Section 3: WWI Cases
Before the War
America Goes to War
Espionage and Sedition Acts
Fallout from the Acts
Other Laws
The Cases on Espionage/Sedition and Other Laws
From the Opinions
Darrow and Debs
Dates, 1917-1918
The War

Before the War
Radicals and intellectuals of the late 1800s and early 1900s tested the boundaries of free speech in ways they'd never been tested before. Events transpired to create issues. And personalities emerged.

America had undergone a dramatic change around the turn of the century. Westward expansion opened the country. Immigrants came in record numbers, especially from Eastern Europe. Railroads spread across the country, taking trade with them. Electrical power brought incredible advantages. The motor car was appearing for the first time.

As a result, fortunes were made. The best-known were John D. Rockefeller, who made his wealth in oil; Jay Gould, a leader in the development of railroads; John Pierpont Morgan, America's investment banker; Cornelius Vanderbilt, who was involved in both steamships and railroads; and Andrew Carnegie, the leader in the manufacture of steel.

But not everyone was to benefit from the good economic times. The leaders of industry paid low wages. Living conditions for many workers were horrid. The country was ripe for confrontations.

Perhaps the most significant factor during this period was the rise of the radical movement in America.

To begin with, it was a labor movement. As time went by, labor came to be viewed as tied to the socialist movement. The concept of anarchy was not uncommon among the labor and socialist leaders. Later with the Bolshevik revolution in Russia, the movement was viewed by many people as the communist movement.

Many of the people who were involved in these movements were new Americans from Eastern Europe. Many of them were from Germany, Austria and Russia. They tended to sympathize with the Germans and with the Austria-Hungarian Empire.

The Labor Situation
Labor problems had been brewing for some time. Several incidents stood out as examples of the problems of the working man as against the wealth, might and political connections of the captains of industry.

Among those incidents were:

The Haymarket Tragedy
The tragedy at the Haymarket Square in Chicago occurred on May 4, 1886. Seven policemen were killed and 60 people were injured by the dynamite bomb thrown at the police. Police fired into the crowd, killing 10 and wounding scores. In the crowd, as many as 200 were injured from either the bomb blast or the police fire.

Eight of the organizers of the rally were convicted -- among them Albert R. Parsons (whose wife was Lucy Parsons). One killed himself the night before the trial. Four were hanged. In 1893, Governor John Altgeld pardoned the three remaining convicts.

Albert Parsons had been editor of the Alarm, a labor/anarchist newspaper.

The Pullman Strike
The Pullman strike in 1894 sharpened the focus between labor and capital. George Mortimer Pullman made improvements in the railway sleeping car. His manufacturing of the car brought it into general use and his name became the name of the cars themselves. He was also responsible for the dining car and the parlor car. As railroads spread across the country, the making of these cars became one of the country's greatest businesses.

Pullman built a factory outside of Chicago and created a company town. During a downturn in the economy Pullman announced a cut in wages. The company workers went on strike to protest.

On July 7, 1894, National Guardsmen fired shots at strikers. Reports vary, but at least four people were killed and at least 20 were wounded.

Eugene V. Debs led the strike. He was head of the American Railway Union. Many of the Pullman workers belonged to the union, and the union had members in most other areas of the railroad industry. These other workers called sympathy strikes and the work stoppage was almost nationwide. Often trains were halted by strikers and schedules upset.

The courts ordered Debs to get out of the dispute and when he didn't he was sentenced to six months in jail. This was the first use of the courts in a labor dispute. The president, Grover Cleveland, called out federal troops against the strikers - also a first.

The strike lasted from May to August in 1894.

The Rockefeller interests owned all the houses, schools, saloons and churches in two counties in Colorado -- Las Animas and Huerfano. When union organizers went there in 1913 they were shot and/or jailed. In September, 11,000 miners struck and moved into tent cities. The largest was near the Ludlow mine.

An estimated 70 percent of the miners were new immigrants from Europe.

The mine operators hired strike-breakers, and the governor sent in the National Guard. But the strike continued. By the spring of 1914 a state of war existed. Some estimates are that as many as 100 people died on both sides of the conflict. Strike-breakers burned down the tents in which the miners and their families were living.

