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.