Supreme Court

When the Government Declared War on the First Amendment

It all started with President Woodrow Wilson.

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

It all started with President Woodrow Wilson. On April 2, 1917, Wilson urged the nation into battle against Germany in order to "make the world safe for democracy." But the president also set his sights on certain enemies located much 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 came in the form of the Espionage Act, which Congress passed in June 1917 and Wilson eagerly signed into law. Among other things, the 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 anti-war speech. If convicted of obstructing the war effort, the guilty party faced up to $10,000 in fines and up to 20 years in prison.

With that law in place, Wilson's threats of repression soon became reality. In August, the federal government arrested and imprisoned Charles Schenck, the general secretary of the Socialist Party. His crime? Printing and distributing thousands of anti-war leaflets. Schenck maintained that the First Amendment clearly protected his right to speak out in that manner against U.S. militarism, 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." He waved away the First Amendment consideration. "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. Censors have been quoting that sentence ever since.

One week later, Holmes dismissed the First Amendment yet again, this time upholding an Espionage Act conviction of the union leader and perennial Socialist Party presidential candidate Eugene Debs, who had been arrested in 1917 after giving a mildly anti-war speech at an afternoon picnic. "This man is the palpitating pulse of the sedition crusade," federal prosecutor F.B. Kavanaugh had declared during the trial.

"One purpose of [Debs'] speech, whether incidental or not does not matter, was to oppose not only war in general but this war," Holmes wrote in Debs v. United States, "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 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 most Americans at that time. But of course, the whole point of the First Amendment is to place certain rights beyond the reach of the majority.

These cases also demonstrate the importance of an independent judiciary that is prepared to check the other branches of government when they go too far. It is no coincidence that Holmes was the justice who led the Court in trashing the First Amendment in Schenck and Debs. Far too often throughout his long career on the bench, he 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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  1. Holmes was a scumbag as was Wilson. Is it any wonder that both are progressive heroes?

    1. exactly

      1. On the contrary, Holmes was clearly right, and only a scumbag would defend some of the “free speech” nonsense being bandied about today. Surely no one here would dare to defend the “First Amendment dissent” of a single, isolated judge in our nation’s leading criminal “satire” case? See the documentation at:

        https://raphaelgolbtrial.wordpress.com/

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    2. ^^ THIS ^^

      I hear about the German propaganda machine in WWI, but the Brits were in overdrive trying to get the US to enter the war against Germany.

      The 2 big events were so much bullshit:
      1) Lusitania: The German foreign ministry published an ad in the NY Times prior to the ship setting sail from NY that any ships flying flags of the “allies” are subject to sinking by submarine. In addition, it was carrying tons of ammunition, and as far as we can tell, tons of larger munitions as well. Putting passengers on a ship carrying war materiel is like storing your bombs in a hospital. (Oh, like the Palestinian Arabs do.)
      2) Zimmerman telegram: This was clearly a “just-in-case” sort of thing. It specifically stated that if the US entered the war on the side of the allies, would Mexico be willing to enter into alliance with the Central powers and attack the US? Are we saying we have never had those sorts of messages sent? Of course, by Jan 1917, the US entering the war was almost a foregone conclusion.

    3. What bunkum. No, progressives do not think Wilson was a ‘hero’. Where do you people GET this nonsense? Wilson was a racist. He was in no way, by any stretch of anyone’s fevered imagination, a ‘progressive’.

      No, those who were for alcohol prohibition weren’t ‘progressives’ either. Any more than Dick Nixon and the other drugwarriors were ‘conservatives’.

      N_J

      1. Crack a history book you fucking retard. Or at least peruse the summaries at Wikipedia. You don’t get to decide in 2017 what the Progressive Movement in the United States was a century ago and who was or wasn’t a part of it.

        1. Netizen is apparently one of those idiots who defines “progressive” as “anything I think I’m supposed to like” and “conservatism” as “anything people tell me I should dislike.”

