The First World War’s Impact on Free Speech Rights in the United States
The first serious federal legislation concerning the limitations of free speech during wartime in the United States was the Alien and Sedition Acts passed by Congress in 1798. This was initiated by “the impending war with France, the spread of revolutionary doctrines by foreigners in our midst, and the spectacle of the disastrous operation of those doctrines abroad …”[1] The Alien Act allowed the president to deport immigrants viewed as a threat to national security. The Sedition Act prohibited false, scandalous and malicious writings against the government or the president. These laws expired in 1800 with only one alien deported and 10 people imprisoned for violating the acts. Once Thomas Jefferson became president in 1801, he released the incarcerated seditionists, who were mostly journalists, and reimburse them for the fines they paid.
To save the union, President Abraham Lincoln went beyond the Constitution at the start of the Civil War. He suspended the writ of habeas corpus, closed hostile Northern newspaper and telegraph offices, and imprisoned secessionist legislators without Due Process safeguards. Anywhere between 13,000 and 38,000 people were arrested arbitrarily, imprisoned without trial and released without explanation.[2]
The concept of what defines civil liberty in the United States at the turn of the twentieth century was very different than what is considered today. A majority of Americans “held that such liberties were only protected for those citizens who had demonstrated … that they were prepared to utilize those freedoms in positive and constructive ways.”[3] In essence, only “good people,”[4] which excluded virtually all minority groups, deserved to have their rights secured. Immigrants were discriminated, women were not enfranchised, and racial segregation was in full force. However, even before war was declared, “working-class Americans prized civil liberties, valued international solidarity, stressed class division, and even embraced notions of cultural pluralism.”[5]
Attorney General Thomas Gregory commented in November 1917 about the war’s critics, “May God have mercy on them, for they need not expect none from an outraged people and an avenging government.”[6] This was the legacy of the government’s position on civil rights during America’s involvement in the Great War. Some of the most notable political agitators of their day, including Socialists Eugene V. Debs and Victor L. Berger, anarchist Emma Goldman, Communists William Haywood and Scott Nearing, and civil libertarian Roger Nash Baldwin, were indicted for their opposition to the war and new public policy as well as being arrested for advocating their right to express their beliefs. The public and federal government particularly denounced women who were war opponents. Activists such as Goldman, Rose Pastor Stokes, Kate Richards O’Hare and Dr. Marie Equi faced prosecution for being “unnatural and subversive,”[7] traits inconsistent with perceived feminine virtues of the day.
The first censorship efforts before Congress declared war in 1917 were instigated through the War and Navy Departments to ensure intelligence secrecy. War Secretary Newton D. Baker created the Bureau of Information headed by Maj. Douglas MacArthur on June 9, 1916, within the department to be the sole source from which the press could receive its information. Baker wrote Edwin Y. Webb, chairman of the House Committee on the Judiciary, on Aug. 11, “In this country the proper legislation authorizing such control of a publication should be adopted when, as now, the country is at peace.”[8]
President Wilson believed, like many politicians in general, that free speech rights in wartime significantly differed from peacetime. He wrote to Socialist Max Eastman of The Masses in September 1917,
I think that a time of war must be regarded as wholly exceptional and that it is legitimate to regard things which would in ordinary circumstances be innocent as very dangerous to the public welfare, but the line is manifestly exceedingly hard to draw and I cannot say that I have any confidence that I know how to draw it.[9]
The single most outspoken entity opposing the declaration of war against the Central Powers was the American Socialist Party, which proclaimed opposition to U.S. military intervention during a conference in St. Louis in summer 1917. The party was a political minority in America at that time, and President Wilson even scorned it for its views, writing to Secretary of State Robert L. Lansing in May 1917, “… I do not like the movement among the Socialists to confer about international affairs.”[10] Wilson, however, wrote to Lansing that he believed mainstream America would disregard members’ “almost treasonous utterances.”[11] The president concluded, “My own view is, that they will make themselves either hated or ridiculous.”[12] Ironically, 12,000 people joined the Socialist Party in 1917 because of its “staunchly antiwar pronouncement.”[13]
The International Workers or the World, or “Wobblies,” became a victim of war hysteria during this time although IWW President William “Big Bill” Haywood himself said that “neither he nor his men were attempting to obstruct the war in any way.”[14] A radically communist establishment, the Wobblies “called for the overthrow of the capitalist political and economic order and its replacement with a worker’s republic …”[15] Wobblies already faced existing prejudice not only among American society but also the federal government. An Immigration Bureau report compiled in late 1917 summarized the Wobblies as “scum of the earth …”[16] Four-time presidential candidate and co-founder of the American Socialist Party Eugene V. Debs commiserated with the Wobblies. He wrote in the February 1918 issue of the International Socialist Review that nearly all Americans viewed the IWW under Haywood as “a gang of traitors in the pay of the bloody Kaiser,”[17] which, along with the Socialists, could never have a fair and unbiased trial when indicted for their political agitation.