A turning point occurred when a group of women and children hiding in a pit was suffocated.

The Textile Strikes
Union organization was concentrated on the industrial north and east. The areas of greatest concern was in industrial manufacturing, especially in the textile mills, and in mining.

One of the most celebrated strikes occurred in 1913 in Paterson, New Jersey, a textile center known especially for the manufacture of silk. Workers in Paterson struck for an eight-hour workday and higher wages. Rallies were held in New York City supporting the strikers.

Big Bill Haywood
William Dudley Haywood, also known as Big Bill Haywood, was a leader of the Industrial Workers of the World (the IWW). This was a radical organization that advocated socialism through industrial unionism.

Haywood was an officer in the Western Federation of Miners, the leading union of the IWW. In 1907 in a sensational trial he was acquitted of involvement in the murder of a former governor of Idaho.

Clarence Darrow represented him.

The Bombing of the Los Angeles Times
At 1:07 a.m. on October 1, 1910, a series of explosions blew up the Los Angeles Times building. Twenty people were killed and 21 were injured. Two brothers, John J. and James B. McNamara, were tried. Darrow, their lawyer, convinced them to plead guilty. James was sentenced to life in prison and John was sentenced to 15 years.

Wall Street Bombing

On September 16, 1920, a bomb inside a wagon was exploded outside the
J. P. Morgan Bank at 23 Wall Street. Thirty-eight people were killed and 143 injured. The bombing was the most serious of its time. No one was ever arrested for the crime.

Return To Top

America Goes to War
It was in this climate that America entered World War I. The circumstances that led to the involvement had been building for a long time. Then, they came to a head quickly.

William McKinley succeeded Grover Cleveland as president and twice defeated William Jennings Bryan for the presidency. McKinley was shot while attending the Pan-American Exposition in Buffalo on September 5, 1901, and died on September 14. The assassin, Leon F. Czolgosz, was an anarchist.

Theodore Roosevelt served until 1908 and was succeed by William Howard Taft. Woodrow Wilson was elected in 1912 over Roosevelt and Taft. He was reelected narrowly in 1916 against Charles Evans Hughes. Wilson, a Democrat, was considered a progressive, even liberal. Early in the 1916 campaign his supporters used the slogan "He kept us out of war."

But Wilson was unable to stem rising tides on several fronts.

World War I
The event that triggered World War I was the assassination of Archduke Franz Ferdinand in Sarajevo on June 28, 1914. He was shot by Gavrilo Princip, a Bosnian revolutionary opposed to Austro-Hungarian rule.

Sarajevo is now the capital of the Republic of Bosnia and Herzegovina.

The United States entered the war on April 6, 1917. The war ended on November 11, 1918. It was a deadly and costly war. The number of combatants killed was 8.5 million. Millions of noncombatants died. 2.8 million men were inducted into the U.S. armed forces and 1.4 men served in France. 126,000 Americans died in the war.

At home, the war caused a tremendous rift. On one hand were super patriotic groups who organized in support of the war. The largest of these groups was the American Protective League, with 250,000 members and branches in 600 cities and towns.

On the other hand, many people opposed the war. These tended to be immigrants from Eastern Europe, the descendants of immigrants, people involved in the labor movement and people on the left of the political spectrum -- primarily socialists.

Government Action
The government took action to stop protests against the war.

On the very day that the United States entered the war, President Wilson issued a proclamation establishing regulations for the conduct and control of enemy aliens. The proclamation was an extension of the Alien Enemies Act of 1798. It authorized federal officials to make summary arrests for national security reasons.

The next day, April 7, 1917, President Wilson imposed a strict loyalty/security program. It was done in secrecy. Wilson authorized the heads of federal departments to remove any employee deemed a loyalty risk.

A week later the president created the Committee on Public Information. It was charged with generating support for America's entry into the war. It also had the power of censorship. George Creel headed the committee.

Congress passed legislation aimed at controlling dissent.

