World War I, Civil Liberties in
Woodrow Wilson, like Thomas Jefferson over a century earlier, had hoped to ignore foreign affairs and concentrate on domestic reform. But Europe went to war in August 1914, and although the United States tried to avoid involvement, the country finally declared war on Germany in April 1917. The president therefore had to deal with war-related problems of enormous magnitude. Some of the constitutional problems raised during the Civil War appeared again during World War I, but in a far more extensive and worrisome manner, and the Wilson administration’s record constitutes the greatest infringement on civil liberties up to that time.
The Draft Cases
Wilson had implicitly assumed that the decision to go to war belonged to the chief executive as commanderin- chief; once the nation entered the war, however, he explicitly assumed that he would receive an unusual degree of deference from Congress not only in managing the war but also in the proposals he would send to the legislature for enactment. In his war message, he told Congress that he would send them bills for the raising of and support of a larger army and navy and for the mobilization of the country’s economic resources. Wilson hoped ‘‘that it will be your pleasure to deal with them as having been framed after very careful thought by the branch of Government upon which the responsibility of conducting the war and safeguarding the nation will most directly fall.’’ The administration then began sending one sweeping bill after another to Congress, including an espionage measure allowing for large-scale government censorship of the press, the creation of a food administration, and a draft of young men for the army.
Despite their resentment at Wilson’s high-handedness, members of Congress recognized that conscription would be necessary, and on May 17, 1917, Congress enacted Wilson’s draft law, which opponents of the war immediately challenged. Lower courts expedited the various draft cases; men could not be allowed to die should the law be unconstitutional, nor could the government’s mobilization be derailed if it were valid. Six suits, grouped together as the Selective Draft Law Cases (1918) came before the Court for argument in December 1917. All involved convictions for obstructing or resisting conscription.
Harris F. Taylor, the chief counsel for the defendants, berated Congress for expanding the executive power. Wilson had already become a political dictator, Taylor charged, and his decision to commit American troops abroad—a power nowhere found in the Constitution—had plunged the country into a military dictatorship as well. Taylor claimed that the militia clause (Article I, Section 8) limited their use ‘‘to execute the Laws of the Union, suppress Insurrections and repel Invasions.’’ Militia troops could not be used, therefore, to prosecute foreign conflicts.
The Court handed down its decision the first week of January 1918; in almost summary fashion, it unanimously dismissed all the arguments raised against the law. Chief Justice White noted Congress’s explicit powers in Article I to ‘‘provide for the common Defence,’’ ‘‘to raise and support Armies,’’ ‘‘to provide and maintain a Navy,’’ and ‘‘to declare War.’’ ‘‘As the mind cannot conceive an army without the men to compose it,’’ White asserted, ‘‘on the face of the Constitution the objection that it does not give power to provide for such men would seem too frivolous for further notice.’’ The Court also made short shrift of the argument that the Constitution only allowed a volunteer army and did not authorize conscription. The chief justice noted that just as the government owed certain obligations to its citizens, so the people had reciprocal duties to the state, including rendering military service, which the government could compel. Beyond that, Congress could deploy the army anywhere it deemed necessary, even overseas.
Most Americans had expected the Court to sustain the draft law. It would have been difficult, declared one journal, ‘‘to conceive how any other view could ever have been seriously argued by anyone familiar with constitutional law or the Anglo—Saxon principles of free institutions.’’ A writer in a respected legal journal, anticipating the impatience later shown toward free speech, charged that those who had challenged the laws belonged to ‘‘that treacherous hostile propaganda with which we now know our country has been menacingly infiltrated.’’ Yet even if the antidraft arguments failed to persuade a single member of the Court, they did raise at least two issues that would eventually receive more serious attention.
