JF Ptak Science Books, LLC Post 256
The answer to the question of this pamphlet, Is Opinion a
Crime (published by the League for the
Amnesty of Political Prisoners, 1919), is “yes”, and yes by a 7-2 decision by
the U.S. Supreme Court (in Abrams v United States 250 U.S. 616 (1919). The case involved political speech which was
deemed to be criminal act –rather than an expression of free speech guaranteed
under the First Amendment—by violating the 18th amendment to the
Espionage Act of 1917. Earlier in 1919 the court found again against the defendant in
a similar case, Schenck v. United States
"The question in every
case is whether the words used are used in such circumstances and are of such a
nature as to create a clear and present
danger that they will bring about the substantive evils that the United States 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 that no Court could regard them
as protected by any constitutional right…."
It was in the Abrams case though that Holmes sided with Justice Louis Brandeis in ten minority opinion, siding with the defendants in this case who were distributing printed material which urged people not to support the American military—with the sole aim, really, of trying to get food to starving Russians. The case was brought against Mollie Stimer “a slip of a girl”, Jacob Abrams, Samuel Lipman, and Hyman Lachowsky, who dumped their leaflets from tall buildings, urging that people not support the governments’ decision to send troops to Europe to defend Czarist Russia against the Bolsheviks, and to allow the Russian revolution to proceed unhindered by American interests and allow “the people of Russia to pursue their own destinies.
The Court found that
the pamphlets were in violation of the Espionage Act and sentenced the four to
between 15 and 20 years in jail. Holmes,
in another landmark piece of judicial thinking, held that the defendants
threatened no one and no thing, and should not have been found guilty. His contribution is reproduced in full in the
continue reading section, with the content given its landscape by the good folks
at Wordle. (Click on the image to for a larger and clearer picture.)
Oliver Wendell Holmes Jr. Dissenting Opinion, Abrams v. U.S.:
This indictment is founded wholly upon the publication of two leaflets
which I shall describe in a moment. The first count charges a conspiracy
pending the war with Germany to publish abusive language about the form
of government of the United States, laying the preparation and
publishing of the first leaflet as overt acts. The second count charges
a conspiracy pending the war to publish language intended to bring the
form of government into contempt, laying the preparation and publishing
of the two leaflets as overt acts. The third count alleges a conspiracy
to encourage resistance to the United States in the same war and to
attempt to effectuate the purpose by publishing the same leaflets.
The fourth count lays a conspiracy *625 to incite curtailment of
production of things necessary to the prosecution of the war and to
attempt to accomplish it by publishing the second leaflet to which I
have referred.
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 revolution'--goes
on that the tyrants of the world fight each other until they see a
common enemy--working class enlightenment, when they combine to crush
it; and that now militarism and capitalism combined, though not openly,
to crush the Russian revolution. It says that there is only one enemy of
the workers of the world and that is capitalism; that it is a crime for
workers of America, etc., to fight the workers' republic of Russia, and
ends 'Awake! Awake, you workers of the world! Revolutionists.' 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 reason
for denouncing German militarism than has the coward of the White
House.'
The other leaflet, headed 'Workers--Wake Up,' with abusive language says
that America together with the Allies will march for Russia to help the
Czecko- Slovaks in their struggle against the Bolsheviki, and that his
time the hypocrites shall not fool the Russian emigrants and friends of
Russia in America. It 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, *626 but also your dearest, best, who are in Russia fighting
for freedom.' It then appeals to the same Russian emigrants at some
length not to consent to the 'inquisitionary expedition in Russia,' and
says that the destruction of the Russian revolution is 'the politics of
the march on Russia.' The leaflet winds up by saying 'Workers, our reply
to this barbaric intervention has to be a general strike!' and after a
few words on the spirit of revolution, exhortations not to be afraid,
and some usual tall talk ends 'Woe unto those who will be in the way of
progress. Let solidarity live! The Rebels.'
No argument seems to be necessary to show that these pronunciamentos in
no way attack the form of government of the United States, or that they
do not support either of the first two counts. What little I have to say
about the third count may be postponed until I have considered the
fourth. With regard to that 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 **21
of a general strike, both in the second leaflet, do urge curtailment of
production of things necessary to the prosecution of the war within the
meaning of the Act of May 16, 1918, c. 75, 40 Stat. 553, amending
section 3 of the earlier Act of 1917 (Comp. St. s 10212c). 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 *627 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 admit that my illustration does not answer all that
might be said but it is enough to show what I think and to let me pass
to a more important aspect of the case. I refer to the First Amendment
to the Constitution that Congress shall make no law abridging the
freedom of speech.
I never have seen any reason to doubt that the questions of law that
alone were before this Court in the Cases of Schenck (249 U. S. 47, 29
Sup. Ct. 247,63 L. Ed. 470) Frohwerk (249 U. S. 204, 39 Sup. Ct. 249, 63
L. Ed. 561), and Debs (249 U. S. 211, 39 Sup. Ct. 252, 63 L. Ed. 566),
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, for reasons given in Swift &
Co. v. United States,196 U. S. 375, 396, 25 Sup. Ct. 276, 49 L. Ed. 518.
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 defendant's 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 *629 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. **22
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 possible 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 *630 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 (Act July 14, 1798, c. 73, 1 Stat. 596), by repaying fines that
it imposed. Only the emergency that makes it immediately dangerous to
leave the correction of evil counsels to time warrants *631 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.
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