The Wilson Administration and World War I
War is the health of the State. It automatically sets in motion throughout society those irresistible forces for uniformity, for passionate cooperation with the Government in coercing into obedience the minority groups and individuals which lack the larger herd sense. The machinery of government sets and enforces the drastic penalties; the minorities are either intimidated into silence, or brought slowly around by a subtle process of persuasion which may seem to them really to be converting them.*
—RANDOLPH BOURNE
In 1917, the United States was heading into the Great War. President Woodrow Wilson’s message to the American people had drastically changed from “[H]e kept us out of the war!” to “Beat back the Hun!”1 Wilson was itching for and America was inching toward one of the bloodiest, most damaging, morally purposeless state conflicts in world history. In The Republic, Plato theorized that members of the Guardian, or ruling class, mirroring the example of the gods, could employ “useful,” “noble” lies to trick the masses into following their rule, noting that if certain “falsehoods” were told to the people, it would help by making them “care more for the [state] and each other.”2
World War I served as a pretext for some of the most significant and unpalatable violations of the Constitution by presidents in the history of the country: It was Wilson’s noble lie. Most notably, during the turn of the century and through the end of World War I to the First Red Scare, Congress passed a series of laws that eviscerated the right to political expression and hence personal liberty, stopping just short of actually excising the Bill of Rights from the Constitution. These were the first espionage statutes.3
The Advent of State Secrecy Statutes: The Defense Secrets Act of 1911
Prior to 1911, the U.S. government didn’t codify many national security laws.4 This began to change in 1909 when Congress enacted two provisions of law, which made giving intelligence to the enemy treasonable, proscribed the unlawful entry onto military bases, and prohibited the theft of government property or records.5 These provisions were, in some sense, the first state secret, or espionage, statutes created, but they were of “general applicability,”6 not specifically applicable to spilling the national-secret beans, so to speak.
In 1911, during the Taft administration, Congress took its “first attempt . . . to protect military information [with comprehensive proscriptions].”7 The final product that Congress put together was the Defense Secrets Act of 19118 which, despite trying to clear up the opaque 1909 statutes, ended up being a vague, barely workable document, lacking an intent requirement or enumeration of to whom information may not be communicated:
This inartful language [of the 1911 statute] . . . [was] carried over to the present [Espionage Act of 1917], which present[s] the most difficult problems of interpretation of any of the espionage statutes. The 1911 statute provided a more severe penalty for communication, regardless of intent, of illegally obtained information to a foreign government. . . .
[N]othing in the lackadaisical debates which led to it reflected an awareness that publication of defense information might pose a problem for national security.9
Despite Congress’s “lackadaisical”10 approach to national security at the time, it would not make the same mistake in 1917 when it chose to face the German, Austro-Hungarian, and Ottoman armies.
The Espionage Act of 191711 was introduced to Congress in June of that year, following Woodrow Wilson’s April 2nd 1917 request for a congressional declaration of war and Congress’s April 6th acquiescence. Congress, however, was not as obliging when it came to expanding the president’s powers; “[h]eated debate [over the Act] stretched over two frenetic sessions. . . . Concern about enemy spying, triggered by American entry into World War I, accounted for some of the increased consideration, but most of the significant debate was not provoked by worry over espionage in the usual sense.”12
When the bill was first introduced into the House, Congress took major issue with three of Wilson’s proposals. First, was the so-called press censorship provision:13 “. . . [T]he Wilson Administration proposed [either] to censor, or punish after the fact, (exactly which was never resolved) publication of defense information in violation of Presidential regulations. The desirability of such a measure was seen by its adherents to derive from the obvious harm that would befall military interests when untimely publications fell into enemy hands. Proponents of the measure pointed to the Civil War experience when the Union cause had been jeopardized by newspaper retailing of military plans.”14
Obviously, there was vehement disagreement over this provision. Rep. Edwin Webb (D-NC) argued in committee that “the press should be willing to give up its right to publish what the president ‘thinks would be hurtful to the United States and helpful to the enemy,’ ”15 adding “ ‘[U.S. citizens are in] one of those situations where we have to trust somebody.’ ”16 He was met with substantial opposition, and that provision failed the House by forty votes.17
Interestingly, in the Judiciary Committee, Rep. Andrew Volstead (R-MN), the future author of the 1919 act that would criminalize the sale of alcohol in the United States, supported the press provisions.18 The word publish appeared only once in the final form of the bill, proscribing the publication of military information with intent to communicate it to the enemy, which incurs a penalty of up to thirty years in prison and a fine.19
Another offensive provision that more focuses on an individual’s right to political expression was the “disaffection” provision, which was described as “even more troublesome than the Sedition Act of 1798.”20
The provision stated that “whoever, when the United States is at war, shall wilfully . . . cause or attempt to cause disaffection in the military or naval forces of the United States . . . shall be punished by . . . imprisonment for not more than twenty years.”21 The inclusion of the incredibly broad term disaffection, literally “to alienate the affection or loyalty of . . . to fill with discontent and unrest,”22 unsurprisingly caused much dismay to many members of Congress. The same Representative Webb who lauded suppression of a free press, for example, defended the natural liberties of U.S. citizens when he argued that it would criminalize writing to a soldier to “ ‘tell him the sad conditions back home.’ ”23 In final form, Section 3 of the Act provides:
[1] Whoever, when the United States is at war, shall wilfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies [2] and whoever when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.24
The breadth of the disaffection provision, which restricts even private and whispered conversations, was at least abrogated by the Webb Amendment to a more specific class of speech, but still runs sweepingly afoul of the First Amendment’s protections. This section provided the basis for criminal prosecutions under the statute for “disloyal utterances” or attempting to interfere with recruitment or enlistment—speech completely protected by the First Amendment’s command that “Congress shall make no law . . . abridging the freedom of speech,”25 let alone criminalizing it.
A final constitutionally abhorrent provision of the Act was the nonmailability provision.26 As first introduced, this provision granted the postmaster general—at the time a position traditionally held by a political patronage appointee of the president27—the broad power to obstruct the delivery of mail which he believed was treasonous or anarchist in character.28 The postmaster general would have the power to decide who got what private letter or publication, at his sole discretion, due to its “disloyal” content. Congressmen—senators and representatives alike—were displeased with the sweeping legislation, which invaded the political privacy of individuals and stampeded over the right to private association.29 Some went as far as to call it “oppressive,” a “menace to freedom,” and “a far greater evil than the evil which is sought to be prevented.”30 In the end, the language was narrowed to permit the postmaster to carry out this task,31 but Congress essentially bent to the president’s will on the matter. This was not the first time Congress faced a nonmailability statute. In 1835, Congress rejected President Andrew Jackson’s attempt to get similar legislation approved.32
Despite clear congressional intent to limit Wilson’s attempts to rob individuals of their rights under the guise of war necessity, Wilson would later find creative legislative interpretations to assist in his systematic assault on civil liberties.