First, the act allowed the president to delegate nearly all the tasks involved in selecting and processing the conscripts to local draft boards. The Court had held laws involving delegation of powers constitutional ever since the question first came before it in Field v. Clark (1892), but none of the previous statutes had been as vague in prescribing guidance or oversight. In the various war statutes, Congress merely set out general goals and gave the president carte blanche to carry them out. At some point, the Court would have to determine how much power Congress could delegate and how much discretion the president could exercise.
A second issue involved the generous exemption from the draft that Congress allowed ordained ministers and theology students, as well as exemption from combat granted to members of some sects that opposed war on religious grounds. The Court shrugged off a challenge that this provision violated the First Amendment because it amounted to an establishment of religion. White casually derided the unsoundness of the claim as well as a collateral argument that the limited exemptions violated the free exercise clause. In the future, the Court would wrestle with the problem of conscientious objectors in a number of cases.
The Nineteenth Amendment reflected the progressive faith that greater participation in the political process would ensure better government, and its passage was also a result of the war. The drive to give women the right to vote had begun much earlier, of course, and had been articulated in the manifesto of the 1848 Seneca Falls Convention. Women activists such as Susan B. Anthony, Lucretia Mott, Elizabeth Cady Stanton, and Lucy Stone had labored diligently in the cause, but although they had effected some improvements in the legal status of women, the right to vote remained beyond their grasp.
Because suffrage had always been considered a matter of state power (even the Fourteenth and Fifteenth Amendments had left the primary control of voting to the states), women began by lobbying state legislatures for the ballot. The Wyoming Territory gave women the vote in 1869, but by 1900 only four states had granted women full political equality. The movement picked up steam during the Progressive era, especially after 1912 when Alice Paul, a Quaker and social worker, returned from an apprenticeship with the militant suffragists of England. Adopting the techniques she had learned in the mother country, she led a march in Washington on the day before Wilson’s inauguration to promote the new goal of the movement—a constitutional amendment. When unruly opponents broke up the parade, the suffragists suddenly had the publicity they needed. By 1916, the Republican Party had endorsed the amendment, and eleven states had given women the franchise.
Wilson, who had extremely traditional views about women, opposed giving them the vote. He refused to endorse the proposed amendment, insisting that states should control the suffrage. But the president found himself in a rapidly shrinking minority. Under Alice Paul’s leadership, the new Women’s Party regularly picketed the White House, provoked arrests, and went on well—publicized hunger strikes in prison. When the United States entered the war, allegedly to save democracy, political wisdom dictated that one could not send Americans to fight and die for an ideal overseas while denying it to half the population at home. Wilson finally capitulated, and he went before Congress on September 30, 1918, to recommend a constitutional amendment. Congress had turned down similar proposals ever since Reconstruction, and the Senate now rejected the amendment again, once in 1918 and twice in 1919. With Wilson’s backing, however, Congress finally approved the Nineteenth Amendment on June 4, 1919, and Tennessee became the thirty-sixth state to ratify on August 18, 1920, in time for women to vote in that fall’s presidential election.
The Nineteenth Amendment doubled the number of eligible voters, but whether it had any qualitative effect on American politics is doubtful. Some reformers believed that the moral purity of women would lead to some sort of cleansing process, but nearly all studies show that women voted just about the same as men of comparable class and sector. In all, the presence of women at the polls neither destroyed family life nor purified the political process, but it did make American government more representative and took women one large step down the road to the elusive goal of equality.
Free Speech in Wartime
Ironically, the war to make the world safe for democracy triggered the worst invasion of civil liberties at home in the nation’s history. The government obviously had to protect itself from subversion, but many of the laws seemed aimed as much at suppressing radical criticism of administration policy as at ferreting out spies. In the Selective Service Act, Congress authorized the jailing of people who obstructed the draft. The Espionage Act of 1917, aimed primarily against treason, also punished anyone making or conveying false reports for the benefit of the enemy, seeking to cause disobedience in the armed services, or obstructing recruitment or enlistment in the armed forces. The postmaster general received power in the Trading with the Enemy Act of 1917 to ban foreign language and other publications from the mails. The 1918 Sedition Act, passed at the behest of western senators and modeled after Montana’s statute to curb the Industrial Workers of the World, struck out at a variety of ‘‘undesirable’’ activities, and forbade ‘‘uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language.’’ Finally, the Alien Act of 1918 permitted the deportation of alien anarchists or those who believed in the use of force to overthrow the government.
