World War II had a lasting impact on civil liberties in the United States, accelerating the development of some and retarding others. The war implicated these issues: political speech under the First Amendment; immigration, naturalization, and deportation; treason and sedition; conscientious objectors; and the racecentered questions that would soon come to be known as ‘‘civil rights.’’
This entry will treat the World War II era as beginning with the German invasion of Poland, September 1939, and concluding with Winston Churchill’s ‘‘Iron Curtain’’ speech, March 1946, to include some of the war’s later reverberations. This entry excludes discussion of Japanese internment and civil rights issues, which are covered elsewhere.
All three branches of the federal government, as well as the states, affected civil liberties during the war. The executive branch seemed to work at crosspurposes. Attorneys General Robert H. Jackson and Frank Murphy created a civil rights division in the Department of Justice. But President Franklin D. Roosevelt aggressively supported prosecution of Trotskyites, as well as Bundists and fascists. Congress for its part enacted the draconian Smith Act of 1940, a criminal-syndicalism statute that also banned organizing and belonging to groups seeking overthrow of government by force and violence. The House of Representatives created the Dies Committee, forerunner of the House Un-American Activities Committee, which harassed the American left.
The U.S. Supreme Court was similarly ambivalent about the freedom of political expression. In Bridges v. California (1941), which involved the immigrant leftist labor leader Harry Bridges, the Court required an ‘‘extremely serious’’ danger with an ‘‘extremely high imminence’’ before political discourse can be suppressed by states. A companion case, Times- Mirror Co. v. California (1940), held that the press cognate of the First Amendment’s freedom of speech clause similarly protects published expressions of political opinion, especially those in the news media. The speech-protective holding of Bridges was reaffirmed after the war in Pennekamp v. Florida (1946).
The Supreme Court’s most salient wartime contribution to speech doctrine had a long-term restrictive effect, however. In Chaplinsky v. New Hampshire (1942), Justice Frank Murphy invented the ‘‘categorization’’ doctrine, identifying entire categories of speech—‘‘the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words’’—as lying entirely outside the protection of the First Amendment. Where the clear and present danger test construed in Bridges evolved in a speech-protective direction, the new categorization approach introduced an unwelcome potential, occasionally realized later, to repress speech solely on the basis of its abstract category, not its effect on the public peace.
Yet in concurrent prosecutions of Nazis and Bundists, the Court construed federal speech-repressive statutes strictly, limiting the power of prosecutors to suppress unpatriotic, racist, and anti-Semitic speech, even when it was clearly propaganda for the enemy (Viereck v. United States , Hartzel v. United States ).The Court extended Chief Justice John Marshall’s stringently narrow definition of treason (along with generous procedural protections for those accused of it), and rejected expansive definitions of sedition (Cramer v. United States , Haupt v. United States ).
Labor organizing activities, especially picketing, emerged as a new speech issue. By compelling management to negotiate with unions, the Labor– Management Relations Act (Wagner Act) of 1935 implicitly sanctioned union actions like meetings, hand-billing, parades, and picketing. These constituted communicative activities that Justice Felix Frankfurter would soon characterize as ‘‘speech plus’’: expression of ideas combined with some physical act. Such physical acts, Frankfurter insisted, could be regulated by the state even if speech could not. Frankfurter’s speech–action dichotomy contained an ominous potential to suppress political communication.
The Court struck down a crude municipal attempt to obstruct all labor organizing activity in Hague v. CIO (1939). This decision is the leading precedent construing and protecting the seldom-invoked First Amendment right of assembly.
In Thornhill v. Alabama (1940), the Court created nearly absolute First Amendment protections for nonviolent picketing in labor disputes. But it steadily receded from Thornhill during and after the war, as Frankfurter’s emphasis on the non-speech components of union organization prevailed over the Thornhill approach treated all communication, whatever its form, as protected by the First Amendment. During and after the war, the Court adopted Frankfurter’s approach in upholding state power to regulate union action. States could ban ‘‘violent conduct’’ (Milk Wagon Drivers Union v. Meadowmoor Dairies ) and secondary picketing (Carpenters’ and Joiners’ Union v. Ritter Cafe´ ). By 1955, only an echo of Thornhill’s expansive protection for picketing remained. Yet in that same era, the Court continued Hague’s protection for union organizational activities that did not include picketing in Thomas v. Collins (1945), holding states to a stringent Bridges-like clear and present danger standard when they attempt to regulate how workers may organize.
