JACOB ABRAMOVSKY was only nineteen years old when he took part in the abortive revolution of 1905 against the czar of Russia. Three years later his sister Manya had saved enough money to bring him to the United States to join her. After his arrival at Ellis Island he changed his name to Abrams and went to work as a bookbinder in New York City, and soon became president of the local union. He remained a radical, and he met his future wife, Mary Damsky, a clothing goods worker, at a May Day rally in 1911. When World War I broke out Abrams became a follower of Peter Kropotkin’s theory that capitalism had to be overthrown so it could be replaced by a society founded on principles of cooperation. It was not his anarchism, however, or even his pacifism that got him arrested, but his opposition to American military intervention to suppress the 1917 communist revolution in Russia. Convicted of violating the 1918 Sedition Act, Abrams and his colleagues took their fight all the way to the Supreme Court. Although they lost their appeal, that case began the revolution in free speech jurisprudence that eventually buried the crime of seditious libel and that is at the base of modern First Amendment doctrine.
Although World War I was hailed as the war “to make the world safe for democracy,” it set off the worst invasion of civil liberties in the nation’s history to that time. The government clearly had to protect itself from subversion by enemy agents, but there were few if any examples of German agents at work in the United States. The laws passed by Congress at the behest of the Wilson administration seemed aimed more at suppressing radical criticism of the government’s policies than at ferreting out spies.
In the Selective Service Act, for example, Congress authorized the jailing of anyone who obstructed the military draft. The Espionage Act of 1917, purportedly aimed primarily at treason, also punished anyone making false statements for the benefit of the enemy, seeking to cause disobedience in the armed services, or obstructing recruitment or enlistment in the nation’s military branches.
The Trading with the Enemy Act of 1917 granted the postmaster general authority to ban foreign language and other publications from the mails, and Albert Sydney Burleson intended to make full use of those powers. The most conservative member of Woodrow Wilson’s wartime cabinet, Burleson used his authority to block mailings of any publication he deemed subversive. When asked about his standards for allowable comment, he replied that it was impermissible to say “that this Government got in the war wrong, that it is in for the wrong purposes, or anything that will impugn the motives of the Government for going into the war,” or that “the Government is controlled by Wall Street or munitions manufacturers,” or even to criticize the Allies “improperly.” When a newspaper, the Milwaukee Leader, did in fact raise such questions, Burleson revoked its second-class mailing privileges.
In addition, the 1918 Sedition Act, passed at the urging of western senators and modeled after Montana’s statute to curb the radical Industrial Workers of the World, struck out at a variety of “undesirable” activities, and forbade “uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language” about the American form of government, the U.S. Constitution, the armed forces, or the flag, or to use language designed to bring any of them into “contempt, scorn, contumely, or disrespect.” More to the point, as Jacob Abrams would learn, the law did not allow anyone to “willfully urge, incite, or advocate any curtailment of production in this country of any thing or things . . . necessary or essential to the prosecution of the war . . . with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.”
Finally, the Immigration Act of 1917 permitted the deportation of alien anarchists or those who believed in the use of force to overthrow the government. In fact, the deportation of alien anarchists had been possible since 1903, and that power had been expanded in the Immigration Act of 1917.
As noted, it is certainly understandable that a government at war would wish to protect itself against subversion. But the evidence indicates that President Wilson, preoccupied first with mobilization and then with peacemaking, gave little thought to the problem and deferred to his conservative advisers, such as Burleson. And they took full advantage of the subjectivity of the laws to decide whom to prosecute, and what comments fell within the very broad definitions of the law.
These laws and similar state statutes caught radicals, pacifists, and other dissenters in an extensive web that they could not escape. The total number of indictments ran into the thousands; the attorney general reported 877 convictions out of 1,956 cases commenced in 1919 and 1920. Four of those convicted were Jacob Abrams and his three co defendants, fellow Russian émigrés Samuel Lipman, Hyman Lachowsky, and Mollie Steimer.