The first was the Espionage Act of June 15, 1917. The act made it a punishable offense to interfere with the war effort or obstruct the recruitment or enlistment service. The maximum punishment was a fine of $10,000 and imprisonment for 20 years.

Eventually, the Department of Justice was to prosecute more than 2,000 people under this act.

Title XII of the Espionage Act gave the postmaster general the authority to ban from the mails any matter "advocating or urging treason, insurrection, or forcible resistance to any law of the United States."

Within a month, 15 publications had been excluded from the mail, including The Masses and The Milwaukee Leader.

Another act, the Trading-With-the-Enemy Act, was passed October 6, 1917. Under it, the postmaster moved against the foreign-language press.

The Espionage Act was strengthened on May 16, 1918, with the passage of the Sedition Act. Eight new offenses were identified, joining the original 12.

In October 1918, Congress passed the Alien Act. The act provided for the deportation of "any alien who, at any time after entering the United States, is found to have been at the time of entry, or to have become thereafter, a member of any anarchist organization."

Cases Before the Court
Feelings that originated during the war intensified after the war.

During this period, 11 states passed sedition statutes. Thirteen states and/or territories passed criminal syndicalism laws in 1919. And 26 states passed red flag statutes the same year. Other states passed criminal anarchy laws. In California, 264 persons were tried under the criminal syndicalism law during the first five years.

The first cases involving these various laws wound their way through the courts and reached the U.S. Supreme Court after the war ended. The cases involved socialists, Germans and labor leaders. Almost all of them lost.

Victor L. Berger did win his appeal on the grounds that the federal judge, Kennesaw Mountain Landis, was prejudiced. And in a 1925 case, Gitlow v. New York, the court ruled for the first time that the 14th Amendment made the 1st Amendment applicable to the states. In 1931, Yetta Stromberg won her appeal when the Supreme Court ruled one section of California's red flag statute was too vague.

Rose Pastor Stokes was tried under the Espionage Act and given three concurrent 10-year sentences primarily for writing a letter opposing the war to the Kansas City Star. The 8th U.S. Circuit Court of Appeals overturned her conviction. In her letter she said, "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."

Among the Opposition
The war brought forth a new element - people who protested the war and actively worked against it. For the first time, a great many of them were women.

Mary Harris "Mother" Jones was described as the most dangerous woman in America. She was a labor organizer. Margaret Sanger began to publish The Woman Rebel in support of socialism, feminism and birth control. Lucy Parsons, the widow of Albert Parsons, was an organizer and speaker. Jane Addams was a social reformer from Chicago. Kate Richards O'Hare, convicted under the Espionage Act, was a socialist who worked to reform the prison system.

But the woman who most represented this trend in American life was Emma Goldman. She was an anarchist and organizer. She was a leader in the birth control movement. She was deported to Russia on the Buford on December 21, 1919, with 246 others convicted under various laws.

The Palmer Raids
After the war was over, the battle over ideology continued. The attorney general, A. Mitchell Palmer, used the Alien Act of 1918 to round up radicals.

The Justice Department began the arrests and detentions at the beginning of 1920 - long after the war had ended. Under the direction of Attorney General Palmer, federal agents raided hundreds of places where radicals were known to meet. Also participating was J. Edgar Hoover, head of the agency that was to become the Federal Bureau of Investigation.

3,000 arrest warrants were issued, but not everyone arrested was as a result of an arrest warrant. In all, about 7,000 aliens were arrested. The dragnet arrests swept up everyone in or near the premises, including chance passers-by.

Agents hauled their victims to jail, where many of them were held incommunicado. Books, papers and pictures in the raided places were seized without search warrants. Hundreds of aliens were deported without even having the chance to notify their families.

Return To Top

Espionage and Sedition Acts of 1918
On May 18, 1917, six weeks after the United States entered the war against Germany, Congress passed the Selective Service Act to raise an Army to fight the war. The Supreme Court almost immediately upheld the Selective Service Act.

The Espionage Act was passed on June 15, 1917.

Among the crimes, punishable by heavy fines and imprisonment, the act defined were the willful making of false reports or false statements with the intent to interfere with the successful operation of the military or naval forces, and willful attempts to promote disloyalty in the armed forces or to obstruct recruiting.

