intolerable dissent

7/31/2019 Intolerable Dissent

1/38

Intolerable Dissent: The Legal

Aspects of the Suppression of

Socialist Speech During the WWIEra

Sam McCann

4/20/2011


2/38

Abstract:

In the Spring of 1917, less three weeks after the United States declared entry

into World War I, Congress began debate on a bill that sought to suppress political

dissidence in the midst of the turbulent international conflicti

. That bill, which

ultimately became the Espionage Act of 1917, spearheaded the federal governments

pursuit of radicals, particularly socialists, in the early part of the twentieth century.

Their pursuit culminated in the government-sanctioned Palmer Raids in late 1919 and

early 1920ii, which sought to silence dissidence. In the intervening years, federal law

enforcement and the federal court system applied the legislation to silence political

dissent.

Research Question: How and to what extent did the government suppress socialist

expression, particularly expression of anti-war sentiment, in the World War I era?

Methodology:The author began his investigation of the question the same way he usually

does: Google. Google Books proved to be an invaluable research tool, as a quick search

of the Espionage Act in the search engine provided a solid jumping off point. From

there, he discovered the critical cases, Schenckand Shaffer, to go with his background

knowledge ofDebs. He continued to search until coming across a Google Books preview

of Geoffrey Stones Perilous Times, which he cross-referenced with the Ithaca College

Library. When he discovered that it was on the shelves, he checked it out, along with a

number of other books generated by a search of espionage act in the librarys

database. These books included Streitmatters Voices of Revolutionand Wards History

in the Making.


3/38

Using these books as a guideline, he pieced together the sequence of events

surrounding his research question, picking out landmark cases to investigate further.

He then found those cases on Findlaw.com or Cornells legal site via Google, using

simple keywords like Debs v. United States and Schenck v. United States. In

addition to finding the cases involved, the researcher found the laws that served as the

basis for the cases on Findlaw as well, by simply searching Google for Espionage Act

full text.

As for the essays he draws upon in this paper, the researcher either had

background knowledge of them and unearthed their full text on JSTOR, or learned of

them through the books he checked out. For instance, as he was already familiar with

the Eugene Debs case, he simply used the databases afforded to him by his school,

searched for Canton Anti-War Speech and pulled up the text. In other instances, he

would learn of a document, such as Chafees Freedom of Speech in Wartime, while

reading a book, and simply enter that exact title of the document into the databases his

school offered.

Google Books and Google Scholar also proved helpful in this regardthrough

those tools, the researcher managed to find documents that otherwise proved elusive,

such as The Report upon the Illegal Practices of the United States Department of Justice.

These documents were so critical to the paper that, when the school-provided

resources came up empty, he did not hesitate to turn to Google.

Google Books also proved useful in tracking down copies of books the

researcher either couldnt check out of the library for more than two hours at a time,


4/38

such as Streitmatters, or books he realized would be useful but did not need a hard

copy to cite, such as ZinnsA Peoples History of the United States.

Ultimately, it was a mixture of resources generated by free search engines, like

Google, and subscription-based databases, like JSTOR, that provided the detailed

information. Those details were supported by the framework provided by the books he

obtained after an initial background search of the topic.

Origins of the Suppression of Socialist Speech:

The Espionage Act was born out of a growing anti-radical sentiment in the wake

of US involvement in World War I that saw the United States highest officials

disengage from their stated views on freedom of expressioniii. President Woodrow

Wilson himself presents the most obvious example of this phenomenon: just a decade

earlier, as a president of Princeton University, he provided a thorough defense of the

need for an open dialogue amongst the American people in his bookConstitutional

Government in the United Statesiv. In it, the future president writes that Nothing chills

nonsense like exposure to the air; nothing dispels folly like its publication; nothing so

eases the machine as the safety valve. Agitation is certainly of the essence of a

constitutional system, but those who exercise authority under a non-constitutional

system fear its impact with constant dread and try by every possible means to check

and kill it."v

However, upon entry into the war, Wilson lobbied strongly to suppress the

safety valve he spoke so highly ofjust four years before his presidency, pushing

congress to outlaw perceived unpatriotic speechspecifically the anti-war speech so

often voiced by socialist press by expanding the executive branchs censorship


5/38

authorityvi. Wilson even worked unilaterally to this end, issuing an executive order

allowing for the removal of federal employees who disagreed with the war effort in

action or in sentiment.vii However, he proved most effective in codifying his

reevaluated views on free speech through Congress.

Despite invoking his executive powers to limit dissenting expression, Wilson by

no means held the position alone. Indeed, the Department of Justice spearheaded a

major campaign to curtail the rise of non-conforming opinion.viii Led by legal scholar

Charles Warren, it sought to prevent political agitation and disloyal propaganda that

posed a threat to US intervention abroad.ix Warren wrote extensively of his views on

the matter in his essay What Is Giving Aid and Comfort to the Enemy in the Yale Law

Journal in 1918. In the examination, he writes that "all aliens, therefore, in the United

States who in any way give aid and comfort to the enemy, even though that enemy be

of their own blood and kin, are guilty of treason to the United States, and may be

punished by death, exactly as any citizen native born or naturalized who performs the

same acts may suffer that penalty." x

Warren and Wilsons shared advocacy of restricted wartime speech manifested

itself in Congress as a billHR 291 penned chiefly by Warren himself.xi The bill was

comprised of three provisions: the press censorship provision, which would have

outlawed the publication of information that the president deemed potentially useful

to the enemy; the disaffection provision, which would have criminalized willfully

making false statements intended to hinder the military or cause disaffection to the

military; and the nonmailability provision, which would have allowed the postmaster

general to refuse to ship mail deemed of treasonable or anarchistic character.xii


6/38

While Wilson and the Department of Justice proved generally effective in

pushing through these new restrictions, they did not go unchallenged in Congress.