After the war broke out in August 1914, Abrams became more determined to act on his anarchist and pacifist beliefs. He helped write and publish Yiddish-language newspapers that took stands on issues of the day. The first publication with which he was associated was Der Shturm (The Storm), succeeded in 1918 by Frayhayt (Freedom), which opposed war in general. “The only just war,” the editors proclaimed, “is the social revolution.”
Had Abrams been just a pacifist, he would not have run afoul of the law. The administration did not prosecute people such as Jane Addams, who opposed all wars. But Abrams also spoke out against American entry into the war, as well as Allied efforts to suppress the 1917 communist revolution in Russia. The Frayhayt group, like other anarchists, denounced the United States for sending troops to fight against the communist Red Army. In the summer of 1918 Abrams, Lipman, Lachowsky, and Steimer purchased a small printing press and rented a basement shop in New York’s East Harlem. They printed two leaflets, “The Hypocrisy of the United States and Her Allies” and “Workers—Wake Up!” The former denounced President Wilson’s decision to intervene in Russia in general terms, but the latter called for concrete action:
Workers, Russian emigrants, you who had the least belief in the honesty of our Government must now throw away all confidence, must spit in the face of false, hypocritical military propaganda which had fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of the war.
With the money which you have loaned, or are going to loan them [a reference to the war bond drives], 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. . . .
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.
Workers, we must not and shall not betray the brave fighters of Russia.
Workers—Wake UP!!
One did not have to be a reactionary to see these sentiments as violating the Sedition Act, and on August 23, 1918, federal agents arrested the four friends and charged them with breaking the law. Also arrested and tried with them was a printer, Hyman Rosnansky, accused of distributing the leaflets, and Gabriel Prober, a bookbinder charged with conspiracy but ultimately acquitted. A grand jury indicted them in September, and they stood trial the following month. Although their actions could hardly be considered a threat to the war effort, their trial garnered considerable attention in the press because of the highly prejudicial remarks of the presiding judge, Henry DeLamar Clayton Jr., a former congressman from Alabama. For his work in helping to pass the 1914 Antitrust Act that bears his name, Wilson rewarded Clayton with a federal judgeship. Because Alabama had few radicals, Clayton was in New York City in the summer and fall of 1918 to help relieve a crowded docket; many of the alleged radicals arrested and tried by the Justice Department lived and wrote in New York.
Abrams tried to explain that the United States itself had been the product of an uprising. “When our forefathers of the American Revolution—” Abrams began, only to be interrupted by Clayton: “Your what? . . . Do you mean to refer to the fathers of this nation as your forefathers?” At another point the judge told the defense lawyer, Harry Weinberger, “I have tried to out-talk an Irishman, and I never can do it, and the Lord knows I cannot out-talk a Jew.” Twice Clayton asked the defendants, “Why don’t you go back to Russia?” When he charged the jury, the judge declared, “If we have got to meet anarchy, let us meet it right now.” It took the jurors little time to find the four guilty, and Clayton sentenced the three men—Abrams, Lipman, and Lachowsky—to twenty years in prison, and Mollie Steimer to fifteen. The four went free on bail pending their appeal.
Attorneys for Abrams and his codefendants based their appeal on the claim that the Sedition Act violated the First Amendment, which says that “Congress shall make no law . . . abridging the freedom of speech.” Realistically, they could not have held out much hope for success, given the history of First Amendment jurisprudence in 1919.
Various writers and groups had put forward theories that would in essence have taken the First Amendment free speech clause literally—there could be no censorship of any kind—and thus would have been extremely speech protective. They had had little success, in part because of who they were. The Industrial Workers of the World (IWW), the feared and radical “Wobblies,” had developed an extensive rationale that would have made speech almost entirely free from governmental regulation. Today we would find that argument not very different from the rationale put forward by contemporary jurists and philosophers, but before World War I, only fellow radicals took the IWW’s stance on free speech seriously.