On April 14, 1918, President Wilson, under executive order, created the Committee on Public Information and appointed journalist George Creel its chairman. The Complete Report of the Chairman of the Committee on Public Information, or “Creel Report,” published in 1920 summarized Creel’s opinion of the committee’s objective: “… our task was to devise machinery with which to make the fight for loyalty and unity at home, and for the friendship and understanding of the neutral nations of the world.”[18] Creel insisted in his 1920 book How We Advertised America that, “In no degree was the Committee an agency of censorship [or] a machinery of concealment or repression. … At no point did it seek or exercise authorities under those was laws that limited the freedom of speech and press.”[19] What the committee did was encourage voluntary press censorship concerning military intelligence and other sensitive information. Contrary to popular historical misconception, the Post Office Department, not the Committee on Public Information, was the leading governmental organization enforcing censorship during World War I.
When President Wilson asked Congress for a declaration of war against Germany on April 2, he discussed loyalty among German-Americans. He believed that most would remain faithful to the United States, but he warned: “If there should be disloyalty, it will be dealt with with a firm hand of stern oppression; but, if it lifts its head at all, if will lift it only here and there without countenance except from a lawless and malignant few.”[20] Congress responded to Wilson’s call for a “firm hand of stern oppression” by passing the Espionage Act on June 15. The law declared,
“Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation of [the armed forces] or to promote the success of its enemies, … cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the [armed forces], … or shall willfully obstruct the recruiting or enlistment service of the United States” could be punished with a fine of up to $10,000 and up to 20 years imprisonment.[21]
With this act, Postmaster General Albert S. Burleson was vested with “vast powers for the suppression of critical opinion.”[22] Any form of “subsidiary press,” or second class mailing, was subjected to censorship or banned use of the mail by Burleson’s office. Yet, prejudice already existed within the Post Office Department, with Burleson writing to University of Chicago Professor S.H. Clark that “no socialist paper would be barred from the mails unless it contained treasonable or seditious matter. The trouble, however, the Postmaster General was quoted as saying, ‘is that most socialist papers do contain this matter.’ ”[23] It is because of partisan motives such as this that Burleson and his underlings often overreached the powers granted to them by the Espionage Act.
For example, Burleson restrained an issue of the Public which urged that more federal revenue be collected with loans instead of taxes. He suppressed Lenin’s Soviets at Work, “a purely economic pamphlet, although we were not at war with Russia.”[24] The Sept. 14, 1918, issue of The Nation was barred from the mails after editor Oswald Garrison was notified that the restriction was due to an article criticizing American Federation of Labor President Samuel Gompers. Post Office Solicitor William Lamar regarded Gompers as an important domestic ally for the war effort and stated, “While this war is on, we are not going to allow any newspaper in this country to attack him.”[25] Higher officials in the Wilson Administration later overruled Lamar and permitted the issue to be mailed. Movie producer Robert Goldstein created the film Spirit of ’76, which graphically portrayed British soldiers slaughtering Americans in certain scenes. He was arrested in 1917 for producing the picture because it could potentially create antagonism toward America’s ally in Europe. After Goldstein was found guilty, Judge Benjamin Bledsoe said creating friction between the United States and its allies is not protected speech because to do so “weakens our efforts, weakens our chance of our success, impairs our solidarity, renders less useful the lives we are giving, to the end that this war may soon be over and peace may soon become a thing substantial and permanent with us.”[26] Goldstein’s judicial appeal failed, and he was sentenced to 10 years in prison.