Indeed, Congress called an extra sessionxiii and a nine-week debate ensued in which

congressmen objected particularly to Wilsons attempt at press censorship.xivSome

representatives, such as Ira Hersey of Maine, even rebuked the president outright;

We, the Congress of the United States, Hersey said, are now importuned by the

executiveto enact unconstitutional laws, to place in the hands of the President

unlawful powers, to grant him theauthority to take away form the citizen the

protection ofthe Constitution.xv

There is some disagreement as to exactly how earnest these critiques of HR 291

were. Scholar Geoffrey Stone maintains that Congress did indeed hold serious

reservations about the bills intentions, calling the floor debates grueling.xvi He cites

several alterations made to the bill as evidence of serious deliberation,xvii and in a

separate essay, Judge Learned Hand and the Espionage Act of 1917: A Mystery

Unraveled,defends Hands belief that Congress sought not to severely limit FirstAmendment rights in passing the law.xviii In it, he reasons that congressional concern

over the bills wordingand the representatives particular attention to potential threats

to the Communist Partythe group ultimately repressedprove that those in the

chamber in no way meant for the law to hold down legitimate freedom of speech.xix

Instead, he concludes that they hoped the Espionage Act limited only speech that

targeted specifically at the actions of the armed forces.xxAlthough Congresss stance in

enacting the Espionage Act could hardly be characterized as civil libertarian, Stone

writes, its elimination of the press censorship provision (over the strong objections of


7/38

the president) and its significant amendments to both the disaffection and

nonmailability provisions reflected a genuine concern for the potential impact of the

legislation on the freedom of speech, or of the press.xxi

On the other hand, fellow scholar David Rabban argues in his bookFree Speech

in Its Forgotten Years that Congress did not seem to particularly mind the limits the bill

placed on First Amendment Rights.xxii While he acknowledges that congressional

debate did indeed alter the laws wording and somewhat mitigate its writers apparent

intention, he writes that contrary to the confident but uniformed subsequent

assertions of Learned Hand and Zechariah Chafee, these debates reveal that the

majority of Congress intended the Espionage Act to encourage the restrictive decisions

that resulted.xxiiiAs evidence, he offers the fact that "even vociferous opponents of the

nonmailability provision conceded throughout the lengthy congressional debates that

a variety of publications should not be circulates...they agreed that it would be

desirable to exclude socialist and IWW publications.xxiv

The Espionage Act:

Regardless of the nature and earnestness of the debate, Congressional

discussion yielded a law somewhat less restrictive than the bill first introduced on the

floor.xxv In its final form, the Espionage Act states that anyone who distributes

information with the intent to interfere with the operations of the US military or the

reasonable belief that their efforts could jeopardize those operations can be fined or

imprisoned for a maximum of ten years. Likewise, anyone who publishes, copies or

otherwise distributes documents, photographs, sketches or other sensitive information

with the same intent or belief is subject to an identical punishment. Furthermore, the


8/38

law stipulates that anyone found guilty of it must surrender all property or profit

derived from the distribution of the classified material and enabled postmasters to

seize such potentially disruptive material.xxvi

This represents a slight divergence from the vision expressed by Wilson and

Warren. The law completely did away with aspects of the bills initial draft, cutting out

the most direct attempt at press censorship. Congress also eliminated the term

disaffection, which the Judiciary Committee found too broad, too elastic, and too

indefinite. To tailor the law, it replaced the term with the phrase insubordination,

disloyalty, mutiny, or refusal of duty. Likewise, it replaced the term treasonable or

anarchistic character with matter advocating or urging treason, insurrection, or

forcible resistance to any law of the United States. Attorney General Thomas Gregory

felt these changes left the bill ineffectual; he told the American Bar Association that the

administration secured the passage of the Espionage Act, but most of the teeth which

we tried to put in were taken out.xxvii

Despite Gregorys complaints, the Espionage Act went into effect on June 15

1917xxviii and its remaining teeth were sharpened by the Sedition Act soon after. In

April 1918, Gregory asked Congress to amend the act to protect the governments

ability to borrow war funds and generally strengthen the existing provisions.xxix

Congress ultimately conceded, passing the law after some debatethe House strongly

approved of it, voting 293 to 1 in favor of the billand on May 16 Wilson signed it into

law.xxx In part, the law stated thatwhoever 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


9/38

the cause of the United States therein, shall be punished by a fine of not more than

$10,000 or imprisonment for not more than 20 years, or both.xxxi

The laws were met by a sea of litigation; fifteen hundred to two thousand

citizens were sent to prison as a result of the Espionage Act,xxxii and that was nothing

compared to the number of complaints. At the start of the war, just after the legislation

passed, Gregory pleaded with Americans to report their suspicions directly to the

Department of Justice, a plea that garnered thousands of accusations of disloyalty

daily.xxxiii The department relied upon volunteer organizations to weed out potential

violatorsthe American Protective League used its 200,000 (aided somewhat by the

George Creels Committee for Public Informationxxxiv members to generate thousands

of complaints based heavily on hearsay, gossip and slander.xxxv Gregory warned that

the government would pursue these tips rigorously; in November 1917 he said May

god have mercy on them, for they need expect none from an outraged people and an

avenging government.xxxvi

Among the pile of complaints that poured into the Department of Justice lay

some cases that would come to define the Espionage Acts application in the federal

court system, cases with direct effects on Socialist political expression in the World

War I era and beyond.

Shaffer, TheMassesand the Espionage Acts Bad Tendency

Naturally, the Espionage Act had a significant impact on dissident socialist

publications, which often took an anti-war stance.xxxviiAs Stone notes, The federal

judiciary was, of course, a product of the times. The predominant view during this era


10/38

was that civil liberties were intended for respectable, law abiding citizens.xxxviii

Therefore, those on the outside of that group faced stiff legal consequences. One of the

most telling instances of the laws impactin this regard came in 1920s Shaffer v. United

States, which was actually a rehash of a previous trial against the editors of The

Philadelphia Tageblatt.xxxix The Department of Justice considered to be sympathetic to

the German cause,xl but in 1918 a judge ordered the defendants to be acquitted on the

count of treason on the grounds that the government had presented no evidence

against them.xli

However, the defendants were not originally charged using the Espionage Act

and the Department of Justice urged the prosecuting attorney to try again in the wake

of the new laws passage "when you believe that the accumulation distinctly shows a

pro-German or antiwar propaganda.xlii The attorney obliged and what resulted was a

case that made its way to the Supreme Court. In Shaffer v. United States, the Supreme

Court affirmed the lower courts conviction of the defendants.xliii Justice McKenna

delivered the opinion, citing the Espionage Act directly in saying, There were directed

against conduct-speech or writings-that was designed to obstruct the recruitment or

enlistment service, or to weaken or debase the spirit of our armies, causing them, it

might be, to operate to defeat and the immeasurable horror and calamity of it.xliv The

difference in verdictsacquitted by a lower court before the Espionage Act, guilty of

treason under the new lawreflects the power the act permitted the executive branch.

