Chapter 10 Activity: The Abrams Case

>> click here to view the Abrams circulars

1. The incident
On August 23, 1918, New York newspapers reported that “seditious circulars” had been scattered in the streets. Two different leaflets were involved – one in English and the other in Yiddish.

Very shortly five immigrants of Russian extraction – four anarchists and one socialist – were arrested in New York’s East Side for distributing “seditious” leaflets by floating them from a third floor window down to the street below. One of those arrested, Jacob Schwartz, soon died in police custody. His associates claimed he was the victim of police brutality.

The four remaining suspects – anarchist Mollie Steimer, Jacob Abrams, Hyman Lachowsky and socialist Samuel Lipman -- stood trial in New York ’s Southern District Court in October 1918. The city was still tense from the raids to net “slackers” (draft dodgers) which had taken place the previous month. In one three day period, over 20,000 men had been hauled off the New York streets to jail for failing to register for the draft.

2.  The pamphlets
In August 1918, President  Woodrow Wilson had dispatched 7,000 troops to Siberia .  By this time, Russia had concluded the Treaty of Brest-Litovsk with Germany and withdrawn from the First World War. President Wilson justified intervening in revolutionary Russia by claiming American forces were needed to protect a Czech legion, which had been stranded in the Ukraine when Russia withdrew from the war.

The pamphlets found in New York streets condemned American intervention in Russia . They did not specifically concern America ’s role in the First World War.

3.  The Characters
All the DEFENDANTS   had left Czarist Russia between 1908 – 1913, a period when over 400,000 Jews like themselves emigrated from Russia to the United States to escape social and religious oppression.

Jacob Abrams was born in the Ukraine in 1894 and had taken part in the failed 1905 Russian Revolution. He became an anarchist after emigrating from Russia to New York City to join his sister. He was employed as a bookbinder. Considered extremely militant in his views, Abrams became the center of a small anarchist group, which met in East Harlem in 1918.

Hyman Lachowsky also worked as a bookbinder and attended meetings of the group. Eyewitnesses claim he was badly beaten by police during interrogation.

Samuel Lipman  was the one socialist among the defendants. He worked in the fur trade where there were many socialist workers. He was the author of the English-language leaflet, the milder of the two. 

Mollie Steimer was twenty years old at the time of her arrest. Only 4’9” tall and weighting 90 lbs, she often taken for a child. She worked as a seamstress in shirtwaist factory and had become and anarchist in 1917 out of the distress of her family’s poverty. During the trial, she refused to stand when the judge entered the room was resolute in her expression of her beliefs.

The DEFENSE ATTORNEY was Harry Weinberger.  Weinberger was the son of Hungarian immigrants. He got his law degree studying nights at New York University Law School while he worked during the day as a stenographer. When the Abrams trial began, Weinberger was 32 years old and had 10 years of legal practice behind him. He had left the Republican Party two years previously and had begun to embrace some radical beliefs, including pacifism. At a time when radicals found it difficult to get a lawyer, Weinberger took their cases. He believed that lawyers had a sacred duty to make sure that the poor and weak could obtain the same protection under the law as the rich and powerful.

The JUDGE  in Abrams trial was Henry DeLamar Clayton, Jr.  Judge Clayton was a federal district court judge in Alabama who came to north to help clear the overcrowded docket at the New York district court. His father had been a Major General in the Confederate Army and a strong supporter of slavery.

Before becoming a judge, Clayton was a congressman and an outspoken opponent of women’s suffrage and immigration. After his younger brother was killed in the First World War, he became a bitter foe of “shirkers” – those who, for whatever reason, chose not to enlist or evade the draft.

The JURY in the trial was made up of men aged 45 and over. Many were retired businessmen.

4.  The Trial
The defendants were charged under the Espionage Act, by this time amended by the Sedition Act.  During the trial the PROSECUTION confined its case to proving that the defendants wrote, printed and disseminated the pamphlets. It made no attempt to prove that the pamphlets harmed America ’s war effort.

      DEFENSE ATTORNEY WEINBERGER argued that the pamphlets were not aimed at undermining the war with Germany , but only at preventing American intervention in Russia . Unless it could be proved that they had undermined the war effort, there were no grounds, he maintained, to condemn them under Espionage Act.

In his two hour summing up, Weinberger called the defendants young idealists, “liberty-loving Russians” who wanted a better world. Not they, but government officials, were “the subversives” in this case. The government was subverting the First Amendment.

      JUDGE CLAYTON made no attempt to present a neutral front during the trial. He referred to the defendants’ “puny, sickly, distorted views” and said: “If we have got to meet anarchy, let us meet it right now.” At one point he asked Abrams, "Why don’t you go back to Russia ?’ Among his numerous interventions, he questioned Mollie Steimer on her views toward love and marriage.