It is certainly understandable that a government should wish to protect itself from active subversion, especially during wartime. But the evidence indicates that Wilson, preoccupied first with mobilization and then with peace making, gave little thought to the problem, and deferred to some of his conservative advisers, especially Postmaster General Albert Burleson, a reactionary who considered any criticism of the government unpatriotic. There is a suspicion that in coming down so hard on socialist newspapers, such as the Milwaukee Leader, Burleson intended to send a message to the larger, more middle—class journals that they should not get too far out of line.
The federal laws and similar state statutes caught radicals, pacifists, and other dissenters in an extensive web. The total number of indictments ran into the thousands; the attorney general reported 877 convictions out of 1,956 cases commenced in 1919 and 1920. Although the laws had been challenged early, the government had shown no desire to push for a quick decision on their constitutionality. As a result, some half-dozen cases did not reach the Supreme Court until the spring of 1919, after the end of hostilities.
These cases marked the beginning of a civil liberties tradition in American constitutional law. There had been no such tradition prior to the war, because neither the states nor the federal government had seriously restricted First Amendment rights. These cases also began the process of developing criteria for permissible limitations on speech; the dissents of Holmes and Brandeis initiated the counter-process by which the courts ultimately became the defenders of civil liberties against the executive and legislative branches.
The Speech Tradition before Schenck
Although modern speech jurisprudence begins with the Holmes opinions in Schenck v. United States (1919) and Abrams v. United States (1919), a jurisprudence of free speech did exist prior to 1919. Various writers and groups tried to put forward theories that would be speech-protective, but they had little success. One reason may have been their identity. The International Workers of the World, the feared and radical ‘‘Wobblies,’’ put forward an extensive rationale for speech completely free from any governmental regulation. Today we would find that rationale not very different from that put forward by contemporary jurists; before World War I only fellow radicals took the IWW seriously.
The scholar David Rabban has also identified what he terms a ‘‘lost tradition of libertarian radicalism,’’ which defended as a primary value individual autonomy against the power of church and state. This tradition reaches back before the Civil War in various movements, including abolitionism, labor reform, and women’s rights. With the arrival of the Comstock Acts in 1873 and 1876 to censor materials moving through the mails, the libertarian radicals organized in such groups as the National Defense Association (1878) and the Free Speech League (1902), the latter actively involved in defending those whose speech had been restricted, usually radicals such as Emma Goldman and Margaret Sanger. The leader of the Free Speech League, Theodore Schroeder, worked out a philosophy of free speech premised on the belief that everyone had a right to say whatever they wished, and that government had no business acting as a censor. Schroeder rejected earlier theories of speech and press that would allow governmental interference should the speech have a ‘‘bad tendency,’’ or which would allow publication but then provide punishment.
Despite the best efforts of the Free Speech League as well as writers like Schroeder and Ernst Freund, the overwhelming weight of judicial opinion before the war, in both federal and state jurisdictions, did little to recognize the notion that the First Amendment meant speech should not be curtailed. Speech, or at least the expression of unpopular or strange views, received little sympathy from the public at large or the men who sat on the bench.
Most judges relied on Sir William Blackstone, who in his Commentaries argued that the right of free speech precluded prior restraint (that is, the government could not stop a person from speaking or publishing ideas), but that the law could punish speakers and writers if their expressions tended to harm the public welfare. In the leading Supreme Court opinion of this time, Patterson v. Colorado (1907), Justice Holmes closely followed Blackstone’s analysis. Thomas Patterson could hardly be described as a radical. A U.S. Senator from Colorado and a newspaper publisher, he had actively supported a referendum that provided home rule for Denver. He became outraged when the Republican legislature enlarged the state supreme court and packed it with judges who overturned the results of the referendum. His newspapers carried editorials, cartoons, and letters ridiculing the court. The state attorney general brought criminal contempt proceedings against Patterson on behalf of the supreme court, which in turn fined him and his publishing company $1,000 without allowing him to prove truth as a defense.
