Fighting Faiths: The Abrams Case, the Supreme Court and Free Speech.

Fighting Faiths: The Abrams Case, the Supreme Court and Free Speech. Richard Polenberg. Viking, $24.95. This book is a study of how ideologies can collide--tragically, at times--to yield guiding principles for society. The book's title is taken from a line in Oliver Wendell Holmes's famous dissent in the 1919 case. Holmes's groundbreaking argument was that the law shouldn't suppress arguments, pamphleteering, or any other forms of speech exchanged between "fighting faiths."

The faiths lined up as follows: the U.S. had joined the fight against the Axis powers; the Russians had allied themselves with Germany; the six anarchists were protesting the deployment of U.S. troops in the new Soviet Union; the U.S. Congress had passed the Sedition Act, restricting opposition by word or deed to the war effort.

On August 22, 1918, the anarchists (average age: mid-20s; religion: Jewish; citizenship: none) floated leaflets off the roof of an East Side building. In English and Yiddish, they rallied workers to oppose President Wilson's deployment of 7,500 troops against the Bolshevik regime. "Workers, our reply to the barbaric intervention has to be a general strike!" read one of the leaflets. The group was arrested by New York's bomb squad, convicted, and given sentences ranging up to 20 years. Four were eventually released to Russia where they found no more justice than they had received here.

By a 7-2 vote, the U.S. Supreme Court upheld their convictions, with Holmes and Justice Louis Brandeis dissenting. Holmes's dissent was stunning. Earlier he had written the majority opinions that affirmed three similar cases, offering in one of them his analogy of shouting "fire!" in a crowded theater. Speech that caused a "clear and present danger," he ruled, could be suppressed by the authorities. In Abrams, he revised the line by substituting "imminent" for "present." This seeming bit of legal esoterica had profound consequences for American constitutional freedom. It distinguished between dangers that were merely "present" and those that were immediate and likely, or "imminent." A half-century later, the majority adopted this reasoning in expanding the free speech protections accorded Klansmen, Nazis, and others who advocated breaking the law.

Polenberg uses the correspondence between Holmes and his intellectual pen pals to explore how he arrived at this historic, almost mysterious, shift of thinking. Holmes consulted with scholars such as Ernst Freund, Zechariah Chafee and Harold Laski. After a chance meeting on a train, Holmes and federal Judge Learned Hand began a fruitful correspondence. Hand thoughtfully criticized Holmes's decisions in the early free speech cases. Holmes heard him out.

Holmes's giant intellect led him in other directions as well--reading Locke, perusing Civil War history, even sitting with a book of Goya's paintings. He was not persuaded by one single argument for more tolerance of speech, but his dedication to inquiry "made Holmes more sensitive to the importance of experimentation and to the need to treat dissenters mercifully...."

When the opinion was issued on November 10, 1919, Holmes wrote in dissent that since "time has upset many fighting faiths...the ultimate good desired is better reached by free trade in ideas...." After thoroughly tracing the origins of these thoughts, Polenberg fails to examine adequately their meaning or future impact. But his sensitive treatment of the human casualties behind these legal battles makes Fighting Faiths not only good history but high constitutional drama.