War Powers, War Lies: Part 16: Speechcrimes and Groupcrimes

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War Powers, War Lies: A Series: Part XVI: Speechcrimes And Groupcrimes


            It is a truth universally acknowledged that a politician will take every possible measure to avoid criticism, blame or dissent, and a politician potent enough to criminalize dissent will do so.  In this country, the First Amendment is nowadays extremely inconvenient to politicians trying to squelch even wartime criticism.  But it took a while for the First Amendment to reach that point.  War raises a countervailing constitutional principle, national security, which our governments and in particular our presidents are obligated to provide.  Striking a balance between political free speech and national defense, both fostered by the Constitution, has often worked out in favor of politicians motivated by little more than a desire to gag their critics.


            In our nation’s first century, both the main tactics of the executive to silence criticism as war crime were tried.  John Adams and Abraham Lincoln both directly prosecuted dissenting speech (establishing what George Orwell, who invented “thoughtcrime,” might have called “speechcrime”), and Lincoln also sought to criminalize the act of belonging to groups that dissented (hence my coinage of “groupcrime”).  And during fights over these spurious crimes, the First Amendment was barely thought of.


            By July 7, 1798, French privateers raiding U.S. shipping and French resistance to U.S. neutrality in the Franco-British conflicts had caused the U.S. to abrogate treaties with France and to make appropriations for naval warfare.   The U.S. was in undeclared war.  On July 14, the Congress passed the Sedition Act.  That law provided, in part, that “if any person shall write, print, utter or publish … any false, scandalous and malicious writing against the government … with intent to defame the said government … or to bring them … into contempt or disrepute; or to excite against them the hatred of the good people of the United States … or to resist, [or] oppose any … law,” the offender could be fined two thousand dollars and/or imprisoned for two years.  Since the measure contained a sunset provision (expiration was set for March 3, 1801), it might have seemed narrowly tailored to the war at hand.


            That this law also had partisan political aims was clear, however, from the enumeration of the parties it protected from such criminal speech: “either house of the Congress of the United States, or the President of the United States.”  By no coincidence at all, the Federalist John Adams was the president and Federalists controlled the Congress.  The Vice President, not shielded by the law, was Jefferson, a Republican.[Comment2]   In other words, it was sedition for Jefferson’s followers to criticize Adams, but not for Adams’ followers to criticize Jefferson.  Also, the sunset date was not actually the date the Quasi-War with France (as it came to be known) was expected to end (it actually ended in 1800).   The sunset date was simply the last day of the Adams administration.  Hence Congress was assuring that if the tables were turned and the Republicans took over (as in fact occurred), the Republicans could not criminally prosecute the Federalists for the kind of speech for which the Federalists could prosecute the Republicans.


            Using this supposed bit of wartime security, the Federalists did in fact prosecute political critics. Vermont Congressman Matthew Lyon published comments in an opposition newspaper implying (albeit in a lengthy subjunctive phrase and not as an affirmative statement) that in the Adams administration “every consideration of the public welfare [is] swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish, adulation, and selfish avarice.”  He was fined a thousand dollars and imprisoned for four months.  15 F.Cas. 1183 (D. Vt. 1798).  Thomas Cooper, a Republican, published a complaint about the infant nation’s borrowing money to shoulder the expense of its new permanent navy and its new standing army, as well as certain foreign embassies, among other things.  He was fined four hundred dollars and imprisoned for six months.  25 F.Cas. 631 (Cir. Ct. D.Pa. 1800).  James Thompson Callender published a whole book attacking Adams, without, so far as appears in the report of the case, 25 F.Cas. 239 (Cir. Ct. D. Va. 1800), saying anything factually demonstrably wrong, but expressing vitriolic hostility toward him.  Callender was fined two hundred dollars and imprisoned for nine months.


            It is surprising to modern eyes reading the cited reports to see how little discussion there was of the First Amendment.  It appears that Lyons and Callender attempted to raise the issue, but the judges would not permit them to argue constitutionality to the juries, nor would the judges otherwise engage the issue themselves.


            Though barely tested against the First Amendment, and though not repealed until its sunset took effect, the Sedition Act was a political failure.  When he came to power, Jefferson offered pardons and honors to Sedition Act convicts (Cooper refused his).  Justice Samuel Chase’s conduct of the Sedition Act trials of Cooper and of Callender was part of the 1805 impeachment case against him (he barely escaped being removed).  And the Federalists were swept from power at the ballot box, never to return, largely on the strength of public revulsion against the Sedition Act.[Comment4] 


            Lincoln, our Civil War president, refused to abide by the verdict of history on the Sedition Act.  He, together with his generals and the Republican party, vigorously attacked dissent as wartime treason.  Three of the best-known cases involved John Merryman, a Maryland editor, and Cornelius Vallandigham, and Lambin Milligan, Ohio and Indiana politicians respectively.


            On the morning of May 25, 1861, Merryman, a Southern sympathizer, was seized by Union troops at his home in Cockeysville, and jailed at Fort McHenry without charge or access to habeas corpus.  He was not alone for long. 2,000 other suspected Confederate sympathizers were also soon held at Fort McHenry.  As noted by journalist Carl Schoettler,  these included the mayor of Baltimore, the police chief, the entire Board of Police, a former governor of Maryland, and 30 members of the legislature.  Nine newspapers were suppressed into the bargain.  Although Chief Justice Roger Taney, ruling as a Circuit Judge, found the detention unlawful, 17 F.Cas. 144 (Cir. Ct. D.Md. 1961), Lincoln simply ignored him.  The military officials holding Merryman specifically noted, in defying Taney, that “the prisoner has made often and unreserved declarations of his … avowed hostility against the government.”  In other words, dissent and nothing else was the very “crime” for which Merryman was being held.  (It is not unlikely that Merryman, a militia captain, had been involved in technically lawful but inherently rebellious preparations, as per the order of Maryland’s governor to the militia, to disable railroad bridges into Baltimore.  But this was not cited to Taney as a justification for the military’s defiance, and probably did not factor into the decision to arrest Merryman.)