Patterson appealed to the U.S. Supreme Court, but Holmes rejected all of his arguments about the nature of free speech. The First Amendment, Holmes declared, ‘‘prevents all previous restraints upon publications,’’ but allows ‘‘the subsequent punishment of such as may be deemed contrary to the public welfare.’’ Interestingly, Holmes dismissed the notion of truth as a defense. ‘‘The preliminary freedom extends to the false as to the true; the subsequent punishment may extend as well to the true as to the false.’’ The Court heard only a few other First Amendment cases before the wartime convictions reached it on appeal in 1919, and all of them essentially followed Blackstone as explained by Holmes in Patterson.
Clear and Present Danger
In the first case, Schenck v. United States, the secretary of the Philadelphia Socialist Party had been indicted for urging resistance to the draft. He had sent out circulars condemning conscription as despotic and unconstitutional and calling on draftees to assert their rights and refuse induction. Under the terms of the Espionage Act, Schenck had urged unlawful behavior. But did the Constitution’s guarantee of free speech protect him? Holmes attempted to develop a standard based on the common law rule of proximate causation, and he took a fairly traditional view of speech as a limited right. One could not, he pointed out, falsely shout ‘‘Fire!’’ in a theater. In a famous passage, Holmes attempted to define the limits of speech:
The question in every case is whether the words used are used in such circumstances and are of such a nature 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 no Court could regard them as protected by any constitutional right.
The ‘‘clear and present danger’’ test became the starting point for all subsequent free speech cases, and within a week, the Court sustained two other convictions under this rule. In Frohwerk v. United States (1919), a German-language newspaper had run articles attacking the draft and challenging the constitutionality of the war, whereas in Debs v. United States (1919), Holmes accepted a jury finding that in a militant antiwar speech, Debs had intended interference with mobilization.
The three decisions, as well as the Clear and Present Danger Test, upset defenders of free speech, especially because they had come from a man they believed to be an ardent libertarian. Legal scholars such as Zechariah Chafee, Jr., Ernst Freund, and others attacked Holmes for his insensitivity to the larger implications of free speech. ‘‘Tolerance of adverse opinion is not a matter of generosity,’’ Freund declared, ‘‘but of political prudence.’’ In an influential article (later expanded into a book) titled ‘‘Free Speech in the United States,’’ Chafee insisted that the framers of the First Amendment had more in mind than simple censorship. They intended to do away with the common law of sedition and make it impossible to prosecute criticism of the government in the absence of any incitement to lawbreaking. In none of these three cases could one argue that the defendants had been attempting to incite active lawbreaking; for Chafee, Learned Hand’s test in Masses Publishing Company v. Patten (1917) made far more sense. Hand, then a district judge, displayed considerable solicitude for free speech in his opinion and would allow all but speech that directly incited unlawful action.
Holmes, stung by this criticism, agreed to meet with Chafee. The Harvard professor convinced Holmes that free speech served broad social purposes and that the national interest would suffer more from restrictions on speech than from some alleged and vague dangers posed by unpopular thought. Moreover, through a clever, if somewhat inaccurate reading of history, Chafee convinced Holmes that his phrase ‘‘clear and present danger’’ had not only historical roots, but actually was very speech protective. Chafee’s missionary work bore fruit at the next term, when Holmes, along with Brandeis, began reformulating the Clear and Present Danger Test.
