The 1918 The Espionage Act and the Sedition Act, or, Freedom of Unpopular Speech
Featuring John Stuart Mill, Charles T. Schenck and Elizabeth Baer,
Oliver Wendall Holmes, and more than 2000 people jailed for criticizing the government during World War I.
In 1917, President Woodrow Wilson made a dizzying reversal: after three
years of adamant refusal to involve the US in the European war, he
decided the US must enter the War to Save Democracy. He and his advisers
debated how to explain this complete about-face to the peace loving
public.
The first pro-war propaganda office, the Creel Commission, was
established, headed by George Creel. Congress enacted the first peacetime draft
in history, and because it was feared that widespread criticism of the
sudden enthusiasm for war would disrupt US military efforts, the
Espionage Act was passed making it a crime to falsely report upon or make
statements meant to interfere with the war effort. It became illegal to
obstruct recruitment or enlistment, or to persuade others to not enlist.
The next year as doughboys headed to Europe, Congress went even
farther, passing the Sedition Act. This made it a crime to say, print, write
or publish anything that was "disloyal" regarding the US government,
flag, or military uniform. It was even illegal to speak out against the
purchase of war bonds that funded the war. A number of state legislatures
passed similar acts.
More than 2,000 people were jailed under the federal laws alone. One
man was jailed for expressing the opinion that the government should
raise taxes rather than sell war bonds. Another was arrested for telling
some knitters that soldiers would never see the socks they were making. A
farmer was turned in for criticizing the war in his own home--two
strangers who ran out of gas and came for help told the police what the
farmer had said. And a filmmaker who made an historically accurate film
about the US revolution, The Spirit of 76, was convicted because the film
showed US ally Great Britain in a negative light.
Many the leaders of the nation's most radical movements--Wobblies,
Socialists, and anarchists--found themselves cooling their heels in jail
during the war. Anarchist Emma Goldman literally chained herself to fixed
objects on stage before she opened her mouth in some towns, so the
police would not be able to carry her off until she exercised her right to
free speech under the First Amendment. Many less prominent critics of
the war were fired, tarred, feathered, or run out of town without any
intervention by law enforcement to slow down the action.
Beginning in 1919, the struggle to ensure free speech in wartime moved
to the courts. The first Supreme Court case was brought by Elizabeth
Baer and Charles T. Schenck, New York socialists who believed the draft
was unconstitutional and wrote pamphlets urging men to use every legal
means to avoid being drafted.
The Supreme Court had the difficult task of balancing the right of
individuals to speak out with the need for national security. Schenck lost;
the Court ruled that there can be exceptions to the right of free
speech. Writing for the majority, Justice Oliver Wendell Holmes argued that
free speech is not an absolute; when the social welfare is at state,
some restrictions on speech may be justified. But as the war proved
bloody and pointless, more and more people expressed criticisms of it--and
especially of the Espionage and Sedition Acts.
Some were moved to form the American Civil Liberties Union. More than
any other organization, the ACLU has helped define free speech rights by
taking on hundreds of (often controversial) First Amendment cases.
Holmes began paying more attention to arguments made some fifty years
earlier by philosopher John Stuart Mill. Mill extended the reasoning of
John Milton:Time and again in history, humans have judged mistakenly
about the truth, and punished men such as Socrates, Galileo, and
Copernicus who were merely ahead of their time. Mill argued that only the
ability to correct and change opinions in the context of open debate allows
humanity to advance to better views. Even if a popularly held opinion
is true, it will be lifeless unless regularly challenged by those who
disagree with it. In having to defend it, people will have to think about
why and how it is true. Mill said that if an opinion is false, it does
no harm because it makes those with the true view hold it tighter and
firmer. Or an opinion may have some truth, in which case it needs to
collide with popular opinion like an onion simmers in a soup, so its
flavor can be added to the whole. Truth, he argued, can be very complex, and
individuals must be at liberty to discover its complexity.
Holmes was mulling over these arguments when a second Espionage Act
case reached the Supreme Court in 1919. This was the case of a young
immigrant named Abrams who, with a number of fellow factory workers,
distributed leaflets in New York City urging workers to support the Russian
Revolution and oppose US military intervention to stop it. This time,
Holmes and his colleague Lewis Brandeis voted to overturn the guilty
verdict. They were outnumbered and the court upheld Abrams' conviction, but
Holmes wrote an extraordinary dissent in defense of intellectual
freedom. His argument has influenced countless decision-makers since then.
At the center of the First Amendment, Holmes wrote, must be free trade
in ideas. "The best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth is the
only ground upon which [the peoples'] wishes safely can be carried out."
It is essential, he wrote, to grant "freedom for the thought we hate."
