In Abrams v. United States, 250 U.S. 616, November 10, 1919, Russian immigrants in the United
States (U.S.) were charged of conspiring to violate the U.S. Espionage Act by
publishing leaflets critical of the U.S. government at a time when the U.S. was
at war with Germany. Specifically, they were charged with, among others, inciting resistance to the U.S. war effort and urging
curtailment of production of essential war materials (i.e. ordnance and
ammunition) through their leaflets.
The
defendants contended that the acts charged against them were not unlawful
because they are within the protection of the freedom of speech and of the
press as guaranteed by the First Amendment to the U.S. Constitution, and that
the entire Espionage Act is unconstitutional because in conflict with that
Amendment. They were however convicted and sentenced to 20 years in prison.
On appeal, the U.S. Supreme Court
voted 7-2 to AFFIRM the conviction of the defendants. Justice Clarke, who delivered
the majority opinion, wrote that the contention has been sufficiently discussed
and is definitely negatived [sic] in Schenck v. United States, 249 U. S. 47
and in Frohwerk v. United States, 249 U. S. 204.
He further stated:
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.
xxx xxx xxx
[W]hile 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's 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. . . [T]he 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.
But Justice Oliver Wendell Holmes, with whom
Justice Brandeis concurred, dissented and declared:
[B]y
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.
xxx.
xxx xxx xxx
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 wholeheartedly 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.
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