The Sedition Act of 191833 represents one of the most constitutionally repugnant excuses for a law that Congress has ever enacted. With this Act, however, the blame shifts to Congress. When the Wilson Justice Department first proposed what would become the Sedition Act of 1918, it sought to amend the Espionage Act “narrow[ly]”; the “Senate Judiciary Committee, however, took it upon itself to go far beyond [the Justice Department’s] recommendations, resulting in [some of] the most repressive legislation in American history.”34
Montana’s Democratic Senators Henry Myers and Thomas Walsh introduced broad amendments to the original proposal modifying the Espionage Act which, when finally enacted, read:
Whoever, when the United States is at war, shall willfully utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States into contempt, scorn, contumely, or disrepute, or shall willfully utter, print, write, or publish any language intended to incite, provoke, or encourage resistance to the United States, or to promote the cause of its enemies, or shall willfully display the flag of any foreign enemy, or shall willfully by utterance, writing, printing, publication, or language spoken, urge, incite, or advocate any curtailment of production in this country of any thing or things, product or products, necessary or essential to the prosecution of the war in which the United States may be engaged, with intent by such curtailment to cripple or hinder the United States in the prosecution of war, and whoever shall willfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated, and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or the imprisonment for not more than twenty years, or both.35
The Justice Department and many senators claimed that this amendment was needed to protect dissenters from crowds who would riot upon hearing disloyal statements.36 Think about that for a second: Instead of protecting the minority’s right to put forth speech that may be offensive to the listener, the government arrested individuals for speaking under the guise of “protect[ing]” the speaker from mob violence by criminalizing the spoken words. This is the sort of warped thinking that results from the wartime herd mentality Bourne decried in his composition “The State,” which is discussed throughout this book, but was published in 1918.37
Some senators fought against the approval of the Sedition Act. Sen. James K. Vardaman (D-MS) asserted that this Act represented “a lack of confidence in the intelligence and patriotism of the American people.”38 Opponents of the 1918 Act compared it to the Sedition Act of 1798; one opponent, Sen. James A. Reed (D-MO), argued that the 1918 Act went beyond the 1798 Act because it lacked elements of “falsity and malice.”39 Theodore Roosevelt, a former president at the time, showed an uncharacteristic adherence to the constitutional principles he once swore to uphold but spent his presidency assaulting* and declaimed the 1918 Act as making it “a crime to tell the truth” and labeling those who proposed it as “foolish or traitorous.”40 Characteristically, however, he showed considerable bravado and challenged Wilson, saying he would “give the government the opportunity to test its constitutionality.”41
Opponents, rallying around Sen. Joseph I. France (R-MD), introduced an amendment, the France Amendment, which would import a canon of construction into the Act: That it not be “construed as limiting the liberty . . . of any individual to publish or speak what is true, with good motives and for justifiable ends.”42 Debate in the Senate became heated, with one senator declaring the Act a “war upon the American people,” and another claiming that those who would see the France Amendment become part of the bill “throw a cloak of protection around every spy in this country.”43
The comparison to a war against the American people is not, however, that inapt. In addition to having the actual army, the president has a veritable army of lawyers in the Department of Justice to assist in carrying out the laws. The France Amendment failed, and the Act passed the Senate 48–26 and the House 293–1.44 The lone dissenter in the House, Rep. Meyer London of New York, a Socialist Party member, dissented because of the rejection of the France Amendment and the implicit rejection of the right to speak the truth.
Between the original 1917 Espionage Act and the 1918 amendments known as the Sedition Act, the freedom of the press, the right to dissent, the right to speak “disloyal utterances,” the right to political expression, and the freedom from cruel and unusual punishments (such as twenty years in federal custody for publicly or privately disagreeing with the president) had been excised from the Constitution and replaced with statutes levying decades-long prison sentences upon those who whispered against Wilson’s War. There is no question that these Acts laid the groundwork for an unconstitutional and unprecedented—even by the standards of the 1798 Acts—expansion of executive power at the expense of personal liberty. Later, the reader will find the deplorable application of these statutes to Wilson’s political enemies and to minority, dissenting opinions.
Property and Economic Rights: The Declaration of War, the Overman Act of 1918, and the War Boards
In declaring war, Congress expressly declared that the “President . . . is hereby, authorized and directed to employ the entire . . . military forces of the United States and the resources of the Government to carry on war against the Imperial German Government; . . . all of the resources of the country are hereby pledged by the Congress of the United States.”45 This language is ambiguous as to whether it refers only to the property of the federal government or that of property owners in the entire country, including private property.
This ambiguity, as to whether this is the largest violation of the Fifth Amendment Takings Clause in history or a reallocation of public resources, shows a callous disregard by Congress for the need for restrictive language in respecting property and economic rights of all individuals. While Supreme Court precedent at the time was highly respectful of economic rights, discussed below, Congress and President Wilson showed complete disregard for that jurisprudence. Precise draftsmanship of legislation is especially needed in times of hysteria.
The reach of President Wilson’s Justice Department wasn’t the only arm of presidential power expanded in 1918. Sen. Lee Overman (D-NC) introduced what he called the Departmental Reorganization Act.46 The Overman Act permitted the president to take command of the entire federal bureaucracy
. . . for the national security and defense, for the successful prosecution of the war, for the support and maintenance of the Army and Navy, for the better utilization of resources and industries. . . . The President is hereby authorized to make such redistribution of functions among executive [and administrative] agencies as he may deem necessary, including any functions, duties, and powers hitherto by law conferred upon any executive department, commission, bureau, agency, office, or officer, in such manner as in his judgment shall seem best fitted to carry out the purposes of this Act.47
The Act also gave the president broad discretion in reporting to Congress unilateral executive actions taken in carrying it out.48 Pursuant to the Overman Act, Wilson created three entities: The National War Labor Board, the War Industries Board, and the Committee on Public Information. Together, these three entities commanded the economy, labor relations, and public information.
Notably, during this period and until 1937, the Supreme Court insisted on robust protection for economic liberties. In Lochner v. United States in 1905, the Supreme Court had held that the “general right to make a contract in relation to [a] business is part of the liberty of the individual protected by the Fourteenth Amendment to the Federal Constitution. Under that provision, no State can deprive any person of life, liberty, or property” via legislation or fiat, but only via due process—notice, jury trial, and the right to appeal.49 Further, the “right to purchase or to sell labor is part of the liberty protected by this amendment.”50
Thus, when one examines Wilson’s iron-fisted control of wages, prices, and production, infra, it is important to remember that while these controls may seem anathema and Sovietesque today, these were particularly condemnable in the early twentieth century, when the Constitution was said to protect, as Locke described, the natural right to profit from one’s labor. The Lochner Court even referenced this point, viewing every law that interferes with economic rights as an “unconstitutional . . . illegal interference with the liberty of the individual in adopting and pursuing such calling as he may choose.”51 Thus, not only did New York’s legislation regulating the hours that bakers may work in Lochner run squarely into the Fourteenth Amendment, but so also would similar legislation at the federal level collide with its companion provision in the Fifth Amendment, guaranteeing due process of law against encroachment on natural liberty. Further, price and wage regulations are hardly innocuous: They represent the value of a person’s labor. As we recall, the right to profit from one’s labor in contract comes directly from the right to self-ownership. Removing one’s ability to contract his labor or resources alienates that person from his personhood by abrogating his self-ownership rights, be it a hardworking laborer or a risk-taking factory owner.
