The signing of an armistice in November of 1918 marked the official end of the ‘‘Great World War’’ and might have promised a new era of peace and global stability. For Americans the years of 1919 and 1920 were in fact years of turmoil, fear, and hysteria. The context of this first red scare was one of economic dislocation (the impact of war and demobilization), high levels of immigration, rising union membership, nationwide strikes, and the ripple effects of the Russian Revolution of 1917.
Fear of a spreading communist revolutionary movement was exacerbated by the growing presence of immigrants from Southern and Eastern Europe and Russia. Over thirteen million immigrants arrived in the United States between 1901 and 1920, and among them were small numbers of anarchists, socialists, and revolutionaries. Immigrants, labor organizers, and political activists played a part in the significant opposition that arose to the decision of President Wilson to join the war in 1917. Likewise, they were among those who opposed the wartime draft. They soon became the target of official reprisal. Federal legislation was devised to secure a minimum of opposition to the draft and the war; the Immigration Act (1917), the Espionage Act (1917), and the Sedition Act (1918) were some noteworthy examples. Many states followed suit. Meanwhile, labor unrest reached new peaks—in 1919 alone there were 3,600 strikes involving over four million workers. The public was primed by government-supported propaganda to expect violent uprisings at any time.
The implementation of federal law fell to Attorney General A. Mitchell Palmer, a former vice chair of the Democratic National Committee. Prior to May 1919, Palmer’s views on civil liberties attracted little attention. Then in late April, a bombing campaign was launched by radicals against prominent officials and businessmen. Among the targets (most of whom were unscathed) were Supreme Court Justice Oliver Wendell Holmes, Jr., John D. Rockefeller, and J.P. Morgan. Another target was the attorney general himself; the bomber who approached his house tripped on a step, killing himself in the explosion that followed. At a time when the government was already promoting true ‘‘Americanism’’ and antiradical propaganda, the bomb attacks struck a raw nerve. Subsequent antiradical rioting in major cities heightened the stakes for government, and generated more public fear.
The policies of the attorney general now turned draconian. He created the General Intelligence Division (the forerunner of the Federal Bureau of Investigation) and chose a young bureaucrat, J. Edgar Hoover, to run it. Thus began a systematic government investigation of the politics and behavior of thousands of dissidents, dissenters, communists, radicals, labor organizers, socialists, aliens, and anyone else who might be labeled ‘‘un-American.’’ Then came the arrest campaigns: the first was an eighteencity event involving few warrants and the invasion of hundreds of homes and businesses. In 1920, the second ‘‘Palmer raid’’ took place; by Patrick Renshaw’s account, there were 10,000 arrests in seventy cities. Palmer arranged for a very public deportation of some aliens caught in his dragnet, but the number of deportees, 250, suggested his raids had overreached. Prosecutions from this period frequently focused on political beliefs (for example, speeches, magazines, leaflets), not on criminal or violent activities. The legal philosophy adopted by Palmer was that emergencies created power in the executive branch, power to which the Bill of Rights had to bend.
The red scare was the context of the federal courts’ seminal engagement with one of the central meanings of the free speech guarantee. The problem for the courts was how to reconcile the First Amendment’s guarantee of free speech with government prosecution of dissent, revolutionary speech, opposition to war, and opposition to the draft. In March 1919, the Supreme Court decided the landmark case of Schenck v. United States. The petitioner had distributed leaflets encouraging opposition to the draft during wartime. Justice Holmes rejected his free speech claim, pointing out that the ‘‘most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.’’ He determined that speech would lose First Amendment protection when words were 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.’’ One week later, relying on the same reasoning, Holmes upheld the conviction of the leader of the Socialist Party, Eugene Debs. The Debs conviction was based on a political speech in which he had expressed admiration for draft resisters; his conviction led to a ten-year prison sentence. The influence of Holmes on the course of First Amendment doctrine cannot be underestimated. While he nominally relied on the clear and present danger test in later cases, he found himself dissenting more often. His skepticism about government’s latitude in radical speech cases was evident as early as November 1919 when he dissented in Abrams v. United States.
In a ten-year period beginning in 1919, the Supreme Court decided again and again in favor of the government’s power to punish radical speech—Schenck, Debs (Debs v. United States ), Frohwerk (Frohwerk v. United States ), Abrams, Pierce (Pierce v. United States ), Schaefer (Schaefer v. United States ), Gilbert (Gilbert v. State of Minnesota ), and Gitlow (Gitlow v. New York ) were all punished for expression. Nevertheless, while protection for opponents of government policy was more theoretical than real, the seeds for a new more liberal First Amendment jurisprudence were being sown. It was Justice Holmes who developed the analogy of ‘‘free trade in ideas,’’ as a rationale for minimal government interference in political debate. Holmes, joined by Justice Brandeis, wrote the dissents in Abrams and Gitlow v. New York that had a profound impact later in the twentieth century. One of the few federal judges to rule in favor of dissenters in this period was District Court Judge Learned Hand (see Masses Publishing Co. v. Patten ). The hysteria of the red scare was also the major catalyst in an ongoing conversation on the jurisprudence of free speech among constitutional experts Holmes, Hand, Zechariah Chafee, Ernst Freund, and Harold Laski.
For all the strikes, riots, arrests, and prosecutions that marked the red scare, little was found to suggest a real threat of violent government overthrow. Many of those sentenced in the early phase (for example, Debs) were released by presidential pardons in 1922–1923. Prominent law professors such as Roscoe Pound, Felix Frankfurter, and Zechariah Chafee spoke out against the Palmer raids as early as the fall of 1920. Palmer himself, hoping to use his anti-red crusade as a stepping stone to the White House, lost the Democratic Party’s nomination battle in 1920.
In the words of the historian Robert K. Murray, ‘‘[F]ew occurrences in modern American history ... have involved so much exaggeration and fear.’’ There can be little doubt that the influence of the red scare in the twentieth century could be seen, as Murray puts it, in the ‘‘continued insistence upon ideological conformity, suspicion of organized labor, public intolerance toward aliens, and a hatred for Soviet Russia.’’ The ability of the government to manipulate fear and rile the public into support for reactionary policies remains a key concern for advocates of civil liberties. The story of the red scare is a cautionary one; despite the guarantees of the Bill of Rights and despite the independence of the federal judiciary, the choice to openly voice opposition to government was a choice laden with danger.
JEROME D. O’CALLAGHAN
References and Further Reading
Cases and Statutes Cited
See also Abrams v. United States, 250 U.S. 616 (1919); Anti-Anarchy and anti-anarchy-and-anti-syndicalism-statutes.html">Anti-Syndicalism Statutes; Bad Tendency Test; Bill of Rights: Structure; Brandeis, Louis Dembitz;Chafee, Zechariah, Jr.;Clear andPresentDanger Test; Communist Party; Debs, Eugene V.; Debs v. United States, 249 U.S. 211 (1919); Extremist Groups and Civil Liberties; Frankfurter, Felix; Freedom of Speech: Modern Period (1917–Present); Gitlow v. New York, 268 U.S. 652 (1925); Hand, (Billings) Learned; Holmes, Oliver Wendell, Jr.; Hoover, J. Edgar; Ku Klux Klan; Masses Publishing Co. v. Patten, 244 U.S. 535 (1917); Palmer, A. Mitchell; Sacco and Vanzetti; Schenck v. United States, 249 U.S. 47 (1919); Whitney v. California, 274 U.S. 357 (1927); Wilson, Woodrow; World War I, Civil Liberties in