, dogs of all colors!” it continues:

Workers, Russian emigrants, you who had the least belief in the honesty of our government,

which defendants admitted referred to the United States government,

must now throw away all confidence, must spit in the face the false, hypocritic, military propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of the war.

The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the government of the United States, and to cease to render it assistance in the prosecution of the war.

It goes on:

With the money which you have loaned, or are going to loan them, they will make bullets not only for the Germans, but also for the Workers Soviets of Russia. Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.

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. . . .

These excerpts sufficiently show, that while the immediate occasion for this particular outbreak of lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our government sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the government in Europe. A technical distinction may perhaps be taken between disloyal and abusive language applied to the form of our government or language intended to bring the form of our government into contempt and disrepute, and language of like character and intended to produce like results directed against the President and Congress, the agencies through which that form of government must function in time of war. But it is not necessary to a decision of this case to consider whether such distinction is vital or merely formal, for the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war, as the third count runs, and, the defendants, in terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions necessary and essential to the prosecution of the war as is charged in the fourth count. Thus it is clear not only that some evidence but that much persuasive evidence was before the jury tending to prove that the defendants were guilty as charged in both the third and fourth counts of the indictment and under the long established rule of law hereinbefore stated the judgment of the District Court must be AFFIRMED.

Mr. Justice Holmes, dissenting.

. . . I am aware of course that the word “intent” as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. Even less than that will satisfy the general principle of civil and criminal liability. A man may have to pay damages, may be sent to prison, at common law might be hanged, if at the time of his act he knew facts from which common experience showed that the consequences would follow, whether he individually could foresee them or not. 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. It may be obvious, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it, but he does not do the act with intent to produce it unless the aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind.

It seems to me that this statute must be taken to use its words in a strict and accurate sense. They would be absurd in any other. A patriot might think that we were wasting money on aeroplanes, or making more cannon of a certain kind than we needed, and might advocate curtailment with success, yet even if it turned out that the curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States in the prosecution of the war, no one would hold such conduct a crime. I admit that my illustration does not answer all that might be said but it is enough to show what I think and to let me pass to a more important aspect of the case. I refer to the 1st Amendment to the Constitution that Congress shall make no law abridging the freedom of speech.

I never have seen any reason to doubt that the questions of law that alone were before this Court in the cases of Schenck v. United States (1919), Frohwerk v. United States (1919), and Debs v. United States (1919), were rightly decided. I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times.

But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. 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. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger and at any rate would have the quality of an attempt. So I assume that the second leaflet if published for the purposes alleged in the fourth count might be punishable. But it seems pretty clear to me that nothing less than that would bring these papers within the scope of this law. An actual intent in the sense that I have explained is necessary to constitute an attempt, where a further act of the same individual is required to complete the substantive crime, for reasons given in Swift & Co. v. United States (1905). 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. . . .

In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow — a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court.

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, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. 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. 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. I wholly disagree with the argument of the Government that the 1st Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law abridging the freedom of speech.” Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

Mr. Justice Brandeis concurs with the foregoing opinion.

John Wigmore on Abrams

John Wigmore, like Holmes, had been on the faculty of the Harvard Law School. He was intensely critical of Holmes’ analysis in Abrams:

[The Abrams dissent] is dallying with the facts and the law. None know better than judges that what is lawful for one is lawful for a thousand others. If these five men could, without the law’s restraint, urge munition workers to a general strike and armed violence, then others could lawfully do so; and a thousand disaffected undesirables, aliens and natives alike, were ready and waiting to do so. Though this circular was “surreptitious,” the next ones need not be so. If such urgings were lawful, every munitions factory in the country could be stopped by them. The relative amount of harm that one criminal act can effect is no measure of its criminality, and no measure of the danger of its criminality. To put forward such a palliation is merely to reveal more clearly the indifference to the whole crisis.

[At a time] when the fate of the civilized world hung in the balance, how could the Minority Opinion interpret law and conduct in such a way as to let loose men who were doing their hardest to paralyze the supreme war efforts of our country? . . .

This apotheosis of Truth, however, shows a blindness to the deadly fact that meantime the “power of the thought” of these circulars might “get itself accepted in the competition of the market,” by munitions workers, so as to lose the war; in which case, the academic victory which Truth, “the ultimate good,” might later secure in the market, would be too “ultimate” to have any practical value for a defeated America.

To weigh in juxtaposition the dastardly sentiments of these circulars and the great theme of world-justice for which our armies were sacrificing themselves, and then to assume the sacred cause of Truth as equally involved in both, is to misuse high ideals. This [dissenting opinion, if it had commanded a majority], would have ended by our letting soldiers die helpless in France, through our anxiety to protect the distribution of a leaflet whose sole purpose was to cut off the soldiers’ munitions and supplies. How would this have advanced the cause of Truth?

John Wigmore, Abrams v. U.S.: Freedom of Speech and Freedom of Thuggery in War-Time and Peace-Time, 14 Ill. L. Rev. 539, 549–51 (1920).

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Do you agree with Professor Wigmore’s criticism? Why or why not?

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Toward the end of his administration, President Woodrow Wilson, acting on the suggestion of his attorney general, released or reduced the sentences of two hundred of the incarcerated critics of World War I. However, Wilson rejected the recommendation that he commute the sentence of Eugene Debs.

In the following years, Senator William Borah of Idaho and others worked tirelessly to secure pardons for the remaining “political prisoners,” including Debs. In 1921 President Harding pardoned Debs and twenty-four others. In 1923 President Coolidge released the remaining prisoners. In response Senator Borah said, “I am delighted that a President of the United States has discovered the 1st Amendment to the Constitution and has had the courage to announce the discovery.” Geoffrey Stone, Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism 232 (2004).