I originally wrote this post as an historiography for a US History course for my graduate degree. In retrospect, I would do this paper differently if I had to revisit the topic. The book-by-book summary is pretty boring, plus my research was not very through–a few of those sources were not worth mentioning. Still, this is an incredible moment in US history. The origins of the US security state appear to begin under Wilson. Hyper-nationalism excused the state’s repression of civil liberties as it employed new means to monitor, discipline, and punish unpopular minorities: socialists, anarchists, labor union activists, pacifists, conscientious objectors, people of color, Jews, and Germans. This era saw the beginning of First Amendment jurisprudence as well. Sadly, the US legal system failed to put a check on the Executive and Legislative branches. 

***

In one of the most significant leaks in US history, Edward Snowden shared highly classified intelligence documents with the Washington Post and Britain’s Guardian newspapers in 2013. Snowden was immediately charged by the Department of Justice, and among those charges were alleged violations of the Espionage Act of 1917.[1] Like white blood cells reacting to an infectious disease, US security agencies have the power to take immediate action against alleged enemies of the state—not only foreign but also domestic—due to a bevy of Federal laws and governmental practices that have passed constitutional thresholds.

The Espionage Act was the centerpiece of a group of new laws, executive orders, and bureaucratic assertions of power seeking to control the conduct of US citizens during the World War I. The 1917 Espionage Act (and its amendment, the Sedition Act of 1918) was an assertion of Federal power in regulating speech, a function historically controlled at state and local municipal levels. Following entry into World War I in April 1917, the Espionage Act was pushed through Congress by the Wilson administration in reaction to antiwar, antidraft, anti-British, and pro-German sentiments among the American populace. While the act provided even harsher penalties for espionage and sabotage, there were also provisions that criminalized any acts or attempts to “cause insubordination, disloyalty, or refusal of duty in the military” or to obstruct recruiting or enlistment in the military.[2] These provisions appeared run contrary to long-held concepts of free speech.

This was a watershed moment in US history. The repercussions of America’s entry into World War I can be understood as a collision between two long-evolving societal movements in Europe and the Americas: on one hand liberal values driving the continued expansion and legal codification of human rights (especially the expansion of rights to people previously exploited, outcast, and downtrodden),^[3] and on the other the hand the expansion of power and growing predominance of the modern state in terms of shaping, regulating, and policing society.

The Progressive Era went far in growing the power of government. Progressive politicians broke-up monopolies, instituted safety regulations on businesses, grew the regime of taxation to finance government programs, and built-up a government of experts. In that same progressive spirit, the presidential administration of Woodrow Wilson laid the first cornerstones in a US security state that has since grown, spread, and evolved over the last 100 years. The passage of the Espionage Act and other laws and government practices stemming from World War I presaged the “Trumanite” national security network created in the wake of World War Two, where military, intelligence, diplomatic, and law enforcement agencies—building on broad statutorily mandates—created a complex bureaucracy that is highly secretive, extremely powerful, and often autonomous from the three “Madisonian” branches of government established by the US Constitution.[4] Studying the events of America’s entry into World War I reveals many societal issues and controversies present throughout modern history: the limits placed on civil liberties, the potential for state power to be abused in a time of war, the use of state power to oppress unpopular groups and outsider opinions, and the institutional authority of courts to protect individual rights from the state. By its very nature a security state is potentially harmful to civil liberties, and this particular period in US history is a regrettable one.

This article will explore the general topic of the repression of civil liberties in the US during World War I and will touch on some of the lingering controversies in the years following the Armistice on November 11, 1918, beginning with a brief historiography of the various books and articles utilized in exploring this topic, describing the major historical themes arising from the nascent US security state applying its new-found power against antiwar idealists, passivists, activists, and even citizens adjudged not to be sufficiently pro-war.

Historiography

The sources utilized for this historiography and research discussion fall into three categories. First, general history on the topic of opposition to the US intervention in World War I. Second, political history studying the actors and events of the period. Third, given this topic involves US law and the justice system, there was a need to delve into legal history.

