Supreme Court

‘A Firm Hand of Repression’: The Espionage Act Turns 100

One hundred years ago today, the U.S. government declared war on the First Amendment.

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Library of Congress

One hundred years ago today, the U.S. government declared war on the First Amendment.

It all started with President Woodrow Wilson. In April 1917, Wilson urged the nation into battle against Germany in order to "make the world safe for democracy." But he also set his sights on certain enemies located closer to home. "Millions of men and women of German birth and native sympathy…live among us," Wilson observed. "If there should be disloyalty, it will be dealt with with a firm hand of repression."

That firm hand of repression came in the form of the Espionage Act, which Congress passed on this day in 1917 and Wilson eagerly signed into law. Among other things, the Espionage Act made it illegal to "convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies." That sweeping language effectively criminalized most forms of antiwar speech.

With the Espionage Act in place, Wilson's threats of repression soon became reality. In August, the government arrested and imprisoned Charles Schenck, the general secretary of the Socialist Party. His crime? Printing and distributing antiwar leaflets. Schenck maintained that the First Amendment clearly protected his right to speak out in that manner, but his arguments fell on deaf ears. On March 3, 1919, the U.S. Supreme Court upheld his conviction. "When a nation is at war," declared Justice Oliver Wendell Holmes Jr. in Schenck v. United States, "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."

What about freedom of speech? Justice Holmes waved it off. "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic," he wrote. Advocates of government censorship have been invoking that particular sentence ever since.

One week later, Justice Holmes dismissed the First Amendment yet again, this time upholding the Espionage Act conviction of Socialist leader Eugene Debs, who had been arrested in 1917 after giving a mildly antiwar speech at an afternoon picnic. "This man is the palpitating pulse of the sedition crusade," federal prosecutor F.B. Kavanaugh declared during Debs' trial. Citing his recent opinion in Schenck, Justice Holmes readily affirmed the case against Debs. "One purpose of [Debs'] speech, whether incidental or not does not matter," Holmes wrote in Debs v. United States, "was to oppose not only war in general but this war, and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting." So much for "Congress shall make no law…abridging the freedom of speech." Debs would languish in prison until 1921, when he was finally pardoned by President Warren G. Harding.

These old cases still have important lessons to teach us today. For starters, they demonstrate why the exercise of fundamental rights should never be subject to majority approval. The Espionage Act was passed by a democratically elected legislature and enforced by a democratically elected president, and it was probably in tune with the will of the majority. But of course the whole point of the First Amendment is to place certain rights beyond the reach of any majority.

These cases also demonstrate the importance of an independent judiciary that is prepared to check the other branches of government—to stand athwart the majority and yell "Stop!" It is no coincidence that Justice Holmes was the one who led the Court in trashing the First Amendment in Schenck and Debs. Far too often throughout his long career on the bench, Justice Holmes advocated judicial deference to majoritarian government. "A law should be called good," Holmes once wrote, "if it reflects the will of the dominant forces of the community, even if it will take us to hell." That sort of judicial pacifism should have no place on the Supreme Court.

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35 responses to “‘A Firm Hand of Repression’: The Espionage Act Turns 100

  1. “If there should be disloyalty, it will be dealt with with a firm hand of repression.”

    Firm Hand of Repression was my whacking-off mantra at seminary school.

  2. President Woodrow Wilson

    Christ, what an asshole.

  3. Violations of the 1st and 4th Amendments all wrapped in a patriotic bow.

    “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety”
    -Benjamin Franklin

  4. Woodrow Wilson was a fucking bastard. One of the most anti-freedom presidents we’ve ever had. I think it was Ron Paul who said he wishes he could undo his entire presidency.

    1. Wilson single-handledly set in motion many of the events or government actions that created so much misery during the 20th Century.

      Federal Reserve Act, Federal Trade Commission Act, the Clayton Antitrust Act, the Federal Farm Loan Act, 16th Amendment, the Revenue Act of 1913, racial segregation in federal offices.

      1. Absolutely. He was a prick of the absolute highest order.

      2. Federal Reserve Act, Federal Trade Commission Act, the Clayton Antitrust Act, the Federal Farm Loan Act, 16th Amendment, the Revenue Act of 1913, racial segregation in federal offices.

        For some reason a lot of Progressives don’t ever want to talk about that last one. I wonder why? /sarc

      3. not to mention remapping most of Europe and largely causing World War Ii and many of the conflicts later in the century.

        1. When I was watching Wonder Woman…

          SPOILERS

          I was really hoping they would write in Wilson so he could be the obvious pick for Ares

          END SPOILERS

  5. One hundred years ago today, the U.S. government declared war on the First Amendment.

    Perhaps, but the first time was during the Adams admin with the sedition act.

  6. That firm hand of repression came in the form of the Espionage Act

    Leave the abstract euphemisms to the commenters, Root.

  7. But of course the whole point of the First Amendment is to place certain rights beyond the reach of any majority.

    According to the Declaration of Independence, the whole point of government is to place certain rights beyond the reach of any majority.

  8. “When a nation is at war,” declared Justice Oliver Wendell Holmes Jr. in Schenck v. United States, “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.”

    Which is why a nation must fight a perpetual war.

    1. Which is why a nation must fight a perpetual war. …. the one thing that Rahm Emmanuel and Dick Chenney agree on.

  9. “convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies.”

