A People's History of the Supreme Court

by Peter Irons

  Holmes received more pointed, and more public, criticism from Ernst Freund of the University of Chicago Law School. Writing in The New Republic on “The Debs Case and Freedom of Speech,” Freund attacked the notion of “implied provocation” to violate laws and argued that only “direct provocation” could satisfy the First Amendment. Freund also dismissed the example Holmes offered in Schenck to support the “clear and present danger” test. “Justice Holmes would make us believe that the relation of the speech to obstruction is like that of the shout of Fire! in a crowded theatre to the resulting panic! Surely implied provocation in connection with political offenses is an unsafe doctrine if it has to be made plausible by a parallel so manifestly inappropriate.” Holmes composed a reply to Freund that stood by his opinions but admitted some doubts. “I hated to have to write the Debs case,” he confessed. “I could not see the wisdom of pressing the cases, especially when the fighting was over and I think it quite possible that if I had been on the jury I should have been for acquittal,” he added. Holmes had second thoughts about debating his opinions in public and did not send his letter to The New Republic.

  A more persuasive—and more tactfully phrased—response to the Schenck and Debs opinions came from Zechariah Chafee of Harvard Law School. In his Harvard Law Review article “Freedom of Speech in War Time,” Chafee admitted the difficulty of deciding “where the line runs” between lawful and unlawful speech. He suggested that Holmes had missed a “magnificent opportunity” to draw such a line by comparing Schenck’s leaflet with a false shout of “Fire!” Chafee offered a better example: “How about the man who gets up in a theater between the acts and informs the audience honestly but perhaps mistakenly that the fire exits are too few or locked. He is a much closer parallel to Schenck or Debs.” He supported the “direct incitement” test that Learned Hand had proposed to Holmes, adding that “absolutely unlimited discussion” of public issues—even during wartime—was necessary for “the discovery and spread of truth on subjects of general concern.” Holmes read Chafee’s article and met with him over tea during the summer of 1919. Perhaps he read the leaves in his cup with an eye toward First Amendment cases on the Court’s docket for argument that fall.

  The case that led Holmes to revise his First Amendment views began on a Thursday evening, August 22, 1918, on Second Avenue near Eighth Street in New York City. The Lower East Side in Manhattan was home to thousands of Russian Jews, most of them refugees over the past decade from the anti-Semitic “pogroms” of the czarist government, which had fallen to the Communist Bolsheviks in the October Revolution of 1917. Passersby noticed dozens of leaflets falling onto the sidewalks from a rooftop. Those who picked up copies discovered that some were printed in English, others in Yiddish. A storekeeper picked up one in English and was incensed by its contents, printed under the heading “The Hypocrisy of the United States and Her Allies.” He rushed up the stairs to the rooftop but could not find the culprit. He then brought copies of both the English and Yiddish leaflets to the police, who conducted a house-to-house search without locating the perpetrator. Newspaper headlines the next day alerted New Yorkers: “Seditious Circulars Scattered in Streets” and “Wilson Attacked in Circulars from Roofs of East Side.”

  On the morning of August 23, four men brought more copies to the police and said they saw the leaflets floating from a window at 610 Broadway. Two detectives from the army’s Military Intelligence Division visited the building, checked the time cards of workers at the American Hat Company on the third floor, and found that Hyman Rosansky had punched in earlier than usual. They approached Rosansky and asked to see his draft card; he pulled it out of his coat pocket with other papers, including copies of both the English and Yiddish leaflets. Rosansky claimed he had found them on the fire escape, but no one had seen him near it that morning. The detectives took him to his apartment in East Harlem, where they found more leaflets and a loaded .32 caliber revolver.

  Grilled at police headquarters, Rosansky said he was born in Russia and had entered the United States in 1910. He admitted being an anarchist but claimed he had nothing to do with producing the leaflets. He had been approached the night before by some men he knew from anarchist circles. “I know the fellows but don’t know exactly the names,” he said. “Lachowsky I know by name.” The men gave Rosansky leaflets to distribute. “I says, ‘What kind of leaflets?’ ‘It is all right, you don’t have to know what kind of leaflets,’ ‘What kind of leaflets?’ ‘It is all He says, ‘You have got to throw them from the window.’ ” Thoroughly frightened, Rosansky told the detectives he had arranged to meet Lachowsky and other members of his shadowy “Group” that evening on East 104th Street to receive more leaflets. Military agents staked out the block while Rosansky nervously waited for his contacts to appear. By ones and twos, several people approached Rosansky; one handed him a bundle of leaflets. Detectives followed them into apartments and restaurants and arrested four young men and one woman: Jacob Abrams, Hyman Lachowsky, Samuel Lipman, Jacob Schwartz, and Mollie Steimer. They were all held in the city jail, charged with violating the Sedition Act of 1918, arraigned the next morning, and held on $10,000 bail. The New York World reported that all five belonged to “the Blast Group and all are long-haired anarchists who came here from Russia.”