It is worth noting that the Supreme Court also offered a dissenting opinion

written by Justice Brandeis and co-signed by Justice Holmes that foreshadowed the

Courts future verdicts on Espionage Act cases. Brandeis held that, The nature and


11/38

possible effect of a writing cannot be properly determined by culling here and there a

sentence and presenting it separated from the contextxlv and attacked the treason

verdict rendered by the majority of his colleagues.

The Shaffercase is particularly significant for establishing the bad tendency

test for the Espionage Act. The lower courts held thatthe evidence fails to show that

[Shaffer] committed the act willfully and intentionally. But...he must be presumed to

have intended the natural and probable consequences of what he knowingly did.

When the Supreme Court upheld this ruling it accepted the lower courts

interpretation, thus allowing the prosecution of speech not necessarily intended to

violate the Espionage Act, but merely expression that has a bad tendency to do so.

This understanding of the law pervaded the federal court system throughout WWI, and

the application of this standard yielded a guilty verdict in virtually every case.xlvi

Among these decisions was the case ofMasses Publishing Co. v. Patten, in which

the Masses Publishing Company sought an injunction against the postmaster, Albert

Burleson.xlviiBurleson sought to prevent the distribution of the companys magazine,

also called Masses, through the mail.xlviiiMasses was a monthly revolutionary

journaliconoclastic, impertinent and confrontationalthat spoke out against

United States involvement in World War I.xlix Burleson appealed the order and a lower

court overturned it, which brought the case to Justice Learned Hand. The postmaster

argued that the magazine violated the Espionage Act because it appealed to others to

resist the drafts and he was therefore within his rightscompelled, in factto

withhold mailing the publication. Masses held that they were protected under the First

Amendment. Judge Head reversed the previous decision reasoning that under the


12/38

Espionage Act a citizen must refrains from telling others that they would benefit from

resisting the law, but they may write that they admire those who do.l

Hand also believed that the Espionage Act was not intended to be interpreted

the way the Burleson offered. To side with the postmaster, he believed, one would

need to broadlyand wrongly, in Hands viewinterpret the Espionage Acts wording.

He reasserted First Amendment Rights in finding thatTo assimilate agitation,

legitimate as such, with direct incitement to violent resistance, is to disregard the

tolerance of all methods of political agitation which in normal times is a safeguard of

free government. Essentially, he found that the bad tendency test did not hold water

in this instance.li

Hands decision did not hold, however. A higher court soon overturned his

ruling, disapproving his test and staying the injunction.lii Later a full panel of Second

Circuit judges reversed Hands ruling in an en banc decision, a direct result of the

Espionage Act and its application under the bad tendency test.liiiHands stand also

cost him a promotionhe was passed over for the court of appeals in favor of a less-

distinguished judge because of his finding.livMasses, too, suffered as a result of the

decision. Its circulation immediately dwindled due to its inability to mail its publication

and within days of the circuit courts ruling, seven of its editors were indicted under

the Espionage Act.lv Within the year the publication was out of business.lvi

A New Test:Schenckand the Clear and Present Danger

As the lower courts invoked the bad tendency test to shut down socialist anti-

war publications, the Supreme Court established yet another paradigm in the landmark

1919 case Schenck v. United States. The government accused Schenck, a Socialist Party


13/38

member, of violating the Espionage Act by distributing a pamphlet inciting others to

disregard the draft.lvii He was charged on three counts: one of attempting to incite

military insubordination and two of using the mail to distribute the material allegedly

designed to incite said insubordination.lviii Justice Oliver Wendell Holmes described the

document as advocatingcitizens to avoid conscription through peaceful means, such as

petition and assembly.lix According to Stone, it described drafted soldiers as little

better than a convict and said the draft was an effort to further the interests of Wall

Street. Additionally, it encouraged its readers to join the Socialist Party.lx

The case, of course, originated in the lower courts. Those ruled against Schenck,

finding him guilty on all three counts.lxi The judges found that the pamphlets

distribution had the natural tendency and reasonably probable effect of obstruction

of conscription and that "the defendant had the specific intent to do so in his mind," a

clear application, right down to the diction, of the bad tendency test.lxii

When the case came before the Supreme Court, Schenck invoked the First

Amendment in his defense, alleging that his conviction violated his rights. However, the

Courtheavily conservative at the timelxiii decided this was not the case and upheld

Schencks conviction. Justice Holmes delivered the unanimous opinion, citing several

other First Amendment cases before arriving at the opinion that Congress has the right

to censor words that can lead to substantive evils if there is a clear and present

danger.lxiv He wrote that: The most stringent protection of free speech would not

protect a man in falsely shouting fire in a theatre and causing a panic When a nation

is at war many things that might be said in time of peace are such a hindrance to its


14/38

effort that their utterance will not be endured so long as men fight and that no Court

could regard them as protected by any constitutional right.lxv

Holmes put forth the hypothetical of yelling fire in a crowded theater for the

first time in legal historylxviand equated Schencks expression with such an act. In

doing so he established the clear and present danger test, a test that, while never

explicitly explained by the Court, can be reasoned by Holmes portrayal of the debate

as three-pronged. First, whether the defendant intended criminal action; second,

whether his or her actions constituted an immediate threat of successfully meeting that

intended action; and third, whether that action would result in a grave evil.lxvii

There is some debate as to the significance of the test. Stone holds that Holmes

did not intended the phrase clear and present danger to reflect a change to the bad

tendency test. Instead, he argues that Holmes merely applied the same reasoning

while using different language. However, others contend that the ruling permitted the

government to censor preemptivelythat the government need not wait until criminal

intent was achieved before interceding, but that it could legally act to prevent it.