The scholar David Rabban has identified what he terms a “lost tradition of libertarian radicalism,” which defended as a primary value individual autonomy against the power of church and state. This tradition reaches back to before the Civil War and can be found in various movements including abolitionism, labor reform, and women’s rights. After the passage of the Comstock Acts of 1873 and 1876, which censored materials moving through the mails, libertarian radicals organized in such groups as the National Defense Association (1878) and the Free Speech League (1902), the latter actively involved in defending those whose speech had somehow been restricted, such as Emma Goldman, the radical, and Margaret Sanger, the pioneer of birth control. The leader of the Free Speech League, Theodore Schroeder, worked out a philosophy of free speech premised on the belief that everyone had a right to say whatever they wished and that government had no business acting as a censor. Schroeder rejected theories of speech and of the press that would allow interference by the state should the speech have a “bad tendency,” or which would allow publication but then punish the speaker.
Despite the best efforts of the Free Speech League, as well as of writers like Schroeder and law professor Ernst Freund, the overwhelming weight of judicial opinion at the time, in both federal and state jurisdictions, did not recognize the notion that the First Amendment meant exactly what it said—that is, that speech should not be abridged. The expression of unpopular or strange views received little sympathy either from the public at large or the men who sat on the bench.
Most judges relied on Sir William Blackstone, who more than one hundred years earlier in his Commentaries on the Laws of England (1765–1769) had argued that the right of free speech precluded prior restraint—that is, the government could not stop a person from speaking or publishing ideas, but the law could punish speakers and writers if their expressions tended to harm the public welfare—a subjective test that gave the British Crown and conservative jurists great leeway.
In the leading Supreme Court decision of this time, Patterson v. Colorado (1907), Justice Oliver Wendell Holmes Jr. followed Blackstone’s analysis. Thomas Patterson could hardly be described as a radical. A U.S. senator from Colorado and a newspaper publisher, he had actively supported a referendum that provided home rule for Denver. He was outraged when the Republican legislature enlarged the state supreme court and packed it with judges who overturned the results of the popular referendum, and his newspapers published editorials, cartoons, and letters ridiculing the court. The state attorney general brought criminal contempt proceedings against Patterson on behalf of the state court, which in turn fined him and his publishing company $1,000, without allowing him any opportunity to prove the truth of his allegations.
Patterson appealed to the U.S. Supreme Court, but Holmes rejected all of his arguments about freedom of speech and the press. Earlier, as a state judge, Holmes had written, “For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house” (Commonwealth v. Davis [1895]). The First Amendment, Holmes wrote in Patterson, “prevents all previous restraints upon publications,” but allows “the subsequent punishment of such as may be deemed contrary to the public welfare.” Interestingly, Holmes dismissed the notion of truth as a defense: “The preliminary freedom extends to the false as to the true; the subsequent punishment may extend as well to the true as to the false.” The Supreme Court heard only a few other First Amendment cases before the wartime convictions reached it on appeal in 1919, and all of them essentially followed Blackstone as explained by Holmes in Patterson.
The first wartime case, Schenck v. United States (1919), involved the secretary of the Philadelphia Socialist Party, who had been indicted for urging resistance to the draft. He had mailed out circulars condemning conscription as despotic and unconstitutional, and calling on draftees to assert their rights by refusing induction. Under the terms of the Espionage Act, Schenck had urged unlawful behavior. But did the First Amendment’s free speech clause protect him? The justices unanimously said no.
Holmes, probably assigned the case on the basis of his earlier speech opinions, tried to develop a standard based on the common law rule of “proximate causation”—that is, could the action reasonably be seen as the cause of an event? He also took a fairly traditional view of speech as a limited right. One could not, he pointed out, falsely shout “Fire!” in a crowded theater. In a famous passage Holmes attempted to define the limits of speech:
The question in every case is whether the words are used in such circumstances and are of such a nature to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right.
The “clear and present danger” test became the starting point for all subsequent free speech cases, and within a week the Court sustained two other convictions under this rule. In Frohwerk v. United States, a German-language newspaper had run articles attacking the draft and challenging the constitutionality of the war. In Debs v. United States, Holmes accepted a jury finding that in a militant antiwar speech, the socialist leader Eugene V. Debs had intended to interfere with the nation’s mobilization.
