FIGHTING FAITHS The Abrams Case, the Supreme Court, and Free Speech By Richard Polenberg Viking. 431 pp. $24.95
SOME MONTHS ago, a justice of the Supreme Court was watching Bill Moyers' public television series on the Constitution, and he saw a man whose name had headed a case the Court had decided years ago. This justice had written the majority opinion, but until now, he had never seen or heard the person to whom the name was attached. He was quite excited as he told me about the experience. Members of the High Court are seldom able to get beyond the briefs to the human beings entwined by the law.
Most of the rest of us are also removed from the human dimensions of even the landmark cases decided by the Court. Only a relatively few books have brought the litigants to multi-dimensional life. Anthony Lewis did it in Gideon's Trumpet, as did Richard Kluger in Simple Justice and Fred Friendly in Minnesota Rag.
There is now another such illumination of a pivotal Supreme Court decision -- Richard Polenberg's Fighting Faiths -- a book crowded with intense, stubborn, vulnerable, idealistic and mean-spirited people on all sides of the case, including the bench. The case is Abrams v. United States, in which a dissent by Oliver Wendell Holmes (joined by Louis Brandeis) heralded the beginning of modern First Amendment doctrine. Throughout the previous century, the Court -- including Holmes himself before Abrams -- had an exceedingly crabbed view of free speech. If speech, written or spoken, could be shown to have a "bad tendency," whatever that meant to any judge, the First Amendment was of no help.
The defendants -- whom neither Holmes nor his colleagues ever saw -- were four fairly recent Jewish immigrants from Russia. Two were bookbinders, one was a furrier, and the only woman among them was a shirtwaist maker. Three were anarchists, and one was a socialist. They had been arrested in August 1918, during wartime, for having been responsible for a shower of leaflets that fell from the window of a building on the Lower East Side. In English and in Yiddish, the leaflets protested Woodrow Wilson's sending of American troops to aid the enemies of the Russian Revolution.
Indicted under the Sedition Act, the defiant polemicists were charged with, among other things, a conspiracy "to utter, print, write and publish . . . disloyal, scurrilous and abusive language about the United States . . . language intended to incite, provoke and encourage resistance to the United States in the war with Germany."
By the time that Richard Polenberg -- professor of America history at Cornell -- has come to the trial and conviction of the leaflet throwers, he has provided a multi-layered description of the defendants: the brutal cops who arrested them; the pragmatic "liberals" in Woodrow Wilson's Justice Department; defense lawyer Harry Weinberger (a natural movie role for Ed Asner); and such walk-on figures as Emma Goldman, John Reed and Woodrow Wilson.
Throughout, the legal arguments on both sides and from the bench are seen as shaped by the personal lives and backgrounds of all concerned, along with the dyspeptic temper of the times. The temper of the presiding judge in New York is indicated by his response to defendant Jacob Abrams, who had started to say, "When our forefathers of the American revolution . . . " The judge recoiled. "Do you mean to refer to the fathers of this nation as your forefathers?" As Polenberg notes, the judge had made his point to the jury.
The three men in the dock were sentenced to 20 years, and the woman, Mollie Steimer, to 15 years. She is the most fully drawn of all the people in the book because, I expect, Polenberg found her so appealing. Exasperatingly pure of principle, this slight young firebrand wasn't in the least intimidated by cops, jailers, prosecutors, or history.
In 1919, the case came before the Supreme Court, nearly all of whose members believed free speech had its decided limits, especially in time of war. Oliver Wendell Holmes was pretty much of the same view. He had written the majority opinions in three such cases preceding Abrams, upholding convictions of Eugene Debs, among others, for speaking in opposition to the war and thereby obstructing it by speech alone. Before listening to oral arguments in Abrams, however, Holmes had been paying attention to criticism of his views from friends and others he respected: Judge Learned Hand, legal scholar Ernst Freund, Harold Laski, and Harvard law professor Zechariah Chafee. All, in various ways, urged a much more generous view of the First Amendment.
THE EXTENT of their impact on Holmes might have surprised them when they read his dissent in Abrams. Even in wartime he said, "Congress cannot forbid all efforts to change the mind of the country." In peace or in wartime, only "the present danger of immediate evil," or an intent to make it happen immediately, can justify restriction on speech.
"In this case," Holmes emphasized, "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 United States."
The prisoners of speech were finally released in 1921 on condition that they leave for Russia immediately and never come back. Mollie Steimer almost didn't go. If railway workers went on strike, she said, she would not travel from prison on a train operated by scabs. Fortunately, there was no strike. But then again, like the others, she did not find Russia to be the promised land. She died in Mexico, never having been able to see the streets of New York again.
For those who read this book -- the kind of social legal history Dickens might have enjoyed -- it will be impossible from now on to think of the Abrams case and the Holmes dissent without also seeing 4-foot, 9-inch Mollie Steimer, who would not answer her own lawyer in court until he stopped addressing her by just her first name.
Nat Hentoff writes the syndicated column Sweet Land of Liberty.