The National War Labor Board (NWLB), rather than the Supreme Court, was essentially “the court of last resort in all labor disputes for the entire country.”52 In order for the NWLB to be more palatable to the American citizenry, it was proffered to operate as a mediator; “[n]evertheless, in practice it was only necessary to invoke the aid of the President, or that of the other departments or war controls of government, to secure the most drastic powers.”53 The NWLB’s membership consisted of five representatives from labor, five from industry, and two public members, one of whom was expected to be pro-business. Initially, they were William Howard Taft, the former president and future chief justice, and the prolabor member, Frank P. Walsh; however, “[m]ore often than not, Taft joined with Walsh and the labor members to override the objections of the industry representatives.”54
The NWLB’s political nature and autocratic style led to several instances of employer and employee resistance to rulings:
In the Smith and Wesson case the refusal of the employer to abide by the board’s finding ended by a prompt commandeering of the plant by the government. Similarly, when the Bridgeport strikers refused to obey the board the President ordered them back to work under pain of deprivation of employment through the Federal Employment Bureau. They obeyed.
. . . Before the armistice there had been only two instances of actual refusal to abide by the decision of the board. The drastic settlement of those cases by the President had brought all parties into line. After the armistice, however, many employers who objected to the board’s decrees in their cases asserted that the board was created only for the duration of the war and that the armistice had ended the board and the force of its decisions. They proceeded to defy the board with varying degrees of openness.55
In the Smith and Wesson case, the NWLB essentially overrode a 1917 Supreme Court case about the right to contract with employees because it was “contrary to the principles of the National War Labor Board,” thereby invalidating employment contracts that required a promise not to join a union—“even if [they] were lawful when made.”56 When the employer refused to abide by the NWLB decision that it never consented to abide by, the president commandeered the plant.57
In the Bridgeport case, strikers refused to break up when they learned that they would not be entitled to advantageous employee classifications under the NWLB ruling, which, based on government misrepresentations, they believed they were entitled to. Wilson responded thusly to the strike, “[I]t is my duty to use means [like those used at Smith and Wesson] equally well adapted to the end with lawless and faithless employees.”58 He threatened to bar them from employment in wartime industries and, by virtue of their unemployed status, reenter them into the draft pool—a daunting prospect.59
To add a last bit of despotism, the NWLB “required all employers and workers who sought the assistance of the NWLB to renounce strikes and lockouts for the duration of the war.”60 Therefore, the NWLB abrogated not only the freedom of speech and freedom to contract, but also the freedom of association and the right to bargain collectively.
The War Industries Board more directly interfered with economic liberties. Established by the president’s National Defense Council in 1917 and working through its own bureaucracy created on May 28th 1917, the board literally existed to “fix prices” in U.S. industries.61 Even Congress was uncomfortable with the president’s exercise of power via the War Industries Board.62 Previously, the reader saw the observation that the declaration of war passed by Congress may have laid the groundwork for the largest takings of private property for public use without just compensation in American history.63 This observation is more apt in light of the War Industries Board’s activities. The best-documented example of this sort of unconstitutional administrative seizure is the Wool Division Controversy.
The War Industries Board created a subsector called the Wool Division to control the wool industry.64 The division soon issued regulations stating, “The necessities of the Government at this time are such as to require the use of all existing agencies for concentrating the wool near the centers of consumption. Therefore, all the wool of the 1918 clip must be distributed through approved dealers in approved centers of distribution.”65 In order to comply with this regulation, there was a complicated contracting scheme:
It was foreseen that the shortage of supply relative to the extraordinary demands of the war would cause the price of wool to rise in 1918 to exorbitant heights and that the Government would be required of necessity to pay such high prices, unless means were devised to prevent this rise. Although the Government could doubtless have appropriated wool for war purposes, the constitutional requirement that it must pay just compensation for what it takes is one which war does not suspend. By the ingenious plan of the Wool Division constitutional and attendant practical difficulties were avoided. In order to obtain a permit to act as an “approved” dealer . . . dealers signed an agreement to comply with the regulations of the Wool Division, the effect of which was to direct all wool to the Government at a price set in advance by the Government and agreed to by the dealer, rather than to direct wool to the Government at a price to be judicially determined.66
The constitutionally protected freedom to contract is supposed to be safeguarded by the government from force or fraud, even—especially—from the government. In this era, the freedom to contract was even more strongly reinforced by the Lochner line of cases. However, the Wilson administration’s War Industries Board set the prices and compelled those engaging in the sale of any wool in the United States to comply with regulations that set the prices. The government itself engaged in both force and fraud through this appropriation scheme.
Defending from a charge equivalent to unjust enrichment after the war in 1929, some dealers claimed that because they were “already wool merchants [in the years preceding the war] . . . [they] had the right to deal in wool unrestrained by the [price-fixing] regulations.”67 Essentially, these defendants were claiming that they had the natural right to sell the product of their labor at the price a willing buyer would voluntarily pay. The Seventh Circuit Court of Appeals rejected that argument:
Although defendants were wool merchants, they could not have handled wool in 1918 without the consent of the government, because the government had appropriated all wool for its own purposes and had the undoubted right to say by whom, as its agents, wool should be acquired from the growers, or other owners. The War Industries Board, and all of its subdivisions, were merely agents, speaking for the President, and so far as the regulations are involved, they are to be considered as his acts. In addition to his constitutional powers, the President had the broad powers hereinabove shown, vested in him by congressional action. . . .
The defendants commenced and continued to act as government agents in exact accordance with the regulations [by signing the contract to obtain a license], and were paid by and received from the government and the manufacturers, to whom wool was allocated by the government, the prices and the commissions that were not provided for in any other way than in the regulations. Although the defendants were, in a sense, buyers and sellers of wool, yet they were only such, in 1918, as agents for the government, acting for a commission paid by the government. The government had the right, in those extraordinary times, to protect sellers of wool, by providing that out of all of the transactions the government’s agents should not have more than the specified profit, and that whatever those agents gained in addition thereto should be disposed of as the government might decide. We are of opinion that defendants are bound by the contract alleged.68
The court here used circular reasoning to justify the unconstitutional and unrightful taking of wool: Because the wool owners had signed contracts to abide by regulations that made them agents of the government, they could not negotiate the price of sale because that was fixed by the other party of the contract—the government—at its sole discretion. In law, such contracts are said to lack mutuality: That is, they are not enforceable by the court because the terms of the contract show that the exchange of goods or services was not bargained for, but on terms essentially dictated by one party.69 It protects individuals who do not have a fair bargaining position, such as yeoman shepherds against the president of the United States. However, in this instance, the court denied that five-hundred-year-old defense.