The three decisions, as well as the clear and present danger test, upset defenders of free speech, especially because they had come from Holmes, a man they believed to be an ardent libertarian. Legal scholars such as Zechariah Chafee Jr., Ernst Freund, and others criticized Holmes for his insensitivity to the larger implications of free speech. “Tolerance of adverse opinion is not a matter of generosity,” Freund declared, “but of political prudence.” In an influential article, later expanded into a book, Chafee insisted that the Framers of the First Amendment had more in mind than simply banning censorship. Instead, they had intended to do away with the common law of sedition altogether and make it impossible to prosecute criticism of the government in the absence of any incitement to lawbreaking. In none of these cases, the Harvard professor maintained, could one argue that the defendants had been attempting to incite active violations of the law.
The attacks stung Holmes, not only for their unexpectedness and intensity, but because he thought of himself as the darling of younger progressives, and he greatly enjoyed the hero worship of men like Professor Felix Frankfurter of Harvard and the English political scientist Harold Laski. In correspondence with good friends, Holmes complained that the real problem lay not in his opinions, which adhered to established law, but in the fact that the government had brought these cases in the first place. Even Holmes’s most ardent admirers have to admit that at this time his view of freedom of speech was, as one scholar described it, “primitive.”
But even as he tried to defend the three opinions, Holmes’s own attitude was undergoing a sea change. On a train trip to New York he had encountered Judge Learned Hand of the federal district court in New York, and the two men had a conversation about the First Amendment. Hand had written an opinion, greatly admired by libertarians, in a case entitled Masses Publishing Co. v. Patten (1917). The postmaster general had sought to exclude The Masses magazine from the mails under the Espionage Act, claiming that it had been willfully critical of the government. Hand had issued an injunction against the postmaster, and had also expounded a test for evaluating the constitutionality of First Amendment challenges to legislation that punished alleged “direct incitement to violent resistance.” Instead of using the then-current standard of whether “the indirect result of the language might be to arouse a seditious disposition,” a test of great subjectivity and guesswork on the part of judges and juries, Hand wanted them to ask whether “the language directly advocated resistance to the draft.” Instead of guessing whether the language might or might not be interpreted one way or another, Hand wanted the trier of fact to ask whether the alleged incitement had any actual chance of success. Wild-eyed rantings by anarchists meant little and posed no dangers because they were not taken seriously, and therefore should be ignored. Hand argued that if the government wanted to prosecute, it had to prove that the words had a real chance of success. Under the Hand test, Jacob Abrams and his fellow anarchists would have gone free. Although the Second Circuit Court of Appeals overrode Hand’s decision, Hand’s continued correspondence with Holmes tried to move Holmes away from the Schenck test.
After the Court recessed Holmes headed for his summer cottage in Beverly, Massachusetts, and prepared, as he usually did, to settle in for three months of reading, not just his older favorites, such as Plato, but new works friends had sent him. According to his journal, in the summer of 1919 Holmes read at least eight works dealing with freedom of speech. His young friend Harold Laski sent him several works, including his own book, Authority in the Modern State (1919), in which he asserted that “no mind is in truth free, once a penalty is attached to thought.” Although Holmes disagreed with much in E. S. P. Haynes, The Decline of Liberty in England (1916), he sympathized with the argument that “the whole collective tendency seems to be toward underrating or forgetting the safeguards in bills of rights that had to be fought for in their day and are still worth fighting for. . . . All of which is but a paraphrase of eternal vigilance is the price of freedom.”
Then in late July 1919, Laski, who was then in America, invited the jurist to tea in Cambridge for the express purpose of meeting Zechariah Chafee, at that time an assistant professor at the Harvard Law School. Prior to the meeting Laski gave Holmes a copy of Chafee’s June 1919 article in The New Republic criticizing the three speech opinions of the previous spring. Laski, whom Holmes respected, endorsed Chafee’s argument, and at tea, the young academic—the scion of an aristocratic New England family—showed Holmes how he could take what he had written and convert it into a speech protective policy.
In his article, which he would expand into one of the most important books on speech in the United States, Chafee had said that, with the exception of Debs, the others were “clear cases of incitement to resist the draft” and thus covered by the Espionage Act, so no real issues of free speech were concerned. This was far from accurate, but matched Holmes’s view. Chafee then went on to call the “clear and present danger” test the Supreme Court test for free speech, which in fact it would become—although after just two decisions, both on the same day, Chafee’s characterization was a bit premature.