The Beginnings of the Free Speech Tradition
In Abrams, the defendants had distributed pamphlets in Yiddish and English criticizing the Wilson administration for sending troops to Russia in the summer of 1918. The government had no way to prove that such leaflets actually hindered the war with Germany, but a lower court judge found that they might have caused revolts and strikes and thereby diminished the number of troops available to fight the Germans. Seven members of the Court, led by Justice John H. Clarke, agreed that the government had provided sufficient proof to support this charge and that the conviction could be sustained under the Schenck test of clear and present danger.
Both Holmes and Brandeis disagreed, and in an eloquent dissent, Holmes limned one of the great defenses of free speech. The ‘‘silly leaflets’’ hardly posed a danger to society, and the fact that the ideas expressed were unpopular or even considered dangerous made no difference:
When men have realized that time has come to 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.
Holmes’s dissent in the Abrams case is often seen as the beginning of the Court’s concern with free speech as a key right in democratic society, and it put forward the notion of democracy resting upon a free marketplace of ideas. Some ideas might be unpopular, some might be unsettling, and some might be false. But in a democracy one had to give all ideas an equal chance to be heard, in the belief that the false, the ignoble, and the useless would be crowded out by the right ideas, the ones that would facilitate progress in a democratic manner. Only if society took the guaranty of the First Amendment seriously could that happen.
Four months later the Court announced its decision in Schaeffer v. United States (1920). All five defendants had been connected with a German— language newspaper in Philadelphia accused of publishing unpatriotic articles critical of the Allies and favorable to the Central Powers. McKenna, for the majority, did not mention clear and present danger, but used a more permissive standard, the ‘‘bad tendency’’ test. Did the words intend a proscribed action? If so, that would be enough to sustain the conviction.
Now Brandeis led the dissent. Although he had been uncomfortable with Holmes’s arguments in Schenck, he had not been sure what other options the Court had. Chafee’s article gave him his clue, and he had gladly joined Holmes in Abrams. With Schaeffer he entered the debate and helped refine clear and present danger so that it would serve more as a protection for free speech than as a license for government repression. He set forth the utility of free speech in a democratic society: Even though it could be abused, the benefits of untrammeled discourse far outweighed any inconvenience. Above all, basic rights should not be crippled because of wartime hysteria. An intolerant majority, he declared, ‘‘swayed by passion or fear, may be prone in the future, as it has often been in the past, to stamp as disloyal opinions with which it disagrees. Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.’’
The last of the major Espionage Act cases came down soon after: Pierce v. United States (1920) involved prosecution of three Socialists for distributing a strongly antiwar pamphlet. Justice Mahlon Pitney quickly disposed of the constitutional arguments, merely citing the string of cases from Schenck through Schaeffer to sustain the conviction. But he then went to great length to disprove the allegations made in the pamphlet, especially that the war had economic causes. Such a false view, he claimed, could not help but have an adverse, even if indirect, effect on the successful prosecution of the war. (Interestingly, six months earlier Woodrow Wilson had stated: ‘‘Who does not know that the seed of war in the modern world is industrial and commercial rivalry. This was a commercial and industrial war.’’ By the Pierce opinion, the president could have been prosecuted under the Espionage Act!)
Brandeis, again joined by Holmes, entered a long and thorough dissent, claiming the government had failed to prove that the publication had posed any danger to the war effort. To urge men to better their lot by creating new laws and institutions could not be labeled a criminal act ‘‘merely because the argument presented seems to those exercising judicial power to be unfair in its portrayal of existing evils, mistaken in its assumptions, unsound in reasoning, or intemperate in language.’’ The ‘‘falsity’’ of one’s view, according to the interpretation of free speech Brandeis and Holmes advocated, had nothing to do with one’s right to promote that view.
One other excess of the Espionage Act came before the Court later that term in the Milwaukee Leader case. Congress had given the postmaster general the authority to close the mails to any newspaper violating the act, and Albert Burleson had revoked the second— class mailing privileges of the socialist Milwaukee Leader. The government charged the paper with publishing false reports with the intent to hinder American military operations, obstruct recruiting, and aid the enemy. Speaking for the majority, Justice Clarke upheld the government’s action and rejected the defense claim that the First Amendment’s protection of a free press had been violated. The First Amendment, Clarke declared, is not intended ‘‘to serve as a protecting screen for those who while claiming its privileges seek to destroy it.’’