The Americans Who Opposed the Great War by Michael Kazin provides an overview of the diverse array of antiwar activists who opposed the US entry into World War I. Kazin celebrates the bravery of the opponents of war as well as the group’s diversity, which crosses class, regional, ethnic, racial, and political lines. Opposition to the war began before America’s official declaration of war as many anti-war groups published articles and began organizing efforts (such as the American Union Against Militarism). While anti-war movements “have no natural constituency” and are often quixotic efforts, Kazin argues the opponents of World War I were prophetic in decrying the risks to liberal democracy from state-sponsored nationalism, militarism, and waging overseas warfare. The Kazin article is very much a thought piece reflecting on a historical turning point for the US.

Of course, if the opponents of war are regarded as heroic this implies the forces that tried to silence them must be quite the opposite. In America’s Reign of Terror by Roberta Strauss Feuerlicht we see a far more critical point of view of Wilson, his administration, the courts, and other figures in power. Feuerlicht’s book surveys the landscape of World War I opposition and repression, albeit at a very general level. The book relies on mostly secondary sources and a small number of contemporary articles that appeared in the press. Although this book is cited in a number of other works reviewed for this article, America’s Reign of Terror reads like a book geared for high school students. The book also reflects its time of writing, amidst widespread opposition to the Vietnam War and with a clear “New Left” orientation. While it is easy to look past the author’s Manichean worldview, America’s Reign of Terror only succeeds in providing a starting point on the topic of civil liberties during World War I.

Petra DeWitt’s “Clear and Present Danger”: The Legacy of the 1917 Espionage Act in the United States provides an overview of the political history (with a good amount of legal history) of the Espionage Act of 1917 as well as demonstrating the law’s ongoing historical relevance throughout the twentieth century and into the twenty-first century. DeWitt argues the assertion of federal power over speech and the press enabled by the Espionage Act (and its amendment, the Sedition Act of 1918) made for a radical change in American society—policing essential rights that had been seldomly regulated in US history at that point, and if so only by states and municipalities—and “adding a new dynamic by denying Americans the right to expression opposition to the conflict.” Overall, DeWitt demonstrates that a national crisis tests US institutions, and the resolution of conflicts arising out of a crisis (often settled by the Supreme Court) will either reify existing norms and laws or will slightly modify them to established new norms and laws moving forward.

Harry N. Scheiber’s The Wilson Administration and Civil Liberties is a focused examination of Wilson’s policies and government behaviors during the World War I. Scheiber is an economical, effective writer and makes a case against Wilson over a number of chapters dealing with discrete topics. Altogether Scheiber issues a convincing indictment of Wilson and his administration for the repression of civil liberties.

William H. Thomas’s Unsafe for Democracy: World War I and the U.S. Justice Department’s Covert Campaign to Suppress Dissent provides a history of the Justice Department’s efforts to enforce the security measures enacted in the wake of the war. Utilizing original sources, including personnel files released from the Federal Bureau of Investigation, Thomas studies the efforts by the Justice Department and its Bureau of Investigation to stifle individuals with antiwar opinions. Thomas’s book describes how Justice Department investigations took place and is illustrated with the numerous stories from case files. Propaganda efforts encouraged Americans to report suspicious behavior and as a result the Justice Department was flooded with potential cases. Often times investigators provided warnings and reprimands to individuals who had expressed antiwar and anti-American opinions. Overall, Thomas shows that Justice Department tended to treat “ethnicity as an arbiter of loyalty” as well as enhance investigative efforts when dealing with individuals with heterodox beliefs—any political, religious, or philosophical point of view that parted with mainstream America. In addition, as Americans engaged in combat on the Western Front and incurred casualties. vigilante acts began to grow and attract attention in the press, the worst acts being the lynching of IWW organizer Frank Little in Butte, Montana and the lynching of German immigrant Robert Prager in Collinsville, Illinois. Ironically, the outbreak of extralegal violence led to a political consensus that the government needed more power to silence opponents of the war (so that citizens would not have to take the law in their own hands) culminating in the passage of the Sedition Act.

Free Speech and the Suppression of Dissent during World War I by Eric T. Chester examines the history of civil liberties and government suppression during the war as part of a theoretical defense of absolute speech rights. Chester begins the book by reviewing efforts to suppress antiwar sentiments in the United Kingdom through the passage of the Defense of the Realm Act, which later served as a template for the Espionage Act. Chester turns back to the US to examine this history of the National Civil Liberties Bureau, the forerunner of the American Civil Liberties Union. Chester also explores the government’s suppressing and coopting the American Socialist Party and the history of the IWW strikes held in the Pacific northwest and the use of the military to break-up strikes. In another chapter, Chester turns his attention to the press and examines the history of The New Republic, a “focal point for progressive thought” at the time, and traces the journal’s evolution from supporting Wilson’s wartime policies to skepticism over their effectiveness and fears about their lingering impact, and cautiously moving the editorial stance to be critical of the President and the Justice Department.