Chafee then engaged in an amazing bit of legerdemain. Earlier views of the First Amendment were incompatible with the “bad tendency” test, but fit in better with Learned Hand’s direct incitement criterion. He then argued that Holmes’s formula “substantially agreed” with the Hand test, as well as with the history and purpose of the First Amendment speech clause. Clear and present danger, according to Chafee, tracked the common law rule on incitement, “and clearly made the punishment of words for their bad tendency impossible.” In fact, the Holmes opinion in Schenck does punish speech for a potential bad tendency, and the only way that Chafee could describe the Schenck decision as speech protective was to distort the facts of the case to make it appear that Schenck’s words had been dangerous.
Debs, however, should have been decided the other way, and Holmes himself had been uncomfortable with it but felt he had to defer to the jury finding. If the clear and present danger test had been properly applied in that case, Chafee suggested, Eugene Debs would have been freed, since while Debs had spoken out against the war he had not urged his audience to break the law. For the test to be more than “a passing observation,” it had to be used “to upset convictions for words when the trial judge did not insist that they must create a ‘clear and present danger’ of overt acts”—that is, in order for their convictions to be upheld, the defendants’ words would clearly have to meet the Hand test of direct incitement, even in wartime.
Finally, Chafee talked about a value that had been completely absent from the Holmes opinions, “the social interest behind free speech.” If Holmes wanted to utilize the clear and present danger test, then it would have to be applied rigorously, and there would have to be sufficient proof of inherent danger, not just the condemnation of unfamiliar ideas as a bad tendency. Speech had to be protected because “one of the most important purposes of society and government is the discovery and spread of truth.” Chafee showed Holmes how to redirect the clear and present danger test, to make it more speech protective. The results of that tea in Cambridge could be seen in the dissent Holmes wrote a few months later in the Abrams case.
Where Schenck and Frohwerk had been charged under the 1917 Espionage Act, and the justices could limit their focus to draft resistance, the Abrams group had been convicted under the 1918 Sedition Act. Essentially, they had been found guilty of the crime of seditious libel, and thus the real crime was not one of action—trying to cripple the draft—but one of words. The government clearly sought to restrict speech itself. The majority, speaking through Justice John Clarke, however, found the trilogy of cases decided earlier that year to be controlling.
Clarke’s opinion is interesting in that in addition to laying out the contents of the two pamphlets the defendants had published, he also attacked the defendants’ lack of commitment to the United States. All of the defendants “were born in Russia. They were intelligent, had considerable schooling, and at the time they were arrested they had lived in the United States terms varying from five to ten years, but none of them had applied for naturalization.” At the trial four of them had testified in their own behalf, and of these “three frankly avowed that they were ‘rebels,’ ‘revolutionists,’ ‘anarchists,’ that they did not believe in government in any form, and they declared that they had no interest in the government of the United States.”
Clarke quoted extensively from the pamphlets, such as the one charging that President Wilson’s “shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the Plutocratic gang in Washington and vicinity.” The purpose of the two pamphlets, and of the one entitled “Workers—Wake Up!” especially, “obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals of the government of the United States, and to cease to render it assistance in the prosecution of the war.” Nor could the defendants claim, as they did at the trial, that all they wanted to do was prevent injury to the Russian cause, because the only way they could achieve that goal was “defeat of the war program of the United States.”
Clarke spoke for seven of the nine justices. Only Oliver Wendell Holmes, joined by Louis Brandeis, dissented. Yet it is that dissent that we remember, not the majority opinion, because it is the beginning of a true speech-protective jurisprudence of the First Amendment.
Holmes briefly reviewed the two pamphlets, and essentially dismissed them as hyperbole, which even under the closest reading could not be thought to have had any chance of interrupting the American war effort. Moreover, if one took the pamphlets at face value, the defendants had been objecting primarily to interference in Russian affairs, and that end could have been achieved without any diminution of American prosecution of the war.