      2. Mostly I get it from progressives who idolize Wilson. He was a racist progressive the two are not mutually exclusive. Also you may not be aware but the drug war was created by your boy FDR another progressive who set up concentration camps for Japanese citizens in his spare time.

      3. Ah, but the Progressive Left have always been racists. Consider their welfare policy, which has destroyed the family structure of the average African American. Or their educational policy which pretty well ensures that inner city Blacks won’t get one.

    4. Schenck v United States was also the case where Holmes made his idiotic “shouting fire in a crowded theater” statement on the virtues of limiting free speech. One should note that the decision was overturned back in the ’60s.

  2. It’s interesting that Reason would write an article about the Espionage Act without noting the fact that the Obama administration prosecuted more people under the Espionage Act than every other President in history combined.

    1. It’s interesting that RAISIN would write an article about events that took place between 1917 and 1921 and not mention a man who wouldn’t be born for another 40 years and wouldn’t serve as president for another 88.

      1. You can please some of the people all of the time and all of the people some of the time… Actually, no. You can’t ever please everyone. Some people refuse to be pleased.

        1. +1 Garden Party

          1. I assume that a Garden Party is one of those new teen sex trends where everyone brings a different fruit or vegetable to use as a dildo?

            1. no, it’s a pop song from the 70s.
              By Rick Nelson.
              Allegedly written in response to Nelson getting boo’d off the state at MSG.

      2. “These old cases 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 most Americans at that time. But of course, the whole point of the First Amendment is to place certain rights beyond the reach of the majority.”

        That sure makes it sound like the Espionage Act was just some relic of the distant, unenlightened past, and not something that is still being used today. Which seems like kind of an important point to me.

    2. No, not very interesting at all. Journalists are not required to include an Obama insult in every single article that is written. Trump is president now, not Obama. The journalism/commentary world gradually moved on from bashing Bush in every single article and its comments. Let it go.

      1. Trump insults are required though.

        1. In that case, someone should have complained about the lack of Trump insults in this article.

      2. Except Obama never caught enough grief.

        Obama. Not gone enough.

        1. To his credit, he’s more gone than Hillary.

          1. ….But still lingering and loitering.

          2. That’s a damn low bar, though.

      3. ‘Journalist are not required to include an Obama insult in every single article.’

        No, but accurate and relevant reporting would be nice.

        1. Are you suggesting the article was either inaccurate or irrelevant? Because your comment was simply that he didn’t take advantage of the opportunity to poke the Obama administration. Doing that, would actually be irrelevant to the rest of the article.

          1. No, my comment was simply pointing out that it was strange that in an article about the Espionage Act, that the writer didn’t point out that the Act had seen extensive use in the recent past. That’s kind of a relevant fact.

  3. The only time principles worthiness are challenged

    are in times of crisis

  4. See how much better things are now

    As far as I know the President has not asked for nor has Congress passed any laws requiring NFL players to stand during the National Anthem.

    Instead those players who want to have exercised their right of protest and the President has limited himself to protesting the protest.

    1. The Espionage Act is still on the books, yo.

      1. Can they prosecute the Patriots with it for stealing play calls with video cameras?

  5. this article also lets us realize why we are on a permanent war footing with “terrorist”. So that our government can pick and choose who and when to silence opinions it doesn’t like.

  6. “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.”

    Progressive thinking at its regressive finest.

    1. Democracy uber alles.

  7. Please block those foot-care images in your Taboola ads.

    Offensive to Arabs and, most importantly, ME.

  8. “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.”

    Unlike comparisons with Trump, this statement LITERALLY excuses The Holocaust. The Nazi gained a plurality in the 1932 Reichstag elections. And since none of the other parties were willing to unit against them, they got Hindenburg to appoint Hitler as Chancelor in 1933. ALL DONE LEGALLY, and at the “will of the dominant forces of the community”.