In contrast to Chester’s more topical approach, Opponents of War 1917-1918 by Horace C. Peterson and Gilbert C. Fite attempts to build a comprehensive history of America’s wartime repression. Largely following a historical sequence, Peterson and Fite explore nearly every major topic and controversy of the war years. The book discusses the pre-war disputes and the entry of the US into the war, exploring the debate over conscription and the resistance to registering for the draft. Although somewhat dated and missing sources that were subsequently unclassified, all-in-all Opponents of War is an excellent history and appears to be a definitive work on the subject of wartime repression.

To gain more perspective on the role of the justice system in the repression of civil liberties during World War I, the article uses a number of law review articles on Constitutional law. These articles primarily rely upon original sources (such as judicial opinions, pleadings set in brief, court transcripts, Congressional records). They also reference the work of contemporary legal scholars, intellectuals, and journalists. It is important to note that the selected articles were very useful for historical research; however, given they are also meant to explain the evolution of Constitutional jurisprudence, the articles discuss cases and controversies both prior to and following World War I. The discussion in this historiography will focus on the period of World War I.

This article uses three articles from Geoffrey R. Stone, a law professor at the University of Chicago. In Civil Liberties in Wartime, Stone argues that in times of crisis the US tends to overreact and violate the civil liberties of its citizens only to revise those laws and polices after the crisis. Stone discusses a number of the governmental overreaches and the failure of the courts to curb those policies. The article cites many of the investigations and prosecutions referenced in other sources, however Stone identifies three Federal district judges who “took a strong stand in support of civil liberties” (judges George Bourquin of Montana, Charles Amidon of North Dakota, and Learned Hand of New York). In deciding upon violations of the Espionage Act, these three judges believed a higher evidentiary standard was required: more direct evidence that a defendant actually intended to interfere with the war effort and was in a place where that interference could be effectuated. Stone also discusses the shortcomings of the Supreme Court in this period (these issues will be explored in the Discussion below).[5] In the article Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled, Stone reexamines the legislative debates as the Espionage Act was being deliberated in Congress in order to defend Judge Learned Hand’s position that Congress, through the Espionage Act, did not intend to suspend free speech rights. In examining the legislative history, the original bill for the Espionage Act contained provisions allowing the government to censor the press and broader prohibitions of political speech, and during the debate there were potential amendments proposed that could have been even more restrictive to political speech. These provisions were opposed by most members of Congress who cited concerns about the abridgement of First Amendment rights. The language of the final bill was modified to address these concerns and secure passage into law—much to the disappointment of the Wilson administration and its Justice Department which had advocated for a more draconian law. Stone concludes the Espionage Act “was not a broadside attack on all criticism of war” but was rather “a carefully considered enactment designed to deal with very specific military concerns.” Therefore, the repressive effect of the law “was a judicial, rather than a legislative, development.”[6] Finally, Stone offers a deeper analysis on the evidentiary test applied in Espionage Act cases used by a majority of the Federal judiciary at the time, known as “bad tendency” test. In effect, the bad tendency test criminalized speech and behaviors that had been protected by the First Amendment, where “the only measure of culpability is that the actor could reasonably foresee that his speech might have a “tendency” to increase the likelihood that third parties might commit criminal acts.” Stone argues that wartime hysteria impacted Federal judges as well, causing them to ignore well-established legal principles and apply a very loose test in determining violations of the Espionage Act.[7]