  What had so alarmed the shopkeeper who picked up a leaflet on Second Avenue that he took it to the police? The English-language circular denounced American military intervention in Russia and efforts “to crush the russian revolution.” The previous month, President Wilson had approved sending 7,500 American troops to eastern Russia, purportedly to divert German forces from the European front. The Wilson administration had yielded to pressure from its wartime allies for military action against the Bolsheviks, who had signed a separate peace treaty with the Germans in March 1918. Many Americans paid little attention to this faraway military adventure, but most Russian immigrants opposed the Allied intervention. The leaflets that Abrams and his fellow Blast Group members had tossed from rooftops and windows denounced Wilson for failing to inform the American public about his real purpose in sending troops to Siberia, to support the “White” soldiers who battled the “Red” forces of the Bolshevik regime. “His shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington,” read the English version. The Blast Group took pains to distance themselves from German sympathizers. “It is absurd to call us pro-German,” they wrote. “We hate and despise German militarism more than do your hypocritical tyrants.”

  The English leaflet did no more than exhort “workers of America, workers of Germany” to be “AWAKE!” to their governments’ efforts to destroy the Russian Revolution. However, the Yiddish version—headed “Workers, Wake Up!”—appealed to workers in munitions factories who “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.” The Blast Group urged direct action: “Workers, our reply to the barbaric intervention has to be a general strike!” Taking its heated rhetoric at face value, this leaflet was hardly likely to foment a “general strike” or any disruption of war production. The “sweatshops” of the Lower East Side produced clothing and buttons, not cannons and bullets. Even if workers in munitions factories read the Yiddish leaflet, few if any would risk their jobs by striking for any reason. But these facts did not dissuade government prosecutors from charging the Blast Group members with violating the Sedition Act by publishing “disloyal, scurrilous and abusive language about the form of Government of the United States” and with inciting “curtailment of production of things and products, to wit, ordnance and ammunition, necessary and essential to the prosecution of the war.”

  The trial of the Russian anarchists took place in October 1918 while German and Allied diplomats were negotiating the Armistice that ended the bloody carnage of World War I the next month. But the assault on the First Amendment continued in the court
room of Judge Henry D. Clayton, Jr., who came from Alabama to help shoulder the burden of wartime prosecutions in New York City. The son of a Confederate officer, Clayton facet the Russian defendants not only across his judicial bench, but across a cultural and political chasm. He belittled their broken English and opely disparaged their beliefs. When the jury returned with its inevitable “guilty” verdicts, Clayton sentenced Jacob Abrams, Samuel Lipman, and Hyman Lachowsky—Jacob Schwartz, who suffered numerous police beatings, died in jail the night before the trial began—to maximum terms of twenty years. In a gesture, of southern chivalry, Clayton cut five years from the maximum for Mollie Steimer,

  The Supreme Court heard the appeals of the convicted anarchists in October 1919, a year after their trial and sentences. Their lawyer, Harry Weinberger, submitted a brief that took an uncompromising view of First Amendment rights. Not only did he reject the “clear and present danger” test of Justice Holmes, he went beyond the “direct incitement” standard of judge Learned Hand to argue that only “overt acts” could be punished; speech itself must be “perfectly unrestrained” by government. Weinberger asserted that “absolute freedom of speech is the only basis upon which the Government can stand and remain free.” The government’s brief took an equally extreme position, claiming that the First Amendment’s framers did not intend to protect “the unlimited right to publish a seditious libel.” This effort to revive the doctrine that any criticism, of government could be punished had little historical support, but it reflected the hard-line position of Justice Department officials. The brief also claimed that the Yiddish leaflet calling for a general strike was intended “to stop the production of munitions, and to overthrow by forte the form of government of the United States by law established.”

  Jacob Abram’s name went first in alphabetical order on the apples, and the Supreme Court decided Abrams v. United States on November 10, 1919. Seven justices lined up with the government; only Oliver Wendell Holmes and Louis Brandeis stood behind the First Amendment, Justice John H. Clarke, a “progressive” on most issues, wrote for the majority. His opinion dismissed in one sentence Harry Weinberger’s argument that the Sedition Act violated the First Amendment. “This contention is sufficiently discussed and is definitely negatived in Schenck v. United States” is all Clarke wrote on this issue. But he devoted six pages to answering Weinberger’s claim that “there is no substantial evidence in the record to support the judgment” that the anarchists intended to disrupt war production with their call for a general strike. Clarke conceded that their primary motivation was “resentment” against American military intervention in Russia, but nonetheless concluded that “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.” Perhaps a general strike that spread from the Lower East Side of Manhattan across the country might have led to riots and revolution, but Clarke read more into the Yiddish leaflet than its authors—who directed their appeal to Yiddish-speaking Russians—had intended or even hoped for. Clarke concluded that “the language of these circulars was obviously intended to provoke and encourage resistance to the United States in the war” and ruled that “the judgment of the District Court must be Affirmed.”