    1. The main difference between FDR and Hitler is that uhh…wait I had something for this…

      1. Oh, now, please. FDR was a racist asshole, an arrogant prick, and an economic failure. He was NOT that despicable Austrian. The camps for the Japanese seem to have been well run, safe, and clean. Grossly unconstitutional, and an offense that the Democrat Party should still be living down, but NOT death camps.

        Let us not fall into the pattern (which the left seems trapped in) of comparing every political opponent with the worst possible.

    2. It all goes back to Mill’s ‘tyranny of the majority’.

    3. ALL laws reflect the will of the dominant forces of the community: “dominant” means able to make laws.

      Holmes considered himself an embodiment of the phrase “might makes right”. Of course he would excuse the Holocaust: the Nazis had the ability to do it, therefore they had the right to do it.

  9. I’m way late to this game, but what were John Adams’ Alien and Sedition Acts in the 1790s, chopped liver?

    1. First thought upon reading the headline. Seems like war was declared on the First Amendment within a decade of the Constitution even being ratified.

    2. It sucks the Adams takes the fall for this, since he neither asked for this law, nor did he promote it. He DID sign it, which is a black mark on his presidency, but it is damn near the only one.

      1. He signed the bills and made them law; he chose not to veto them. That’s some principles. His people prosecuted free speakers; if he really hated the laws that much, he could have told his attorneys to stop the prosecutions. He liked the idea behind them plenty, and thought it ought to be a crime to insult the President or government. Innocent my ass!

        Adams also wanted the President to be referred to as His Majesty or some sort. He was by no means a pure-in-heart liberty lover besmirched by a Congress acting against his will/

        1. That sums up the same shit they “taught” me in public school as well; the reality is considerably different. Adams was fighting the Republicans and his own party while trying to ride the line between war and capitulation with the French. His own Vice President was openly fellating the glorious French bloodletting while literally paying a columnist to slander him. He and his son were probably our most principled Presidents. It would definitely be worth the time to read up on Adams’ biography.

  10. Wilson jailed Socialists who were speaking out against war. He supported crackdowns on unions in order to keep the military-industrial machine running smoothly. He brought Jim Crow to DC. He refused to support suffragettes.

    Then, when it came time to rally support for his League of Nations, he was surprised to find he had alienated his base.

    I think that’s terrific.

    1. Jim Crow laws were FOR his base. Progressives have always been racists.

  11. Oliver Wendell Holmes also decided Buck vs. Bell that allowed for the forced sterilization of the “mentally unfit”. I have no doubt that progs would love to bring that one back.

    1. No the proggies don’t want that one back.
      Otherwise they would be sterilizing themselves.

      1. But they only see those who disagree with them as mentally unfit. Besides, they are doing a pretty good job of driving themselves to extinction by not making as many babies.

    2. > I have no doubt that progs would love to bring that one back

  12. What about Lincoln? Can’t someone criticize Lincoln in this article?

    1. They are crappy and overpriced cars.

  13. “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.”

    Note “dominant forces” use here NOT a “majority” of citizens. Who might these dominant forces be? My guess is that it includes the police and well-heeled special interests. On college campuses nowadays, the SJWs are the dominant force.

    1. Often it’s a bare majority of SCOTUS. Democrats are democratic only until it becomes inconvenient, then they are happy to have laws handed down by unelected judges.

  14. RE: When the Government Declared War on the First Amendment
    It all started with President Woodrow Wilson.

    No.
    I can make a case when it started with Abe Lincoln when he shut down the presses of the copperhead newspapers in the 1860’s.

  15. The article and the discussion seem too focused on recent events to me. As described by Arthur A. Ekrich in his classic history, The Decline of American Liberalism, the first assault on free speech was a set of Alien and Sedition acts enacted not long after the constitution was ratified. This is a long war.

  16. No, the government’s attack on the first amendment started long before that.
    It started on the day that the First Congress ignored James Madison’s objections, and voted to create the Offices of House Chaplain and Senate Chaplain. (see Madison’s ‘Detached Memoranda’)

    These are positions where a cleric is being paid by taxpayers to perform religious rituals – a clear violation of the first amendment.