Holmes argued that the words as well as the circumstances in which they
are used must be considered. For example, speech should not be
considered illegal if there is little chance the speech will bring about
illegal action, he said. Holmes set forth a standard, called the Clear and
Present Danger Test: Do words "create a clear and present danger that
they will bring about the substantive evils that Congress has a right to
prevent?" If not, the speech should be allowed. Seeing no clear and
present danger that some leaflets would hinder the US war effort, Holmes
saw no reason to punish Abrams.
Though he was on the losing side of the case, Holmes's reasoning
encouraged future courts to balance the risk of illegal action against the
risk of violating the right to self _expression.
The 1940 Smith Act targeting Communist Party members, provided one such
test. Passed during a period of fear and loathing related to World War
II, the Smith Act required that "aliens" register and be fingerprinted,
and made it a crime to advocate or teach the violent overthrow of the
US government or to belong to a group advocating such overthrow.
In Dennis v. United States, the Supreme Court upheld the Act in 1950
and modified the Clear and Present Danger test to one of "grave and
probable danger." But later, in the 1957 case of Yates v . United States,
the Court softened, ruling that to be guilty someone must act directly
against the United States; teaching about an overthrow of the government
was not itself grounds for conviction.
Related principles have been applied in cases since. In an important
case in 1969, Brandenberg vs. Ohio, the Supreme Court overturned the
conviction of a Ku Klux Klan leader who urged a dozen hooded supporters to
march on Congress for "revengeance." Though the speech advocated
unlawful action, there was no danger the audience would act on it, the Court
concluded, so while most people hated the speech, there was no basis
for legally stopping it.
On the other hand, the 1990s case of a Muslim religious leader who
urged burning the building of the publisher of Salman Rushdie's Satanic
Verses was considered differently. Rushdie was in hiding from a death
threat from Muslims outraged by his book, and a number of translators and
publishers involved in producing the book had already been killed or
wounded. The courts found that there was a clear and present danger that
the leader's words would lead to actions.
Deciding when to predict clear and present danger or grave and probable
danger, and determining when speech excites either danger, is not an
easy task, but more often than not appeals courts have corrected
overzealous lower courts by insisting that speech not be confused with action.
"If all mankind minus one were of one opinion, and only one person were
of the contrary opinion, mankind would be no more justified in silencing
that one person than he, if he had the power, would be justified in
silencing mankind."
--John Stuart Mill
Leah Halper
Oliver Wendall Holmes, and more than 2000 people jailed for criticizing the government during World War I.
In 1917, President Woodrow Wilson made a dizzying reversal: after three
years of adamant refusal to involve the US in the European war, he
decided the US must enter the War to Save Democracy. He and his advisers
debated how to explain this complete about-face to the peace loving
public.
The first pro-war propaganda office, the Creel Commission, was
established, headed by George Creel. Congress enacted the first peacetime draft
in history, and because it was feared that widespread criticism of the
sudden enthusiasm for war would disrupt US military efforts, the
Espionage Act was passed making it a crime to falsely report upon or make
statements meant to interfere with the war effort. It became illegal to
obstruct recruitment or enlistment, or to persuade others to not enlist.
The next year as doughboys headed to Europe, Congress went even
farther, passing the Sedition Act. This made it a crime to say, print, write
or publish anything that was "disloyal" regarding the US government,
flag, or military uniform. It was even illegal to speak out against the
purchase of war bonds that funded the war. A number of state legislatures
passed similar acts.
More than 2,000 people were jailed under the federal laws alone. One
man was jailed for expressing the opinion that the government should
raise taxes rather than sell war bonds. Another was arrested for telling
some knitters that soldiers would never see the socks they were making. A
farmer was turned in for criticizing the war in his own home--two
strangers who ran out of gas and came for help told the police what the
farmer had said. And a filmmaker who made an historically accurate film
about the US revolution, The Spirit of 76, was convicted because the film
showed US ally Great Britain in a negative light.
Many the leaders of the nation's most radical movements--Wobblies,
Socialists, and anarchists--found themselves cooling their heels in jail
during the war. Anarchist Emma Goldman literally chained herself to fixed
objects on stage before she opened her mouth in some towns, so the
police would not be able to carry her off until she exercised her right to
free speech under the First Amendment. Many less prominent critics of
the war were fired, tarred, feathered, or run out of town without any
intervention by law enforcement to slow down the action.
Beginning in 1919, the struggle to ensure free speech in wartime moved
to the courts. The first Supreme Court case was brought by Elizabeth
Baer and Charles T. Schenck, New York socialists who believed the draft
was unconstitutional and wrote pamphlets urging men to use every legal
means to avoid being drafted.
