Jewish Currents February 1991 45:2 (490) p35
Fighting Faiths: The Abrams Case, the Supreme Court and Free Speech, by Richard Polenberg. Viking, NY, 1987, 431 pages, indexed, $24.95.
The case of the title, U.S. v. Abrams et al, involved four Russian Jewish defendants who in 1918 were arrested, imprisoned and eventually deported for distributing leaflets opposing U.S. intervention in Soviet Russia. The case has importance not only historically in terms of U.S.-Soviet relations, but also because it prompted an eloquent dissent on the part of Supreme Court Justice Oliver Wendell Holmes in defense of free speech, a doctrine which would become law in Brandenburg v. Ohio precisely 50 years later.
Thus, historian Richard Polenberg is dealing with a highly-charged set of events on several levels. His index of archives and footnotes to law review articles give the reader the option to pursue his several themes further. "To describe the ways in which Supreme Court Justices applied, modified, or rejected the 'clear and present danger' standard would be to write a history of civil liberties in the 50 years after 1919" (p. 367). Clearly such a book is needed; Polenberg has merely scratched the surface. But along the way he has provided some marvelously illuminating glimpses of his cast of characters.
Chief Justice Holmes, for example wrote the opinion from which the title of the book is drawn: "When men have realized that time has upset many fighting faiths, they may come to believe... that the ultimate good desired is better reached by free trade in ideas"--Nov. 10, 1918 (p. 240). Zechariah Chafee wrote an article in the June, 1919 Harvard Law Review that seems to have been crucial in influencing Holmes to modify the "clear and present danger" test from a doctrine designed to limit free speech (in the Schenck case three months earlier) to one protecting free speech. Of Holmes' fellow Justices Louis Brandeis and James Clark McReynolds, the latter was a "consummate anti-Semite" who would leave the room whenever Brandeis started speaking (p. 205).
John Reed, Max Eastman, Floyd Dell et al. stood trial for sedition in 1918; the trial ended with a divided jury, one of whose members remarked: "You fellows were just lucky in not having a Jew or a foreigner among the defendants" (p. 72). The remarks of the original trial judge, Henry DeLamar Clayton Jr., ranged from "Convince a woman against her will, she is of the same opinion still" (p. 128) to "I have tried to out-talk an Irishman, and I never can do it, and the Lord knows I can not out-talk a Jew"(p. 107). Defense lawyer Harry Weinberger was also the lawyer for Alexander Berkman and Emma Goldman. His private secretary, Marion Barling, alias Margaret M. Scully, turned out to be a spy for New York's Joint Committee to Investigate Seditious Activities, writing (Oct. 18, 1919) of her anarchist associates as "those damned kikes" (p. 174).
Finally there are the defendants themselves: Jacob Schwarz, who did not live to stand trial but died "as the result of the Third Degree" (p. 88), Jacob Abrams, Hyman Lachowsky, Samuel Lipman and Mollie Steimer, who really deserves a book to herself, one which would chronicle her odyssey from Russia to America to Russia to Berlin to Mexico, where she died in 1980. When asked to explain what she meant by anarchism, she replied from the stand: "By anarchism, I understand a new social order, where no group of people shall be in power... no group of people shall be governed by another group of people."