When instructing the jury before they retired to consider their verdict, Judge Clayton stated that people who are “activated by pure and lawful motives as a rule act in open daylight. People who have circulars to distribute, and they intend no wrong, go up and down the streets circulating them. So it is proper for you to consider how these leaflets were printed and how they are circulated, as bearing upon the questions of the intent that animated the defendants.”

The four defendants were found guilty. After submitting them to a two-hour tongue-lashing, Judge Clayton sentenced the men to 20 YEARS IN JAIL and FINED THEM EACH $1,000. Mollie Steimer was given 15 YEARS IN JAIL and a FINE OF $500. The war ended a few weeks later.

5.  Appealing to the Supreme Court
The Supreme Court hears cases involving constitutional issues. Purely state questions are decided in state courts and cannot be appealed to the US Supreme Court or any other federal court.  But cases heard in state courts which include a federal issue can be appealed to the Supreme Court, as can cases heard in federal courts.

The Supreme Court functions as the appeals court of last resort. The Constitution also gave it "original jurisdiction" (that is, the ability to hear cases from the beginning) over cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. (Article III, Section 2)

Supreme Court justices decide whether or not to review a case after reading briefs from both sides. They then vote on whether to accept the case. At least four out of the nine justices must vote to "accept" in order for a case to be put on the Supreme Court’s calendar.

The Supreme Court voted to hear Abrams et al. v. United States because it involved a First Amendment issue: was their conviction under the Espionage Act a violation of the defendants’ freedom of speech rights guarantied by the First Amendment? The hearing was scheduled for October 21, 1919.

Additional character descriptions:

Chief Justice Edward White was from a Louisiana slave-owning family. In his youth, he had taken up arms against the United States . After the Civil War, he became a lawyer and then a US senator. He was nominated a Supreme Court justice by President Grover Cleveland in 1894 after Cleveland’s three preferred nominees declined or were rejected by the Senate. He became Chief Justice in 1910. Chief Justice White regarded political dissenters as dangerous and rejected all challenges to the constitutionality of the draft.     

Supreme Court Justice Oliver Wendell Holmes came from an influential Boston family. He fought in the Civil War and was wounded, and later attended Harvard Law School . After serving on the Massachusetts Supreme Judicial Court , he became its Chief Justice in 1899 and a justice of the US Supreme Court in 1902. In this period he thought deeply about the civil liberties implications of Espionage Act cases, as he came under the influence of Judge Learned Hand and Harvard Law School Professor Zechariah Chafee, among others.      

Louis D. Brandeis became a Supreme Court Justice in 1916 after a bitter confirmation struggle with anti-Semitic overtones. Before that, he was a social reformer and attorney who was sometimes called “the people’s lawyer" because he took on cases exposing the greed and malpractices of large corporations. Throughout his career he made a name as a supporter of the First Amendment and free speech.

The other six justices were property-conscious conservatives who were hostile to foreign radicals.

6. Activity: Moot Court
The class should be divided into three groups. Nice students should represent the Supreme Court justices.

The other two groups should represent the Abrams defense team, led by Harry Weinberger (known as THE PETITIONER) and the government team, led by Assistant General Robert Stewart (THE RESPONDENT).

These teams should be given the opportunity, either in class or as homework, to develop arguments based on their knowledge of the trial.

The teams should be consider these questions:

1.  What was the Court’s decision in the Schenck case?
Read #9: Information for the Moot Court and:

2.  Do the Abrams’s pamphlets represent a “clear and present danger”?
Read the "seditious" circulars.

3.   Were the pamphlets published to disrupt the government’s war effort? Do they show that “intent”?

4.   What case can be made for saying the Espionage Act as amended by the Sedition Act is unconstitutional because it violated the First Amendment?

5.   What case can be made for saying that the First Amendment did not apply to anarchists because they wanted to overthrow the US government?
When the teams have prepared their arguments, the Moot Court will be in session, with the Supreme Court justices sitting at the front of the room. The Chief Justice will ask the Petitioner to present his or her case first, followed by the Respondent. The Petitioner should be allowed to refute the Respondent's argument. The justices can interrupt at any stage of the proceedings with questions.

After the justices have listened to all of the arguments, they should discuss them among themselves – in hearing of the class. They should prepare a brief written statement, which concurring and dissenting views included, and read it to the class.

7.   Moot Court follow-up
To summarize the decision: the Supreme Court upheld the lower court decision, with only Justices Holmes and Brandies dissenting. Chief Justice White wrote the majority opinion, which applied the “clear and present danger” doctrine as it had been articulated in the Schneck case to the Abrams case. White argued that under the circumstances in which the Abrams leaflets were written and disseminated, the First Amendment did not apply. The purpose of the radical leaflets was not as – Weinberger had claimed – simply to prevent the intervention of American forces in Russia , but to stir up revolution and frustrate the government’s military program.