A section on use of the mails empowered the Postmaster General to declare unmailable all letters, circulars, newspapers, books, pamphlets, and other materials violating provisions of the act.

One section of the act said:

1. Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operations of the United States (in the war effort)... 2) and whoever... shall willfully cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty ... 3) or shall willfully obstruct the recruiting or enlistment service of the United States... shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.

On May 16, 1918, Congress strengthened the original act and added what is called the Sedition Act. Inserted in the original act were the words "attempts to obstruct" and added to the offenses were:

4) saying or doing anything with intent to obstruct the sale of United States bonds, except by way of bona fide and not disloyal advice; 5) uttering, writing, or publishing any disloyal, profane, scurrilous, or abusive language, or language intended to cause contempt, scorn, contumely* or disrepute as regards the form of government of the United States; 6) or the Constitution; 7) or the flag; 8) or the uniform of the Army or Navy; 9) or any language intended to incite resistance to the United States or promote the cause of its enemies, or 10) urging any curtailment of production... or 11) advocating teaching, defending, or suggesting the doing of any of these acts; 12) and words or acts supporting or favoring the cause of any country at war with the United States, or opposing the cause of the United States therein.

(*contumely: a noun meaning 1. haughty and contemptuous rudeness; insulting and humiliating treatment or language; 2. an instance of this; scornful insult.)

The Sedition Act was repealed in 1921, but the Espionage Act is still part of the United States Code. It can be put in effect today under the conditions of a national emergency.

Related Legislation
The powers of the government to control expression of opinion were further strengthened by the passage of two other laws:

1. The Trading-with-the-Enemy Act of October 6, 1917 authorized censorship of all communications moving in or out of the United States and provided that translations of newspaper or magazine articles published in a foreign language could be demanded by the Post Office -- a move to keep the German-language papers in line.

Censorship of foreign communications sent by cable, telephone or telegraph, as provided in the act, was carried out by a Censorship Board, which President Wilson established in October 1917.

2. The Alien Act of 1918, which led to the Palmer raids, provided for deportation for aliens who were members of or affiliated with any "organization that entertains a belief in, teaches or advocates the overthrow by force or violence of the government of the United States."

Return To Top

Fallout from the Acts
The Espionage Act of June 15, 1917, provided the opening wedge for suppression of those who were considered to be disloyal to the American/allied cause in the war. Scrutiny fell most heavily on socialist and German-American publications with a few other pacifist and/or anti-war publications included.

Howard Zinn, in the forward to American Political Prisoners by Stephen M. Kohn, published by Praeger in 1994, described the:

enormous crimes against the constitutional principle of free speech in a country that prides itself on its freedom and declares itself a model for democracy all over the world. The result of these crimes, for thousands of Americans, was persecution, imprisonment, sometimes torture and death. For many more, the result was to create an atmosphere of fear, the fear of expressing one's honest opinions, the kind of fear we usually attribute to totalitarian states.

Figures on the number of people arrested and convicted under these acts are difficult to come by. Kohn's book, American Political Prisoners, is the best recent source. Kohn estimates that tens of thousands were arrested from 1917 to 1932. Many of these included in Kohn's estimates socialists and members of the radical labor union, the Industrial Workers of the World. Kohn documents the fact that the Espionage and Sedition Act was used to break the IWW.

During and even after World War I, freedom of expression as we had come to know it was under the most intense challenge in the history of the United States. As a result, a mentality developed in the country that allowed widespread restriction of civil liberties. In some instances, mobs attacked people suspected of being anti-American. Particularly susceptible to attack were Americans of German ancestry.

Many of those who were imprisoned were conscientious objectors.

Only six senators voted against the declaration of war. A seventh abstained. Among those who voted against the war were George W. Norris of Nebraska and Robert M. La Follette of Wisconsin. Both represented agricultural areas with large German population. Both were Republicans devoted to Progressive domestic reforms.