Regardless of the debate, the decision set a perceived precedent (a precedent rejecting

Stones take on the situation) which dominated the Supreme Court's decision of free

speech casesincluding those involving socialist speechfor fifty years, until

Brandenburg v. Ohio in 1969.lxviii

Among these cases was the pivotal Debsv. United States, heard later that year,

another example of the government acting to limit socialist media. Eugene Debs was

the leader of the Socialist Party and a four-time presidential candidate.lxixUnder Debs

charge the party garnered six-percent of the electorate in 1912, nearly a million


15/38

voteslxx; unlike Schenck, a relatively insignificant party member before his trial, Debs

was a party leader whose expression in question was disseminated in a very public

forum.

The case against Debs was rooted in a speech he delivered in June 1918 after

visiting three imprisoned Socialists; after chatting with the inmates he went across the

street and spoke for two hours.lxxiIn his impassioned Canton Anti-War Speech, a

speech repeatedly interrupted by the audiences laughter and applause,lxxii Debs urged

an immediate end for public support of World War I. He began somewhat ironically,

noting that it is now difficult to exercise the right to free speech in a country that

supposedly is fighting for democracy in other nations. In the course of the lengthy

oration, he questioned the United States governments interests in entering the war,

claiming that their ends are identical to those of the central powers. He also admitted

to sympathizing with the people of those rival nations, who he terms my younger

brothers. Debs went on to say that it is the gentry who are wrapped in the American

flag, who shout their claim from the housetops that they are the only patriots; in his

mind, the war had commercial interests at its heart. Additionally, he scolded the

Republicans and Democrats for deceiving the general public and viewing their

constituents as sheep, delivering biting criticism of the two-party system. Finally he

warned that the corporate interest behind this two-party system would lead to the

continued oppression of political speech.lxxiii

He was arrested less than two weeks laterthere were draft age youths at the

speech and the government apparently believed his speech to be in violation of the

Espionage Act.lxxiv


16/38

At the initial trial, Debs declined to take the stand or call a witness in his

defense. He acknowledged his guilt of the charges against him before the jury began

deliberations and they promptly found him guilty. The judge expressed outrage

against those who would strike the sword form the hand of this nation while she is

engaged in defending herself against a foreign and brutal power."lxxv He then sentenced

Debs to ten years in prison for each of two counts, to be served subsequently.lxxvi

Debs appealed the decision and the Supreme Court heard him in 1919.lxxvii The

hearing once again put the Espionage Act to the test. The government argued that

Debs attempted to incite insurrection in the military, and therefore violated the law,

while Debs contended that the law violated the First Amendment and that the evidence

against him was insufficient to indict. Justice Holmes, in delivering the majority

opinion, shot down both of Debs arguments. Holmes first acknowledged that the

thrust of the speech was socialism, and that the court had nothing to do with that

(contrary to later courts, which were happy to rule on the subject), but took issue with

instances in which Debs advocated against the draft and the military. Holmes also

added that the First Amendment issues raised in this case were virtually identical to

Schenck v. USand therefore, using the principle of Stare Decisis, the ruling was the

same; the court upheld the previous decision. Holmes himself claimed that the Schenck

ruling had already disposed of Debs First Amendment claims .lxxviii

Holmes opinion reaffirmed the bad tendency test without a direct mention of

the clear and present danger test, which Stone points out as evidence that Holmes

intended to the two to be applied identically. Holmes most carefully instructed that

they could not find the defendant guilty for advocacy of any of his opinion unless the


17/38

words had as their natural tendency and reasonably probable effect to obstruct the

recruiting service, and unless the defendant had the specific intent to do so in his

mind.lxxixDespite Stones claims, the decision against Debs was regarded as evidence

of the clear and present danger standard.lxxx Furthermore, it reflected the Supreme

Courts willingness to apply the Espionage Act to limit socialist expression, a

willingness most vocally expressed by Justice Holmes. However, Holmes views would

soon come under increasing scrutiny from the eras leading legal scholars, prompting a

reconsideration of his opinion.

Adamsand A Revision of Holmes Application of the Espionage Act

Holmes had a chance encounter with Justice Hand on a train in June of 1918,

just at the height of the Supreme Court cases involving the socialist press.lxxxi The

encounter would have a profound impact on Holmes First Amendmentviews and

shape his decisions regarding socialist free speech in the coming year. Hand favored a

lenient application of the Espionage Act, siding with Masses, while Holmes would soon

adopt a stricter interpretation of the law throughout the next year in Schenckand Debs.

The two discussed their differing vision of the legislation, specifically the majoritys

right to suppress dissent, on the way to Boston. When Hand decided he conceded too

easily, he wrote a letter to Holmes, which generated a prompt reply.lxxxii Hand, a man

who admired very few contemporaries, held Holmes in disregard, making the pairs

disagreement all the more surprising.lxxxiii

In this first letter, Hand put forth a compelling defense of the need for

protection of minority speech: "Opinions are at best provisional hypotheses,

incompletely tested...so we must be tolerant of opposite opinions or varying opinions


18/38

by the very fact of our incredulity of our own."lxxxiv Holmes conceded this to be valid,

but equated freedom of speech with freedom from vaccination in his reply, the latter

being a freedom that can be overridden by the majority.lxxxv

The two resumed their exchanges following Holmes decision in Debs, a decision

that expressed from the bench what he had previously written to Hand. Hand attacked

that ruling in another exchange between the two. Hand wrote thatthat Holmes

ascribed too much significance to intent of expression and not enough to the

expression itselftherefore, he held, Holmesclear and present danger and bad

tendency tests were deeply flawed. "The responsibility [to suppress] only began when

the words were directly an incitement, which Hand claimed was validated by

history.lxxxvi

Hand was by no means alone in his disagreement with Holmes; indeed,

Zachariah Chafee, a Harvard professor and leading legal scholar also voiced his

dissent.lxxxvii Stone communicated directly with Hand regarding Holmes perceived

misapplication of the law (even referring to the esteemed Supreme Court Justice as