Clearly, the actions of the NWLB and the War Industries Board were large violations of economic rights—such as the right to contract and negotiate the value of the product of mixing one’s labor and one’s property—in disregard for Supreme Court precedent.
If one wanted to find a point before 1917 where anyone in America could be charged with “conspiracy to publish disloyal material intended to . . . cause contempt for the government of the United States” and receive a multiyear prison sentence for it, one needed to look all the way back to the era of the Alien and Sedition Acts.* But President Woodrow Wilson, like President John Adams before him, was not a man who happily endured criticism70 and not a man who would permit a piece of parchment to stop him from using governmental power to silence political opposition. H. L. Mencken lamented, “Between Wilson and his brigades of [government] informers, spies, volunteers, detectives, perjurers, and complaisant judges . . . the liberty of the citizens has pretty well vanished in America.”71 While many historians have termed World War I as “Wilson’s War” in referring to the League of Nations blunder or the unspeakable horrors of trench warfare in a multiyear stalemate,72 this section focuses on Wilson’s other war: His war on dissident and “disloyal” opinion in the United States. Specifically, this section focuses on the use of the congressional acts as a contrivance to carry out the Wilson administration’s crackdown on free and rightful expression through the war and subsequent Red Scare, and the Supreme Court precedent upholding these abuses—despite clear and profound First Amendment impediments—which would not be corrected until Brandenburg v. Ohio, generations later and after lives were lost.73
Suppression of Unpopular Viewpoints During the War
The First Amendment is essentially a legal shield, protecting the marketplace of ideas from untoward abridgment by government. The Wilson administration’s actions during the war are best described as a two-pronged attack on that shield: First, unconstitutionally suppressing competition in the marketplace, and second, unethically, albeit not per se unconstitutionally, flooding the marketplace of ideas with fallacious propaganda. Despite the rosy picture taught in government-owned schools of Americans cheerfully going into World War I as a unified nation,* there was significant opposition to the war, and the “hoist the flag and let her fly”74 picture painted for five generations of schoolchildren was profoundly erroneous.
The Wilson administration’s vital need to imbibe the public with “a sense of national purpose [in the public] and [to] dampen criticism” led to “one of the most fiercely [politically] repressive periods in American history.”75 Following along lockstep with Congress and the president, federal judges tended to sanction the actions of vigilante groups and political oppression by “prosecution.”76
In the 1918 November midterm elections, this need was best demonstrated. President Wilson himself asked the American electorate for a “vote of confidence” in the form of a Democratic majority:77 In fact, Wilson said directly to the American people that the failure to achieve Democratic majorities would be a “repudiation of my leadership.”78 In response to Wilson’s appeal, the American voters gave a majority in both houses to the Republican Party, ousting Wilson’s Democratic majorities. Three hundred thousand U.S. citizens dodged the draft in World War I, compared to at best 125,000 during the Vietnam War,79 and accordingly Congress authorized a million men to be drafted over the course of the war.80 Obviously, Wilson was struggling with controlling public opinion against the war, which would have fueled legal or congressional or popular challenges to the war. Thus, by executive order,81 Wilson established the Committee on Public Information in 1917 to flood the marketplace of ideas and unleashed the wrath of the Justice Department and U.S. Postal Service to enforce the Espionage and Sedition Acts of 1917 and 1918.
Flooding the Marketplace of Ideas: The Work of the Committee on Public (Mis-)Information
The Wilson administration’s campaign to prepare the American people for war began with the 1915 sinking of the Lusitania, a few years before the Committee on Public Information (CPI) existed. Wilson needed more than just a lack of opposition to entering war: He needed to galvanize America through a propaganda apparatus. Considering that there was no legitimate threat of invasion to America or direct attack operating as causus belli,*82 the administration had quite a task in front of it. In order to accomplish its ends, under the leadership of George Creel, the CPI orchestrated and perpetuated a propaganda campaign of mass misinformation through disingenuously harping on the Lusitania incident as causus belli, encouraging intolerance for German culture, and creating a false “myth of unique German savagery that continues to color the thinking of many persons.”83
Wilson used the Lusitania incident as the first strike at the hearts of the American people on the road to war. Popular thought is that the Lusitania was sunk because of the unrestricted submarine warfare employed by the indomitable German Imperial Navy: This is, at best, a mischaracterization of the event. The RMS** Lusitania was a British ship, flying only British colors, carrying—through an active war zone—four million rifle cartridges and more than a thousand cases of shrapnel shells intended for use against the Germans.84 Further, the German government took out an ad in the New York Times advising American passengers booked on British ships going into British waters that German U-boats would be taking shots at them; some doomed Lusitania passengers even received telegrams to this effect beforehand.85
Moreover, the Lusitania was built to be converted into a military vessel if necessary, and thereby, it had twelve deck gun emplacements at the time of its sinking, albeit without actual guns mounted.86 Seeing a ship of apparent (and actual) military value, a German U-boat launched a single torpedo at the bow of the Lusitania—which purportedly would allow a ship time to evacuate.87 Unfortunately, the blast from the torpedo reached the tons of explosive materials onboard, causing a second explosion, thus sinking the Lusitania and killing more than one thousand passengers onboard, 128 of them Americans, within a few moments.88
Secretary of State William Jennings Bryan advised President Wilson that the Lusitania was carrying “6,000,000 rounds of ammunition on board, besides explosives,”89 and that “a ship carrying contraband should not rely on passengers to protect her from attack.”90 Wilson, speaking in Philadelphia on May 10th 1915, urged calm in response to the attack. Later, in one of the most curious flip-flops in history, he retracted his original position because he felt it expressed “no backbone.”91
Wilson now blamed his initial, reasonable response on his “heart [being] in such a whirl”92 over courting his second wife. He reversed position and began hard-lining the Germans by insisting on an admission of war crimes with respect to the Lusitania.93 Of course he had been distracted. Why would Wilson miss a chance to step into the war to end all wars?94 The German letter responding to the incident was published in the New York Times on June 8th 1915, raising essentially all the points raised earlier about the Lusitania’s military value.95
Dismissing the German government’s arguments as “trivial,” President Wilson’s response was to “promptly [order] his cabinet to plan for rearmament.”96 Secretary of State William Jennings Bryan resigned on June 8th 1915 over Wilson’s now revealed belligerence, stating, “I cannot join without violating what I deem to be an obligation to my country and the issue involved is of such moment that to remain a member of the Cabinet would be as unfair to you as it would be to the cause which is nearest my heart, namely, the prevention of war.”97
With the affair stretching until 1916, Wilson still insisted on an express German disavowal of the justness of the attack, despite a German offer for compensation as an “act of grace.”98 In his speech about making the world “safe for democracy” and asking for a declaration of war, President Wilson referenced unrestricted submarine warfare as the causus belli.99 With a pretext paralleled only by the Gulf of Tonkin incident, Wilson needed a propaganda machine to beat the drums of war.
