War Powers, War Lies: Part 17: Wilson’s Gag

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War Powers, War Lies: A Series: Part XVII: Wilson’s Gag


            It is not always an easy to distinguish political speech and association that the First Amendment protects from treasonous utterances and conspiracies.  The core value of the First Amendment is like the phrase psychological testers sometimes use: There are no right or wrong answers.  You can advocate and organize to achieve anything.  And yet, does this mean that all speech about our government and our fellow citizens — and all forms of organization to teach and implement these views — are equally protected?  Does this include speech and concerted action hostile to our very form of government and our fellow citizens?  It seems clear that there must be some limits.


            Sometimes the limits are obvious.  The First Amendment would not, for instance, protect armed insurrection nor service in the armed forces of countries with which our nation was at war.  But these are extreme cases, and that makes them easy.  The harder ones have to do with activities that look more like conventional politics.  In times of war the activities of political parties can threaten or thwart a war effort.  Where a party advocates in favor of the nation’s foe, as much of the Democratic party did during the Civil War, it is at least a debatable question whether that advocacy is protected politics or treason.  And what if a legitimate political party harbors individuals who, inspired by its advocacy in favor of, say, peace with a national enemy, cross the line into insurrection as John Merryman of Maryland may have done when, as we saw last time,  he helped prepare to disable railroad bridges essential to Union troop movements and commerce?  If a political party teaches that our nation’s war practices are evil, and that persons of conscience should not comply with them, thus potentially impeding the war effort, should the First Amendment ward off efforts to suppress speech?  Or that party?


            The last question in particular was repeatedly presented in the courts and in the court of public opinion during World War I.  First, a two-sided reality check.  Our participation in World War I was probably unnecessary, and it was certainly sold to us with lies.  The historians’ consensus is that we really entered the war to preserve our markets among the Allied powers, and to prevent the possible collapse of the international financial system.   The public relations campaign waged by Woodrow Wilson’s White House, however, stressed that we were seeking to “make the world safe for democracy.”  Given that our allies’ empires disenfranchised a hefty percentage of mankind, this was at best a selective aspiration.  Clearly we were not seeking to make the world safe for democracy in India or Algeria, for example.  Contradicting lies like these and advocating policies based on the truth was legitimate political speech, or at least would have been in normal times.


            Another reality was that even before German U-boats sank the Lusitania and America went to war, the ruling classes were having mixed feelings about the kinds of people who most vociferously spoke out against the government and the war.  We had welcomed to our cities large numbers of mostly Jewish Russian immigrants imbued with the Socialist and anarchist ideals fermenting in their homeland, and our Christian capitalist and agrarian nation wasn’t thrilled by their look or sound.  Separately, we had welcomed so many Germans that they comprised our largest immigrant group, and huge numbers of Irish who had had their fill of England’s denial of democracy on their soil.  And Wilson was very happy to stimulate bigotry against them all.


            This is Wilson, writing to Congress a year and a half before we entered the war: “The gravest threats against our national peace and safety have been uttered within our own borders.  There are citizens of the United States, I blush to admit, born under other flags but welcomed by our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life.” 


            On the other side of the equation, some of the newcomers really were an effective impediment to the draft, which, if one concedes its constitutionality, was a legitimate part of the war effort.  As pointed out by Peter Irons in his book War Powers (2005), there really was a national epidemic of draft resistance in 1917.  The Socialists and anarchists, together with the International Workers of the World (aka the Wobblies), were in the vanguard of that resistance, especially in their writings and speeches.


            To combat the draft resisters, the Wilson administration and the Congress passed an Espionage Act that prescribed sentences of up to twenty years for anyone “who shall willfully cause or attempt to cause … refusal of duty in the military or naval forces of the United States.”  It similarly punished anyone who “shall willfully utter, print, write, or publish any disloyal … language about the form of government of the United States or … any language intended to incite, provoke, or encourage resistance to the United States, or to promote the cause of its enemies, or shall urge … any curtailment of production in this country of any … things… necessary or essential to the prosecution of the war…”   Broadly construed, this statute would criminalize all expressions of political dissent concerning the war — or, for that matter, Socialist criticism of the capitalist economy and the nation’s purportedly republican form of government.


            And there were numerous horror stories about how it was used for just such purposes.  To mention but two, Robert Goldstein was imprisoned for making a patriotic movie about the Revolutionary War, in which, unsurprisingly, the British were depicted as committing atrocities.  As the British were now our allies, this exposure of our former enemies to public disapproval was held to violate the Espionage Act.  258 F. 908 (9th Cir. 1919).  Rose Pastor Stokes, editor of a Jewish socialist publication, sent a letter to the editor of the Kansas City Star in which she stated: “No government which is for the profiteers can also be for the people, and I am for the people, while the government is for the profiteers.”  For this she received ten years under the Espionage Act, though the conviction was reversed after the war was safely over.  264 F. 18 (8th Cir. 1920).