Finally, Stephen A. Smith makes a critical examination of the Supreme Court’s decisions in Schenck v. United States (249 US 47 (1919)) and Abrams v. United States (250 US 616 (1919)), and specifically the legal reasoning of Justice Oliver Wendall Holmes Jr. In the Schenck case, Socialist Party activists were arrested under the Espionage Act for distributing an anti-conscription and anti-war leaflet. After lower court convictions, the Supreme Court reviewed the case on appeal and Justice Holmes was charged with writing the opinion. Although no evidence was presented that defendants had attempted to directly disrupt military recruiting, the Supreme Court confirmed the convictions. Looking past First Amendment precedents and citing no Constitutional rationale, Holmes asserted that during war time different standards had to be applied when considering First Amendment rights. In judging whether speech could be repressed by the government, Holmes proffered the “clear and present danger” test (i.e., speech in certain circumstances can bring about bad effects which Congress sought to prevent). Smith argues that the Schenck opinion reveals the contemporary belief in a “mechanistic “magic bullet” theory of message effects: the helpless audience was assumed to have no choice but direct response” which tends to overemphasize the dangers of speech. Furthermore, the “clear and present danger” test was just a reformulation of the “bad tendency” test most Federal courts had been applying. The Schenck case established law for this period and lead to multiple convictions of individuals who expressed opinions about the war. Meanwhile, likely due to the influence of Louis Brandies joining the court, Holmes’s point of view on First Amendment law evolved. In the Abrams case, the defendants were prosecuted under the Sedition Act for criticizing Wilson’s decision to intervene in the Russian Civil War. The Supreme Court, applying the clear and present danger test, confirmed the conviction of the defendants. Holmes and Brandeis dissented, arguing for a higher standard to be applied in instances where First Amendment rights were concerned, in effect moving to “the incitement test—imminent and likely lawless action–advocated by Judge Learned Hand” which, ultimately, was “later adopted by the Supreme Court in Brandenburg v. Ohio.”[8]

Discussion

This article argues that beyond the actions of the Wilson administration and Congress which merely reflected a national pro-war consensus, the repression of civil liberties that took place between 1917 and 1920 can be attributed to the failure of critical American institutions (the Department of Justice, the American press, and the federal courts). In other words, the only institutions that could have checked a dictatorial presidency and an accommodating Congress not only failed to uphold long-standing societal norms and the rule the law, but also assisted in the active repression of civil liberties. Finally, it is important to note this article is merely a starting point on this topic as there remain a number of other avenues that deserve exploration.[9]

President Wilson’s War Message to Congress stated: “If there should be disloyalty, it will be dealt with with a firm hand of stern repression; but, if it lifts its head at all, it will lift it only here and there and without countenance except from a lawless and malignant few.”[10] Whether by design or as an unintended outcome, the Wilson administration, pro-war Congressmen and political leaders, corporate and financial interests, journalists and editors of major newspapers, and intellectuals and other members of the American elite promoted an environment of hysteria during World War I. Geoffrey R. Stone writes:

[T]he federal government worked strenuously to create an “outraged people.” Because there had been no direct attack on the United States, and no direct threat to our national security, the administration found it necessary to generate a sense of urgency and a mood of anger in order to exhort Americans to enlist, to contribute money, and to make the many sacrifices that war demands.[11]

Unfortunately, wartime rhetoric also created a climate that fostered “super patriots” and encouraged native-born Americans to indulge in discrimination and paranoia. The societal changes that had been occurring prior to the war, such as urbanization and a more diverse populace from immigration, added to a volatile environment where the native-born were predisposed to see enemies in “others” such as religious minorities, ethnic minorities, recent immigrants, union organizers, and leftist political activists.

In 1917, the government did far more than engage in propaganda and build-up the US military. Upon entering the war, the federal government assumed unprecedented powers and adopted “progressive methods and goals” that were at the forefront of political thought. Taking the opportunity to experiment with progressive ideas, “[n]ew agencies appeared in 1917 and 1918 to manage the wartime economy” including the Railroads War Board (controlling the railroads), the War Industries Board (managing industrial production of war materials), and the Food Administration (managing food production and distribution).[12] Additionally, as described in the historiography of this article, the government enacted additional internal security measures that went into effect during the war. Progressivism would also impact the organization and mission of a growing Justice Department and its Bureau of Investigation.

However, the warfare and security state that the US was transforming itself into was in direct conflict with the liberal societal values the US was founded upon. The histories of the US, France, the United Kingdom, and other European nation states share a common feature: an initial promulgation of rights of citizens vis-à-vis government, even if only granted to certain privileged classes, tended to bring about an expansion in the number of rights as well as a furthering of those rights to all individuals. In other words, once the concept of rights is established in a liberal democracy, an ongoing societal discourse is initiated on what having rights means, who possessed such rights, and how rights are translated into a state’s legal framework. Once the door to human rights is opened, there is an expansion of those rights to people previously exploited, outcast, and downtrodden.[13] Prior to World War I, while there was much more to do in expanding and protecting rights for everyone in American society, relative to the rest of the world the US offered an extraordinary level of civil liberties to its citizens.