Property-related questions impacted Americans’ civil liberties during the war. The War Powers Acts of 1941 and 1942, plus the Emergency Price Control Act of 1942, gave the president unprecedented powers to regulate and control the nation’s economy. In addition to permitting wartime censorship, the statutes authorized wage, price, and rent controls, rationing, and bans on trading with the enemy, to be administered by new agencies with final appeal only to a special court created ad hoc for that purpose, the Emergency Court of Appeals.
The Supreme Court found all these economic control measures permissible in Lockerty v. Phillips (1943), Yakus v. United States (1944), and Steuart v. Bowles (1944). The Court sustained an increase in Congress’s regulatory authority under the dormant commerce power in Southern Pacific Co. v. Arizona (1945). (The distantly related issue of wartime censorship, pervasive though it was, did not come before the Court directly in a major controversy.) After the war, in United States v. Causby (1946), the Court did sustain a Fifth Amendment–based challenge to the federal government’s wartime activities, finding a compensable taking where military overflights interfered with the plaintiff’s egg farm. But dicta suggested that nothing in the holding would interfere with civilian aviation, which sharply restricted the scope of property rights in airspace. Those who see property claims as an integral part of civil liberties have criticized the World War II decisions, although they concede the military necessity that lay behind them.
The powers of the federal government and the president have always expanded dramatically in wartime at the expense of the states, other branches of government, and sometimes of civil liberties. Previously, however, that inflation of power was temporary, and receded after the war. World War II was different. All of American society was regimented for prosecution of total war after 1941, yet the nation managed to avoid some of the extreme incursions on civil liberties experienced in World War I.
The growth of President Franklin D. Roosevelt’s wartime power amounted to what Clinton Rossiter called a ‘‘constitutional dictatorship.’’ FDR exploited the executive agreement in unprecedented ways, and was upheld in United States v. Belmont (1937) and United States v. Pink (1942). Under his powers as commander-in-chief of the armed forces, FDR created military tribunals to try German saboteurs. In Ex parte Quirin (1942), the Supreme Court upheld the powers of these military adjudicative bodies, despite the threat they posed to individual liberties, including habeas corpus. This partially eclipsed the hallowed precedent of Ex parte Milligan (1866), which had mandated jury trial for civilians in civil courts. The Supreme Court refused to review war crimes tribunals for German and Japanese defendants (In re Yamashita , Homma v. Patterson ).
The most severe impact of military power on civilian society occurred in the territory of Hawaii, where the army imposed a regime of martial law and military rule that for a time entirely displaced civilian government, including its courts. The military governor suspended the writ of habeas corpus and created a system of military provost courts that had both criminal and civil jurisdiction. The quality of justice encountered there was far inferior to that in civilian courts: the judges were laymen, evidence was admitted that would have been inadmissible in civil courts, and sentences in criminal cases were harsh. Aside from these courts, the military government imposed censorship, regulated prices and wages, imposed curfews, and regulated labor relations to the advantage of management. In Duncan v. Kahanamoku (1946), the Supreme Court held that trials in the provost courts were illegal. Duncan affirmed the primacy of civilian over military rule, warning about the evils of unconstrained military government.
The constitutional status of aliens posed civil liberties problems during the war. Beliefs or activities tolerable in a citizen became cause for deportation of an alien or a naturalized citizen. But Schneiderman v. United States (1943) rebuffed the efforts of the federal government to denaturalize and deport a Russian-born American Communist whose only offense was party membership. For a few years afterwards naturalized citizens were immune from the excesses of the World War I era. That changed with the onset of the Cold War, however. In Knauer v. United States (1946), the Court upheld denaturalization on evidence not much more persuasive than in Schneiderman’s case.
Aliens not naturalized were more vulnerable than citizens. Harry Bridges returned several times to the Court’s docket thanks to persistent efforts of the federal government to deport him. Frustrated by the Supreme Court’s refusal to countenance what amounted to a bill of attainder action by Congress that enabled Bridges’s deportation, his opponents continued to seek his eviction through the early years of the Cold War, without success. He was the exception, though; most deportation efforts succeeded after 1947 if the target was a leftist.
Conscientious objectors posed a special problem in a conflict as widely popular as World War II. In the Selective Service Act of 1940, Congress had exempted from the military draft anyone ‘‘conscientiously opposed’’ to service ‘‘by reason of religious training and belief.’’ Even when Jehovah’s Witnesses and pacifists got draft exemptions, though, they encountered administrative complications and state-imposed impediments, such as denial of admission to the bar. The Supreme Court sustained the state inhibitions and required that conscientious objector applicants exhaust all administrative processes, including showing up for induction, before they could resort to courts to contest their classification.