Holmesey).lxxxviii More significantly, however, was Chafees tract on the issues

surrounding the Espionage Act, Freedom of Speech in Wartime. In the essay most

responsible for Holmes refinement of the clear-and-present-danger test, Chafee lays

siege to the efforts to suppress freedom of speech in the WWI era. He claims that not

since the Alien and Sedition Acts of 1798 has the First Amendment been so threatened,

and argues that even in times of war, the government must acknowledge its citizens

right to freedom of speech. He takes the First Amendment much more literally than

Holmes does in Debs and Schenck, arguing that it establishes a national principle of


19/38

open discussion of all questions, regardless of context. He acknowledges that the

Espionage Act exists because war is no longer fought solely on the battlefield, but also

in the minds of the populous, but argues that the government has no right to guard

those minds. Indeed, he says that the clear and present danger test missed an

opportunity to clearly define the line between protected and unprotected expression.

He concludes powerfully, writing that: In our efforts to silence those who advocated

peace without victory we prevented at the very start that vigorous threshing out of

fundamentals which might today have saved us from a victory without peace.lxxxix

Chafee and Holmes then met for tea at the invitation of one of Holmes close

friends, Harold Laski.xc With the pressure from his legal peersmounting, Holmes began

to rethink his opinions; on October 26, 1919, he wrote Laski, I fear we have less

freedom of speech here than they have in England. Little as I believe in it as a theory I

hope I would die for it, and I go as far as anyone whom I regard as competent to form

an opinion, in favor of it.xci

On October 27, Holmes sat on the bench for another landmark case,Abrams v.

United States. Abrams, the lead defendant in the case, and his co-defendants, were a

group of Russian-Jewish immigrants and self-proclaimed socialists and anarchists who

sympathized with the Bolshevik revolution in Russia.xcii The group published two

leaflets expressing their views; the first called Wilson cowardly for remaining mum on

intervention in Russia. It also said the war was meaningless and the only real enemy of

workers of the world was capitalism. The pamphlet concluded by imploring its readers

to "Awake! Awake, you Workers of the World, Revolutionists." The second asked

Russian emigrants to, in Holmes' words, "spit in the face of the false military


20/38

propaganda by which their sympathy and help to the prosecution of the war had been

called forth."xciii

In his decision, Holmes carefully distances himself from the intent which

defined his earlier reasoning on similar cases. I am aware, of course, that the word

intent as vaguely used in ordinary legal discussion means no more than knowledge at

the time of the act that the consequences said to be intended will ensue, he writes.

Then, in what amounts to a major endorsement of Hands philosophy, he explains

dangers peculiar to war, as against others, 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 countryI regret that I cannot put into more impressive words my

belief that in their conviction upon this indictment the defendants were deprived of

their rights under the Constitution of the United States. Thus, Holmes overturned the

defendants previous conviction.xciv

TheAbramsruling provided clearer guidelines for the clear and present

danger test, Stone concludes. He believes that under Holmes revised interpretation it

serves the same function as the express advocacy test, allowing the government to

limit expression only in the most dire of circumstances. Previously the bad tendency

allowed broader restrictions on criticism, but after theAbrams precedent, the

government could no longer attempt to suppress speech it deems undesirable

commonly anti-war socialists under the pretense of preventing harm.xcv


21/38

Government Restrictions Outside the Court System: The Executive Branchs

Application of the Nonmailability Provision

Holmes intended for theAbrams verdict to loosen the Supreme Courts

interpretation of the Espionage Act, hypothetically allowing for freer dissenting

expression.xcvi However, the executive branch, led by the Department of Justice and the

Postmaster General, waged its own campaign of censorship against socialists First

Amendment rights.xcvii Following their ultimate success in Masses, those bodies sought

to limit the expression of other likeminded publications, and the limits they imposed

often went unchecked by the federal court system.xcviii

Among the publications to suffer a similar fate as Masses at the hands of the

executive branchs application of the Espionage Act was The Appeal to Reason, the

leading socialist paper of the time.The paper grew from a small upstart in a tiny

Kansas town to a relative national juggernaut with 760,000 paid subscribers and

contributions from noted Americans like Helen Keller, Jack London and Upton

Sinclair.xcix In fact, theAppealeven commissioned Sinclairs famous novel The Jungle.c

As a leading anti-establishment paper, it received significant legal pressure even

before the passage of the Espionage Act. In 1901 the government decreed that only

paid subscriptions could be mailed at the lower second-class rate, and that unless

publisher Julius Wayland could prove within ten days that his customers actually paid

for their subscriptions, the postmaster threatened to cancel theAppeals second-class

permit. Unless Wayland could prove within ten days that his customers actually paid

for their subscriptions, the postmaster threatened to cancel theAppeals second-class

permit. Incredibly, Wayland returned with 68,000 signatures, staving off government

interference.ci


22/38

However, the paper could not avoid government intervention during World

War I in the age of the Espionage Act. Throughout its history, theAppealadvocated U.S.

pacifism, regarding the conflict as a senseless loss of life fought only for capitalist

purposes. This obviously came into conflict with the Espionage Acts application, and

the government presented the paper with two options: either advocate the war or

follow the lead of roughly eighty other contemporary anti-war publications and shut

down. After all, it too was subject to the bad tendency test established in Shaffer.

