ABRAMS ET AL. v. UNITED STATES.
250
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 (§ 3, Title I, of Act approved June 15, 1917, as amended May 16, 1918,
40 Stat. 553).
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
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, copies of which, properly identified,
were attached to the indictment.
All of the five defendants were born in
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
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 [*619] 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. Troxell v. Delaware,
Lackawanna & Western R.R. Co., 227 U.S. 434, 442; Lancaster v. Collins, 115
U.S. 222, 225; Chicago & Northwestern Ry. Co. v. Ohle, 117 U.S. 123, 129. We shall not need to consider the
sufficiency, under the rule just stated, of the evidence introduced as to all
of the counts of the indictment, for, since the sentence imposed did not exceed
that which might lawfully have been imposed under any single count, the
judgment upon the verdict of the jury must be affirmed if the evidence is
sufficient to sustain any one of the counts. Evans v. United States, 153 U.S.
608; Claassen v. United States, 142 U.S. 140; Debs v.
United States, 249 U.S. 211, 216.
The first of the two articles attached to the indictment is conspicuously
headed, "The Hypocrisy of the
"His [the President's] shameful, cowardly silence about the
intervention in
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
Among the capitalistic nations Abrams testified the
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
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
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
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 --
"
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
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
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 to others is further
shown by the additional writings found in the meeting place of the defendant
group and on the person of one of them. One of these circulars is headed: "Revolutionists!
Unite for Action!"
After denouncing the President as "Our Kaiser" and the hypocrisy of
the United States and her Allies, this article concludes:
"Socialists, Anarchists, Industrial Workers of the World, Socialists,
Labor party men and other revolutionary organizations Unite for action and let
us save the Workers' Republic of Russia!
"Know you lovers of freedom that in order to save the Russian revolution, we must keep the armies of the allied countries
busy at home."
Thus was again avowed the purpose to throw the country into a state of
revolution if possible and to thereby frustrate the military program of the
Government.
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
and under the long established rule of law hereinbefore stated the judgment of
the District Court must be
Affirmed.
DISSENT: MR. JUSTICE HOLMES dissenting.
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
The first of these leaflets says that the President's cowardly silence about
the intervention in
The other leaflet, headed "Workers -- Wake Up," with abusive language
says the America together with the Allies will march for Russia to help the Czecko-Slovaks in their struggle against the Bolsheviki, and that this 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, but also your dearest, best,
who are in Russia and are fighting for freedom." It then appeals to the
same Russian emigrants at some length not to consent to the "inquisitionary expedition to
No argument seems to me necessary to show that these pronunciamentos
in no way attack the form of government of he
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 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, Frohwerk and Debs, 249 U.S. 47, 204, 211, were rightly
decided. I do not doubt for a moment that by the same reasoning that would
justify punishing persuasion to murder, the
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
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
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
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
MR. JUSTICE BRANDEIS concurs with the foregoing opinion.