Freedom of speech was not as free 103 years ago, when ‘seditious’ and ‘unpatriotic’ speeches were criminalized in the United States
A little over a century ago, the United States government – in the midst of World War I – embarked on unprecedented efforts to control and restrain what it saw as “unpatriotic” rhetoric by adopting the Sedition Act of 1918, signed by President Woodrow Wilson on May 16 of this year.
The restrictions – and the courts’ reactions to them – mark an important milestone in testing the limits of the First Amendment and the beginnings of today’s understanding of free speech in the United States.
As a free speech researcher and lawyer in the United States, I have studied federal government attempts to restrict speech, including during World War I, and the legal cases that challenged them. These cases helped shape the modern idea of the First Amendment free speech right. But the conflict between patriotism and free speech continues to be a problem a century later.
The pursuit of the “ radicals ” by the government
The outbreak of war led to a patriotic fervor, fueled by an intense government propaganda campaign. It has also led to new challenges for the concept of free speech.
Weeks after declaring war in 1917, President Woodrow Wilson signed the Espionage Act.
This law, which is still largely in force, makes three things a crime. First, to transmit false information in order to interfere with the US military or to promote the success of America’s enemies. Second, to provoke or attempt to provoke insubordination within the military. Third, willfully obstruct military recruitment or enlistment.
Both the Obama and Trump administrations have used this law to investigate unauthorized leaks of government information, including obtaining phone records from journalists.
The more restrictive 1918 Sedition Act went further, amending the Espionage Act to criminalize “disloyal, profane, slanderous or abusive” speech about the United States or its symbols; speeches to prevent war production; and statements supporting a country with which the United States is at war.
These laws constituted unprecedented restrictions on speech and called into question the founding concept of the First Amendment to tolerate criticism of government. But courts, including the United States Supreme Court, have generally recognized them as necessary restrictions in wartime.
“When a nation is at war,” the Supreme Court unanimously ruled in Schenk v. United States (1919), “many things that could be said in peacetime are such a hindrance to its efforts that their declaration will not be supported. as long as men are fighting and no court can consider them as protected by constitutional law. “
Over 2,000 people were prosecuted for acts of espionage and sedition during the war. About half were sentenced, many of whom were sentenced to prison.
These included several people who distributed leaflets arguing that the project constituted slavery (as in the Schenk case) and those who called for labor strikes against munitions factories (as in the Abrams v. United States (1919) case of socialist and communist parties, including anarchist writer Emma Goldman and socialist presidential candidate Eugene V. Debs, whose 1920 campaign was mounted from prison.
A few justices – including U.S. Supreme Court Justices Louis Brandeis and Oliver Wendell Holmes – have expressed concerns that the prosecution of war dissidents violates the First Amendment’s protection of free speech. . As Holmes explained in his famous dissent in the Abrams affair, “Congress certainly cannot prohibit all efforts to change the mindset of the country.”
The war ended in November 1918, but the Sedition Act continued to be used against so-called “radicals,” including a Justice Department campaign known as Palmer Raids in response to several terrorist bombings. The effort was named for Wilson’s attorney general A. Mitchell Palmer, whose home was among the bombed locations.
After World War II, a reassessment
The Sedition Act was eventually repealed on the last day of his tenure in 1921, although the Espionage Act remains.
All those who were imprisoned under the laws had their sentences commuted in 1923. In 1924, Attorney General Harlan Fiske Stone concluded that law enforcement should be concerned only with the conduct of individuals, not their own. “Political or other opinions”. In 1931, President Franklin Roosevelt offered amnesty to all those convicted of acts of espionage or sedition during the war.
But the speech restrictions have returned. As the United States approached World War II, Congress passed the Smith Act in 1940, which prohibited speech and organizations aimed at overthrowing any government in the United States. It was used during the war and the Red Fear of the 1950s to suppress the spread of Communist ideas and thought.
Eventually, however, in 1969, the Supreme Court ruled on the current legal standard, according to which speech can only be restricted if it presents a threat of “imminent lawless action”, depending on the circumstances in which it is. pronounced.
This standard allows for controversial or even inflammatory speech unless there is an immediate threat that the speech will predictably lead to illegal behavior on the part of the public.
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Despite calls for a crackdown on dissent after the September 11 attacks, no direct speech restrictions were adopted. In 2020, Attorney General William Barr called for prosecution of violent protesters, but no such charges were filed. There were also calls for President Donald Trump to be prosecuted for the fiery speech that preceded the Capitol insurgency on January 6. But the standard of “imminent lawlessness” is a high threshold.
This reluctance to pursue the rhetoric may well reflect lessons learned from the excesses of repression under the Espionage Act a century ago. The First Amendment right to free speech exists as a way to keep a critical eye on the government. Such scrutiny is always important, but it is particularly critical in wartime.
This is an updated version of an article originally published on April 6, 2017.