6 Seditious Libel and Incitement to Illegal Action

Schenck was only the first of further Espionage Act cases to be heard by the Court. Only a few days later, the Court heard the appeal of Eugene V. Debs, perennial Socialist Party presidential candidate. Debs had been convicted of violating the Espionage Act after giving a speech outside a Canton, Ohio prison where three other Socialist party members had been imprisoned for Espionage Act convictions. Debs chose his words carefully, aware of the scrutiny the speech would create, and attempted to walk the line between abstract criticism of the draft and violating the disaffection provision of the Espionage Act. For example, a famous line from the speech read, “you need at this time especially to know that you are fit for something better than slavery and cannon fodder.” He was nevertheless charged and convicted.

The Debs decision was also a unanimous rejection of Deb’s claim that his speech was protected by the First Amendment. Holmes again wrote the opinion, arguing that:

The main theme of the speech was Socialism, its growth, and a prophecy of its ultimate success. With that we have nothing to do, but if a part or the manifest intent of the more general utterances was to encourage those present to obstruct the recruiting service, and if, in passages, such encouragement was directly given, the immunity of the general theme may not be enough to protect the speech … one purpose of the speech, whether incidental or not does not matter, was to oppose not only war in general, but this war, and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting. If that was intended and if, in all the circumstances, that would be its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief.

In writing this opinion, Holmes made clear that in both this case and Schenck, the defendant had been properly convicted for speaking with the intent to incite resistance to the draft rather than a general argument against war, a distinction he would return to in later cases when he and Justice Brandeis began to dissent from the Court’s rulings. Debs is also relevant because the opinion, though citing Schenck, does not reference or apply the clear and present danger test, suggesting Holmes may have stepped back from or was struggling with the implications of his prior opinion.

The third case in this sequence, Abrams v. United States, made clear that a majority of the Court was not willing to adopt the clear and present danger standard if it meant ruling against the government. Legal historians have suggested that Schenck may have been a compromise between Holmes and the other justices: Holmes could write the opinion in order to preserve unanimity on the Court as long as the government won on the merits. Once Holmes (along with Brandeis) was met with cases where he felt the clear and present danger approach could not justify prosecution, he became a dissenter rather than the majority opinion author. The majority instead would build on the bad tendency test used in Debs, in which government could criminalize speech that it believed tended to produce whatever action Congress had banned. In practice, this test was little different from the common-law approach, giving governments wide leeway to criminalize speech.

Both the bad tendency test and the clear and present danger approach can be seen in the majority opinion and dissenting opinion in Abrams. Abrams and four other individuals, all Russian immigrants with socialist or anarchist political beliefs, published and distributed leaflets (in one instance dropping them off a building) critical of the Wilson administration’s decision to send American military forces to support the “Whites” in their fight against the Communist “Reds” in the Russian Revolution. In doing so, they addressed workers at a local munitions plant, arguing for strikes and a workers’ revolt against capitalism and imperialism. They were charged under the “curtailment” provision of the Sedition Act of 1918 and convicted.

This opinion is memorable for two reasons. First, it demonstrates the majority’s embrace of the bad tendency test, signaling the majority of justices were unwilling to abandon longstanding deference to the government in matters of punishing speech. Second, Holmes’ dissent, among the more memorable judicial defenses of free speech, introduced the marketplace of ideas metaphor into the Court’s jurisprudence. Drawing on concepts previously popularized by John Stuart Mill’s On Liberty, the marketplace of ideas stated that the best “test of truth” for ideas was not their support by the government, but instead competition with other ideas. The Court’s job was to maintain and protect this marketplace unless some clear and present danger justified intervention.

Abrams v. United States

250 U.S. 616 (1919)

Facts: Abrams and four other Russian immigrants distributed leaflets, written in both English and Yiddish, to nearby workers. The leaflets protested U.S. involvement in the Russian Revolution and argued for a general strike in response (in particular focusing on workers in a nearby ammunition factory). The leaflets also attacked capitalism, the United States government, and President Wilson.

Abrams and his fellows were convicted under the Espionage Act (and its 1918 amendment) and sentenced to prison. They appealed their convictions under the First Amendment.

Question: Is Abrams’ speech—here the leaflets he and others distributed to factory workers– protected by the First Amendment?

Vote: No, 7-2

For the Court: Justice Clarke

Dissenting opinion: Justice Holmes

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…

It was admitted on the trial that the defendants had united to print and distribute the described circulars, and that five thousand of them had been printed and distributed about the 22nd day of August, 1918… The defendant Abrams, although not a printer, on July 27, 1918, purchased the printing outfit with which the circulars were printed, and installed it in a basement room where the work was done at night. The circulars were distributed, some by throwing them from a window of a building where one of the defendants was employed and others secretly, in New York City…

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 First 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 …

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…

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…

JUSTICE HOLMES dissenting.

… The first of these leaflets says that the President’s cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington. It intimates that “German militarism combined with allied capitalism to crush the Russian evolution” … A note adds

It is absurd to call us pro-German. We hate and despise German militarism more than do you hypocritical tyrants. We have more reasons for denouncing German militarism than has the coward of the White House.

The other leaflet … tells the Russian emigrants that they now must spit in the face of the false military propaganda by which their sympathy and help to the prosecution of the war have been called forth, and says that, with the money they have lent or are going to lend, “they will make bullets not only for the Germans, but also for the Workers Soviets of Russia,” and further:

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 seems too plain to be denied that the suggestion to workers in the ammunition factories that they are producing bullets to murder their dearest, and the further advocacy of a general strike, both in the second leaflet, do urge curtailment of production of things necessary to the prosecution of the war… But to make the conduct criminal, that statute requires that it should be “with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.” It seems to me that no such intent is proved.

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 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… 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…

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…

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. 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 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.