Nonetheless liberal democracies are always vulnerable to the will of majorities. Given government policies and programs may change over time, the protection of rights is highly reliant on the government itself adhering to law, most likely enforced through an agency like the Justice Department (or the Ministry of Justice in the U.K., or the Ministère de la Justice in France). Furthermore, should the state begin to violate civil liberties, citizens must have the ability to seek relief in independent courts that will enforce the rule of law, and citizens may also look to an independent press that would call attention to the state’s wrongdoing. Yet these critical institutions failed to check the US government from 1917 to 1920.

The Department of Justice, the American press, and the federal courts were the only institutions that could have mitigated the government’s repression of civil liberties. These intuitions not only failed to uphold long-standing societal norms and the rule the law, but also assisted in the active repression of civil liberties.

1. The Department of Justice

The Department of Justice’s name took on an Orwellian meaning during World War I. The Justice Department prosecuted 2,168 individuals under the Espionage Act, obtaining 1,055 convictions.[14] The culture of the Justice Department was certainly influenced by the extremism of the time, and perhaps as a consequence there was dereliction of duties which was harmful to many US citizens.

The Attorney General is the chief law enforcement officer of the federal government, representing the US in all legal matters, especially matters involving US citizens. The duties of office did not stop Attorney General Thomas W. Gregory from participating in stoking wartime hysteria, encouraging citizens to make reports of any and all seditious comments to the Justice Department.[15] Worse, Gregory failed to control his own agency when it came to enforcing wartime security measures, causing “wide variation from district to district in the application of laws, as many district attorneys succumbed to their own prejudices or to local pressure.” In fact, most prosecutions under the Espionage and Sedition Acts occurred in states where the IWW was most active, with 13 of the 87 federal districts accounting for 50% of the prosecutions. In contrast, in order to prevent abuses and manage a uniform enforcement of the President’s Proclamation of April 6 (authorizing internment of enemy aliens), Gregory exerted more centralized control over district attorneys in cases involving the potential internments. As a result, of the 3.5 million enemy aliens in the US only 6,300 were arrested and 2,300 interned. Recognizing abuses under the Espionage and Sedition Acts, Gregory eventually centralized prosecutorial decisions by the end of the war, but had he done so earlier “a national disgrace may well have been avoided.”[16]

Similar to district attorneys, Bureau of Investigation agents were given wide discretion in making investigative decisions and were fairly autonomous in running investigations. William H. Thomas’s Unsafe for Democracy: World War I and the U.S. Justice Department’s Covert Campaign to Suppress Dissent provides numerous examples of the arbitrary and capricious approach taken by agents in policing anyone who “objected, resisted, or agitated against the government’s decision to enter the war” or “who expressed any idea that could potentially weaken morale on the home front.”[17]

The Justice Department also empowered the American Protective League as a quasi-investigative arm. A patriotic organization of “volunteer detectives,” the APL provided intelligence to the Justice Department and local representatives often interfaced with Justice Department attorneys in their local regions.[18] In 1917 the APL had 600 chapters with 100,000 members. At one point, President Wilson expressed concern about the APL to Gregory. These concerns were proven justified as the APL was involved in vigilantism, including breaking-up socialist meetings in Michigan and taking part in the chaotic “Slacker Raids” which hunted down draft evaders in New York City.[19] Scheiber observes that the APL often disregarded Justice Department orders and “indulged in illegal arrests and searches, impersonation of federal officers, and irresponsible propaganda activities” becoming “[a] source of embarrassment to the Administration.”[20]

Indictive of the Justice Department’s culture at the time is Charles Warren, an assistant attorney general at the Justice Department, who authored the Espionage Act but decided the final law passed by Congress was not stringent enough. Warren researched legal justifications that would allow for the government to charge opponents to the war with treason under the Espionage Act and thus subject them to the death penalty. “In Warren’s view, only the death penalty could deter radicals from engaging in activities that might obstruct the war effort.” In addition, Warren believed the sentences and fines issued to guilty parties by federal courts were not stern enough, and that military courts should be used to try and sentence dissidents and war resistors (and would also be more likely to issue death penalties). Warren proposed that Congress impose martial law in order to suspend habeas corpus. When AG Gregory and President Wilson disagreed with this idea, Warren began to research alternative legal theories that would justify using military tribunals. Warren bypassed his superiors and worked directly with like-minded reactionary Senators on the Military Affairs Committee. Warren was asked to testify at this Committee and voiced criticisms of the Justice Department for not doing enough to suppress dissent. This resulted in Warren’s forced resignation.[21]