La Follette was an isolationist who later also opposed America's entry into the League of Nations. The votes of Norris and La Follette made them heroes among the socialists. But the Wisconsin legislature censured La Follette and his former Progressive allies charged him with disloyalty. One of them wrote that La Follette had been "of more help to the Kaiser than a quarter of a million troops."

At Columbia University, an avowed pacifist who had worked for the peace movement, Henry W.L. Dana, was asked to leave the faculty because of his beliefs and actions. Charles A. Beard resigned in protest. He was perhaps Columbia's most outstanding teacher and one of America's greatest historians. Beard had written Economic Interpretation of the Constitution in 1913.

Groups were formed to help the government carry out its mission. Among them were the Boy Spies of America, the Sedition Slammers and the Terrible Threateners. The largest group was the American Protective League.

In the political climate of the time, citizens did not wait for the Department of Justice to act. German-Americans were particularly susceptible. Mobs forced them to kiss the flag, to sing and (if they could) The Star-Spangled Banner.

The Masses
The August 1917 issue of the magazine The Masses, edited by Max Eastman, was banned. The Masses was a monthly, socialist, perhaps revolutionary journal. The issue in question contained several articles, poems and cartoons attacking the war.

When informed of the exclusion, the magazine offered to delete any passages pointed out by the postmaster, but Eastman was refused such information. Later Albert S. Burleson, the postmaster, did name the materials when The Masses filed suit.

U.S. District Judge Learned Hand granted an injunction against the postmaster, but he was reversed in the Court of Appeals. The appeals court said that speech was punishable under the Espionage Act of 1917:

if the natural and reasonable effect of what is said is to encourage resistance to law, and the words are used in an endeavor to persuade to resistance.

An indictment against the editors of The Masses under the Espionage Act was dismissed in 1919.

The Masses was a target because it was the organ of intellectuals in New York City. Its most famous writer was John Reed. That's the John Reed that wrote Ten Days That Shook the World about the Bolshevik Revolution. The movie Reds is about him.

Title XII
Title XII of the Espionage Act gave the postmaster general the authority to ban from the mails any matter "advocating or urging treason, insurrection, or forcible resistance to any law of the United States."

What constituted such violations was left to the postmaster general.

The postmaster was Albert S. Burleson, a Texan and a graduate of Baylor University. Wikipedia says that Burleson's actions as postmaster "are a prime example of Red Scare interference with freedom of speech."

Burleson interfered with the distribution of more than 100 publications.

Most of these were socialist publications, including the two most successful socialist papers in the country, the New York Call and the Milwaukee Leader. Both the American Socialist and Solidarity, the journal of the Industrial Workers of the World, were banned from the mails.

A vociferous advocate of the Irish independence movement, Jeremiah A. O'Leary, lost mailing privileges for his publication, Bull, in July 1917, for opposing wartime cooperation with the British.

Return To Top

Other Laws
Criminal Anarchy
As defined in the New York statutes and quoted in Gitlow v. New York:

Sec. 160. Criminal Anarchy Defined.

Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony.

Sec. 161. Advocacy of Criminal Anarchy. Any person who:

1. By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of overthrowing or overturning organized government by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means; or,

2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any book, paper, document, or written or printed matter in any (268 U.S. 652, 655) form, containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means … is guilty of a felony and punishable by imprisonment or fine, or both.

Criminal Syndicalism
Criminal syndicalism is a theory of trade unionism, originating in France, in which all means of production and distribution would be brought under the control of federations of labor unions by the use of general strikes, etc.

The California Statute:

Section 1. The term "criminal syndicalism" as used in this act is hereby defined as any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force, violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control or effecting any political change.

Section 2. Any person who: ...4. Organizes or assists in organizing, or is or knowingly becomes a member of any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism;...

Red Flag Statutes
The California Statute:

Any person who displays a red flag, banner or badge of any flag, badge, banner, or device of any color or form whatever in any public place or in any meeting place or public assembly, or from or on any house, building, or window (a) as a sign, symbol or emblem of opposition to organized government or (b) as an invitation or stimulus to anarchistic action or (c) as an aid to propaganda that is of seditious character is guilty of a felony.