Following the Espionage Act was the Trading-with-the-Enemy Act, approved by Congress on Oct. 6. Intended to monitor international communication within the United States, the law gave the postmaster general “almost absolute censorship powers over the American foreign-language press.”[27] All foreign-language newspapers discussing the government, the war, or enemy nations were required to submit a translated version to the Post Office Department. The president had the power, however, to issue a special permit to periodicals thought not to be a threat. The day the Trading-with-the-Enemy act was passed by Congress, Wisconsin Senator Robert M. La Follette Sr. addressed the chamber on the pressing issue of civil liberties in wartime. Saying he amassed several newspaper clippings in which he and other politicians were defamed as traitors for their stance on the war, La Follette recognized that certain freedoms might not be the same in peacetime as in war but a citizen must have “his right to control his government” protected.[28] “He must beware of those precedents in support of arbitrary action by administrative officials, which excused on the plea of necessity in wartime, become the fixed rule when the necessity has passed and normal conditions have been restored.” La Follette argued that freedom of political discourse is a fundamental function of a representative government and quoted several speeches on the topic of civil rights in wartime to buttress his position; if Congress has the right to declare war, then Americans have the right to discuss it, he argued. “More than all, the citizen and his representative in Congress in time of war must maintain his right of free speech,” he said. “More than in times of peace it is necessary that the channels of free public discussion of governmental policies shall be opened and unclogged.”[29] President Wilson signed an executive act creating the Board of Censorship on Oct. 12. This body was comprised of representatives from the Departments of War, the Navy, Post Office, and War Trade Board, with Creel appointed its chairman. One Seattle censor commented that the board should be kept informed about Bolsheviks, Wobblies, Socialists, “or other organizations whose aims are antagonistic to this government.”[30]
Section 6 of the Criminal Code recognized any IWW strike a seditious conspiracy. Comprised mostly of harvesters, lumberjacks and miners, the Wobblies often carried out “potentially crippling” strikes in Western states during the war.[31] Some 1,000 striking Wobblies were forcefully expelled from Bisbee, Arizona, in summer 1917 and stranded in the desert. Governor Thomas E. Campbell asked for federal assistance to ensure that the mining industry could continue to operate in his state. President Wilson wrote Campbell on July 12 expressing his fears of local vigilantism: “… may I not respectfully urge the great danger of citizens taking the law in their own hands as you report their having done. I look upon such action with grave apprehension. A very serious responsibility is assumed when such precedents are set.”[32] An immigration committee representing several federal offices met on Jan. 14, 1918, and decided unanimously to detain rather than try alien Wobblies believed to be “undesirable” or “pro-German in their activity.”[33] So many Wobblies were arrested in Western Washington State that the Immigration Bureau was offered a building large enough to hold 1,500 prisoners as well as an agricultural compound to be used as an internment camp. “Big Bill” Haywood himself was indicted for violating the Espionage Act and was sentenced to 20 years in prison in September 1918. Judge Kenesaw Mountain Landis stated during the sentencing, “When the country is at peace, it is a legal right of free speech to oppose going to war and to oppose even preparation for war. But once war is declared this right ceases.”[34]
Passed by Congress on May 16, 1918, the Sedition Act amended the Espionage Act, making it illegal, among other things, to “… willfully utter, print write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or Constitution of the United States, or the military or naval forces of the United States …”[35] This law “went further than any previous federal legislation in its negation of the essential elements of the Bill of Rights …”[36]
Federal legislation was not alone in curtailing civil liberties during World War I. The American public took an active role suppressing the rights of war opponents, and President Wilson feared some Americans were going “war mad.”[37] States banned the speaking of German, books about Germany were destroyed, and sauerkraut was renamed “liberty cabbage.” In a much more serious incident, 500 residents of Collinsville, Illinois, bound German immigrant Robert Prager with the Stars and Stripes, dragged him through the streets, and lynched him,[38] but the jury acquitted his killers declaring that what they had done was “patriotic murder.”[39] Overzealously patriotic groups that often took the law into their own hands included the American Defense Society, American Protective League, and the Sedition Slammers. Wobblies became particular targets of animosity by such organizations: three were hanged, others were hanged and cut down just before death; 64 were tarred and feathered; 55 were kidnapped and whipped; and 1,100 were forcibly removed from cities, counties or states.[40] Some of these numbers overlap, as certain people were tormented repeatedly. Congress eventually passed the Sedition Act in part to protect pacifists and protesters from vigilantism. Yet, in the words of World War I era Harvard Law Professor Zechariah Chafee, “Incarceration for a period of twenty years seems like a very queer kind of protection.”[41]