For Brandeis, whose dissent Holmes joined, the question did not involve distinctions between war and peace, but the basic right of a free press. Even where Congress had previously declared certain materials unmailable, only issues containing that type of material had been excluded. Here the postmaster had banned all issues, becoming in effect ‘‘the universal censor.’’ Freedom of the press could not be limited either directly or, as in this case, indirectly by denying the mailing privilege. ‘‘In every extension of governmental function,’’ he warned, ‘‘lurks a new danger to civil liberty.’’
Despite the justifiable applause with which civil libertarians had greeted Holmes’s Abrams dissent in 1919, by the end of the 1920 term Brandeis had emerged as the Court’s most powerful defender of free expression. Holmes had the gift of generalization, of the quotable phrase, but the more stolid Brandeis built the foundation of future constitutional protection of free speech with facts, logic, and, on occasion, impassioned and eloquent language as well. Such an occasion arose in Gilbert v. Minnesota (1920), when Holmes went along with the majority in sustaining a conviction under a state sedition law that prohibited the teaching or advocacy of certain ideas. Gilbert had made a speech questioning American democracy, declaring that ‘‘if they conscripted wealth like they have conscripted men, this war would not last over forty— eight hours.’’ His appeal claimed that the federal sedition law had preempted the field and that his conviction under state law violated his right to free speech. Justice McKenna, for the majority, denied that the state had no power, and said it ‘‘would be a travesty’’ to allow Gilbert to find protection within the Constitution.
Brandeis dissented along with White, although the chief justice’s only objection was his belief that the federal law preempted the field. To Brandeis, the Minnesota law posed a far greater danger to speech than did the federal law, because it applied in peacetime as well as in wartime; it banned pacifism, among other ideas, for all time. Only the federal government had the power to curtail free discussion in the national interest; moreover, he believed that the personal protections ensured in the Bill of Rights should apply to the states as well as to the federal government. ‘‘I cannot believe that the liberty guaranteed by the Fourteenth Amendment,’’ he told his colleagues, ‘‘includes only liberty to acquire and to enjoy property.’’ Brandeis’s dissent pointed the way to the future, in which theBill of Rightswould in fact be ‘‘incorporated’’ through the Fourteenth Amendment so as to limit state action. The majority had not foreclosed that possibility; it had just not reached the issue. Five years later, in Gitlow v. New York (1925), the Court began coming around to the Brandeisian point of view.
Beginnings of the American Civil Liberties Union
The restrictions on speech and press worried many people even during the war. Newspaper publishers and editors naturally worried about any restrictions on their right to print news or to editorialize, but they did not want to be seen in any way as unpatriotic. After all, nearly all of the major English-language papers and periodicals supported the war. But who would stand up for those who opposed war, whose opinions ran against the grain? The American Union Against Militarism, one of the nation’s leading prewar pacifist organizations established a National Civil Liberties Bureau in October 1917, and its members included social workers (many of them pacifists), Protestant clergy (also mainly pacifist), and conservative lawyers, most of whom supported the war but also venerated the Constitution and were outraged by what they saw as the administration’s violations of free speech and due process. Albert DeSilver, an outspoken, pro-war patriot, declared that ‘‘my law-abiding neck gets very warm under its law-abiding collar these days at the extraordinary violations of fundamental laws which are being put over.’’ Independently wealthy, DeSilver quit his law practice and devoted his time to helping the bureau defend radicals, often putting up the war bonds he had purchased for their Bail.
During the war the bureau had plenty to keep it occupied as the Wilson administration attempted to muzzle the foreign-language press, close off the mails to dissidents, and punish antiwar speech. When the bureau printed a pamphlet explaining why it defended what it called ‘‘war’s heretics,’’ the postal service seized that as well, and it took nearly a year in court to force the release of the material.