Wayland committed suicide in 1912, leaving his less committed son, Walter, in charge

of the publication during this pivotal period. The younger Wayland capitulated to the

government pressure, adopting a pro-war editorial stance and renaming the

publication The New Appeal. Thus the Espionage Act halted the socialist paper of

record and the publication that scholar Roger Streimatter claims played a singular

role in legitimizing and energizing the socialist movement.cii

TheAppeal to Reason was just one socialist publication the executive branch

targeted. Burleson, the Postmaster General, announced that newspapers cannot say

that this government is the tool of Wall Street or munitions makers and that nothing

could be mailed that might interfere with enlistmentsor the sale of authorized

bonds. Using this broad interpretation of the Espionage Act, he managed to shut down

distribution of not justMasses, but also the Internationalist Socialist Review, the

Milwaukee Leader, the Gaelic American, the Irish World, Thornstein VeblensImperial

Germany and the Industrial Revolution, Lenins Soviets at Work, the Nation, among

others. Many of these sanctions went unchallenged by the courts.ciii


23/38

Additionally, the impact upon socialists freedom of speech as a result of the

executive branchs actions cannot be measured simply by how many socialist

publications were deprived mail privileges. Indeed, the threat Burlesons stated

policies alone prompted publications to self-censor, as in the case ofThe New Appeal.

Stone provides the additional example of Abraham Cahan, editor of the Yiddish Daily

Forward, who announced the paper will henceforth publish war news without

comment and will not criticize the allies, in order to avoid suspension of mail

privileges.civ

The Palmer Raids

While the Postmaster General targeted socialist publications, the Department of

Justice went after socialist citizens in general in what became known as the Palmer

Raids.cv The October Revolution of 1917 installed the Bolsheviks in Russia, and around

the same time labor unions, like the shipyard workers in Seattle and steelworkers in

Boston, staged major strikes stateside.cvi Coupled with a series of eight bombings

traced back to socialist activists, bombings intended to kill major political figures, these

strikes led to calls to governmental restrictions from citizens groups like the American

Legion and the Ku Klux Klan.cvii New Attorney General A. Mitchell Palmer, who at the

time was eying a presidential run,cviii recalled that public pressure as a motive for his

campaign against Reds. "I was shouted at from every editorial sanctum in America

from sea to sea; I was preached upon from every pulpit, I was urged I could feel it

dinned into my ears throughout the country to do something and do it now, he later

explained.cix


24/38

In addition to the public pressure, the Senate Judiciary Committee convened to

investigate anti-American radicalism. They concluded that bolshevism was the

greatest danger facing the republic. Around the same time, the New York legislature

held the Lusk Committee to investigate the same threat. The sessions levied serious

accusations against a number of institutions and individuals.cx

Palmers response to those pleas for intervention and investigation into socialist

activities: the appointment of a young J. Edgar Hoover to a new position, the head of

the General Intelligence Division. Hoover gathered the names of more than 200,000

individuals suspected of radical activities, associations or beliefs. In November of 1919,

the GID took its first action against these individuals, rounding up approximately 650

people and deporting 249 of them on December 21, 1919.cxi Many of those arrested

were denied basic constitutional rights, such as access to a lawyer or knowledge of the

charges against them, and half of them were likely Russian workers whose only crime

was that they could not speak English.cxii According to most accounts, the arrests were

merely a result of being in the wrong place at the wrong time.cxiii

Then, in a broader series of raids stretching into thirty-three cities, the

Department of Justice rounded up 4,000 more suspected radicals on January 2,

1920.cxiv Virtually every leader of every local communist organization was taken into

custody,cxv and the raids ultimately resulted in 3,000 deportations.cxvi Immediately

following the raids, Palmer encouraged states to make radical behavior illegal while

also advocating a stricter Sedition Act and they heeded his advice. Thirty-two states

enacted laws prohibiting individuals from displaying Red flags, and that 300

individuals were convicted of the crime.cxvii State legislatures also took note; in April


25/38

1920, the New York state legislature expelled its five Socialist members, claiming that

the Socialist Party was unpatriotic and disloyal. In September of that same year all five

assemblymen were reelected.cxviii

Palmers raids on socialists and subsequent pressuring of state governments to

follow suit did not go unchallenged judicially. In February of 1920 Judge George

Bourquin issued a writ of habeas corpus to block the deportation of an alien accused of

being a red. Bourquin wrote in Ex Parte Jackson that the raids constituted a blatant

violation of the deportees constitutional rights. He even said, There was no disorder

save that of the raiders. Meanwhile, Hand wrote Holmes again, lamenting the

treatment of radicals.cxix

Aside from Bourquin and Hand, other influential lawyers and legal professors

also decried the raids. Among the most prominent critiques was the Report upon the

Illegal Practices of the United States Department of Justice, issued by National Popular

Government League and authored by, among others, Chafee, Felix Frankfurter, Ernest

Freund and Roscoe Pound. The seventy-page report details exactly why the Palmer

Raids violated Americans constitutional rights. The scholars argue that the raids were

made without warrant and government officials failed to provide the arrested with due

process of law, violating the Fourth, Fifth and Eighth Amendments. They go on to

outline why the violations matter, noting that while none of the authors themselves are

radicals as defined by Palmer, they worry that the Department of Justices actions

quell legitimate speech. They conclude their opening letter by asserting that "It is a

fallacy to suppose that, any more than in the past, any servant of the people can safely

arrogate to himself unlimited authority. To proceed upon such a supposition is to deny


26/38

the fundamental American theory of the consent of the governed. Here is no question

of a vague and threatened menace, but a present assault upon the most sacred

principles of our Constitutional liberty.cxx

The groups efforts did not fall on deaf ears, and on June 23, 1920 Judge George

Anderson of the Massachusetts Federal District Court ordered the discharge of twenty

aliens who were being held for deportation after being rounded up as members of the

Communist Party in Colyer v. Skeffington. Anderson leaned heavily on briefs submitted

by Chafee and Frankfurter to reach his decision, criticizing the Department of Justice in

the process. He said it failed to prove that the Communist Party advocated the

overthrow of the United States government and that its action constituted a gross

breach of due process.cxxi

The Legal Aftermath of the WWI Red Scare

The government never did manage to ascertain who was behind the bombing

that sparked much of the frenzy.cxxiiFurthermore Andersons decision in Colyer

effectively put an end to the deportations resulting from the Palmer Raids.cxxiii Within

the year, Congress repealed the Sedition Actcxxiv and in the coming years American

presidents, prominently Franklin Delano Roosevelt, would grant amnesty to

individuals convicted under the Espionage and Sedition Acts. The Espionage Act,

however, remains in place to this day.cxxv

Analysis

At a basic level, based upon the research examined above, its clear that the

Espionage Act suffered from a series of fundamental flaws, flaws that resulted in