Finally, there appears to be a strong consensus in the sources reviewed for this article that the Red Scare’s civil rights abuses directed by Attorney General Palmer were simply a continuation of the heavy-handed practices of the Justice Department and its Bureau of Investigation.

2. The Press

During the war, the Committee on Public Information restricted the press and was “capable of drowning out the voices of those who took a more balanced and judicious view of the disloyalty question.”[22] However, the “fourth estate” in the US did not enter the war years in a strong position. Peterson and Fife argue:

It was hardly necessary to discipline American newspapers and magazines during the first World War. Most of the big, influential publications were commercial undertakings, conservative in outlook and thoroughly attuned to the war. They usually reflected the sympathies and interests of the wealthy, of the conventional, and of those in power. Unpopular causes, no matter how righteous, earned no money and received scant attention. In order to get economic support, editors were likely to emphasize popular issues and gave only meager consideration to dissenting views and ideas, except possibly to criticize them.

Consequently, the editors of most major newspapers and magazines were predisposed to support the war and to be critical of antiwar and “anti-American” opinions. While there were instances of independent journalism, most major periodicals “displayed a remarkable similarity in the material they published.” However, certain publications stood as outliers. The newspapers owned by William Randolph Hearst expressed mostly pro-war and pro-government positions, but were thought too large an opponent for the CPI so were left alone. In addition, certain newspapers (New York World, New York Evening Post, the Detroit Free Press, and the St. Louis Post-Dispatch) “usually gave more evidence of independent thought.”[23]

Small, independent, ideologically oriented publications continued to offer heterodox opinions but were heavily suppressed by Postmaster General Burleson who denied them use of the mail. By late 1918, 75 newspapers had faced interference from the government, of which 45 were socialist leaning.[24] It is important to note that cases of press suppression such as the Milwaukee Leader, the New York Call, and The Masses did not invoke outcry by major publications.

Finally, there are numerous examples of major publications adding to wartime hysteria and fostering vigilantism against minority opinion holders. The Tulsa Daily World celebrated the abduction, beating, tarring, and feathering of IWW members. The Sacramento Bee ran outrageous, fabricated stories about IWW terrorist plots and connections with Germany.[25] When the Allies faced military setbacks in the war, the New York Times ran editorials urging Americans to resist “German propagandists at home” and criticized the Justice Department for not controlling “the subversive activities of German citizens” in the US. Even in the wake of Frank Little’s and Robert Prager’s lynching, newspapers offered rationalizations for vigilante behavior and blamed the government for not doing more to crack down on treasonous Americans.[26]

3. Federal Courts

Given the failures of the Justice Department and the press, individuals prosecuted by the government could only look to the American justice system for the protection of their rights. With few exceptions, defendants prosecuted under the wartime security measures did not fare well in federal courts.

As discussed in the historiography, the disposition of federal judges had much to do with the lack of justice for wartime dissidents. Stone argues that the legal profession was highly conservative and tended to punish fellow lawyers who were against the war. At the time “there was as yet no deeply rooted commitment to civil liberties within the legal profession, and there was no well-developed understanding of the freedom of speech.”[27] Judge Kenesaw Mountain Landis, trial judge for the convictions of Victor Berger and the IWW’s leadership, may be an extreme version of a conservative, patriotic judge.