In the Stromberg case, Chief Justice Charles Evans Hughes wrote the opinion in a decision that was 7 to 2. Hughes said that the second and third sections of the law were acceptable. But, he said, the first section was too vague.

Return To Top

The Cases on Espionage/Sedition and Other Laws
1. Schenck v. United States, March 4, 1919, 249 U.S. 47

Charles T. Schenck was general secretary of the Socialist Party of Philadelphia. In August 1917 he and others arranged to mail leaflets to men who had passed their physicals for induction. One side of the leaflet they printed had this headline: Long Live the Constitution of the United States.

Schenck and Elizabeth Baer were found guilty. Schenck was given a six-month sentence. Baer got ninety days. They appealed. When their case got to the Supreme Court they lost. The court unanimously upheld the Espionage and Sedition Acts.

It was in this case that Oliver Wendell Holmes enunciated the "clear and present danger" doctrine and used the analogy that "free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic."

This case had the effect of making speech a criminal act for the first time in America.

2. Frohwerk v. United States, March 10, 1919, 249 U.S. 204

The defendant, Jacob Frohwerk, lost. Holmes wrote the opinion. The decision was unanimous. Holmes said Frohwerk's attorneys had not submitted a "bill of exceptions" and the court had no way of knowing the issues in the case.

3. Debs v. United States, March 10, 1919, 249 U.S. 211

Eugene V. Debs was America's best-known labor leader and a Socialist Party candidate for president. The government decided to go after him for violation of the Espionage and Sedition Acts. They got the best opportunity they could find when he made a speech at a Socialist gathering in Canton, Ohio, on June 16, 1918.

In the speech he said that the Allies were "out for plunder" and told the group, "You need to know that you are fit for something better than slavery and cannon fodder."

Debs was convicted and sentenced to 10 years in prison. The conviction was upheld unanimously by the Supreme Court. Justice Holmes wrote the opinion.

Debs ran for the presidency on the Socialist ticket in 1904, 1908, 1912 and 1920. He ran his 1920 campaign from prison and received 920,000 votes.

President Warren G. Harding commuted his sentence in 1921.

4. Abrams et al v. United States, November 10, 1919, 250 U.S. 616

The Abrams case involved a group of Russian immigrants who threw leaflets off a building in New York City. The leaflets criticized the United States presence in Valdivostok after World War I ended. Some of the leaflets were in English and some were in Yiddish. The six were arrested by the Military Intelligence Police.

Those involved were: Jacob Abrams, Samuel Lipman, Hyman Lachowsky, Mollie Steimer, Jacob Schwartz. Schwartz died before the trial.

The other four were convicted. The three men were given 20 years in prison and Ms. Steimer was given 15 years. They appealed to the Supreme Court. They were released from prison in 1921 on the condition that they leave for the Soviet Union.

In this case, Justice Holmes changed his mind from the opinions he had written just eight months earlier. Nonetheless, the court upheld the convictions 7-2 with Holmes and Justice Louis D. Brandeis dissenting.

Holmes wrote in his dissenting opinion: "But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that 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 their wishes safely can be carried out."

5,6. Victor L. Berger et al v. United States of America, January 31, 1921, 255 U.S. 22 and Milwaukee Social Democratic Publishing Co. v. Burleson, March 7, 1921, 255 U.S. 407

Socialist newspapers and magazines and their editors were caught up in the Espionage and Sedition Acts. Among them was the Milwaukee Leader. Victor Berger, the editor, was born in Austria and was an active Socialist. In 1910 he became the first Socialist elected to Congress. He was convicted and sentenced to 20 years in prison.

Berger appealed on the basis that the judge in his case, Kenesaw Mountain Landis, was prejudiced against Germans. Landis' views were well documented, including a statement he made after the Berger trial. He said he regretted that the law did not allow him "to have Berger lined up against a wall and shot."

The Supreme Court ruled that Landis should have removed himself. The vote was 6-3.

In the second case, Berger was denied second class mailing privileges for his newspaper, the Milwaukee Leader. A section in the Espionage Act gave the postmaster general the authority to ban from the mails any matter "advocating or urging treason, insurrection, or forcible resistance to any law of the United States."