Holmes emphasized that he believed that on the facts the spring trilogy of cases—Schenck, Frohwerk, and Debs—had been rightly decided, and that 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. That power undoubtedly is greater in time of war than in time of peace.” But after an extensive discussion on the common law of intent, Holmes concluded that the government had failed to prove the required intent. Had Holmes stopped here the case would have been forgotten, and the dissent seen as a muddled product of an aging jurist’s mind.
But then Holmes began to talk about the First Amendment and the right of free speech in a way that had been completely absent in the earlier decisions. Even in war the right of free speech is there, as powerful as in peacetime, and government could abridge it only in the face of clear and imminent danger. To do that, however, the government had to prove that the speech would trigger an evil that was clearly dangerous as well as about to happen. That had not happened here. “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.”
Holmes could not find the legal basis of intent, nor could he find the factual basis of a clear and present danger. Without proving that these existed, then government had no right to punish publication. “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,” he said. Holmes thought the two leaflets not only silly but harmless, but “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,” that at the most they deserved only a nominal punishment. As to the wisdom of their beliefs, that should not even have been raised at their trial.
Holmes understood, however, why the defendants and their ideas had been attacked. People who believed wholeheartedly in the logic of their premises opposed those who questioned them. The majority did not silence speech it considered impotent, such as a claim that someone has squared the circle. But they do fear speech that attacks their basic beliefs, even if ineffective, because history shows that new ideas can supplant older ones, and the whole idea of seditious libel—which Holmes argued the First Amendment eradicated—was to stop criticism of the established order.
Holmes’s peroration, which some commentators have compared to another great work in defense of free speech, John Milton’s Areopagetica, made the case for the necessity of a free flow of new ideas:
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 goal 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. For 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 First Amendment left the common law as to seditious libel in force. History seems to me against the notion. . . .
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.
The same men who had criticized Holmes’s opinions in the spring trilogy, and who had led him to rethink the issue of the summer, now rushed to praise him. None of his prior opinions, declared Laski, seemed “superior either in nobility or outlook, in dignity or phrasing, and in that quality the French call justesse.” Felix Frankfurter spoke of “the pride I have in your dissent,” while Zechariah Chafee devoted an article in the Harvard Law Review to the case, referring to “Justice Holmes’s magnificent exposition of the philosophic basis” of the First Amendment. Justice Clarke and the majority had clearly used the clear and present danger test erroneously. Holmes had shown what it truly meant, and as reformulated by him, could not be taken as “marking the true limit of governmental interference with speech and writing under our constitution.”
Not everyone proved so enthusiastic. Learned Hand, while happy that Holmes had moved toward a more speech-protective stance, found the effort to distinguish the facts in Abrams from those in Schenck disingenuous. Other writers, clearly influenced by their animus toward radical thought, attacked the dissent in harsher terms. One law review article called it “most unfortunate and indeed deplorable,” and its point of view “a positive menace to society and to this Government.” The sharpest attack came from Dean John H. Wigmore of Northwestern Law School, one of the most widely respected legal scholars in America. In an article entitled “Abrams v. United States: Freedom of Speech and Freedom of Thuggery in War-Time and Peace-Time” (Illinois Law Review [1920]), he warned against the efforts of alien agents to foment revolution in the United States. He never mentioned either Holmes or Brandeis by name, but he condemned the “minority of two” for their “obtuse indifference to the vital issues at stake in August, 1918, and it is ominous in its portent of like indifference to pending and coming issues.” For Wigmore, freedom of speech could only be kept from becoming thuggery by limiting its use to those who held the right ideas about society—in other words, only for speech with which the majority of the good people agreed.
Holmes’s opinion is still cited, for it is indeed elegant and eloquent. It also sets out a rationale for free speech that is very appealing, the idea of a “marketplace of ideas.” In this market there are no “true” opinions, but rather they compete with one another until those with greater force of logic win out. It is the idea that in any competition of ideas, justice, freedom, and other values we prize in a democracy will win out.