  Clarke’s opinion stretched the First Amendment too far for justice. Holmes, who had first pulled its words out of shape in his Schenck and Debs opinions. He tried now, writing in dissent, to repair the damage he had caused. But Holmes was unwilling—whether from pride or conviction is unclear—to disavow his earlier opinions. “I have never seen any reason to doubt that the questions of law that alone were before this Court” in Schenck and Debs “were rightly decided,” he wrote. This carefully worded sentence left open the question of whether the facts in those cases supported the convictions. Holmes made no effort to argue that they did. His seven-page opinion, joined by Louis Brandeis, made clear his belief that the facts in Abrams did not justify the convictions. He disparaged and belittled the Russian anarchists and their “silly” leaflets. Even if “enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper,” he wrote, only “the most nominal punishment” would be justified. The anarchists were really being punished “for the creed that they avow—a creed that I believe to be the creed of ignorance and immaturity,” Holmes declared.

  Holmes did not shrink, however, from confronting in Abrams the First Amendment issues he had ducked in Schenck and Debs. He put into words, eloquent in phrasing and resonant in meaning, the thoughts that had germinated in his mind over the past eight months. Without mentioning Learned Hand, Ernst Freund, or Zechariah Chafee by name, he drew upon their critiques of his earlier opinions to refashion his First Amendment views. Holmes did not fully embrace the “libertarian” position on free speech, but he came close. He first adopted the “direct incitement” test that Hand and Freund had proposed. Nothing in the English leaflet advocated any law violation or obstruction of war production; only the Yiddish leaflet “affords even a foundation for the charge,” Holmes wrote, but “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 his Schenck opinion, Holmes viewed the First Amendment through two lenses, one for wartime and one for peacetime. “When a nation is at war many things that might be said in time of peace,” he argued, were so dangerous that “no Court could regard them as protected by any constitutional right.” Eight months later in his Abrams dissent, Holmes brought free speech into clearer focus, although the line between lawful and unlawful speech remained blurred. The government’s power to punish speech “undoubtedly is greater in time of war than in time of peace,” he wrote, “because war opens dangers that do not exist at other times.” But “the principle of the right to free speech is always the same,” he asserted. “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” on public issues. Holmes was not simply restating the “clear and present danger” test. His new test required that speech “so imminently threaten immediate interference” with government’s lawful purposes or programs “that an immediate check is required to save the country.” Words like “imminent” and “immediate” carry more urgency than “present.” None of the speech punished in any of the wartime Sedition Act cases could possibly have met the stringent test that Holmes proposed in his Abrams dissent. The Court adopted this test exactly fifty years later in 1969, ruling in Brandenburg v. Ohio that only speech “directed to inciting or producing imminent lawless action” could be punished.

  Holmes concluded his Abrams dissent with words that express, perhaps better than any before or since, the values that animate the First Amendment. He adapted them from his own letters and from the writings of others, especially Zechariah Chafee, but they ring with a resonance that holes could produce. “Persecution for the expression of opinions seems to me perfectly logical,” he began. “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,” Holmes continued. “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 the 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.”

  These lofty sentiments echoed the arguments of John Stuart Mill in his essay “On Liberty,” which Holmes had recently reread, but even Mi
ll had agreed that words “lost their immunity” from punishment when they became “a positive instigation to some mischievous act.” Holmes in both Schenck and Debs had found an instigation to violate the draft law, and the Court’s majority in Abrams found a similar instigation to obstruct war production. The test of “immediate interference” with government’s lawful purposes and programs would bring most speech within the First Amendment’s protective arms, but Holmes wrote only for himself and Justice Brandeis in Abrams.

  The Court’s majority sent the four Russian anarchists from the New York jails where they had been held since their arrests to state and federal prisons in November 1919. Mollie Steimer, just twenty years old, was sent to the Missouri state penitentiary; the three young men—Jacob Abrams, Hyman Lachowsky, and Samuel Lipman—went to the Atlanta federal penitentiary, where they joined Eugene Debts, who was serving his ten-year sentence. All the anarchists endured “hard time” behind bars, forced to work at exhausting prison jobs and punished with solitary confinement for any violation of prison rules. Harry Weinberger, who defended them in court, mounted a campaign for an “amnesty” that would allow their deportation to Soviet Russia. Friends and supporters of President Wilson urged that he commute the sentences of all those imprisoned for Espionage Act violations, but he adamantly refused. “I do not think the men you refer to are in any proper sense political prisoners,” he replied to Norman Hapgood, a prominent journalist. Rather, all those in prison had “violated criminal statutes.” Not until Wilson relinquished the White House to Warren Harding did amnesty appeals finally succeed.