27/38

severely curtailed freedom of expression for anti-war socialists in the years

immediately following its passage. The most blatant of these failings lies in its conflict

with the First Amendment. The First Amendment clearly states that, Congress shall

make no law respecting an establishment of religion, or prohibiting the free exercise

thereof; or 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.cxxvi

In 1917 Congress did just that, as the language of the Espionage Act comes in direct

conflict with the freedom of speech and press mandates. Many forms of speech could

jeopardize the interests of the United States military as laid out in the Espionage Act,

including the governments ability to effectively recruit and draft. Because saying or

printing anything negative about the war effort could jeopardize recruitment, the law

essentially silenced any legitimate debate regarding the legitimacy of American entry

into World War I. Because the Bill of Rights guarantees the protection of such

legitimate debate, the law wasand remainsintrinsically unconstitutional.

Stone would disagree with this sentiment, going so far as to assert that As the

congressional debate suggests, the legislation, as enacted, was not a broadside attack

on all criticism of the war. It was, rather, a carefully considered enactment designed to

deal with specific military concerns.cxxvii However, just as Hand argued that a

speakers intent matters little in freedom of speech cases, but rather the actual

implications of their speech, so too does it seem that Congressional intent matters little

in this debate. The implication of their approval of Espionage Act, as reflected in most

court decisions in the critical period between the legislations passage andAbrams,

reveals a massive breach of civil rights.


28/38

Where Stone does have a point regarding Congressional intent lies in his vivid

portrayal of floor debate on both the Espionage and Sedition Acts. It is extremely

interesting that despite the Espionage Acts severe effect on the freedom of socialist

expression, Congress managed to eliminate or negotiate down some of the harshest

language of the billthey did indeed make an earnest attempt to, borrowing a phrase

from Gregory, take some of the teeth out of it. However, their inability to completely

neuter the bill despite their demonstrated hesitancy to approve the provisions it

offered reflects a brilliant strategy to expand federal power on the part of the executive

branch. The Department of Justice originally penned it, and by initially proposing strict

limits on dissidence they established those limits as the standard of patriotism. An

divergence from those standards seems to have carried the risk of being called

treasonous, as reflected by Stones description of congressional discussion. Almost

every member of Congress found it necessary to proclaim his loyalty to the nation and

his disdain for anyone who might harbor doubts about the justness of the American

cause, he writes of the Sedition Act floor debate.cxxviii So while he describes the debate

over the Espionage Act as rigorous, the fact that every criticism had to be couched in an

affirmation of loyalty speaks volumes about the effectiveness of such criticism. After

all, how able is a congressperson to point out the flaws in a law if the implication of

that criticism is disloyalty? Thus, by putting opponents of the bills on the defensive, the

Department of Justice was able to strong-arm an overbroad bill into law.

This seems particularly relevant in todays world; as Glenn Greenwald notes in

his bookHow Would a Patriot Act, the Bush administration employed a similar tactic in

pushing through expansive legislation of its own. The Bush administration has in its


29/38

arsenal one very potent weapon -- and one weapon only -- which it has repeatedly

used: fear, Greenwald writes. We must allow the president to incarcerate American

citizens without due process, employ torture as a state-sanctioned weapon, eavesdrop

on our private conversations and even violate the law, because the terrorists are so evil

and so dangerous that we cannot have any limits on the power of the president if we

want him to protect us from the dangers in the world.cxxix Even the name of the law

invokes the notion of disloyal opposition: The Patriot Act. Thats the same exact tactic

that the executive branch under Wilson used to pass the Espionage Actthe American

people need to learn from their previous mistakes and not allow similar Constitutional

breaches in the future.

Fred Besthorn makes a similar point in his article Post 9-11 Hysteria: Social

Work Practice and the US Patriot Act, writing thatthe Palmer Raids mirror the

hysteria surrounding modern immigration paranoia. These government actions [the

Palmer Raids] took place across the continental US and were supported by government

sponsored vigilante groups, such as the American Protective League and National

Security league.. Again, a not so strange parallel to current history that sees vigilante

groups like the Minutemen guarding Americas southern borders with Mexico. Fear

permeates our culture just as it did then.cxxx

As for the application of the Espionage Act during the WWI era, its clear that

the early decisionsShaffer, the reversal of Hands ruling in Masses, Debs, and

Schenckwere all missed opportunities for the court system to apply the necessary

check on a runaway executive branch and an intimidated Congress. In each instance

the court should have ruled that while the defendants were guilty under the Espionage


30/38

Act, the Espionage Act itself unfairly criminalized the defendants actions. Because it

clashed with the First Amendment and constitutional arguments are supposed to be

the most compelling in the court of law, the justices should not have hesitated in

denouncing the law. Instead, it appears they were too influenced by the fearful society

in which they lived; after all, Stone notes that the courts views are subject to the world

around them,cxxxi and WWI America suffered from an irrational fear of dissent that

manifested itself in the justices decisions.

Even if the judges were unable to recognize the First Amendment implications,

though, they should have atleast applied Hands standard; that is, they should have

disregarded the intent of the speakers in question and focused on the impact of their

words alone. Thus, both the bad tendency test and the clear and present danger test

(before its refinement inAbrams) were flawed. Their application threatened speech at

a critical juncture in the development of the American political system, stifling the rise

of the anti-war socialists. Before the courts harsh interpretation of the Espionage Act,

the Socialist Party managed to receive nearly a million presidential votes and hold

major political offices throughout the country. Afterwards, it struggled to regain

legitimacythe attitude towards socialist dissent the law established stigmatized the

ideology for decades, arguably leading directly to the second Red Scare in the 1950s

and controversial decisions like Dennis v. United States.