A co-founder of the American Socialist Party in 1901, Austrian-born Victor L. Berger of Milwaukee, Wisconsin, a predominately German-American and socialist city, became in 1911 the first Socialist elected to the House of Representatives. He served only one term and left politics for the time being to continue work on the Milwaukee Leader, which was barred from the mails in 1917 for violating the Espionage Act, an action upheld by the U.S. Supreme Court. Berger’s pacifism made him enemies not only among his former congressional colleagues but also in the White House. President Wilson refused to receive Berger in July 1917 saying that the congressman’s “revolutionary temper”[42] dramatically differed from conventional Socialist Party attitudes. Wilson wrote, “[Berger’s] recent actions and utterances have convinced me that he is not to be trusted in any sense a friend of the Government …”[43] While running for another term in the House in 1917, Berger and four other Milwaukee Socialists were indicted for violating the Espionage Act. When all five were found guilty two years later, Berger addressed Judge Kenesaw Mountain Landis, the same judge from Haywood’s trial, saying, “If I am guilty, if my comrades are guilty, then every member of the Socialist Party is guilty. Every man who voted the Socialist ticket is guilty. Every man who has criticized the administration on the war is guilty.”[44] Berger and his colleagues were sentenced to 20 years in Leavenworth.
Before his conviction in February 1919, however, Berger was elected in a second race to Congress by his district on Nov. 5, 1918. The House formed a special committee — the Special Committee of Congress Appointed to Investigate His Right to a Seat in the House — in September 1919 to investigate the possibility of denying Berger his congressional seat because of his felony conviction. The Socialist’s animosity for what had happened to his newspaper and himself was apparent when he addressed the committee on Sept. 15: “The law under which suppression of free speech and of free press was enforced is a flat denial of rights guaranteed every citizen by the Constitution of the United States.”[45] The committee concluded on Oct. 24 that Berger was ineligible to take his seat because, in the words of Chairman F.W. Dallinger, he “became the head and front of an organized conspiracy to hinder, obstruct, and embarrass the Government in its fight for existence … [T]he men who fought for their country in the great war expect it; the entire country expects it.”[46] With all but one vote, the House voted to exclude Berger from serving.
Despite his conviction and exclusion, Berger’s district again voted him into office. All but six representatives voted on Jan. 10, 1920, to exclude Berger from serving again. “With the war now sinking further into the past, the only basis upon which the exclusion stood was hysteria.”[47] Berger became the only person in U.S. history elected to Congress to have been excluded twice. The Supreme Court overturned Berger’s conviction on Justice Louis D. Brandeis’s insistence on a technicality in 1921, and Berger was soon thereafter reelected to his seat without opposition in the House.
Socialist Charles Schenck was arrested for violating the Espionage Act in August 1917 for distributing leaflets that discouraged draftees from enlisting in the armed forces. His arrest and appeal prompted the first in a series of Supreme Court decisions concerning government action during World War I. The court ruled unanimously to uphold his conviction in Schenck v. U.S. on March 3, 1919, with the justices believing the Espionage Act to be within the bounds of constitutional safeguards and congressional authority. Justice Oliver Wendell Holmes’s decision in Schenck included the “clear and present danger” legal test, writing that such jeopardous speech “will bring about the substantive evils that Congress has a right to prevent …”[48] With that, Holmes coined the cliché, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”[49]
Exactly one week after the Schenck ruling, the Supreme Court upheld Eugene Debs’s arrest for violating the Espionage Act in Debs v. U.S. Debs was prosecuted after delivering a speech in Canton, Ohio, on June 16, 1918, in which he condemned the federal government’s efforts to limit civil liberties, beginning his address with, “I realize that, in speaking to you this afternoon, there are certain limitations placed upon the right of free speech.”[50] Debs’s only defense at trial that September was a direct appeal to the jury. In his speech, the Socialist said, “I believe in the Constitution of the United States. Isn’t it strange that we Socialists stand almost alone today in defending the Constitution of the United States?”[51] and then recited the First Amendment. Debs was convicted on Sept. 12 and was sentenced two days later to 10 years in federal prison. Justice Holmes again defended the Espionage Act in Debs. Citing Schenck, the decision ended with, “The Government presents a strong argument from the history of the statutes that the instruction was correct and in accordance with the established legislative usage.”[52] Despite his ruling, Holmes wrote his friend Sir Frederick Pollock about Debs, “Now I hope the President will pardon him and some other poor devils with whom I have more sympathy.”[53] Despite his incarceration, Debs ran for president for the fifth and final time in 1920, winning more than 900,000 votes.