Justice Holmes, writing a dissent in which Justice Brandeis concurred, moved beyond his own previous “clear and present danger” standard. Speech should be protected under the First Amendment unless “an immediate check is required under the First Amendment to save the country.” And in this case no such danger existed: “Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present an immediate danger that its opinions would hinder the success of the government aims.”

No longer was Holmes concerned with the “substantive evils” which would follow from such a leaflet as he was six months earlier when he heard the Schenck case. Now he was more concerned to preserve free speech UNLESS IMMEDIATE DANGER WAS AT HAND.  He recognized the importance of a diversity of views in the search for truth.

What is the significance of Holmes’ change of position?  His dissent in the Abrams case is considered to be one of the most eloquent ever penned by a Supreme Court justice. Although its reasoning was not accepted by the majority in their judgment in the Abrams case, it had considerable influence among Supreme Court justices in the years to come. 

Read the decision:

8. The aftermath of the Abrams Case
After the Supreme Court handed down its judgment in Abrams et al. v. United States, the defendants were sent to prison to serve their 20 and 15 year sentences. President Wilson did not declare post-war amnesty for political prisoners, as many had hoped he would.

Believing that deportation was preferable to a life in prison, Attorney Weinberger worked hard to get them deported under the Immigration Act of 1918. In late 1921, President Warren Harding agreed to deport the four defendants to Soviet Russia.

They arrived in Soviet Russia a few months after the defeat of an anarchists-supported uprising against the ruling Bolshevik authorities.

In the following years, Steimer, Lipman, Lachowsky and Abrams continually felt the weight of state repression. Socialist Samuel Lipman died in Stalin’s purges. Lachowsky perished under the Nazis. Mollie Steimer was arrested by the Bolsheviks in 1922 and deported from Russia the following year. When Hitler assumed power, she fled Germany , only to be arrested in France and put into a concentration camp. But eventually she was freed, and finally settled in Mexico City where Jacob Abrams edited a Yiddish-language newspaper.  There she spent the rest of her life, dying in 1980 at the age of 83.

Twenty years before her death, Mollie Steimer and her companion, a Russian anarchist and revolutionary, were asked to write their memoirs. Steimer answered in the following way:

“Both of us feel that whatever we did in our lives was because WE HAD TO DO SO. We fought injustices in our humble way as well as we could, and if the result was prison, hard labor, deportations and lots of suffering, well, this was something that every human being who fights for a better humanity has to expect. We fought tyranny ever since our early youth wherever we met with it… because of an inner conviction that a society of rich and poor, luxury and misery, ignorance and brutality is wrong, and MUST BE CHANGED. But we don’t look for any credit for what we did… Consequently we prefer to remain in the shadow.”

9.  Information for the Moot Court
In order to make an argument for or against the free speech rights of the Abrams case defendants, students should consider the Sedition Act of 1798, that was passed only seven years after the First Amendment was adopted. This act made it a crime to “write, print, utter or publish…. any false, scandalous and malicious writing or writings against the government of the United States …”. In spite of the First Amendment, criticism of the government was made a punishable offense.

Was this law unconstitutional? It lapsed two years after its passage, and thus the Supreme Court did not have the opportunity to ponder this question before the act reappeared in a modified form in the 1917 Espionage Act.

Amended in 1918 by a Sedition Act, the Espionage Act made it a crime to publish “any disloyal… scurrilous or abusive language about the form of government of the United States, or the Constitution, or the flag, or the uniform of the Army or the Navy” and “any language intended to bring the form of government of the United States … into contempt, scorn, contumely or disrepute.” Such a crime was punishable by up to twenty years in prison.

On March 3, 1919, the US Supreme Court handed down its first decision in a case arising under the Espionage Act, that of Schenck v. United States. The Court sustained the conviction of a Socialist Party official who had called on young men to assert their constitutional rights and oppose the draft for military service. In his leaflet Charles Schenck had urged them to “Exercise your rights for free speech, peaceful assemblage and petitioning the government for a redress of grievances… sign a petition to Congress for the repeal of Conscription Act."

In the majority opinion in Schenck, Justice Oliver Wendell Holmes argued that a “clear and present danger” can require censorship: “We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic… 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 Congress has a right to prevent… When a nation is at war many things might be said in time of peace are such a hindrance to its effort that their utterance will not be endured.”

Did the action of the Abrams defendants constitute a “clear and present danger” to the government of the United States ?

Copyright 2006, ACLU of Massachusetts