ABRAMS ET AL. v. UNITED STATES.
SUPREME COURT OF THE UNITED STATES
250 U.S. 616
November 10, 1919, Decided
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 so 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, . . . unlawfully and wilfully, by utterance, writing, printing and publication, to
urge, incite and advocate curtailment of production of things and products, to wit, ordnance and
ammunition, necessary and essential to the prosecution of the war." The offenses were charged in
the language of the act of Congress.
It was charged in each count of the indictment that it was a part of the conspiracy that the
defendants would attempt to accomplish their unlawful purpose by printing, writing and distributing
in the City of New York many copies of a leaflet or circular, printed in the English language, and of
another printed in the Yiddish language.
All of the five 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. Four of them testified as witnesses 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 whatever in the government of the United States. The fourth defendant testified that he
was a "socialist" and believed in "a proper kind of government, not capitalistic," but in his
classification the Government of the United States was "capitalistic."
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 22d day of
August, 1918. The group had a meeting place in New York City, in rooms rented by defendant
Abrams, under an assumed name, and there the subject of printing the circulars was discussed about
two weeks before the defendants were arrested. 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.
The defendants pleaded "not guilty," and the case of the Government consisted in showing the facts
we have stated, and in introducing in evidence copies of the two printed circulars attached to the
indictment, a sheet entitled "Revolutionists Unite for Action," written by the defendant Lipman, and
found on him when he was arrested, and another paper, found at the headquarters of the group, and
for which Abrams assumed responsibility.
Thus the conspiracy and the doing of the overt acts charged were largely admitted and were fully
established.
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 Shenck v. United States.
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, which calls for an examination of the record, not for the purpose
of weighing conflicting testimony, but only to determine whether there was some evidence,
competent and substantial, before the jury, fairly tending to sustain the verdict.
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.
Again, the spirit becomes more bitter as it proceeds to declare that -- "America and her Allies have
betrayed (the Workers). Their robberish aims are clear to all men. The destruction of the Russian
Revolution, that is the politics of the march to Russia. 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."
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.
This purpose is emphasized in the next paragraph, which reads: "Do not let the Government scare
you will their wild punishment in prisons, hanging and shooting. We must not and will not betray
the splendid fighters of Russia. Workers, up to fight." After more of the same kind, the circular
concludes: "Woe unto those who will be in the way of progress. Let solidarity live!" It is signed,
"The Rebels."
That the interpretation we have put upon these articles, circulated in the greatest port of our land,
from which great numbers of soldiers were at the time taking ship daily, and in which great
quantities of war supplies of every kind were at the time being manufactured for transportation
overseas, is not only the fair interpretation of them, but that it is the meaning which their authors
consciously intended should be conveyed by them....
The remaining article, after denouncing the President for what is characterized as hostility to the
Russian revolution, continues:
"We, the toilers of America, who believe in real liberty, shall pledge ourselves, in case the United
States will participate in that bloody conspiracy against Russia, to create so great a disturbance that
the autocrats of America shall be compelled to keep their armies at home, and not be able to spare
any for Russia." It concludes with this definite threat of armed rebellion: "If they will use arms
against the Russian people to enforce their standard of order, so will we use arms, and they shall
never see the ruin of the Russian Revolution."
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.
MR. JUSTICE HOLMES dissenting.
****
I never have seen any reason to doubt that the questions of law that alone were before this Court in
the cases of Schenck, Frohwerk and Debs 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. 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. 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.
I return for a moment to the third count. That charges an intent to provoke resistance to the United
States in its war with Germany. Taking the clause in the statute that deals with that in connection
with the other elaborate provisions of the act, I think that resistance to the United States means
some forcible act of opposition to some proceeding of the United States in pursuance of the war. I
think the intent must be the specific intent that I have described and for the reasons that I have given
I think that no such intent was proved or existed in fact. I also think that there is no hint at
resistance to the United States as I construe the phrase.
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 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.
MR. JUSTICE BRANDEIS concurs with the foregoing opinion.