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Free Speech Vs. 'Clear and Present Danger' : FIGHTING FAITHS The Abrams Case, the Supreme Court, and Free Speech by Richard Polenberg (Viking: $24.95; 418 pp., illustrated)

December 27, 1987|Stephen Macedo | Macedo is assistant professor of government at Harvard University, where he teaches political theory and American constitutionalism. He is the author of "The New Right v. the Constitution" (Cato Institute) and "Liberal Virtues" (Oxford, forthcoming). and

"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. . . ."

So wrote Justice Oliver Wendell Holmes Jr. in his famous dissenting opinion in Abrams et al vs. United States. The inspiration for Holmes' libertarian credo was the 19th-Century British political philosopher and liberal reformer John Stuart Mill who, in his influential tract "On Liberty" argued that "Complete liberty of contradicting and disproving our opinion is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right."

The centrality of speech is not a recent discovery. In the face of America's first national sedition act, James Madison warned that "the right of freely examining public characters and measures, and of free communication thereon, is the only effectual guardian of every other right. . . ." The contours of this "first freedom" remain, nevertheless, a subject of bitter dispute.

What forms of protest should be allowed in wartime, when what is at stake may be our very capacity to preserve freedom itself? And when must the conditions of continued toleration themselves be protected? When does liberal toleration of radical political views turn into a relativistic unwillingness to stand up for our way of life?

That toleration of radical dissent, which appears to liberals as the ultimate willingness to submit even our basic political commitments to a process of testing in "the market of ideas," often seems to conservatives to represent a spineless unwillingness to stand up even for the institutions that sustain toleration.

These enduring disputes are played out in dramatic sharpness in Richard Polenberg's "Fighting Faiths." Polenberg takes up the famous case of Abrams vs. United States, in which four anarchists ran afoul of the World War I-era Sedition Act.

Jacob Abrams and his three co-defendants were anarchists, opposed to war and to all organized government. Russian Jews and recent immigrants to the United States, Abrams and his comrades were enthusiastic supporters of Lenin's Bolshevik Revolution. Outraged at America's military support for the White Russian Army faction holding out against the Bolsheviks, Abrams and his friends--Samuel Lipmann, Hyman Lachowsky, Jacob Schwartz and Mollie Steimer--composed and printed pamphlets denouncing Woodrow Wilson and the "plutocrat gang in Washington" for combining with German militarism to crush the workers' revolution in Russia. The pamphlets also called for a workers' strike of munitions plants to help stop the intervention.

The indictment against Abrams and his co-defendants charged them with conspiring to publish and disseminate "disloyal, scurrilous and abusive language about the form of the government of the United States," "language intended to incite, provoke and encourage resistance to the United States" in the war with Germany. By urging munitions strikes, it was charged, the anarchists conspired to hinder not only the intervention into Russia but the war against Germany as well.

Convicted and sentenced to maximum terms of 15 and 20 years, Abrams and his co-defendants appealed to the U.S. Supreme Court. Just eight months earlier, in the wartime trials of Socialists (including party-leader Eugene Debs) arrested for denouncing conscription, Holmes had formulated his "clear and present danger" standard. Just as the right to free speech did not protect the act of "falsely shouting fire in a theater and causing a panic," said Holmes, so too anti-conscription appeals during wartime can constitute an immediate threat of serious public harm that the government may properly act against.

In Abrams , the high court upheld the anarchists' convictions by arguing that their calls for munitions strikes, even if directed against the U.S. intervention in Russia, could not but hamper the war effort against Germany. Holmes, dissenting alone, argued that "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 hinder the success of the government arms. . . ."

The Holmes dissent in Abrams raised a storm of controversy, some of which Polenberg recounts. But Polenberg does more than chronicle the treatment of these four anarchists at the hands of the American criminal justice system. And the book is certainly not a lawyers' history of constitutional doctrine. The discussion of doctrine and ideas generally is, indeed, rather cursory, the focus is on the clashing personalities and cultures that helped shape the treatment of the anarchists.

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