The bureau represented the defendants in nearly all of the major cases that eventually made their way to the Supreme Court. The bureau and its head, Roger Baldwin, attacked the administration policies as a violation of old-fashioned American liberties, but the fact of the matter is that defense of the First Amendment, at least as we know it today, did not exist at the time. The tradition did not permit prior restraint of speech, but did allow the full strength of the government to come down on those whose views offended the majority. Unwittingly, perhaps, the bureau helped to convince Holmes and Brandeis, and later a majority of the Court, that a free society must allow even unpopular speech. After the war Baldwin transformed the bureau into the American Civil Liberties Union (ACLU) and would head it for more than two decades. Eventually the ACLU became the chief defender of freedom of speech, and eventually expanded its activities into other areas of civil liberties and civil rights. In the conservative years of the 1980s it would be attacked repeatedly, but also would be imitated by many other groups working in the public interest on both liberal and conservative sides.
The speech and press cases of 1919–1920 provide a transition from the war to the decade that followed. On the one hand, the Court upheld the powers of the government, as it had on the draft and economic regulations; on the other, the decisions foreshadowed the indifference to civil liberties that marked so much of the 1920s. With the peace, for example, thirty—two states enacted new sedition and criminal syndicalism laws to control supposedly dangerous ideas, and many of the more notorious speech cases of the decade involved prosecution of people who held ideas different from those of the majority. In New York, the infamous Lusk Committee directed raids on the headquarters of allegedly radical groups, whose only ‘‘crime’’ had been to expound unpopular doctrines. But the worst outrage came with the Palmer raids, which triggered the great ‘‘red scare.’’
The awkward transition from war to peace unsettled the American people. The Wilson administration, obsessed with foreign affairs after the 1918 armistice, made no effort to effect a smooth demobilization. The War Industries Board, for example, closed shop on January 1, 1919, and its chairman, Bernard Baruch, had to lay out his own money so his aides could travel home. The War Department canceled hundreds of contracts, throwing thousands of men out of work at the same time that the armed forces were discharging some 4,000 men a day from uniform. Industry used the end of the war as an excuse to cut wages or negate union recognition. As a result, some four million workers went out on strike in 1919, and by the end of the year, the public began to hear—and believe— rumors that radicals had instigated the strikes.
Seattle Mayor Ole Hansen denounced the general strike of 60,000 workers in his city as a Bolshevik plot. The great four—month strike in the steel mills certainly had its share of radicals among the strike leaders. On September 9, 1919, most of Boston’s police force went on strike. Governor Calvin Coolidge called up the National Guard to maintain order, broke the strike, and then refused to take the men back on the force. He gained national approval when he declared, ‘‘There is no right to strike against the public safety by anybody, anywhere, any time.’’
Aside from economic strife, the summer of 1919 witnessed bloody racial riots in both the North and South. In July, whites invaded the black section of Longview, Texas, looking for a black man who had been accused of a liaison with a white woman. A week later reports of black attacks on white women in the nation’s capital brought out white mobs who rampaged for four days. But the worst came in the Chicago riots of late July, which left 38 people dead and 537 injured. Racial tensions continued over the next few years, and in 1921 another major race riot broke out in Tulsa, Oklahoma.
Attorney General A. Mitchell Palmer, a Pennsylvania Quaker and formerly a Progressive congressman, saw radical plots everywhere. He urged Congress to enact peacetime sedition laws, and he decided to deport radical aliens. In June 1919, Palmer installed the young J. Edgar Hoover as head of the new General Intelligence Division of the Bureau of Investigation, with orders to collect files on radicals. On November 7, 1919, agents began raiding the headquarters of suspected subversive groups, arresting people without warrants and paying little attention to basic procedural rights. In the largest raid, on January 2, 1920, agents arrested between four and six thousand people, and detained half of them in crowded jails for long periods of time. Later that month, the New York Assembly ousted five duly elected members because they were socialists.