Berger went to court to try to get his mailing privileges restored and to challenge the constitutionality of that part of the Espionage Act under which his privileges had been taken away.

Berger lost 7-2 with Holmes and Brandeis dissenting.

7. Gitlow v. People of New York, June 8, 1925, 268 U.S. 652

Benjamin Gitlow and three others were convicted in New York under the state's criminal anarchy law. This was the law that was passed after the assassination of President McKinley. Gitlow's crime? In 1919 the left wing broke away from the Socialist Party and printed a manifesto in the party publication, Revolutionary Age. It was 34 pages long and mild by today's standards. Gitlow was business manager of Revolutionary Age.

The writing in question said in part: "The old order is in decay. Civilization is in collapse. The proletarian revolution and the Communist reconstruction of society -- the struggle for these - is now indispensable."

Gitlow was sentenced to five to ten years at hard labor. He served almost three years before being pardoned by New York Governor Alfred E. Smith.

Until now the Supreme Court had not accepted cases from the state that dealt with First Amendment issues. To justify hearing the case, Justice Edward T. Sanford wrote as part of his majority opinion that the due process clause of the 14th Amendment made the First Amendment applicable to the states.

However, Gitlow and the others lost before the court in a 7-2 with Holmes and Brandeis dissenting.

The application of the First Amendment to the states, however, was a significant turning point in the history of freedom of expression in the United States. Here's what Zechariah Chafee Jr., a law professor at Harvard, said about the importance of applying the 14th Amendment: " (It) placed forever in the hands of the Supreme Court this sharp sword with which to defend the ideals of Jefferson and Madison against local intolerance."

8. Whitney v. California, May 16, 1927, 274 U.S. 357

This was a challenge to California's Criminal Syndicalism Act.

Charlotte Anita Whitney was a member of a branch of the Communist Party in California. She attended a state convention and was a member of the platform committee. The convention adopted a more radical platform than the one her committee recommended. Nonetheless, she was convicted of violating the California Criminal Syndicalism Act.

The Supreme Court ruled unanimously against Whitney on the grounds that First Amendment rights to free speech and assembly are not absolute. Justices Brandeis and Holmes issued a joint concurring opinion in which they said that Whitney would have had their support had she argued for a clear and present danger test. (In other words, something that fit Holmes' original statement in Schenck.)

In subsequent decisions the Supreme Court backed away from this decision. In 1969, in Brandenberg v. Ohio, the Supreme Court ruled criminal syndicalism laws were unconstitutional.

9. Stromberg v. California, May 18, 1931, 283 U.S. 359

This case was brought by Yetta Stromberg, who was convicted under California's red flag statute. She was an organizer of a summer camp at which the children were exposed to Socialist ideas. A red flag flew over the camp.

Chief Justice Charles Evans Hughes wrote the opinion for the court. He said that the second and third sections of the law were acceptable. But, he said, the first section was too vague. The decision was 7-2.

This was the first time when the First Amendment was at issue that the Supreme Court overturned a state case.

Return To Top

From the Opinions
Justice Holmes' Majority Opinion in Schenck
Schenck v. United States, March 4, 1919, 249 U.S. 47

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. ... The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. When a nation is at war many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as being protected by any constitutional right.

Justice Holmes' Dissenting Opinion in Abrams
Abrams et al v. United States, November 10, 1919, 250 U.S. 616

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that 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 their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country....

The Gitlow Opinion
Gitlow v. People of New York, June 8, 1925, 268 U.S. 6523

The opinion in Gitlow was by Justice Edward T. Sanford of Tennessee, who served on the court from 1923 to 1930.

Part of the opinion said:

For present purposes we may and do assume that freedom of speech and of the press -- which are protected by the First Amendment from abridgment by the Congress -- are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard... (our prior statement) that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as derminative of this question.

Return To Top

Darrow and Debs
Clarence Darrow
Clarence Seward Darrow (1857-1938) was an American lawyer best known for his defense (1925) of John Scopes, a Tennessee high school teacher charged with teaching the theory of evolution. The play and movie Inherit the Wind were based on this famous trial.