The CPI produced unprecedented amounts of visual propaganda in World War I: “Under [Creel’s] direction, the CPI produced a flood of pamphlets, news releases, speeches, newspaper editorials, political cartoons, and even motion pictures.”100 These images ranged from the subtle wink and nod of a femme fatale, encouraging the purchase of liberty bonds, to the incredible and stupendous. The most effective elements of this propaganda were the incredulous atrocity stories:
German soldiers, the world was gravely informed, amused themselves by cutting off the hands of Belgian babies. Another oft-repeated tale related how German soldiers amputated the breasts of Belgian women out of sheer viciousness. A slightly different variation of this story asserted that the amputation had been carried out by syphilitic Germans who, having ravished the women, wished to warn their countrymen thereby. There were persistent rumors about the crucifixion of Canadian soldiers. Perhaps the most repulsive and widely circulated of these fabrications was that concerning a German corpse factory where the bodies of both Allied and German soldiers killed in battle were allegedly melted down for fats and other products useful to the German war effort.101
Despite the fact that American journalists called these stories “groundless,” the CPI not only failed to contradict the stories about atrocities being committed against American troops and women but also used them to perpetuate the myth of the Visigoth Imperial savagery.102 Of the posters the CPI produced, the most famous images were of a bloodthirsty Hun lying in wait across the Atlantic or a psychotic adaptation of King Kong in an Imperial helmet with a screaming woman under his arm.103 And where did these stories come from? Either complete fabrication or the tales of wars long since passed.104
The committee on public misinformation wasn’t concerned with only spreading hate of the German army via lies, but a larger assault on the entire German culture. As one commentator has stated: “This American propaganda led to intolerant behaviors on the home front. Americans were encouraged to reject German culture, and under this encouragement, sauerkraut was renamed liberty cabbage, hamburger was renamed Salisbury steak, [dachshunds] were renamed liberty dogs, German measles were renamed liberty measles, and the City University of New York reduced by one credit every course taught in German. Fourteen states banned the speaking of German in public schools.”105
In fact, one town in Michigan changed its name from Berlin to Marne—an effort both to shed Germanic nomenclature and to honor those soldiers lost at the Second Battle of the Marne.106 With respect to movies, films like Wolves of Kultur and Pershing’s Crusaders flooded American theatres. One picture, To Hell With The Kaiser, was so popular that Massachusetts riot police were summoned to deal with an angry mob that had been denied admission.”107 One well-attended 1918 film, The Kaiser, the Beast of Berlin, was actually a propaganda film about the sinking of the Lusitania.108 Wagner, Bach, Beethoven, and Mozart were strongly discouraged from being played in musicians’ public performances!109 Thus, not only was the animus of the American people turned toward the Imperial troops and their reasons for entering war, but toward the entire society of the German people. It was a total culture war.
Although none of what the government did in terms of flooding the marketplace of ideas directly violated the Constitution or any federal statutes, it nevertheless constituted the use of known falsehoods to whip the country into a belligerent, anti-German frenzy, and it had a resounding effect in the marketplace of ideas, with the belligerent attitudes of the government becoming mainstream.110 The government’s arguments were based on indoctrinating Americans with intolerance and ire, not logic or reason.111 Moreover, as a participant in the marketplace of ideas, the government has unlimited funds and ability to pursue a monopolistic control of the thought market.
The negative consequence of this, in terms of market theory, is readily apparent: The market fails because of government intervention. The object of thought and ideas is to arrive at the truth or at least a verified conclusion. The marketplace of ideas disseminates thought and reason, and when it is polluted by a flood of uncorrectable, government-backed misinformation, it does not achieve its purpose of distilling truth and sifting out misleading information, but turns into a crucible of lies fomented by linguistic chaos. This effect on the market was magnified greatly by the Wilson administration raising impenetrably high barriers to entry (several year-long prison sentences) on anyone who wished to contradict its lies, discussed below. Thus, the CPI, in conjunction with other arms of the Wilson administration, unrightfully monopolized the marketplace of ideas with falsehoods, which, while not strictly prohibited by the First Amendment, is totally inconsistent with its values.
In terms of natural liberty, however, this is a unique perversion of the right to self-ownership. One of the most intimate, personal components of self-ownership is the control over your thoughts and ideas, which ones are private and which ones are public. The universal human capability of intelligent communication ensconces a right to communicate freely all thoughts and expressions, regardless of content and popularity. The knowing influx of known lies by the government into the free marketplace of ideas, coupled with government suppression of alternative viewpoints, is particularly troublesome because it directly attacks an emanation of the freedom of speech essential to individual autonomy: Reasonable consideration of differing perspectives.
From a social-contract perspective, the analysis is more damning. In a , the power of the government to act in any manner derives from the people’s acquiescence en masse to the ability of the government to act only as they have agreed to in the compact that it may. Parties to a contract have a duty not to misinform the other party or parties to the contract in a material manner. The people have ceded the power to make war to the government in this compact, but their representatives cannot do so under false pretenses and through falsehoods and remain faithful to the compact—that is fraud of the highest caliber. Wilson’s misinformation justifying war with Germany and social conditioning of the people represent an unconscionable violation of the social compact. His precedent of using a noble lie to drum up false justification for war and perverting the social contract would be honored by many future presidents, including FDR in responding to Pearl Harbor and bringing the United States into World War II, Lyndon Baines Johnson in responding to the Gulf of Tonkin incident and bringing the United States into the Vietnam War, and George W. Bush in responding to the 9/11 attack and dragging the United States into the Middle Eastern Wars.
In order to enforce the wildly unpopular draft, the Espionage Act of 1917, and the Sedition Act of 1918, the Justice Department decided to enlist the help of mobs and thugs. In the early 1900s, America was still a nation plagued with lynching and similar violence across the country. Attorney General Thomas Gregory, in “the first month of the war, . . . asked loyal Americans to act as voluntary detectives and to report their suspicions directly to the Department of Justice.”112 Hundreds of thousands of “loyal” Americans signed up to inform on their countrymen in “voluntary associations.”113
However, these voluntary associations were not just the average neighborhood watch; they were effectually an unconstitutional domestic spying and enforcement arm of the Justice Department: “The activities of these organizations went well beyond the reporting of alleged disloyalty. With implicit immunity [from the courts and Justice Department], they engaged in wiretaps, breaking and entering, bugging offices, and examining bank accounts and medical records. Vigilantes ransacked the homes of German Americans. . . . Matters had gotten so far out of hand [by the end of the war], however, that such pleas [for sanity and normal process of law] were essentially ignored.”114
Human natural liberty is the basis for the right to enforce privacy rights via self-defense. The issue is that without government, there is unequal protection of liberties, which is why we leave the State of Nature and create a government in the first place. The government cannot enlist the help of a mob—that it created and riled up—in order to enforce the laws. It encourages lawlessness under the guise of lawful conduct. Moreover, examine the investigatory actions taken by these organizations: Warrantless spying, wiretapping, and breaking into buildings. If the Justice Department did any of these things without a court warrant, it would violate the Fifth Amendment right to due process and the Fourth Amendment right to be free from search and seizure without probable cause. The Justice Department cannot evade these constitutional and natural laws merely by endorsing and enlisting the help of non-governmental mobs of thugs to do the dirty work which it is forbidden to do. Who will protect us from a mob doing the government’s dirty work?