            Without a doubt, the Union’s situation was parlous, and it is quite possible that had Lincoln not unconstitutionally seized the dissenters, they might thereafter have translated their sentiments into armed action, Maryland might in consequence have slipped away, Washington might have become militarily untenable, and the North might in conclusion have lost the war.  Whether any of this justified Lincoln’s lawlessness is not an easily answerable question.


            The phased-in military draft Lincoln and Congress felt necessary to fight the war provoked considerable dissent.  The first step Congress took was nationalizing the nearly defunct state militias,[Comment6]  and this provoked enough resistance (both consumer resistance – the draft bounties kept having to be raised –  and political resistance) that Lincoln, acting unilaterally, issued a September 24, 1862 proclamation.   It purported to suspend the writ of habeas corpus with respect to a certain class of persons, specifically those who sought to “hinder” the draft, probably draft evaders and resisters (the big anti-draft riots did not occur until the following year).  But it also suspended the writ with respect to those “guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of the United States.”  On top of that, Lincoln purported to render such persons “subject to martial law and liable to trial and punishment by Courts Martial or Military Commission.”  In effect, Lincoln was using executive war powers to create new categories of crime and establish an unreviewable parallel judiciary to punish them.  And behaviors subject to sanction by that parallel judiciary absolutely included political dissent.


            Congressman Vallandigham was tried under this proclamation.  As the Supreme Court summarized in denying certiorari to Vallandigham, 68 U.S. 243 (1863), that Congressman had defied a military order issued by General Ambrose Burnside against “declaring sympathy for the enemy.”  He was tried and convicted by military commission for giving a speech in which he denounced the Civil War: “a wicked, cruel, and unnecessary war, one not waged for the preservation of the Union, but for the purpose of crushing out liberty and to erect a despotism.”  In the subsequent habeas proceeding, General Burnside expressed his view of politics and political dissent in wartime: there should be no political names or epithets:  “The simple names of patriot and traitor are comprehensive enough.”  In other words, at least in wartime, political dissent or even dialogue equals treason.  Eventually Lincoln had Vallandigham deported to the South.  Lincoln privately expressed to Burnside a regret that Burnside had taken these steps, but that Lincoln and his cabinet felt they needed to support Burnside since he had acted. 


            After witnessing such challenges to the legitimacy of the Lincoln expedient of punishing speechcrimes via unreviewable military commissions, Congress purported to give him a fig leaf: a statute authorizing him to suspend habeas.  But the statute did not authorize trial by military commission, at least not in Union states.  Instead, the Secretary of State and the Secretary of War were directed to  identify detainees, and to give the detainees an opportunity to prove their loyalty judicially.  Lincoln’s armies simply ignored Congressional efforts to limit their power in this fashion and went right on holding trials by military commission and defying court orders.


            One of the victims of this military defiance was Lambdin Milligan, sentenced to death by military commission for what scholar Elisheva Coleman has called “walk[ing] a fine line between dissent and disloyalty.” (I draw heavily on Coleman below.) The essence of the crime alleged against Milligan was that he had been a member of the Order of the Sons of Liberty, a secret society whose members certainly approved of slavery and had sympathies with the South.  Northern-sympathizing secret societies were equally prevalent in Indiana of the time.  The former drew their membership exclusively from Democrats, and the latter exclusively from Republicans.  Thus it was hard to disentangle partisanship from what else animated Milligan’s accusers.


            Amongst the Order, there apparently had been a genuine plot and genuine plotters, though by no means encompassing all of its members, to rise up against the Union in conjunction with a Confederate invasion.  And there was little serious effort to determine whether Milligan had been one of the plotters himself.  The finding of his guilt seems to have stemmed from his having given a speech showing his sympathy with the Democratic party and with the aspirations of the Order, and not from any direct evidence of his having participated in planning an uprising.  This in turn made him a part of the “conspiracy” that the whole Order constituted; and hence any treasonous activities by other members of the Order could be legally ascribed to Milligan.  In other words, to Milligan’s speechcrime was added what might be called groupcrime: mere association with others who might have committed treason.


            Ex Parte Milligan, 71 U.S. 2 (1866), technically did not turn on the crimes but only on the mechanisms of trial.  Trial by military commission where the courts were available was held unconstitutional by the majority, and statutorily unauthorized by the concurrence.  The case is now principally remembered for Justice Davis’ ringing declamation: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”  Notwithstanding, trials by Reconstruction military commission never stopped after Milligan – probably because the holding never precluded such tribunals in the South, whence all the commissions had gone.


            However, for present purposes, the question is where this left the criminalization of dissent.  Scholar Mark Neeley[Comment11]  maintains that cases like Milligan’s, where the only provable offense was political speech, were actually few in number, and that the most common crimes alleged against the estimated 13,500 civilian arrestees during the Civil War were on the order of bridge-burning and cutting of telegraph lines – treasonous acts, not mere dissenting words.  But there was still no reckoning with the First Amendment, which is concerned with words.


            As we shall see next time, the failure of the Court even to weigh the limits placed on the Executive by the First Amendment left the door wide open to further speechcrime and groupcrime prosecutions when war next occurred.  And when war did come, President Wilson walked unhesitatingly through that open door.


Copyright (c) Jack L. B. Gohn


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