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

“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.

Into his account of the fate of the anarchists, Polenberg weaves a series of personal vignettes that are the highlight of the book. We meet anarchists and socialists like Emma Goldman, government men like the young J. Edgar Hoover honing the techniques of surveillance, and the academics caught up in the reaction to Abrams : Dean John H. Wigmore, who bitterly attacked Holmes for defending the “Freedom of Thuggery”; Sir Frederick Pollock, who came to his old friend’s defense; and Harvard law professor Zechariah Chafee Jr., whose career was almost wrecked by conservatives’ angry reaction to his support for the rights of the anarchists.

Polenberg is at his best in depicting the personalities clashing in and around the Abrams trial. But “Fighting Faiths” is more than a People magazine account of the anarchists’ day in court: The book uses the confluence of events and personalities surrounding the Abrams affair to display some broad themes in early 20th-Century American political culture: the appeal of anarchism to working-class Jewish immigrants; the legal treatment of radical aliens being tried, imprisoned, and deported; the development of the techniques of surveillance; the moral dilemmas confronting liberal bureaucrats in an illiberal era; the impact of the Russian Revolution on the American left. Polenberg manages to say something interesting about all these themes and more in an extremely readable and engaging narrative. This work will be informative for academics interested in law and politics while remaining easily accessible to the general reading public.

Polenberg comes back again and again to the interplay between ideas and culture, personalities and institutions. This source of the book’s strength is also a cause of its weaknesses. When ideas come on the scene in “Fighting Faiths,” it is as fleeting accessories to the larger clash of personalities. In discussing the reaction to Holmes’ dissent, for example, Polenberg focuses on the drama surrounding notable figures like Wigmore and Chafee rather than on the hard questions underlying Holmes’ position. Most troubling, perhaps, is that this emphasis on personality and drama sometimes seems to be doing ideological service: The generally sympathetic portrayals of the liberals and anarchists contrasts sharply with highly unflattering sketches of the conservatives.

There is, in fact, something superficial in Polenberg’s sympathy for the anarchists: He admires them as “idealists . . . made to suffer for their ideals . . . (Their’s) is a story of courage and dedication, of people who refused to perceive themselves as victims or admit defeat.” In the last paragraph of the book, having recounted in relentless detail the bitter disappointment of all the anarchists’ hopes, Polenberg asks wistfully if their lives were a waste: No, he suggests, the Abrams case helped put freedom of speech “on a firmer constitutional basis.” But to sympathize with the anarchists as unwitting pipers in the march of constitutional rights is to miss the whole point of their enterprise as anarchists. And before we commend them for their “idealism” we must, surely, take some measure of the value of their ideals.

The anarchists were willing to resort to bombings and other violence in the pursuit of a radical and fantastically utopian vision of human liberation. On Polenberg’s own testimony, the anarchists “frequently justified or excused cold-blooded acts of violence. As revolutionaries they accepted the need for collective violence. But they also defended the use of assassination threats and, sometimes, the premeditated murder of the rich and powerful.” A friend, as Polenberg recounts, remembers Abrams as “an extreme militant. He and Schwartz were tough and fanatical. Whoever disagreed with them was an enemy, to be beaten up. It didn’t matter whether they were capitalist enemies or anarchist enemies.”

To take Abrams and his group seriously, we must see them not as pipers in the march of constitutional rights but as utopians with a fantastic vision of radical transformation willing to resort to violence to achieve their aims. Seen in that light, the anarchists were not only failures but genuine subversives who certainly hoped to constitute the kind of threat to the public order that the government would be eminently justified in neutralizing.

Polenberg never really treats the concerns of conservatives like Clayton or J. Edgar Hoover seriously. He calls the world view presented in Clayton’s sentencing speech “surreal,” but it is no more so than Molly Steimer’s. One can and should criticize any zealousness in law enforcement that leads to contempt for civil liberties and the brutal application of the “third degree.” Nevertheless, an account that presents the immigrant experience as the background for a sympathetic treatment of anarchism should be capable of doing the same for the conservative defenders of law, order, and bourgeois virtue. Given the series of anarchist bombings and foiled plots that shook the United States in 1919, the fears of those who regard the social order as naturally fragile is understandable.

There are other ways in which Polenberg’s drawing of the ideological lines seems simplistic. Holmes’ larger intellectual position, for example, is never really presented or analyzed. But Holmes was certainly not a consistent civil libertarian, and his philosophical pragmatism often proved to be arid ground for individual rights. The man who wrote the Abrams dissent was also an enthusiast for social eugenics who, in Buck vs. Bell, wrote an infamous decision upholding a Virginia law allowing for the mandatory sterilization of “mental defectives” committed to state institutions: “Three generations of imbeciles are enough.”

The “conservative” justices who upheld the Abrams convictions were, on the other hand, capable of speaking in support of broadly liberal guarantees. It was this conservative court that began the process of incorporating the Bill of Rights into the 14th Amendment and applying it against the states. It was Justice McReynolds, the crustiest of the conservatives, who, over a Holmes dissent, wrote the opinion striking down a Nebraska law forbidding the teaching of foreign languages to young students, in Meyer vs. Nebraska.

“Fighting Faiths” is a book with many virtues. It sets political ideas in a vivid cultural context. It is a sensitive portrayal of the anarchists’ ordeal, a fascinating exploration of the personalities and cultures clashing in and around the Abrams case. The perspective that dominates the book is, however, that of a contemporary liberal not especially given to seriously probing the ideas of either liberals or their critics. So by focusing on a parade of appealing and repellent personalities, Polenberg leaves out one interesting part of the story: the really hard issues of political morality dividing liberal reformers from their radical and conservative critics. While it tells a good story well, “Fighting Faiths” does not really help keep liberalism in fighting trim.