Schenk v United States 1919
The Espionage and Sedition Acts: Freedom of Speech in War Time
In June 1917, Congress passed the Espionage Act. The piece of legislation gave postal officials the authority to ban newspapers and magazines from the mails and threatened individuals convicted of obstructing the draft with $10,000 fines and 20 years in jail. Congress passed the Sedition Act of 1918, which made it a federal offense to use "disloyal, profane, scurrilous, or abusive language" about the Constitution, the government, the American uniform, or the flag. The government prosecuted over 2,100 people under these acts.
Censorship
The act was, on the whole, inoffensive -- even to radicals -- and most of it remains on the books today. What infuriated liberals and radicals, however, was the power of censorship it gave to the Postmaster General. The federal official could declare "unmailable" any material which, in his opinion, violated the act.
Zealous Postmaster
Postmaster General Albert Sidney Burleson was zealous in his enforcement of the law. He immediately sent letters to local postmasters, instructing them to send him any potentially illegal material. His instructions resulted in the delayed delivery of almost every significant Socialist or radical periodical, including Emma Goldman's Mother Earth and Max Eastman's The Masses.
Wartime Raids and Mass Arrests
At the same time, the government stepped up its campaign against radicals. The nation was at war in Europe -- and a draft had been reintroduced for the first time since the Civil War. Military recruitment posters -- like James Montgomery Flagg's famous pointing Uncle Sam -- were striking a patriotic chord with the American public. On September 5, 1917, federal agents raided Industrial Workers of the World offices nationwide. On September 28, 166 people who were (or had been) active in the I.W.W. were accused of trying to "cause insubordination, disloyalty, and refusal of duty in the military and naval forces" -- in violation of the Espionage Act. One hundred and one defendants were found guilty, and received prison sentences ranging from ten days to twenty years.
More Anti-Radical Sentiment
The Espionage Act was evidently effective in prosecuting the I.W.W. and any others opposing conscription. Political dissenters bore the brunt of the repression. A Socialist, Kate Richards O'Hare, served a year in prison for stating that the women of the United States were "nothing more nor less than brood sows, to raise children to get into the army and be made into fertilizer." In 1918, it was used to send labor leader and former presidential candidate Eugene Debs to jail for a decade, because of a speech he delivered. Yet in some quarters, the law was still deemed insufficient to deal with the problem of radicalism, and particularly with the influence of the I.W.W. in the Northwest.
Silencing Radical Voices
On January 16, 1918, the chairman of House Judiciary Committee introduced a bill which became known as the Sedition Act. This more wide-ranging law would establish penalties for speaking against the American government, constitution, flag, or uniform; interfering with wartime production; promoting the cause of America's enemies; inciting refusal of military duty; obstructing military recruitment, and more. It also criminalized advocating or suggesting any of these activities, so that a radical public speaker like Emma Goldman became a target. According to Alice Wexler, the war provided an excuse "for the prosecution of labor activists, dissidents, and radicals -- especially the anarchists, Wobblies, and left-wing socialists -- who had gained considerable strength during the previous decade."
Underlying Political Motivations
The bill was clearly aimed at the I.W.W. Its implications for civil liberties were clear. Georgia Senator Thomas W. Hardwick stated at the time: "I understand that the real, in fact practically the only, object of this section is to get some men called I.W.W.'s who are operating in a few of the Northwestern states, and you Senators from those states have been exceedingly solicitous to have legislation of this kind enacted... I dislike to be confronted by a situation in which in the name of patriotism we are asked to justify the fundamental rights and liberties of 100,000,000 American people in order to meet a situation in a few Northwestern states." Despite some legislators' objections, the bill passed both houses of Congress, and President Wilson signed it into law on May 16.
Free Speech? No Speech.
The Sedition Act did even more than the Espionage Act to restrict what could be sent through the U.S. mails. The Post Office was now able to halt the mailing of materials defending the I.W.W. In fact, the only thing that prevented a complete ban on I.W.W. material was the Department of Justice's complaint that stopping I.W.W. mailings would eliminate evidence and jeopardize the criminal prosecution of I.W.W. defendants.
The Deportation Option
Deportation laws passed in 1917 and subsequent years gave the government even more power to suppress radicalism. According to Wexler, "deportation, formerly used only for those convicted of criminal acts, now came to be seen as a means of expelling all foreign-born radicals from the country."
Purge of Russian Immigrant Workers
Although these laws generally proved ineffective against organizations, on November 7, 1919, the Bureau of Investigation's General Intelligence Division arrested selected targets. Led by a young J. Edgar Hoover, the federal agents collared members of the Union of Russian Workers -- a union and mutual aid organization in many ways similar to the I.W.W. These raids, in which about 1,000 members were detained, were a prelude to the "Palmer" raids of January 1920 (named for Attorney General A. Mitchell Palmer).
The Most Dangerous Anarchists
Hoover, the bureau's rising star, had taken a personal interest in the deportation cases against Emma Goldman and Alexander Berkman. In a memo dated August 23, 1919, Hoover had written, "Emma Goldman and Alexander Berkman are, beyond doubt, two of the most dangerous anarchists in this country and if permitted to return to the community will result in undue harm."