    Why hasn’t this been taken down by a first amendment lawsuit? //rhetorical //fytw

    1. Probably because it loosely echoes what is said in Article 3, Section 3.: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

  10. Justice Oliver Wendell Holmes Jr.

    Christ, what an asshole.

    1. This story is filled with assholes!

  11. “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.”

    The Constitution is still in effect during wartime. Fuck off, slaver.

    1. Yet, the reverse was used to let Hanoi Jane off the hook for making a propaganda appearance on a Viet Kong anti-aircraft gun, by saying it couldn’t be treason, because Congress hadn’t declared war.
      Look at some of the shit “Honest Abe” did when he was prosecuting another undeclared “war”.

  12. “A law should be called good,” Holmes once wrote, “if it reflects the will of the dominant forces of the community, even if it will take us to hell.”

    Christ, what an asshole. I hope he’s being ass-raped with Warty’s doomcock in hell.

    1. Oh, that’s not even the half of it. Don’t forget Buck v Bell a decade later where, in upholding the forcible sterilization of Carrie Buck, Holmes wrote:

      “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”

      Reading that, you easily see why this was a decision that literally, no-kidding, helped inspire Nazis to genocide (and some actually cited the case in their defenses at Nuremberg).


      1. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes

        Y’know, I fucking hate the guy but you gotta admit that maybe he has a point. It isn’t the argument he thinks it is though. Maybe, just maybe, vaccination shouldn’t be ‘mandatory’ at all is my takeaway. I know that it’s a fallacious ad hominem argument at it’s core, but if that’s the justification used for forced sterilization then maybe it’s worth reversing that course.

        Either way, it’s notable that the Progressives of the present ignore all of the truly horrific shit that their ideals have resulted in over the years here in these United States. Even if all of the evil shit they accuse Conservatives and Libertarians (and, yes, even Classical Liberals) of is true they still come off looking like Nazi’s by comparison.

        There, I said it. Progressives are historically almost as bad as actual Nazi. Probably because they were never that different to begin with.

  13. Attending school in the 70’s in a well-to-do suburb of NYC, Wilson and Holmes were always held up a models of what POTUS and SCOTUS could be and do, if only ‘those fools out in the hinterland’ would stop interfering. At least the bio teacher down the hall had the grace to admit that “half of what I’m teaching you is wrong, I just don’t know which half”.

    Small government, liberty, non-entanglement in foreign politics…. the true path the peace!

    And you can add TR to the asshole list.

    1. At this point the non-asshole list is quite a bit shorter than the asshole list.

      1. 1) Coolidge
        2)

        Uh, you’re right, that might be a better way to group things.

        1. 1) Coolidge
          2)

          That’s my Top 5 Presidents list right there.

          1. What about George ‘Motherfuckin’ Washington, who was only elected President because he might not have been in the room at the time and who, after two terms, said ‘fuck this, fuck all of you, I’m out.’

            1. Nope. Slaver. Slaver who went to considerable trouble (and broke Pennsylvania law) rotating his slaves in and out of PA so they wouldn’t be freed and who went to considerable trouble trying to track down and recapture a runaway (Ona Judge).

              1. So that event is enough to disqualify the first President of the United States? Weird, I would have thought you would have used the Whiskey Rebellion, but whatev.

  14. as i recall, it was Jackson who stopped the original attack, by statute, on the 1rst Amendment.

  15. Dear Sirs;
    I agree that Holmes version of “law” has little to NOTHING to do with “These United States of America”. What needed to be explained to this dimwit is that the so called “supreme court” is simply one of three branches of a Constitutional Republic under Law. That it takes a SUCCESSFUL Amendment Process (clearly spelled out in the rules and regs of said Constitution to add to, subtract from, or alter the Constitution in any manner or form. That little FACT precludes ANY of the branches from Legislating, making a decree (executive order or bureaucratic order), or “ruling” beyond the scope and clear stated LIMITATION that each of the first 10 Amendments clearly state (unequivocably). That, is the purpose of the first 10 Amendments. They are NOT rules for the electorate or citizenry. They are stated LIMITS to the authority and autonomy of the Federal Government, their employees, and contractors! Nothing more, nothing less!

  16. The Federal Government simply does not have the authority to rule beyond the first 10 Amendments.
    When ANY AND ALL of these “officials”, regardless of position or cute outfit swear or affirm the Oath of Office, they have given their WORD OF HONOR, A PROMISE, A VOW to do the “enumerated powers clearly stated in the Articles and Section for their “office” and respect under the sword of criminality the LIMITS established by the first 10 Amendments. That is the purpose of the Oath of Office, a legal and binding contract!
    Why is this such a leap? What do you think Henry and Madison were bringing forth when they brought out the ideas that became the first 10 Amendments? What was the discussion? The fact that the political hacks and attorneys don’t like being put in their little corner is tough shit. We have 240 years of disgusting legal history to reflect upon when it comes to allowing the government to believe they can “make “law””.

  17. You left out Emma Goldman. Were you ok with locking her up for antiwar speech.

  18. Great article! First Amendment should stay in our Constitution! Somebody can encroach on our rights in order to achieve his own political goal, but we should resist such attempts and stay againts such sthings. It was good said in these assignment help reviews how to resist such people, and how behave with persons like that. No mater the circumstances, government should do everything possible to keep Amendment alive!

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