Darrow was born in Kinsman, Ohio. He was admitted to the bar in 1878; from 1888 until his retirement in 1927, he practiced law in Chicago, acting as defense counsel in some of the most widely publicized cases of his time.

His defense of the American labor organizer Eugene V. Debs in the American Railway Union case (1894) first brought him to national attention.

Although criminal cases remained one of his chief sources of income, he participated in various cases involving labor disputes or social issues, championing the cause of the underprivileged.

Among the trials in which he served as counsel for the defense were:

The trial of William Dudley Haywood for his involvement in the murder of the former governor of Idaho. The trial the McNamara brothers charged with dynamiting the Los Angeles Times building. The trial of college students Nathan Leopold and Richard Loeb, charged with the motiveless killing of schoolboy Bobby Franks.

Darrow opposed capital punishment, and no client he defended was sentenced to death. After retirement, he devoted himself to lecturing and writing. His works include Crime, Its Cause and Treatment (1925) and The Story of My Life (1932).

Eugene V. Debs
Eugene Debs, 1855-1926, was a spokesman for the American labor movement and for socialism.

Debs was born in Terre Haute, Ind., and went to work in the railroad shops at 15. Later he became a locomotive fireman and was active in the Brotherhood of Locomotive Firemen. He was national secretary and treasurer of the Brotherhood from 1880 to 1893. He served in the Indiana legislature from 1885 to 1892.

He formed the American Railway Union in 1893 as an industrial union. The A.R.U. ordered its members not to move Pullman cars in 1894 in support of a strike by the workers making Pullman cars. President Cleveland used federal troops to break the strike. Debs went to prison for six months.

In a speech Debs made at a Socialist convention in June 1918 he said the Allies were "out for plunder" and defended the Bolshevists in Russia. Debs was convicted under the Espionage Law. The Supreme Court upheld his conviction unanimously.

Law Professor Zechariah Chafee said that Debs was probably convicted for the exposition of socialism, a result that was allowed by the wide scope given the jury in the trial judge's charge. Yet the most extreme statement that Debs made in his speech was that "you need to know that you are fit for something better than slavery and cannon fodder."

He went to prison in 1918, sentenced to 10 years. President Warren G. Harding commuted his sentence in 1921.

Debs ran for president on the Socialist ticket in 1904, 1908, 1912 and 1920. He ran his 1920 campaign from prison in Atlanta and received 920,000 votes.

Debs' Canton speech may be found at a variety of sites on the Internet. Among them:

Return To Top

Dates, 1917-1918
Woodrow Wilson inaugurated for second term on March 5, 1917

The War
U.S. entry into the war -- April 6, 1917
Armistice -- November 11, 1918

The Acts
Selective Service Act -- May 18, 1917
Espionage Act -- June 15, 1917
Sedition Act -- May 16, 1918
Trading-With-the-Enemy-Act -- October 6, 1917
The Alien Act was passed in 1918

Return To Top

The War
On Sunday morning, June 28, 1914, the archduke Francis Ferdinand, heir to the Austrian/Hungarian throne, was assassinated by Gavrilo Princip, a Serbian nationalist, in Sarajevo in the present Republic of Bosnia and Herzegovina.

The United States entered the war on April 6, 1917.

2,800,000 men were inducted. Our total force was 4,800,000. Nearly 1,400,000 American soldiers served in France.

The Central Powers were Germany, Austria/Hungary, Turkey and Bulgaria.

The Allied Powers were Russia, France, Great Britain, Italy, the United States, Japan, Romania, Serbia, Belgium, Greece, Portugal and Montenegro.

The number of combatants killed was 8,538,315.

Russia lost 1,700,000, France 1,357,800, Britain 908,371, Italy 650,000, Romania 335,706. The United States lost 116,000. In all the Allied Powers lost 5,152,115.

Germany lost 1,773,700 and Austria-Hungary 1,200,000. The Central powers lost a total of 3,386,200.

The war ended on November 11, 1918.

Return To Top