    Similarly, there were prosecutions of US Citizens for ‘Blasphemy’ all through the 1800s, with the most recent being in 1927 (Charles Lee Smith – Arkansas). The idea of criminal prosecution for ‘blasphemy’ is clearly contradictory to the first amendment.

    Why don’t libertarians care about government pushing an ‘official religion’ down people’s throats? I’d have figured that would be a problem for libertarians, but most don’t seem to give a flying frack about the right of the people to be free from government religion. Why is that?

    Which of you have bothered to read about how Corporate America created ‘Christian America’? (https://www.amazon.com/exec/obidos/ASIN/0465049494/reasonfoundation-20/

    1. That doesn’t diminish all the great and mighty things Comrade President Woodrow Wilson did!!

    2. Take your medication Hihn.

    3. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” So there are two things prohibited to the federal government (and, pace the Fourteenth Amendment, the states) by the First Amendment.

      Creating the office of chaplain for a house of Congress is not the same thing as an establishment of religion. The chaplain may be of any religion, and is not considered the spiritual leader of anything, even the chamber s/he serves. If a Baptist happens to be serving as chaplain for the House, the whole chamber is not thereby converted to the Baptist faith, nor does the country have to pay him/her any especial attention.

      Nor is establishing a chaplain the same thing as prohibiting the free exercise of religion. You are free to practice any religion you choose, or none at all, regardless of whom the Senate or House chooses to have as its chaplain.

      Since neither half of the First Amendment has been violated, the only reasonable conclusion is that you are wrong.

    4. As for your charges of blasphemy prosecutions, none of those took place at the behest of the federal government. They were all state prosecutions. And it was not until 1947 that the Supreme Court officially incorporated the First Amendment’s Establishment Clause against the states (Everson v. Board of Education). Unless I miss my guess, 1927 is somewhat before 1947. About twenty years before, if my math is right — when there was no case law against state establishment of religion, and some precedent for it.

      Since I found the critical bit of information here in about thirty seconds on a Wikipedia article, which I located using a simple Google search, the only reasonable conclusion now is that not only are you wrong, but you either do not have access to Google and Wikipedia, or do not know how to use them.

  17. To the democrat progressive marxists, Comrade Woodrow Wilson is a god.

    Comrade Woodrow Wilson got the USA involved in WWI, in a war that had nothing to do with the USA.

    To get canon fodder to fight in his progressive war of choice, he started a military draft.

    To fund his progressive war of choice, Comrade Wilson asked Congress for emergency revenue legislation, and lawmakers responded with the War Revenue Act of 1914.

    This is but some of the reasons why the democrat progressive marxists adore Comrade Woodrow Wilson !

  18. I thought Adam’s Alien and Sedition Acts came 1st? Or were they just breathin’ hard?

  19. If only Wilson had thrown Debs in jail for not having the right permit or not paying enough in security costs it would have all been completely kosher in Reasonland.

  20. I thought it started with the Alien and Sedition acts (ie John Adams).

  21. If only we could go back in time and not enter that war.

  22. What came before the First Amendment was Article 3, Section 3: Treason.
    Can it not be interpreted that arguing against the actions of our Government, in relation to ones that oppose us, is “adhering to their (the United States) Enemies, giving them Aid and Comfort”? Even, verbally?
    If anything rulings, like Schenck, restricted such a definition to times when we were in a declared war, as was the excuse for not prosecuting Hanoi Jane for her antics during the Vietnam conflict.
    Despite the desires of many, the First Amendment – third in the originally proposed Bill of Rights – is not an absolute, nor could it possibly be. Many spoken words are legitimately determined to be illegal, the effort was to try to restrict that as much as possible, but that it is a fact is inescapable. It is sophistry to argue otherwise.

  23. Is it a coincidence that Wilson was also the first politician to be called a “progressive”? I think not…

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