The endorsement and implicit immunity from prosecution, discussed in more detail below, were a clear enough link between these groups that they should be construed as arms of the state, reaching into the homes of German Americans:
Attorney-General Gregory used these groups in a series of mass raids designed to round up “slackers”—individuals who failed to register for the draft. . . . The most notorious of these raids occurred in New York City in early September of 1918. For three days, members of the American Protective League “blanketed the city, stationing themselves at subway entrances, patrolling parks and squares, and guarding the ferries and bridges. More than 20,000 hapless men, accosted on the streets, were hauled off to armories or to jail, often at bayonet-point.115
Thus, in World War I, the Justice Department employed mob violence and intimidation to substitute for due process and natural liberty, in violation of constitutionally protected rights and the Natural Law.
And what did the vast majority of the federal judiciary, whose judges heard cases brought by the Justice Department, do when faced with civil assault suits and criminal charges levied against mob violence against not-even-accused German sympathizers? Nothing. As Voltaire once said, “It is forbidden to kill; therefore all murderers are punished unless they kill in large numbers and to the sound of trumpets.”116 A report from the National Civil Liberties Bureau found 164 incidents of mob violence related to the war between April 1917 and March 1919 and noted the underreporting of “hundreds of cases.”117 The best illustration of the judicial response to anti-German mob violence is the story of John Meints.
Meints was a German American farmer who was suspected of “being interested in or contributing to a Non-Partisan League newspaper . . . [or being] disloyal because he was not [monetarily] supporting war bond drives.”118 He was kidnapped, dropped outside of town, and told never to return.119 He reported the incident to the Department of Justice, whose agents “investigated and told him it was safe to go back home.”120 However,
. . . about a month after he returned to Luverne, [Minnesota,] men forced their way into the house of one of Meints’ sons and demanded to see Meints. The men then forcibly removed him from the house and drove to the South Dakota border. According to court records, once they reached the border, masked men “assaulted him, whipped him, threatened to shoot him, besmeared his body with tar and feathers, and told him to cross the line into South Dakota, and that if he ever returned to Minnesota he would be hanged.”121
Meints, apparently unable to find justice by way of criminal prosecution for his attackers, sued thirty-two of them in federal court for the tort of false imprisonment.
The district court jury acquitted the defendants because it found that Meints was “disloyal.” The judge took no steps to overturn the verdict. Eventually, in 1921, after the war ended, the Eighth Circuit Court of Appeals reversed the lower court ruling, but ordered a new trial to be held in the same court, rather than direct a verdict.122 Meints, apparently frustrated, settled the case.123 Meints, quite obviously, was deprived by the government of his personal liberty to move about because, after entrusting the government with those matters in the social compact, the government betrayed that confidence.
Criminal Prosecutions Under the Acts
More than two-thousand prosecutions were initiated under the Espionage and Sedition Acts between 1917 and 1921.124 Of the few hundred reported prosecutions in 1919, the National Civil Liberties Bureau calculates that 103 individuals were handed sentences of ten to thirty-five years for disloyal utterances, while barely more than thirty acquittals for either treason or espionage were reported.125 In a true testament to wartime hysterical absurdity, Robert Goldstein, producer of the film The Spirit of ’76, a patriotic picture about the American Revolution, was convicted under the Sedition Act because the film portrayed a historical massacre of Americans, where “British soldiers bayoneted women and children.”126 The reasoning: It tended to promote insubordination by making an ally look bad through portraying historically accurate events.127 These were not the only oppressive acts taken by the Justice Department and permitted by the judiciary. Walter Matthey was convicted and sentenced to a year in prison under the Espionage Act for listening to and applauding a speech which contained “disloyal utterances.”128 A California man was jailed for laughing at army drills.129
Those were just a few of a litany of malicious, baseless, highly unconstitutional persecutions carried out by the Justice Department and state prosecutors. “In one instance, a traveling [Montana] wine and brandy salesman was sentenced to 7 to 20 years in prison for privately calling wartime food regulations a ‘big joke.’ ”130 Thirty German American residents of South Dakota decided to petition their governor for reforms in the draft procedure, threatening to vote the other way in the next election.131 They were answered with charges for obstruction of enlistment services.132 In front of an entirely female audience (no draftable male soldiers around), Rose Stokes was convicted under the Espionage Act for stating, “I am for the people and the government is for profiteers,” receiving a ten-year sentence because she “chill[ed] enthusiasm” for the war.133 Rev. Charles Waldron distributed a pamphlet advocating conscientious objection under an idea of Christian pacifism; he was sentenced to fifteen years in prison.134 Religious leaders were the most aggressively pursued disloyal citizens.135
In one of the most famous cases in U.S. history, Eugene V. Debs, the nationally recognized leader of the Socialist Party and perennial presidential candidate, was prosecuted under the Act. During the speech for which he was arrested, he joked about the potential for criminal prosecution under the Espionage Act:
I have just returned from a visit over yonder (pointing to the workhouse), where three of our most loyal comrades are paying the penalty for their devotion to the cause of the working class. (Applause.) They have come to realize, as many of us have, that it is extremely dangerous to exercise the constitutional right of free speech in a country fighting to make democracy safe in the world. (Applause.)
I realize that, in speaking to you this afternoon, there are certain limitations placed upon the right of free speech. I must be exceedingly careful, prudent, as to what I say, and even more careful and prudent as to how I say it. (Laughter.) I may not be able to say all I think; (laughter and applause) but I am not going to say anything that I do not think. (Applause.)136
Debs, in painful irony, was convicted and sentenced to ten years in prison for giving that speech and “eulogi[zing]” a few other similar cases. Wilson labeled Debs a “traitor to his country” because of his speeches.137
The Wilson administration’s decision in this matter smacked of political motivation. In the 1912 presidential campaign, Debs received almost a million votes to Wilson’s six million.138 Although Wilson trounced a different Socialist Party candidate in 1916 who received about half the votes that Debs received,139 Wilson certainly preferred to keep his political opponents behind bars for the time being with the rising anti-war sentiment. When Debs ran again for president in 1920—from a jail cell—he received nearly a million votes.140 However, Debs’s health “was severely undermined” by prison conditions, and after his release in 1921, he spent his “remaining days” trying to recover; he died in 1926.141
The United States Will Not Mail Your Ideas: The Postmaster in World War I
The nonmailability provision of the Espionage Act provided the postmaster general, Albert Burleson, with broad discretion to refuse to deliver “disloyal mail.” Using this discretion, more than “400 publications were denied mailing privileges at some time or another during or after the war”142 at the behest (or, more accurately, fiat) of the postmaster general. One publication, the Freeman’s Journal and Catholic Register, was “suppressed” under the Espionage and Sedition Acts for “reprinting Thomas Jefferson’s views that Ireland should be an independent republic.”143 The ostensible reason for the suppression was the potential negative impact on our ally, Great Britain, similar to the reasoning articulated in the Spirit of ’76 film prosecution. Another newspaper, The Public, was censored because it had the gall to assert that the war should be funded from tax revenue, not liberty bond sales.144 “[S]cores of other books, magazines, and newspapers” were censored under the Espionage and Sedition Acts.145 The New York World lamented this era as “an intellectual reign of terror in the United States.”146 Many writers and artists fled the country,147 leaving a lacuna in the American intelligentsia: So much for the marketplace of ideas.