Holmes’s decisions limiting free speech in Schenck and Debs professed a government interest in public safety during wartime. “This view lacked any well-developed conception that speech might serve broader social interests, interests which would be disadvantaged if denied ideas which such speech contained.”[54] Professor Zechariah Chafee believed the Schenck and Debs decisions flawed and contradictory to First Amendment principles. He was inspired by Espionage Act cases stemming from Southern District of New York Judge Learned Hand’s criticism of such legislation in his decisions. In his 1920 book Freedom of Speech about civil right infringements during the war, Chafee denounced Holmes’s rulings, saying that “… bad tendency and presumed intent have been the tests of criminality, tests which this article has endeavored to prove wholly inconsistent with freedom of speech, and any genuine discussion of public affairs.”[55] Chafee and Hand met with Holmes after Debs to discuss the role of the First Amendment in American society. Because of this dialogue, Holmes began taking a more sympathetic approach toward civil liberties during his tenure on the Supreme Court. Although concurring with his colleagues in Schenck and Debs, Justice Brandeis regretted his decision, writing to Harvard Law Professor Felix Frankfurter, “I had not then thought the issues of speech out — I thought at the subject, not through it.”[56] A politically liberal Wilson appointee and the Supreme Court’s first Jewish justice, Brandeis began to consider free speech a fundamental right in American democracy, saying, “… only through such differences do we secure the light and fuller understanding which are necessary to a wise decision …”[57] Subsequent decisions saw Holmes and Brandeis trying to limit the “clear and present danger” doctrine. Dissenting in another Espionage Act case, Schaefer v. U.S. in 1920, the two justices defied Schenck with Brandeis ruling,
This is a rule of reason. Correctly applied, it will preserve the right of free speech both from suppression by tyrannous, well-meaning majorities and from abuse by irresponsible, fanatical minorities … The constitutional right of free speech has been declared to be the same in peace and in war.[58]
Communist People’s Council Chairman Scott Nearing, who was also indicted for violating the Espionage Act, abhorred what he saw as an attack on freedom of speech in light of Schenck and Debs. “The masters in all ages,” Nearing wrote, “have put men like Debs in jail because it is the truth-teller that the masters fear most.”[59] Like Eugene Debs in court, Nearing quoted historical precedence and the First Amendment in defense of his leftist beliefs. He wrote,
We must conclude that neither the Courts of the United States, nor the Constitution of the United States can be relied upon to guarantee the American people the right of free speech. Thus freedom of discussion is ended. Democracy in the United States is dead. The Supreme Court … wrote its epitaph.[60]
Former Socialist Congressman Victor Berger’s newspaper, the Milwaukee Leader, was denied use of second-class mail services for violating the Espionage Act shortly after the law was enacted. The Supreme Court upheld Postmaster General Albert Burleson’s action in Milwaukee Social Democratic Publishing Co. v. Burleson in 1921. Justice John H. Clarke’s opinion for the majority defended the Post Office Department by declaring that use of second-class mail is a privilege, not a right, and, therefore, could be restricted should a publication fail to obey federal law. Justices Holmes and Brandeis, with their more liberal change of heart, dissented, believing Berger’s free speech and press rights to have been violated. Brandeis was troubled with the fact Berger had never actually been convicted under Due Process protections for his paper’s alleged Espionage Act violation and that Burleson’s censorship powers were endowed with “vague and absolute authority.”[61] With Holmes, Brandeis considered use of second-class mail a right and not a privilege. Holmes bitterly scrutinized the Espionage Act’s unspecific and broad powers of censorship over the press. If the postmaster has the power to kill a newspaper by barring it from the mail, Holmes wrote, “ ‘Such a practically despotic power’ destroys free speech, since ‘the use of the mails is almost as much a part of free speech as the right to use our tongues.’ ”[62]