But the notion of a marketplace, while appealing to the philosopher, really has little to say about the place of free speech in a democracy. In Abrams Louis D. Brandeis joined Holmes’s dissent. Within a few years Brandeis had taken over writing dissents in free speech cases, and in his masterpiece, Whitney v. California (1927), Holmes joined in the Brandeis opinion. Where the Holmes market analogy is an abstraction, Brandeis in Whitney argued that in a democracy citizens had both rights and responsibilities. They had the important duty of taking part in debates over public policy, and they could only do this if they had access to all points of view—those acceptable to the majority as well as those that offended the majority. Only by hearing all these different perspectives could citizens then make up their minds on which policies to support, which candidates to vote for, and which causes to back. To Brandeis the First Amendment guarantee not only protected the speaker but, more importantly, protected the right of the citizen to hear a variety of views.
That notion eventually became the basis of modern First Amendment jurisprudence, building on what Holmes had written in Abrams and culminating in Brandenburg v. Ohio (1969), which finally put an end to the crime of seditious libel.
What happened to Jacob Abrams? On learning that the Supreme Court had upheld their convictions, Abrams and Samuel Lipman fled to New Orleans, where they hoped to take a boat first to Mexico and then to the Soviet Union. Authorities quickly apprehended them and on December 26, 1919, Abrams, Lipman, and Hyman Lachowsky began serving their sentences at the federal penitentiary in Atlanta. During his time there Abrams worked first in the laundry, then as a typesetter on a prison paper, and also learned to play the banjo. His belief in anarchism never wavered, and he wrote to his wife that he was sustained by his faith in “the new world, the world that you and I dream about.”
He served a little less than two years of his twenty-year sentence. His attorney managed to secure a presidential commutation on condition that he leave the country for the Soviet Union at his own expense, and that he never set foot in the United States again. On November 23, 1921, Abrams, his wife Mary, Lipman, Lachowsky, and Steimer sailed for Latvia and then traveled to Moscow. There they found that the revolution they had praised had not yielded the workers’ paradise of which they had dreamed. After Lenin had taken power the fragile coalition between communists and anarchists had fallen apart, and the government now deported or even murdered outspoken anarchists. Abrams worked for a while in a steam laundry, but his disenchantment grew. In November 1925 he and Mary left for Paris, and eventually settled in Mexico City. Abrams, already fluent in Russian, Yiddish, and English, soon mastered Spanish as well.
In Mexico City Abrams edited a Yiddish-language newspaper, The Voice, but he and Mary were never happy. The terms of his commutation prevented him from even visiting the United States to see old friends, and in the 1930s the virus of anti-Semitism that infected Europe also infected Latin America. A chain smoker, Abrams was diagnosed in 1945 with throat cancer, and he sought a temporary visa that would allow him to go to Philadelphia for treatment at Temple University Hospital. He did not receive it until June 1952, and FBI agents kept him under surveillance during the entire time he was in the country. The treatment, as well as a subsequent operation in Mexico, proved of no avail; Jacob Abrams died on June 10, 1953, at age sixty-seven. Few people remembered him, although his name lives on in a case that helped make the promise of the First Amendment’s speech clause a reality.
Abrams v. United States, 250 U.S. 616 (1919)
Brandenburg v. Ohio, 395 U.S. 444 (1969)
Commonwealth v. Davis, 162 Mass. 510 (1895)
Debs v. United States, 249 U.S. 211 (1919)
Frohwerk v. United States, 249 U.S. 207 (1919)
Patterson v. Colorado, 205 U.S. 454 (1907)
Schenck v. United States, 249 U.S. 47 (1919)
Whitney v. California, 274 U.S. 357 (1927)
A masterful retelling of the case and of Abrams’s life and work is Richard Polenberg, Fighting Faiths: The Abrams Case, The Supreme Court, and Free Speech (1987). The Wilson administration’s wartime policies and their effect on individual rights are examined in Paul L. Murphy, World War I and the Origin of Civil Liberties in the United States (1979). The best single book on free speech is Harry Kalven Jr., A Worthy Tradition: Freedom of Speech in America (1988), but the classic work, and the one most pertinent to this episode, is Zechariah Chafee Jr., Free Speech in the United States (1920, rev. ed. 1941). For Holmes, see G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Life (1993), especially chap. 12.