The “bad tendency” test applied in most federal courts provided a low standard for guilt under the Espionage Act. In essence, it did not matter if a defendant was in a situation where he or she could disrupt military operations, nor if the defendant’s speech was reasonably capable of causing a disruption of military operations; what mattered was the content of the words expressed and whether those ideas tended to be against the war effort, the military, the US, capitalism, etc. In effect, this outlawed most political speech that questioned the war, the government, and the status quo of American society. Yet the legislative history of the Espionage Act shows that Congress did not intend for the law to suspend the First Amendment. To repeat Stone’s argument discussed in the historiography, the repressive effect of the Espionage Act “was a judicial, rather than a legislative, development.”[28]

There are examples of judges showing leniency even under the low evidentiary standard of “bad tendency.” Dealing with an overzealous US district attorney, Judge David P. Dyer of the Eastern District of Missouri “realized the frivolous nature of most accusations, punished the majority of the convicted with minimal fines” and only imprisoned those proven to be attempting to interfere with military efforts.[29]

More importantly, as discussed in the historiography, there were judges who provided better legal reasoning and a deeper understanding of rights in a liberal democracy (such as judges George Bourquin of Montana, Charles Amidon of North Dakota, and Learned Hand of New York). Judges Bourquin and Amidon required the government to present “convincing evidence that the defendant had specifically intended to interfere with the war effort and that speech was likely to have that effect.” Judge Hand’s standard was similar in that the government had to prove “the speaker expressly urged others to do something unlawful.”

The failure of the courts lies with the highest court. Prior to the war, the Supreme Court had not developed a robust First Amendment jurisprudence. Arguably, the government had never attempted such a systematic repression of free speech before in US history, but the Supreme Court had decided a number of First Amendment cases in the past. In Schenck, Justice Holmes asserted that constitutional rights were applied differently in wartime—an assertion that had no basis in law and without a plausible constitutional argument.[30] Holmes was then free to ignore assertions of free speech rights and focus upon the potential criminality of the content of speech. He formulates the “clear and present danger” test—basically, another version of “bad tendency” that polices the content of speech—which ensured easy victories for the US Solicitor General Alexander King. “In a series of decisions in 1919 and 1920—Schenck, Frohwerk, Debts, Abrams, Scaefer, Pierce and Gilbert—the Court consistently upheld the convictions of individuals who had agitated against the war and the draft.”[31]

However, legal history has no fond remembrance of these decisions:

Over the next half-century, the Supreme Court overruled every one of its World War I decisions, holding, in effect, that every one of the individuals who had been imprisoned or deported in this era for his or her political dissent have been punished for speech that should have been protected by the First Amendment.[32]

Conclusion (and Aftermath)

Had Wilson’s policies been in place for years and not months, it is easy to imagine a Department of Justice that would be more like secret police, a press that simply channeled government-sanctioned information, and courts that only sanctioned the will of the chief executive.

World War I provided the US government a vital lesson in waging total war, including management of domestic affairs. The mistakes of World War I were largely avoided in World War II as governmental overreach in censoring the press and suppressing civil liberties was, for the most part, not repeated (Japanese American internment being a glaring exception).

Still, the legal framework for a nascent security state was born in World War I. While Justice Holmes may have shifted his position on the First Amendment, the “clear and present danger test” established the government could regulate speech in times of war and emergency. Furthermore, “[t]he court’s interpretation would transform the [Espionage Act] into a long-term tool for the national government to suppress dissent and protect the country’s secrets.”[33] While First Amendment jurisprudence evolved to provide greater protections, and those “protections officially remain in effect during wartime,” prevailing law provides that “government can regulate what Americans as citizens can say about the crisis if such expressions interfere with the country’s ability to wage war effectively and offer aid to the enemy.”^[34]

Bibliography

Chester, Eric T. Free Speech and the Suppression of Dissent during World War I. New York: Monthly Review Press, 2020.

DeWitt, Petra. “”Clear and Present Danger”: The Legacy of the 1917 Espionage Act in the United States.” Historical Reflections / Réflexions Historiques 42, no. 2 (2016): 115-33. http://www.jstor.org/stable/44631075.

Feuerlicht, Roberta Strauss. America’s Reign of Terror: World War I, the Red Scare, and the Palmer Raids. New York: Random House, 1971.

Finn, Peter and Sari Horwitz. “U.S. charges Snowden with espionage.” The Washington Post, June 21, 2013. https://www.washingtonpost.com/world/national-security/us-charges-snowden-with-espionage/2013/06/21/507497d8-dab1-11e2-a016-92547bf094cc_story.html.

Glennon, Michael J. National Security and Double Government. New York: Oxford University Press, 2014.

Hunt, Lynn. Inventing Human Rights. New York: W. W. Norton & Company, Inc., 2007.

Kazin, Michael. “The Americans Who Opposed the Great War: Who They Were, What They Believed.” Oregon Historical Quarterly 118, no. 2 (July 1, 2017): 252–255.