Another dynamic political figure in World War I America opposed to the war was the Russian-born anarchist Emma Goldman. She started her crusade against the war effort even before Congress declared war through her publication Mother Earth. In March 1917, she wrote, “I for one will speak against war so long as my voice will last, now and during the war.”[63] Goldman and her supporters believed the Selective Service Law a violation of the Thirteenth Amendment’s prohibition of “involuntary servitude” as well as “the ultimate affront to the individual conscience.”[64] To protest the initiative, Goldman formed the No-Conscription League, which held its first demonstration in New York City the day the act was signed into law. The No-Conscription League protests prompted U.S. Attorney H. Snowden Marshall of New York to write Attorney General Thomas Gregory about draft opponents, “I believe that an exhibition of force at the outset will have a salutary effect upon all those who contemplate resistance …”[65] Federal Marshall Thomas McCarthy informed The New York Times on June 12, “I will arrest this Goldman woman if she organizes more meetings.”[66] He made good on this promise, arresting both Goldman and her colleague Alexander Berkman just days later, indicting them on charges of violating the Selective Service Law by forming a “conspiracy to induce persons not to register.”[67]
Both were convicted on July 9, and Goldman addressed Judge Julius Mayer: “… we love America … we love the dreamers and the philosophers and the thinkers who are giving America liberty.”[68] Unmoved, Mayer replied, “Individual opinion might still be fully expressed, and proper agitation for the repeal of such a law continue, but the law itself henceforth must be obeyed.”[69] Goldman and Berkman were soon after denaturalized and jailed in federal prison. On Dec. 21, 1919, the two anarchists were deported with 249 other aliens to Russia. The Supreme Court had since ruled in December 1917 that the Selective Service Law did not violate the Constitution.
The most lasting testament to the protection of civil rights because of infringements during World War I was the formation of the American Civil Liberties Union in 1920. In time, the ACLU would be second only to the Justice Department in arguments before the Supreme Court. In an article titled “Despotism During the War and Since Makes Civil Liberties Union a Necessity” in March 1926, Rep. Victor Berger wrote, “I sympathize deeply with the work of the American Civil Liberties Union. Every citizen who believes in freedom, and who knows something about it — must necessarily sympathize with its work.”[70]
There were partisan civil liberties organizations in existence before the ACLU, including the NAACP in 1909, the Anti-Defamation League in 1913, and the American Jewish Conference 1916. The ACLU, however, has worked to defend the civil liberties of all Americans without any ethnic, racial, or political affiliation. The origin of the ACLU can be traced back to even before war was declared in 1917. Comprised mostly of German and Bolshevik sympathizers, the anti-conscription, antiwar American Union Against Militarism was founded in December 1915. The Collegiate Anti-Militarism League, consisting of radically leftist college professors, was also formed that year. During a Subcommittee of the Committee on the Judiciary hearing in January 1919, Senator William H. King remarked, “It is a remarkable thing … that in these universities there has been a festering mass of pure atheism and the grossest kind of materialism, and teachings destructive to our form of government and the civilization which a Christian nation recognizes.”[71]
More radical AUAM members eventually branched off from the association and founded the National Civil Liberties Bureau on Oct. 1, 1917. Declaring, “No fight for civil liberty ever stays won,”[72] Roger Nash Baldwin became the NCLB’s first director. In addition to the AUAM and NCLB, Socialist Frank P. O’Hare founded the Liberty Defense Union in early 1918. Initial members included Baldwin, Nearing and other distinguished leftist figures. O’Hare wrote to Eugene Debs in February 1918 seeking his support: “The purpose of this organization will be to raise the necessary funds and to promote the necessary publicity for the defense and succor of all the comrades who are being prosecuted for the exercise of the rights of free speech, free assemblage and free press.”[73]
Baldwin was one of 64,693 persons who made conscientious objector claims to the War Department during World War I, but only about 4,000 of them were actually exempted from military service.[74] The United States had conscientious objectors during wartime dating back to the Civil War, but only objectors who belong to a well-established religious sect were recognized by the federal government. Baldwin, a civil libertarian, believed conscientious objectors should not be judged on religious premises alone. Besides lesser-accepted religious sects, such as Jehovah’s Witnesses, he considered German-Americans refusing to be drafted to kill their countrymen in the motherland and non-religious pacifists morally opposed to war just as equally credible.