But what sort of process was attendant to these suppressions? Surely there must have been some due process:
Wilson now and then made suggestions to Burleson . . . but the Postmaster General usually had the last word in censorship matters. On two occasions . . . Wilson did override Burleson’s orders of exclusion. More often, though, Burleson simply ignored Wilson’s reservations and persisted in his campaign to cleanse the mail of all “disloyal” publications. The responsibility for restraining the postmaster general rested “squarely upon Woodrow Wilson.” Wilson realized this, but generally did nothing.148
The man responsible for censoring disloyal material that could cause contempt for the government, Albert Burleson, was Wilson’s presidential campaign manager.149 “[M]any publications moderated their editorial content” as a result of Burleson’s oppressive mail regime.150 The Supreme Court and lower federal courts of the time generally upheld convictions of newspaper editors for their hand in disseminating disloyal material.151
The repression of publications by the fiat of a patronage appointee with political motivations is repugnant to the Natural Law, as well as to the First Amendment’s protection of the freedom of speech and of the press. Persons have a natural right to speak their minds without the fear of severe reproach or reprisal by their elected government or its political lackeys.
Give Us Your Tired, Your Hungry, and Your Loyal: Deportations Under the Alien Act of 1918
As a final despotic gift to the American people from the political branches of the federal government, Congress passed the Alien Act of 1918. (Now, the Alien and Sedition Act of 1918 is, actually, a perfect description.) The Alien Act of 1918152 provided that aliens who believe in anarchist views—despite whether they are peaceful or not—may be deported upon a warrant signed by the secretary of labor followed by an administrative, not judicial, proceeding.153 “In 1918 alone, the United States deported 11,625 individuals under this act.”154 That means during the Wilson administration, 11,625 individuals were deprived of property, the rights to political expression, and the natural liberty to live wherever one may choose.155
Law enforcement’s preliminary investigations were “conducted in secret,” and the “entire process” was done administratively by the Department of Justice absent counsel, jury, or judge.156 They were tried in front of “inspectors” and Justice Department officials who were charged with “mak[ing] every possible effort to obtain evidence of the alien’s membership in one of the proscribed parties.”157 Detainees slated for deportation hearings were sent to Deer Island near Boston. There, they were “held practically incommunicado,” subjected to deplorable conditions that left them exposed to extreme cold and unsanitary conditions.158 One detainee committed suicide by jumping out a window, one was committed to a mental health facility, and other detainees were “driven nearly, if not quite, to the verge of insanity.”159
With federal courts all but endorsing mob violence, assaults on natural liberty and sentences abounding throughout the courts to the tune of ten or twenty or thirty years in prison for speech alone, and an out-of-control Justice Department, how would the Supreme Court respond? In a series of decisions handed down during the war and the Red Scare, the Supreme Court—the counter-majoritarian branch designed to protect the rights of the minority against the oppression of an overbearing majority—abided. Between 1918 and 1921, the Supreme Court handed down opinions in Schenck v. United States,160 Frohwerk v. United States,161 Debs v. United States,162 Abrams v. United States,163 Schaefer v. United States,164 and Pierce v. United States,165 which stamped as legitimate the persecutions under the Espionage and Sedition Acts.
The first of these six cases, Schenck, involved the appeal of Charles Schenck and Elizabeth Baer. They were convicted of publishing a pamphlet that called the draft “unlawful.”166 The pamphlet “confined itself to peaceful measures such as a petition for the repeal of the act.”167 The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”168 Thus, this case seems as though it would have an obvious result, and one marvels at the fact that this case needed to reach the Supreme Court for adjudication. However, in a truly stunning move, Justice Oliver Wendell Holmes Jr., writing for a unanimous court, upheld the convictions because the speech presented a “clear and present danger” to Congress’s successful provisioning of the army for the war.169 Realizing his folly, Justice Holmes would later reverse course and change his First Amendment jurisprudence on how to apply the “clear and present danger” test, but not until after much damage to life and liberty.170
On March 10th 1919, seven days after Schenck, the Supreme Court handed down an opinion in Frohwerk v. United States. Frohwerk was a copy editor for a Missouri-based paper.171 Copy editors typically deal with grammar, typeface, and style issues; they do not create content. Some articles he edited were anti-draft articles, none of which he wrote.172 Nevertheless, he was convicted of violating and conspiring to violate the Espionage Act of 1917 and sentenced to ten years.173 Justice Holmes, again writing for a unanimous court and citing Schenck, upheld the convictions, despite the fact that it “does not appear that there was any special effort to reach men who were subject to the draft.”174
The same day as Frohwerk, the Court decided Debs’s fate in Debs v. United States. As the Court recounted, the Ohio speech he gave “eulog[ized]” the draft opponents in jail and “expressed opposition to Prussian militarism in a way that naturally might have been thought to be intended to include the mode of proceeding in the United States.”175 Again, writing for a unanimous Court, Holmes upheld the convictions.176
Abrams v. United States represents the most important of these four opinions; while Debs and Schenck may have been popular or interesting, Abrams shows why First Amendment jurisprudence was reversed in the next fifty years. The defendants were five Russian intellectuals who wrote a pamphlet largely in Yiddish—distributed by throwing them out tenement windows in New York City—encouraging Marxist policies and deriding Wilson and the war.177 Abrams rented the rooms in which they worked.178 The convictions were upheld; however, this time Justice Clarke was writing for a divided Court.179 Holmes wrote a dissent in which Justice Brandeis joined, arguing,
But as against dangers peculiar to war . . . the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.180
Later, this dissent would prove instrumental in the jurisprudence underlying reversing the jurisprudence in these four cases (but not the cases themselves) and in placing First Amendment rights on the path to the constitutional pedestal achieved in Brandenburg v. Ohio.
Schaefer v. United States upheld another set of Espionage Act convictions against German newspaper editors.181 Writing for the majority, Justice McKenna held:
The indictment is based on the Espionage Act . . . and its restraints are not excessive nor ambiguous. . . .
But simple as the law is, perilous to the country as disobedience to it was, offenders developed, and when it was exerted against them [offenders] challenged it to decision as a violation of the right of free speech assured by the Constitution of the United States. . . . That great ordinance of government and orderly liberty was invoked to justify the activities of anarchy or of the enemies of the United States, and by a strange perversion of its precepts it was adduced against itself.182
In a similar vein, Pierce v. United States upheld the convictions of four Socialists who argued that the war was being perpetrated for profit-making reasons.183 In both cases, Brandeis and Holmes joined in dissent.