Fortunately for the country, the red scare receded almost as quickly as it had come. Palmer overplayed his hand, and after the widespread disruptions he had predicted for May Day 1920 failed to materialize, his credibility—and his hopes for the Democratic presidential nomination—vanished. Acting Secretary of Labor Louis F. Post managed to slow down the deportations, while prominent conservatives such as Charles Evans Hughes, as well as church and civic leaders, spoke out against the high—handed abuse of civil liberties. It had been in this milieu of the ‘‘scare’’ that the Supreme Court had decided the Espionage Act cases, but by the end of January 1920, the justices signaled their displeasure at federal abuse of constitutionally protected rights in the case of Silverthorne Lumber Company v. United States (1920).
Two men had been arrested after indictment by a grand jury. The Justice Department, without a warrant, then ransacked their office, removing books, papers, and other documents. Holmes, writing for the Court, branded the government’s action an ‘‘outrage’’ and blocked any use of the illegally seized material by the government in legal proceedings. Holmes’s insistence that the documents ‘‘shall not be used at all’’ helped expand the ‘‘exclusionary rule’’ that the Court had first propounded in Weeks v. United States (1914). In Weeks, Silverthorne, and other cases, the Court stressed two themes: the exclusionary rule provided the only effective means of protecting Fourth Amendment rights and judicial integrity required that the courts not sanction illegal search by admitting the fruits of this illegality into evidence.
Within a short time, liberal lower court judges picked up on the Holmes statement to block deportations based on illegally seized materials and overturn arrests carried out without proper warrants. In Colyer v. Skeffington (1920), federal judge George W. Anderson chastised the Justice Department for its ‘‘hang—first—and—try—afterward’’ techniques. ‘‘A mob is a mob,’’ he declared, ‘‘whether made up of government officials acting under instructions from the Department of Justice or of criminals, loafers, and the vicious classes.’’ Unfortunately, such common sense came too late to save hundreds of aliens from being illegally deported from the United States.
MELVIN I. UROFSKY
References and Further Reading
- Chafee, Zechariah, Jr. Free Speech in the United States. New York: Harcourt, Brace, and Howe, 1920.
- Milwaukee Publishing Co. v. Burleson, 255 U.S. 407 (1921).
- Murphy, Paul L. World War I and the Origin of Civil Liberties in the United States. New York: Norton, 1979.
- Polemberg, Richard. Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech. New York: Viking, 1987.
- Preston, William, Jr. Aliens and Dissenters: Federal Suppression of Radicals, 1903–1933. Cambridge, MA: Harvard University Press, 1963.
- Stid, Daniel. The President as Statesman: Woodrow Wilson and the Constitution. Lawrence: University Press of Kansas, 1998.
- Walker, Samuel. In Defense of American Liberties: A History of the ACLU. New York: Oxford University Press, 1990.
Cases and Statutes Cited
- Abrams v. United States, 250 U.S. 616 (1919)
- Colyer v. Skeffington, 265 Fed. 17 (D. Mass. 1920)
- Debs v. United States, 249 U.S. 211 (1919)
- Field v. Clark, 143 U.S. 649 (1892)
- Frohwerk v. United States, 249 U.S. 204 (1919)
- Gilbert v. Minnesota, 254 U.S. 325 (1920)
- Gitlow v. New York, 268 U.S. 562 (1925)
- Masses Publishing Co. v. Patten, 244 Fed. 535 (S.D.N.Y. 1917)
- Patterson v. Colorado, 205 U.S.454(1907)
- Pierce v. United States, 252 U.S. 239 (1920)
- Schaeffer v. United States, 251 U.S. 466 (1920)
- Schenck v. United States, 249 U.S. 47 (1919)
- Selective Draft Law Cases, 245 U.S. 366 (1918)
- Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920)
- Weeks v. United States, 232 U.S. 383 (1914)