Baldwin was arrested on Oct. 9, 1918, for deliberately failing to obey a summons to appear at his local draft board for a physical examination, a violation of the Selective Service Law. The premier NCLB director “regarded conscription as antithetical to all democratic and Christian tenets.”[75] Baldwin said in court, “I am opposed to this and all wars. I do not believe in the use of physical force as a method of achieving any end, however good.”[76] Judge Julius Mayer, the same judge from Goldman’s trial, said after Baldwin was found guilty, “A republic can last only so long as its laws are obeyed.”[77] Baldwin was sentenced to one year in prison.
Serving only eight months of his sentence, Baldwin was released and resumed his duties as NCLB director. He also joined the IWW, which would further tarnish Baldwin and the NCLB. The association was reorganized and officially became the American Civil Liberties Union in January 1920 with members “who [stood] on general principle of freedom of expression.”[78] The New York legislature assembled the Lusk Committee in February to investigate the ACLU, and the subsequent Lusk Report “established the standard rightwing attack on the ACLU and free speech: that the defense of free speech was the same thing as advocating violent revolution itself.”[79]
One of the ACLU’s first tasks was to petition the federal government to release Debs and other political prisoners from imprisonment. Baldwin wrote Debs in November 1921 saying that the ACLU would try to persuade the general public to release him “in order to make clear to the administration the extent of the sentiment for doing the fair thing now by granting a general amnesty of war cases.”[80] President Warren G. Harding pardoned Debs that year without restoring his citizenship status. A total of 1,055 of the 2,200 persons prosecuted by the Justice Department for opposition to the war were convicted.[81] Rep. Berger pointed out in 1926 that “not a single citizen was ever convicted of being a paid German spy — and not a citizen was ever found guilty of trying to find out military secrets.”[82]
In conclusion, all the federal legislation and war hysteria in the United States during World War I was in response to a threat that did not actually exist. When public policy was executed, the action was more often part of partisan agendas by those who were obligated to enforce the law. It is because of this that defending civil rights became a recognized social and judicial concern for all Americans in times of peace and war.
[1] Chafee, Zachariah. Freedom of Speech. (New York, 1920), pg. 29.
[2] Mock, James R. Censorship 1917. (New York, 1972), pg. 8.
[3] Murphy, Paul L. World War I and the Origins of Civil Liberties in the United States. (New York, 1979), pg. 40.
[4] Ibid.
[5] Zieger, Robert H. America’s Great War: World War I and the American Experience. (Lanham, 2000), pg. 81.
[6] As quoted in Ibid., pg. 197.
[7] Ibid., pg. 137.
[8] Mock, Op Cit., pg. 42.
[9] Baker, Ray Stannard, ed. Woodrow Wilson Life and Letters, Vol. VII. (New York, 1939), pg. 273.
[10] Ibid., pg. 65.
[11] Ibid.
[12] Ibid.
[13] Cottrell, Robert C. Roger Nash Baldwin and the American Civil Liberties Union. (New York, 2000), pg. 58.
[14] As quoted in Murphy, Op Cit., pg. 171.
[15] Zieger, Op Cit., pg. 117.
[16] Preston, William. Aliens and Dissenters. (Cambridge, 1963), pg. 165.
[17] Debs, Eugene V. Writings and Speeches of Eugene V. Debs. “The I.W.W. Bogey.” (New York, 1948), pg. 407.
[18] The Creel Report. (Washington, 1920), pg. 1.
[19] Creel, George. How We Advertised America. (New York, 1920), pg. 4.