            Under contemporary First Amendment analysis, these were easy cases.  Any criticism involved was purely political, and the criminal penalties were in hindsight clearly unconstitutional.  It was when Socialists spoke out against the draft and the armaments industry that the harder Espionage Act cases were presented.  The Allies’ war strategy desperately depended upon the U.S. quickly fielding large armies to replace the exhausted British and French soldiery, and despite the massive propaganda campaigns of the government, military recruitment had fallen far below targets.  The munitions factories were required to keep France and England from collapse, and arm our own gathering forces – not to mention keeping the financiers and the princes of industry who controlled the Wilson administration in yachts.  So there was arguably a strong national security interest at stake, as well as the partisan interests of the politicians who had led us into the war (and the mercantile interests for which they fronted).


            Moreover, military theory of the time, heavily influenced by theorist Carl von Clausewitz, accorded an almost mystical significance to the concept of “morale.”[Comment4]   It was thought to be the military equivalent of corporate goodwill, a quantifiable if intangible asset which could be damaged in ways that would have a direct effect upon military campaigns.  Hence damaging national morale could be seen as the equivalent in danger and impact of an armed attack on our troops.


            At what point, if any, did clearly political speech also encroach upon national security, as conceived in this fashion?  The resolution of that issue was largely a story of Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis.  


            The first case of significance was that of Charles J. Schenck, a Socialist Party official who was involved in the publication of a leaflet attacking the draft as a violation of the 13th Amendment, and urged voters to petition Congress to repeal it.  The leaflet also denounced the war.  He received a six-month sentence under the Espionage Act.  The war was over by the time his case came before the Supreme Court.  It fell to Justice Holmes on March 3, 1919, to explain why the Court was upholding the sentence. 


            He allowed that “in many places and in ordinary times the defendants … would have been within their constitutional rights.”  In other words, in peacetime, these criticisms of the laws and policies of the government would have been mere party politics, protected by the First Amendment.  However, Holmes went on, the “the character of every act depends upon the circumstances in which it is done.”  And then he articulated what he viewed as the applicable test when the circumstance was war: “whether the words used … are of such a nature as to create a clear and present danger” of obstructing the war effort.  And he added that if the “tendency and the intent” behind political speech were to obstruct military recruitment (even absent proof that the recruitment had been successfully hindered by even one conscription or enlistment) then a clear and present danger to the war effort would be proved.  249 U.S. 47.


            Announced the same day were the cases of Jacob Frohwerk, editor of a German-language Missouri newspaper, who expressed views similar to those of Schenck, and added a deeper critique of the war’s objective: “that a few men and corporations might amass unprecedented fortunes,”sentenced to ten years, and 249 U.S. 204, and Eugene Debs, Socialist organizer.  249 U.S. 211.  Debs had given a speech inciting sympathy for others who had been imprisoned for Espionage Act violations, and he was sentenced to ten years as well.


            Over the following summer, however, Holmes had a number of encounters with articulate critics, including Learned Hand, then a U.S. District Judge, and scholars Ernst Freund and Zechariah Chaffee.  That, and tumultuous riots and repressive governmental responses, also led Holmes to rethink the matter. He saw that there had to be a role for dissent, war or no war.


            The rethinking was seen in Abrams v. U.S., 250 U.S. 616, announced November 10.  Abrams had published Bolshevik propaganda denouncing the war effort, insofar as Allied policy favored the restoration of the now-fallen czarist regime and impeded the nascent Communist takeover in Russia, in opposition to which Abrams had called for a general strike.  For this he was sentenced to 20 years in prison.  The majority of the Court viewed this talk as being clearly intended to hinder the war effort, and thus a clear and present danger under Schenck. 


            But Holmes was no longer in the majority.  Writing in dissent with Justice Brandeis, he now attempted to turn his own “clear and present danger” test upside down, and change it into a protection of dissenting speech and association.  He now recognized that, even in wartime, “Congress certainly cannot forbid all effort to change the mind of the country.”  And while Abrams might have entertained an intent to persuade workers to take concerted action that might inconvenience the war effort, intent alone was no longer enough to constitute a clear and present danger.  There had to be a reasonable likelihood of success: “[N]obody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger…”


            Brandeis finished the process eight years later, concurring in Whitney v. California, 274 U.S. 357 (1927), invoking the Founding Fathers as great proponents of freedom of speech, and justifying this freedom as a necessary component of a healthy political system.  As to “clear and present danger,” Brandies wrote: “Even advocacy [of law-breaking] is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted upon.”  That concurrence was the template for future Court rulings in the area.


            The World War I Espionage Act prosecutions were all upheld.  But, but like the Sedition Act prosecutions sustained under John Adams, they were political failures.  Discomfort with the efforts of President Wilson to gag and punish dissent played a major role in the election of Warren Harding in 1920.  Harding stated that “too much has been made of Bolshevism in America.” And early in his presidency Harding pardoned Eugene Debs and welcomed him to the White House.  His successor Calvin Coolidge freed all remaining Espionage Act prisoners in 1923.[Comment7]   And by the time Franklin Roosevelt led this nation into World War II, his ideological centerpiece was the concept of the Four Freedoms that democratic governments foster, and the first of these was freedom of speech and expression  – a concept which in wartime Wilson would have found not merely ludicrous but subversive.


            If, by 1920, governmental invocation of war power to gag political speech was largely dead, that power was still available to suppress groupcrime – membership in politically suspect groups.  That will be the subject next time.


Copyright (c) Jack L. B. Gohn


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