Peterson, Horace C. and Gilbert C. Fite. Opponents of War 1917-1918. Westport, CT: Greenwood Press 1986. First published 1957 by University of Wisconsin Press (Madison, WI).

Scheiber, Harry N. The Wilson Administration and Civil Liberties, Ithaca, NY: Cornell University Press, 1960.

Smith, Stephen A. “Schenck v. United States and Abrams v. United States.” In Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions, Edited by Richard A. Parker, 20-35. Tuscaloosa: University of Alabama Press, 2003.

Stone, Geoffrey R. “Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled.” The University of Chicago Law Review 70, no. 1 (January 1, 2003): 335–358.

Stone, Geoffrey R. “The Origins of the ‘Bad Tendency’ Test: Free Speech in Wartime.” The Supreme Court Review 2002 (January 1, 2002): 411–453.

Stone, Geoffrey R. “Civil Liberties in Wartime.” Journal of Supreme Court History 28, no. 3 (November 2003): 215–251.

Thomas, William H. Unsafe for Democracy: World War I and the U.S. Justice Department’s Covert Campaign to Suppress Dissent. Madison, Wis: University of Wisconsin Press, 2008.

Notes

[1] Peter Finn and Sari Horwitz, “U.S. charges Snowden with espionage,” The Washington Post, June 21, 2013, https://www.washingtonpost.com/world/national-security/us-charges-snowden-with-espionage/2013/06/21/507497d8-dab1-11e2-a016-92547bf094cc_story.html.

[2] Espionage Act of 1917, June 15, 1917, ch. 30, tit I, §3, 40 Stat. 219.

[3] The idea of human rights, once “declared” in the founding of the governments in the US and France, started a societal discourse on what the concept of having rights means, who held those rights, and how rights are translated into a government’s legal framework. See Lynn Hunt, Inventing Human Rights, (New York: W. W. Norton & Company, Inc., 2007). See further discussion on this book in this website.

[4] Michael J. Glennon, National Security and Double Government (New York: Oxford University Press, 2014) 11-19.

[5] Geoffrey R. Stone, “Civil Liberties in Wartime,” Journal of Supreme Court History 28, no. 3 (November 2003): 215–251.

[6] Geoffrey R. Stone, “Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled,” The University of Chicago Law Review 70, no. 1 (January 1, 2003): 335–358.

[7] Geoffrey R. Stone, “The Origins of the ‘Bad Tendency’ Test: Free Speech in Wartime,” The Supreme Court Review 2002 (January 1, 2002): 411–453.

[8] Stephen A. Smith, “Schenck v. United States and Abrams v. United States,” in Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions, edited by Richard A. Parker (Tuscaloosa: University of Alabama Press, 2003): 20-35.

[9] I would like to have added more social history to this article as most of my sources were political and legal histories. Learning more about this period made me curious about the lived experience of an IWW, a conscientious objector, or an ethnic German facing both state prosecution and community persecution. I am also interested to learn if there are any cultural histories studying antiwar sentiments expressed in art, music, novels, movies, and theater from this period.

[10] Woodrow Wilson, War Messages, 65th Cong., 1st Sess. Senate Doc. No. 5, Serial No. 7264 (1917).

[11] Stone, “Civil Liberties in Wartime,” 223.

[12] Thomas, 173.

[13] Lynn Hunt, Inventing Human Rights, (New York: W. W. Norton & Company, Inc., 2007).

[14] Scheiber, 77.

[15] Peterson, 20.

[16] Scheiber, 51-59.

[17] Thomas, 67.

[18] Thomas, 37.

[19] Peterson, 19, 48, and 231.

[20] Scheiber, 52.

[21] Chester, 237-275.

[22] Scheiber, 19.

[23] Peterson, 93-95.

[24] Peterson, 96-99.

[25] Peterson 174, 176-179.

[26] Thomas, 147-153.

[27] Stone, “Civil Liberties in Wartime,” 225.

[28] Stone, “Judge Learned Hand and the Espionage Act of 1917,” 335.

[29] DeWitt, 120.

[30] Smith, 23.

[31] Stone, “Civil Liberties in Wartime,” 228.

[32] Stone, “Civil Liberties in Wartime,” 228.

[33] DeWitt, 121.

[34] DeWitt, 127.

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