The Supreme Court had the difficult task of balancing the right of
individuals to speak out with the need for national security. Schenck lost;
the Court ruled that there can be exceptions to the right of free
speech. Writing for the majority, Justice Oliver Wendell Holmes argued that
free speech is not an absolute; when the social welfare is at state,
some restrictions on speech may be justified. But as the war proved
bloody and pointless, more and more people expressed criticisms of it--and
especially of the Espionage and Sedition Acts.
Some were moved to form the American Civil Liberties Union. More than
any other organization, the ACLU has helped define free speech rights by
taking on hundreds of (often controversial) First Amendment cases.
Holmes began paying more attention to arguments made some fifty years
earlier by philosopher John Stuart Mill. Mill extended the reasoning of
John Milton:Time and again in history, humans have judged mistakenly
about the truth, and punished men such as Socrates, Galileo, and
Copernicus who were merely ahead of their time. Mill argued that only the
ability to correct and change opinions in the context of open debate allows
humanity to advance to better views. Even if a popularly held opinion
is true, it will be lifeless unless regularly challenged by those who
disagree with it. In having to defend it, people will have to think about
why and how it is true. Mill said that if an opinion is false, it does
no harm because it makes those with the true view hold it tighter and
firmer. Or an opinion may have some truth, in which case it needs to
collide with popular opinion like an onion simmers in a soup, so its
flavor can be added to the whole. Truth, he argued, can be very complex, and
individuals must be at liberty to discover its complexity.
Holmes was mulling over these arguments when a second Espionage Act
case reached the Supreme Court in 1919. This was the case of a young
immigrant named Abrams who, with a number of fellow factory workers,
distributed leaflets in New York City urging workers to support the Russian
Revolution and oppose US military intervention to stop it. This time,
Holmes and his colleague Lewis Brandeis voted to overturn the guilty
verdict. They were outnumbered and the court upheld Abrams' conviction, but
Holmes wrote an extraordinary dissent in defense of intellectual
freedom. His argument has influenced countless decision-makers since then.
At the center of the First Amendment, Holmes wrote, must be free trade
in ideas. "The best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth is the
only ground upon which [the peoples'] wishes safely can be carried out."
It is essential, he wrote, to grant "freedom for the thought we hate."
Holmes argued that the words as well as the circumstances in which they
are used must be considered. For example, speech should not be
considered illegal if there is little chance the speech will bring about
illegal action, he said. Holmes set forth a standard, called the Clear and
Present Danger Test: Do words "create a clear and present danger that
they will bring about the substantive evils that Congress has a right to
prevent?" If not, the speech should be allowed. Seeing no clear and
present danger that some leaflets would hinder the US war effort, Holmes
saw no reason to punish Abrams.
Though he was on the losing side of the case, Holmes's reasoning
encouraged future courts to balance the risk of illegal action against the
risk of violating the right to self _expression.
The 1940 Smith Act targeting Communist Party members, provided one such
test. Passed during a period of fear and loathing related to World War
II, the Smith Act required that "aliens" register and be fingerprinted,
and made it a crime to advocate or teach the violent overthrow of the
US government or to belong to a group advocating such overthrow.
In Dennis v. United States, the Supreme Court upheld the Act in 1950
and modified the Clear and Present Danger test to one of "grave and
probable danger." But later, in the 1957 case of Yates v . United States,
the Court softened, ruling that to be guilty someone must act directly
against the United States; teaching about an overthrow of the government
was not itself grounds for conviction.
Related principles have been applied in cases since. In an important
case in 1969, Brandenberg vs. Ohio, the Supreme Court overturned the
conviction of a Ku Klux Klan leader who urged a dozen hooded supporters to
march on Congress for "revengeance." Though the speech advocated
unlawful action, there was no danger the audience would act on it, the Court
concluded, so while most people hated the speech, there was no basis
for legally stopping it.
On the other hand, the 1990s case of a Muslim religious leader who
urged burning the building of the publisher of Salman Rushdie's Satanic
Verses was considered differently. Rushdie was in hiding from a death
threat from Muslims outraged by his book, and a number of translators and
publishers involved in producing the book had already been killed or
wounded. The courts found that there was a clear and present danger that
the leader's words would lead to actions.
Deciding when to predict clear and present danger or grave and probable
danger, and determining when speech excites either danger, is not an
easy task, but more often than not appeals courts have corrected
overzealous lower courts by insisting that speech not be confused with action.
"If all mankind minus one were of one opinion, and only one person were
of the contrary opinion, mankind would be no more justified in silencing
that one person than he, if he had the power, would be justified in
silencing mankind."
--John Stuart Mill
Leah Halper
posted by R7 | 9/07/2004 06:10:00 PM
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