Religion provided the other major growth area for civil liberties during the war. With only one major exception (Reynolds v. United States ), the Supreme Court had not construed the First Amendment’s religion clauses before World War II. In 1940, the Court ‘‘incorporated’’ the free exercise and establishment clauses (Cantwell v. Connecticut), meaning that the clauses’ provisions were now just as binding on the states as they were on the federal government. With that doctrine in place, the justices then dealt with the numerous free exercise issues churned up by the social impact of the war. (The Court’s first establishment clause case was not handed down until 1947.) Jehovah’s Witnesses generated nearly all free exercise controversies because of their religiously grounded refusal to salute the American flag and because their proselytizing techniques were obnoxious to their gentile neighbors.
In the tense atmosphere of 1940, refusal to salute the flag, even on sincerely held religious grounds, was deeply unpopular. Legislatures, school boards, and mobs tried to force the Witnesses to salute. Justice Frankfurter upheld the power of school boards to expel nonsaluting Witness children in a hyperpatriotic opinion, Minersville School District v. Gobitis (1940). He ignored the clear and present danger test that would have been applicable in speech cases, and instead balanced state legislative power against individual liberties, coming out as he usually did on the side of power against liberty. After Gobitis, mobs brutalized Witnesses and legislatures enacted more draconian measures to compel conformity.
When the Court revisited this issue in the 1943 case of West Virginia Board of Education v. Barnette, though, it reversed Gobitis and sustained Witness children in their conscientious refusal. It thereby extended broad protections to religious liberty for the first time. Rejecting Frankfurter’s deferential posture, Justice Robert H. Jackson instead deployed free speech doctrines to protect what was essentially religious freedom. He condemned the ‘‘coercive elimination of dissent.’’ Fundamental rights, including those guaranteed by the First Amendment, ‘‘may not be submitted to vote.’’ The ‘‘majestic generalities of the Bill of Rights’’ required judicial protection, to protect ‘‘the right to differ as to things that protect the heart of the existing order.’’ (Frankfurter dissented in an opinion striking for its embittered self-pity.)
A long string of decisions extending from 1939 through 1946 sustained the freedom of Witnesses to promote their religious beliefs, no matter how offensive or annoying such proselytizing activity was to other denominations. Early decisions involving the Witnesses, like Chaplinsky (1942), were hostile to their freedoms. That changed too in 1943, when in five companion cases, Murdock v. Pennsylvania being the most important, the Court supported the rights of religious emissaries to go door-to-door preaching their doctrines. In other decisions, the Court limited administrative discretion to refuse permits for outdoor preaching. After 1946, the Court held states to strict scrutiny of all regulations that burdened religious freedom, thus greatly expanding the sphere of civil liberties in the religious context.
The overall impact of World War II on civil liberties confirmed two major long-term trends. First, the protection of personal liberty had become the primary responsibility of courts, rather than of legislatures or local communities. Second, the national government, rather than states or localities, became the principal arena where these issues were contested. Neither of these trends guaranteed that personal liberties would be immune from government intrusion, as the Cold War was soon to prove. But after the war, the struggle over civil liberties was judicialized, and the sites of contests over personal freedom were federal courts.
The major threat to personal freedoms during and after the war came from an expanded executive power within the federal government and from expanded federal power vis-a`-vis the states. Quirin and the internment of Japanese-Americans were pivotal events here, laying the foundations of the national-security state that was to emerge after 1947. For the next generation, this growth came at the expense of civil liberties.
Offsetting this regressive innovation, however, was the remarkable expansion of liberties protected by the First Amendment. Compared with World War I, the Court from 1940 through 1946 was unusually solicitous of speech freedoms. From 1950 through 1957, it would regress, but the Justices then resumed the expansive trend, so that by 1968, political discourse enjoyed nearly absolute protection. This confirmed the ‘‘preferred position’’ of civil liberties suggested by then-Justice Harlan F. Stone before the war.
Finally, in religious matters the Supreme Court began developing doctrines under the free exercise clause that protected not only beliefs but religious practices of sects that were unwelcome to local majorities. In tandem with postwar developments under the establishment clause, these innovations made federal courts the principal guardians of religious freedoms.
Although wars and fears of war had often proven inimical to personal freedoms in the past, World War II paradoxically produced a long-term expansion of freedom in American society.
WILLIAM M. WIECEK
References and Further Reading
Cases and Statutes Cited