When the United States finally decided to enter World War I in 1917, there was opposition at home from those who wanted America to remain neutral in the European conflict and from groups who actively opposed the project, the first of its kind in the country. The strongest dissent came from pacifists, anarchists and socialists, many of whom were Irish, German and Russian immigrants and whose loyalty to America was openly questioned.
Fearing that anti-war rhetoric and street pamphlets would undermine the war effort, President Woodrow Wilson and Congress passed two laws, the Espionage Act of 1917 and the Sedition Act of 1918, which criminalized any “unfair, profane, abusive or abusive language”. about the government or the US military, or any speech intended to “incite insubordination, disloyalty, mutiny or denial of duty.” (These were different and distinct from the aliens and sedition laws passed in 1798 which were mostly repealed or expired in 1802.)
The two broad-drafted laws of 1917 and 1918 were ultimately seen as one of the most egregious violations of the Constitution’s free speech protections. They were written in an environment of panic of war and resulted in the arrest and prosecution of over 2,000 Americans, some of whom were sentenced to 20 years in prison for sedition.
A handful of those convictions have been appealed to the Supreme Court, which upheld espionage and sedition laws as constitutional limits on free speech in times of war. A famous decision authored by Judge Oliver Wendell Holmes introduced the “clear and present danger” test, which he likened to yelling “fire!” in a crowded theater.
WATCH: The Last Day of WWI on HISTORY Vault
At war with “ disloyal ” speech
Propaganda poster from the US intelligence office during WWI, depicting Kaiser Wilhelm II as a spider.
Photo12 / Universal Images Group / Getty Images
The Wilson administration knew that many Americans were in conflict over the United States’ entry into World War I, so it launched a massive propaganda campaign to instill hatred of both the German enemy in the foreigner and disloyalty at home. Wilson has publicly stated that disloyalty to the war effort “must be crushed” and that disloyal individuals have “sacrificed their right to civil liberties” such as freedom of speech and expression.
READ MORE: When the United States used propaganda to sell Americans in WWI
The Espionage Act of 1917 was passed just two months after America entered World War I and was primarily intended by Congress to combat actual espionage on behalf of America’s enemies, such as the publication of secret American military plans. But federal prosecutors and judges, following Wilson, focused on section 3 of the Espionage Act, which targeted individuals who “willfully cause or attempt to provoke insubordination, disloyalty, mutiny. , [or] refusal of duty ”in the army.
The law gave the United States Postmaster General the power to block the sending of any letter, pamphlet, or book deemed to oppose or question America’s military involvement in World War I. This led to investigations and prosecutions against everyone from unknown street pamphleteers to Eugene Debs, United States. the most prominent socialist and trade union organizer.
As the war continued and more American soldiers died, Congress doubled down on its disingenuous speech and passed the Sedition Act of 1918, which amended and expanded the Espionage Act to target any speech that could be interpreted as criticizing the war effort, the project, the US government or the flag.
“The whole reason behind the Espionage Act and the Sedition Act was the fact that the government understood that words mattered, words had influence,” says Lon Strauss, assistant professor of military history and studies on war at the Marine Corps Command and Staff College.
“They definitely feared that the people who were against American participation in the war might influence the conscription men. They did not want the will to fight of the American soldier to be undermined.
The “ clear and present danger ” test
An illustration showing Uncle Sam rounding up men labeled “Spy”, “Traitor”, “IWW”, “Germ[an] money ”and“ Sinn Fein ”with the United States Capitol in the background displaying a flag reading“ Sedition Act Passed ”referring to the Sedition Act of 1918.
Library of Congress
The Supreme Court, which the founding fathers intended to review unconstitutional laws, has proven that it is not immune to fears of internal insurgency in times of war either.
“The Supreme Court has accepted broad interpretations of both the Espionage Law and the Sedition Law and, in a series of cases, upheld First Amendment convictions,” says Geoffrey Stone, Professor at the University of Chicago Law School and author of Perilous times: freedom of expression in times of war.
One of the landmark decisions of the Court was Schenck v United States, in which socialist Charles Schenck was accused of conspiring to violate espionage law by distributing leaflets urging Americans to disobey the project. The court voted unanimously to uphold the conviction, citing necessary limits on freedom of expression in times of war.
“The question in each case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger of causing the substantive evils which Congress is entitled to prevent,” wrote the judge. Holmes. , introducing a new forensic test to determine whether the speech crossed the line from disloyal to dangerous.
To illustrate what kind of speech met the criterion of “clear and present danger,” Holmes gave a now famous hypothetical example. “The strictest protection of free speech would not protect a man by falsely shouting fire in a theater and causing panic,” he wrote.
A stunning reversal and repeal
Eugene Debs giving an anti-war speech in Canton, Ohio, June 16, 1918.
Bettmann Archives / Getty Images
Holmes and his fellow judges upheld the convictions in two other conspiracy cases, including Debs v. United States, in which the socialist and presidential candidate was jailed for simply promising to support three men who had been jailed for violating espionage and sedition laws.
Shortly after his arrest Debs wrote to a friend: “I expect nothing more than a conviction under a clearly unconstitutional law which was designed specifically for the suppression of freedom of speech. . “
Then something interesting happened. Holmes and another judge, Louis Brandeis, appear to have changed their minds.
In Abrams v United States, argued before the Supreme Court a year after the end of World War I, the judges were separated. The problem was the conviction of two Russian immigrants who had thrown leaflets from an apartment window in 1918 denouncing American interference in the Bolshevik revolution. Seven judges said the action met the “clear and present danger” test, but not Holmes and Brandeis.
Writing for the minority, Holmes introduced a new judicial philosophy for regulating speech, in which ideas – good or bad, benign or dangerous – are free to compete in a marketplace of ideas.
“The ultimate desired good is best achieved by the free exchange of ideas,” wrote Holmes, “that the best test of truth is the power of thought to gain acceptance in market competition, and that truth is the only basis on that their wishes can be fulfilled safely. “
Freedom of expression is once again protected
It would be decades before the Plenary Court adhered to Holmes ” Market of Ideas.”In 1969 the judges ruled in Brandenburg v. Ohio that even the speech of members of the Ku Klux Klan advocating violence was protected.
The sedition law, however, did not last that long. Congress repealed the law in 1920 with a host of wartime restrictions, and most of the prisoners convicted under the Sedition Act, including Debs, were released.
“Today is unequivocal,” says Stone. “You cannot punish someone for speech that might cause other people to engage in illegal behavior, unless you can at least show that it created a clear and present danger of serious harm, and the Supreme Court has not upheld a single conviction under this standard in 50 years. “
The espionage law has never completely disappeared. Part of it survives in the Federal Criminal Code as a “seditious conspiracy,” defined as two or more people conspiring to “overthrow, suppress or destroy by force” the US government, illegally seize property, or prevent the enforcement of any law. In fact, in September 2020, Attorney General William P. Barr reportedly asked prosecutors to consider indicting rioters and others who had committed violent crimes during sedition protests.