[20] As quoted in Scheiber, H.N. The Wilson Administration and Civil Liberties, 1917-1921. (Ithaca, 1960), pg. 18.
[21] As quoted in Chafee, Op Cit., pg. 42.
[22] Scheiber, Op Cit., pg. 19.
[23] Mock, Op Cit., pg. 145.
[24] Chafee, Op Cit., pg. 107.
[25] As quoted in Scheiber, Op Cit., pg. 32.
[26] Mock, Op Cit., pg. 181.
[27] Murphy, Op Cit., pg. 80.
[28] La Follette Sr., Robert M. “Free Speech in Wartime” (1917). U.S. Senate Congressional
Record, pp. 786-787. Retrieved Nov. 16, 2005, U.S. Senate: Art & History, Classic Senate Speeches database.
[29] Ibid.
[30] Mock, Op Cit., pg. 130.
[31] Cottrell, Op Cit., pg. 58.
[32] Baker, Op Cit., pg. 161.
[33] Preston, Op Cit., pg. 163.
[34] As quoted in Murphy, Op Cit., pg. 173.
[35] As quoted in Scheiber, Op Cit., pg. 19.
[36] Zieger, Op Cit., pg. 197.
[37] The Great War and the Shaping of the Twentieth Century, Episode 6: Collapse, 1996.
[38] Murphy, Op Cit., pg. 128.
[39] The Great War, Op Cit.
[40] Markmann, Charles Lam. The Noblest Cry. (New York, 1965), pg. 35.
[41] Chafee, Op Cit., pg. 46.
[42] Baker, Op Cit., pg. 171.
[43] Ibid.
[44] As quoted in Berger, Victor L. Voice and Pen. (Milwaukee, 1929), pg. 11.
[45] Ibid., pg. 603.
[46] Chafee, Op Cit., pg. 333.
[47] Miller, Op Cit., pg. 217.
[48] Schenck v. U.S., 249 U.S. 47 (1919).
[49] Ibid.
[50] Debs, “The Canton, Ohio Speech.” Op Cit., pg. 417.
[51] Nearing, Scott. The Debs Decision. (New York, 1919), pg. 24.
[52] Debs v. U.S., 249 U.S. 211 (1919).
[53] Lerner, Max, ed. The Mind and Faith of Justice Holmes. (Boston, 1943), pg. 299.
[54] Murphy, Op Cit., pg. 267.
[55] Chafee, Op Cit., pg. 91.
[56] Strum, Philippa, ed. Brandeis on Democracy. (Lawrence, 1995), pg. 209.
[57] Ibid.
[58] Schaefer v. U.S., 251 U.S. 466 (1920), dissenting.
[59] Nearing, Op Cit., pg. 42.
[60] Ibid., pg. 40.
[61] Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407 (1921), dissenting.
[62] Lerner, Op Cit., pg. 314.
[63] Drinnon, Richard. Rebel in Paradise: A Biography of Emma Goldman. (Chicago, 1961), pg. 186.
[64] Ibid.
[65] Ibid., pg. 187.
[66] As quoted in Ibid.
[67] Ibid.
[68] Ibid., pg. 194.
[69] Ibid.
[70] Berger, Op Cit., pg. 228.
[71] As quoted in McIlhany, William H. The ACLU on Trial. (New York, 1976), pg. 173.
[72] Markmann, Op Cit., pg. 3.
[73] Constantine, J. Robert, ed. Letters of Eugene V. Debs, Vol. II, 1913-1919. (Chicago, 1990), pg. 375.
[74] Thomas, Norman. The Conscientious Objector in America. (New York, 1923), pg. 81.
[75] Cottrell, Op Cit., pg. 86.
[76] Ibid.
[77] Ibid., pg. 88.
[78] As quoted in Markmann, Op Cit., pg. 39.
[79] Walker, Samuel. In Defense of American Liberties: A History of the ACLU. (Carbondale, 1990), pg. 43.
[80] Constantine, J. Robert, ed. Letters of Eugene V. Debs, Vol. III, 1919-1926. (Chicago, 1990), pg. 270.
[81] As quoted in Scheiber, Op Cit., pg. 63.
[82] Berger, Op Cit., pg. 234.
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