Thus, for anarchists, aliens, pacifists, and Socialists, there was no refuge in the First Amendment or the Court. Be they party leader or pacifist preacher, no one who disagreed with Wilson was safe from prosecution under the Alien and Sedition Acts. With no avenue open for political redress, or even to suggest publicly that policy ought to be changed, these movements (besides the pacifists) grew violent and radical. The suppression of natural rights to the freedom of speech, the freedom of religion (even Christian pacifism), the freedom to seek redress of grievances, and the guarantee of due process of law were enough to radicalize the American political minority.
After the war, America entered a socially turbulent and chaotic period. Four million GIs returned from overseas seeking jobs.184 The work of the National War Labor Board, discussed above, had created tension between labor and management by imposing resolutions which only the exigencies of war could render tenable.185 With Eugene V. Debs behind bars, the , fueled in part by the systematic oppression of its leadership and in part by the Bolshevik Revolt in Russia, split into radical and moderate factions.186 The voluntary organizations created during the war showed no signs of abating their work of creating loyalty through vigilantism.187 Woodrow Wilson, the man who centralized government powers in the United States in the executive, suffered several debilitating strokes during the summer and autumn of 1919.188 His true personality lost its mask and manifested itself as that of a bitter, delusional man with “warped” judgment.189 On October 2nd 1919, he suffered a stroke that incapacitated him, leaving the First Lady effectively in charge of his presidency.190
As is typical with such a massive societal upheaval and governmental power vacuum, there was chaos. In 1919, there were dozens of labor strikes, bombings of politicians’ offices and homes, and incidences of street violence.191 In the 1919 May Day riots, Socialists parading in the streets of Cleveland, Boston, and New York clashed with police and voluntary associations.192 In the fall of 1919, Attorney General A. Mitchell Palmer saw an opening to run for president with the power vacuum that Wilson’s incapacity had created. (Wilson was physically unable to seek the third term he desired.193) Bolstering his résumé for the run, Palmer saw the public outcry for order and fear of Communist revolutionaries and anarchists as an opportunity.
Palmer capitalized. Establishing the General Intelligence Division (GID) within the Justice Department, he endeavored to suppress the “constant spread of a disease of evil thinking.”194 The GID, headed by a young J. Edgar Hoover, amassed the names of more than two hundred thousand individuals suspected of having radical beliefs and fueled the public with misinformation, “fabricat[ing] or exaggerat[ing] charges that Communists and other radicals had instigated violent strikes and race riots.”195 With ringing endorsements from the press—even some that expressly approved crushing civil liberties—and under the authority of the Espionage, Alien, and Sedition Acts, Palmer conducted a series of warrantless raids into the homes of suspected radicals between 1919 and 1920, imprisoning and deporting thousands for thought crimes.196
In 1918, the Senate created a special committee to investigate Bolshevik and un-American propaganda. It was called the Overman Committee after its chairman, Sen. Lee Overman, author of the Overman Act.197 The committee went beyond reporting on propaganda activities.198 It painted a stark picture of the effect of a Communist revolt in America and recommended suppressing the freedom of speech and the freedom to associate via sedition laws, increasing deportations, and suppressing foreign-language publications.199
Palmer’s raids and the Overman Committee’s proceedings represent some of the many systematic attacks on civil, political, and natural liberties conducted during Wilson’s War on America. The rights to private association, to the freedom of press, to the freedom of speech, to be secure in one’s home and affects, to be free of warrantless invasion, to shout from the rooftops and to whisper in the parlor, and to think what one wishes were brutally suppressed during this time.
The End of Wilson’s War on Americans
In 1920, the clamor for the repression of dissent was beginning to fade, and the pendulum began to swing away from totalitarianism toward respect for natural liberties. The first part of the counter-attack on the Wilson administration was a publication authored by, among others, a Harvard Law School professor and future Supreme Court justice, Felix Frankfurter, meticulously documenting the abuses suffered under Palmer’s Justice Department.200 As a result, Palmer was unceremoniously hauled before the House Rules Committee, though he survived that test of his power.201 His end would come, however, on May Day of 1920, when he and Hoover cried wolf, reporting to the American people of imminent attacks (bombings, assassination, urban violence, etc.) aimed at overthrowing the American government. In the May Day Scare, nothing happened, destroying Palmer’s credibility and his sway with the public.202 He became a laughingstock after that incident and lost his party’s nomination for president, dying in 1936.
That summer, in a second wave of liberty, judges began to enjoin the deportation of aliens because of political affiliation or ideology.203 Congress repealed the Sedition Act on December 13th 1920, but never repealed the Espionage Act of 1917.204 Wilson—his wife acting in his stead—commuted and reduced the sentences for violations of the Acts before leaving office; however, he refused to pardon Debs or to reduce his sentence.205 President Harding eventually pardoned Debs, and President Coolidge ordered the release of the remaining political prisoners just before 1924.206 As a result of the experience of severe political repression in World War I, John Dewey, Crystal Eastman, Roger Baldwin, and Walter Nelles founded the American Civil Liberties Union (ACLU) in 1920 to fight government oppression.207
The Supreme Court played its part in this counter-attack too. In the 1923 case Meyer v. Nebraska, the Court held that there is a constitutional right to learn German in schools, signaling a late but strong blow against the culture war perpetrated against German Americans.208 However, the Court was obstinate in its refusal to respect the natural right to free political expression embodied in the First Amendment. The Court would not correct First Amendment jurisprudence until forty-six years later, when Brandenburg v. Ohio became the law of the land, establishing more robust protections for speech that have only bolstered it since.
Woodrow Wilson waged a shameless war on the peaceful exercise of the freedom of speech. The effects of that war would be felt for generations after Wilson was dead and his immediate successors respected traditional American values.
* Randolph Bourne, “The State,” AntiWar.com, http://www.antiwar.com/bourne.php.
* Andrew P. Napolitano, Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom (Nashville: Thomas Nelson, 2012).
* “For 120 years, from the expiration of the Sedition Act of 1798 until America’s entry into World War I, the United States had no federal legislation against seditious expression. The lessons of 1798 had carried the nation through the War of 1812, the Mexican War, the Civil War, and the Spanish-American War.” Geoffrey R. Stone, Perilous Times (New York: W. W. Norton, 2004), 144–45.
* Bill Murray, “Over There,” recorded June 28, 1917, romanticized going to war overseas in song form, http://www.firstworldwar.com/audio/overthere.htm. “Over There” was a huge hit, becoming “the anthem for America’s war effort.” “The American Variety Stage, 1870–1920,” Library of Congress, March 12, 1997, http://memory.loc.gov/ammem/vshtml/vssnde.html. “And we won’t come back till it’s over, over there.”
* “[Just] case for war.”
** Royal Mail Ship.