Marking a centennial for the freedom it led to5/1/2019
And how we might lose that.
This year marks the 100th anniversary of two U.S. Supreme Court cases often characterized as miscarriages of justice. Those cases, however, also led to us having greater First Amendment protection of free expression.
There’s a medical line, “The operation was a success, but the patient died.” Likewise in law, justice may eventually result, while some defendants suffer.
Our decisions — Schenck v. U.S. in March 1919 and Abrams v. U.S. that October — merit mention as the Iowa Republican legislature seeks to politicize Iowa’s judiciary by giving legislators more power in appointing judges.
Charles Schenck, Jacob Abrams and their codefendants faced 10 to 20 or more years in prison for what — in Abrams’ case — was littering. Back then, however, Schenck and the others were convicted of violating the Espionage Act, among the laws passed in other nations, too, as fear of Communism “went viral.”
Schenck and Dr. Elizabeth Baer, Philadelphia members of the U.S. Socialist Party, protested that the Selective Service Act violated the 13th Amendment’s prohibition of slavery. They mailed 15-20,000 letters to young men, urging them
to be draft resisters.
The conviction of Schenck and Baer was upheld 9-0 by the Court, using Justice Oliver Wendell Holmes’ “Clear and Present Danger Test.” The letters to potential draftees were deemed a clear and present danger to “bring about the substantive evils which Congress has a right to prevent.”
The impact of the decision was softened in that Schenck was sentenced to six months and Baer 90 days.
In the months before the Abrams decision, legal-community acquaintances talked to Holmes: The Clear and Present Danger Test made sense, but
Holmes should ponder whether mailing letters posed a danger akin to acts of espionage.
The Abrams convictions were upheld, 7-2, with Holmes and Justice Louis Brandeis, also giant in judicial history, dissenting. In what some call the most powerful dissent in Supreme Court history, Holmes wrote:
“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 … But 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. … The best test of truth is the power of the thought to get accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
Over the next 50 years, that dissent gradually led to greater First Amendment protection — an outcome of no consolation to Abrams and codefendants, Mollie Steimer, Hyman Lachowsky and Samuel Lipman, Jewish immigrants from Russia.
Steimer was sentenced to 15 years in prison, the other three to 20.
Their “clear and present danger”? They tossed leaflets from a third-floor window in New York, urging “WORKERS OF THE WORLD UNITE” against capitalism and against President Wilson sending U.S. troops to Russia to, in their view, curb the Russian Revolution.
After they were in prison a year or so, President Harding agreed to deport them to Russia at their expense. They went. Lipman died in a Stalin purge. Lachowsky was killed by Nazis. Jacobs and Steimer somehow escaped to Mexico City.
So consider the Schenck/Abrams centennial in the light of a legislature determined to sabotage Iowa’s highly regarded judiciary by making it more vulnerable to fear-driven causes like those of 100 years ago. Regardless of what happens in the legislature, we’ll have to continue to protect at least one branch of our government from the discord we suffer today.
As a post script, consider Mollie Steimer’s response when asked to write her memoirs years before she died in 1980: “(We felt) whatever we did in our lives was because WE HAD TO DO SO. We fought injustices in our humble way … as well as we could, and if the result was prison, hard labor, deportations and lots of suffering, well, this was something that every human being who fights for a better humanity has to expect … a society of rich and poor, luxury and misery, ignorance and brutality is wrong, and MUST BE CHANGED. But we don’t look for any credit for what we did…” ♦
Herb Strentz is a retired administrator and professor in the Drake School of Journalism and Mass Communication and writes the monthly Rants and Reason column for CITYVIEW.