Does the evidence that the defendants published and distributed leaflets urging a general strike in ammunition factories support their convictions for conspiracy under the Espionage Act, consistent with the First Amendment's protection of free speech?

Five Russian-born defendants, Abrams and four others who had lived in the United States for five to ten years without seeking naturalization, were arrested for printing and distributing leaflets in New York City in August 1918, while the United States was at war with Germany. Three defendants testified that they were rebels, revolutionists, and anarchists with no interest in the United States Government; a fourth described himself as a socialist who regarded the government as capitalistic. The defendants admitted they united to print and distribute about five thousand copies of two circulars, one in English and one in Yiddish. They met in rooms Abrams rented under an assumed name. Abrams bought the printing outfit, which was installed in a basement room where printing was done at night. The circulars were thrown from a window and distributed secretly. They denounced President Wilson as a hypocrite and coward, protested the dispatch of American troops to Russia, and attacked capitalism. The Yiddish circular told workers in ammunition factories they were producing bullets to murder Germans and also their dearest in Russia, and called for a general strike. Other writings found at the group's meeting place and on one defendant called for unity and threatened to use arms and create disturbances to keep the armies of the allied countries at home.

The five defendants were tried in the United States District Court for the Southern District of New York on a four-count indictment charging conspiracy to violate the Espionage Act of 1917, as amended May 16, 1918. They pleaded not guilty and moved for an instructed verdict, which was denied. The jury convicted them on all counts. They brought a writ of error to the United States Supreme Court.

(Clarke, J.)

Yes. The evidence was sufficient to sustain the convictions, and the First Amendment does not protect the defendants' conduct.

The First Amendment challenge to the Espionage Act is foreclosed by Schenck v. United States and Baer v. United States, 249 U.S. 47, and Frohwerk v. United States, 249 U.S. 204. The remaining question is one of law: whether competent and substantial evidence before the jury fairly tended to sustain the verdict. The Court does not weigh conflicting testimony. Troxell v. Delaware, Lackawanna & Western R.R. Co., 227 U.S. 434, 442; Lancaster v. Collins, 115 U.S. 222, 225; Chicago & Northwestern Ry. Co. v. Ohle, 117 U.S. 123, 129.

Because the sentence did not exceed what could lawfully have been imposed under any single count, the judgment must be affirmed if the evidence sustains any one count. Evans v. United States, 153 U.S. 608; Claassen v. United States, 142 U.S. 140; Debs v. United States, 249 U.S. 211, 216.

The circulars were not an attempt to change the administration through candid discussion. They called on workers to rise against the government, urged a general strike to paralyze the production of munitions and other war essentials, and threatened armed rebellion. They were distributed in the nation's greatest port, from which soldiers were shipping out and war supplies were being manufactured. Additional writings found at the group's meeting place and on one defendant confirm this purpose.

The defense that the defendants intended only to help the Russian cause fails. Men are held to have intended the effects their acts were likely to produce. Even if their primary aim was aiding the Russian Revolution, their plan necessarily involved defeating the war program of the United States. The language plainly was intended to provoke resistance to the United States in the war (third count), and the defendants plainly urged a general strike of ammunition workers to curtail production of ordnance and munitions (fourth count). Because much persuasive evidence supported the third and fourth counts, the Court did not need to decide the first two counts. The judgment is affirmed.

Dissent (Holmes, J., joined by Brandeis, J.) The leaflets do not attack the form of government, so the first two counts fail. The fourth count requires a specific intent to cripple or hinder the United States in the war. Used exactly, intent means the consequence is the aim of the act, not merely a foreseeable result. The defendants' aim was to help Russia and stop American intervention there, not to impede the war effort, so no such intent was proved. The majority rejected this view, holding that men are accountable for the effects their acts were likely to produce and that the defendants' plan necessarily involved defeating the war program. Resistance to the United States under the third count means forcible opposition to some war proceeding, and none was shown. Under the First Amendment, the government may punish speech only where it creates, or is intended to create, a clear and imminent danger of immediate substantive evils, in war as in peace. The publication of a silly leaflet by unknown men posed no such danger. Twenty-year sentences for publishing two leaflets were grossly disproportionate, and the defendants seemed punished for their creed rather than their acts. Persecution of opinion is logical only for those who have no doubt of their premises. The best test of truth is the power of a thought to get itself accepted in the competition of the market, and the Constitution is an experiment that demands vigilance against checking opinions unless they imminently threaten immediate interference with the lawful purposes of the law. The First Amendment did not preserve the common law of seditious libel.