Sent Away Forever
On December 21, 1919, Emma Goldman, Alexander Berkman, and 247 others (the majority of them members of the Union of Russian Workers), boarded the Buford, a transport ship bound for Soviet Russia. At the time it was expected that many other "Soviet Arks" would follow in the Buford's wake. But the Buford -- undoubtedly to Hoover's profound disappointment -- was the only deportation ship to carry any quantity of radicals from America's shores.
Details of the Case:
Schenck v United States: The case involved a prominent socialist, Charles Schenck, who attempted to distribute thousands of flyers to American servicemen recently drafted to fight in World War I. Schenck's flyers asserted that the draft amounted to "involuntary servitude" proscribed by the Constitution's Thirteenth Amendment (outlawing slavery) and that the war itself was motivated by capitalist greed, and urged draftees to petition for repeal of the draft. Schenck was charged by the U.S. government with violating the recently enacted Espionage Act. The government alleged that Schenck violated the act by conspiring "to cause insubordination ... in the military and naval forces of the United States." Schenck responded that the Espionage Act violated the First Amendment of the Constitution, which forbids Congress from making any law abridging the freedom of speech. He was found guilty on all charges. The U.S. Supreme Court reviewed Schenck's conviction on appeal.
Abrams v United States 1919: In the waning months of World War I, in August 1918, a group of Russian immigrants was arrested in New York City and charged with violating the Sedition Act of 1918, which made it a crime to "willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of the Government of the United States" or to "willfully urge, incite, or advocate any curtailment of the production" of the things "necessary or essential to the prosecution of the war." Their offense: distributing pamphlets that criticized the U.S. military's recent deployment of troops to Russia and that, in one case, advocated a general strike in factories producing military goods. A few months later, the group -- which included a young anarchist named Jacob Abrams -- was tried, convicted, and sentenced to prison terms of 15 to 20 years. Their convictions were hardly unique. Ironically, during the "war to make the world safe for democracy" the federal government enacted some of the most severe restrictions on civil liberties at home in the country's history -- in 1919 and 1920, the attorney general reported 877 convictions under the 1918 Sedition Act and other similar federal laws.
Gitlow V New York: For his publicized connection on the staff of The Revolutionary Age Benjamin Gitlow was targeted for arrest during the coordinated raid of the Communist movement conducted by New York state authorities and the Department of Justice during the night of November 7/8, 1919. Gitlow was charged with violation of the New York Criminal Anarchy Law of 1902, which made it a crime to encourage the violent overthrow of government. It was contended that the publication of the Left Wing Manifesto by The Revolutionary Age earlier that year constituted such illegal action. Ben Gitlow's widely publicized trial began in New York City on January 22, 1920 and went to the jury on February 5. Gitlow addressed the jury in his own defense in the case, saying:
"I am charged in this case with publishing and distributing a paper known as The Revolutionary Age, in which paper was printed a document known as the Left Wing Manifesto and Program. It is held that that document advocates the overthrow of government by force, violence, and unlawful means. The document itself, the Left Wing Manifesto, is a broad analysis of conditions, economic conditions, and historical events in the world today. It is a document based upon the principles of socialism from their earliest inception. The only thing that the document does is to broaden those principles in the light of modern events.... The socialists have always maintained that the change from capitalism to socialism would be a fundamental change, that is, we would have a complete reorganization of society, that this change would not be a question of reform; that the capitalist system of society would be completely changed and that that system would give way to a new system of society based on a new code of laws, based on a new code of ethics, and based on a new form of government. For that reason, the socialist philosophy has always been a revolutionary philosophy and people who adhered to the socialist program and philosophy were always considered revolutionists, and I as one who maintain that, in the eyes of the present day society, I am a revolutionist."
Oliver Wendell Holmes, Jr.:
Schenck decision: 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. It is a question of proximity and degree. When a nation is at war, many things that might be said in time 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 protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime… “Like yelling fire in a crowded theater.”
Abrams decision: Writing for the majority, Justice John Hessin Clarke asserted that the leaflets were an appeal to violence against the United States government as opposed to peaceful change. In quoting heavily from the leaflets themselves, Clark wrote: "This is not an attempt to bring about a change of administration by candid discussion, for no matter what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was to create an attempt to defeat the war plans of the government of the United States, by bringing upon the country the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to the conduct of the war."
Clark further discussed the purpose behind the leaflets, stating that they "sufficiently show, that while the immediate occasion for this particular outbreak of lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our government sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the government in Europe."
Clark explained that the leaflets called for a general strike and the curtailment of munitions production, in violation of the Sedition Act of 1918. Although the distribution of the leaflets did not incite immediate resistance, the materials or speech had a "tendency" to encourage violent resistance, and therefore were not protected by the First Amendment: "...the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war... and, the defendants, in terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions necessary and essential to the prosecution of the war.... Thus it is clear not only that some evidence but that much persuasive evidence was before the jury tending to prove that the defendants were guilty as charged...."