The culmination of this first Red Scare, the Palmer Raids, was perhaps the most

egregious violation of Constitutional rights perpetrated in the era. As The Report on

Illegal Practices of the Department of Justice lays out, the arrests violated multiple

amendments. The raids were born out of a desire to suppress socialist activity, and


31/38

judging by the history of the party in their aftermath they were massively effective,

even if many of the orders of deportation were later reversed. However, the raids had

one unintended, beneficial consequence: as they were a low point in the governments

Constitutional adherence during that era, they sparked a greater appreciation of civil

liberties. As Stone highlights, even conservative papers of the era denounced the

legitimacy of the raids.cxxxii

Perhaps the best illustration of this heightened awareness lies in John Deweys

writing. Before the governments efforts to suppress socialist expression, Dewey

defended the governments right to censor certain types of speech. However, after

seeing the pernicious effects of that censorship he retreated from his earlier position,

horrified at its consequences. He recognized that Americans are willing to grovel in

the sacrifice of their liberties in order to prove their patriotism and resolved to

protect those liberties from subsequent assaults. In 1920, just after the Palmer Raids,

Dewey founded the ACLU.cxxxiii

In this regard, the governments suppression of socialist expression was a boon

for democracy. However, it came at too steep a sacrifice; the Socialist Party at one point

represented a threat to the two-party system. After the suppression of its views,

however, the party was unable to recover, and ever since the American people have

only had two viable choices in politics. That suppression was misguided, illegal, and

had a net negative effect on the last century of American history.


32/38

Bibliography:

Primary Sources:

54 65th

Cong, 1st

Sess, in 55 Cong Rec H 3134 (May 31, 1917)

Abrams v. United States. 250 U.S. 616 (1919).

Brown, R.G., and Zechiriah Chaffe, Felix Frankfurer, Ernst Freund, Swinburne Hale,Francis Fisher Kane, Alfred s. Niles, Roscoe Pound, Jackson Ralston, DavidWalterstein, Frank Walsh, and Tyrell Williams, To the American People: A ReportUpon the Illegal Practices of the United States Department of Justice. Washington,D.C.: National Popular Government League, 1920.

Colyer v. Skeffington, 265 F. 17, 72 (1920).

Debs, Eugene V. The Canton, Ohio Anti-War Speech. 16 June, 1918.

Debs v. United States. 249 U.S. 11 (1919).

Dennis v. United States. 341 U.S. 494 (1951).

Espionage Act of 1917. US Code. Volume 18, sec. 793.

Letter from Learned Hand to Olvier Wendell Holmes, June 22, 1918 excerpted inMerryman Stanford Legal Essays, 210

Letter from Oliver Wendell Holmes to Learned Hand, April 19, 1918, excerpted inStone Perilous Times, 200

Letter and enclosure from Oliver Wendell Holmes to Harold Laski, May 13, 1919,excerpted in Stone Perilous Times, 202

Letter from Learned Hand to Oliver Wendell Holmes, Mar 1919, excerpted inMerryman Stanford Legal Essays 235

Masses Publishing Co. v. Patten. 246 U.S. 24 (1917).

Shaffer v. United States. 251 U. S. 466 (1920)

Schenck v. the U.S. 249 U.S. 47 (1919).

U.S. Constitution, Amendment I.


33/38

U.S. Senate, Commission on Protecting and Reducing Government Secrecy Report,Washington, D.C.: A-15, 1997.

Warren, Charles, What is Giving Aid and Comfort to the Enemy?. The Yale Law Journal

Vol. 27, No. 3 (Jan., 1918): 331-347,http://www.jstor.org/stable/787437

Wilson, Woodrow, Constitutional Government in the United States. New York: ColumbiaUniversity Press, 1917.

Secondary Sources:

Besthorn, Fred. Post 9-11 Hysteria: Social Work Practice and the US Patriot Act.Advances in Social Work Vol. 9, No 1 (Spring 2008): 17-28,

http://journals.iupui.edu/index.php/advancesinsocialwork/article/viewArticle/169 /.

Ducat, Craig R, Constitutional Interpretation. Boston: Wadsworth, 2009.

Ericson, Timothy L. Building Our Own Iron Curtain: The Emergence of Secrecy in American Government.American Archivist, Vol. 68 (Spring/Summer 2005):

18-52.

Finan, Christopher, From the Palmer Raids to the Patriot Act: A History of the FightFor Free Speech in America. Boston: Beacon Press, 2007.

Greenwald, Glen, How Would A Patriot Act?. New York: Working Assets Publishing,2006.

Kipnis, Ira, The American Socialist Movement. New York: Columbia UniversityPress, 1952.

Merryman, John Henry, Stanford Legal Essays. Stanford: Stanford University Press, 1975.

New York Times, Editors Acquitted. New York Times, March 27, 1918, Sec. A.,http://query.nytimes.com/mem/archive-

free/pdf?res=F30D17FC355B11738DDDAE0A94DB405B888DF1D3/.

Rabban, David M, Free Speech in its Forgotten Years. Cambridge: Cambridge University

Press, 1997.

Stone, Geoffrey, Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled. The University of Chicago Law Review70, No. 1, (Winter, 2003):

335-358,http://www.jstor.org/stable/1600562/.

---, The Origins of the Bad Tendency Test: Free Speech in Wartime. The SupremeCourt ReviewVol. 2002, (2002): 411-453, http://www.jstor.org/stable/3109722/.
http://www.jstor.org/stable/787437http://www.jstor.org/stable/787437http://www.jstor.org/stable/787437http://journals.iupui.edu/index.php/advancesinsocialwork/article/viewArticle/169http://journals.iupui.edu/index.php/advancesinsocialwork/article/viewArticle/169http://query.nytimes.com/mem/archive-free/pdf?res=F30D17FC355B11738DDDAE0A94DB405B888DF1D3http://query.nytimes.com/mem/archive-free/pdf?res=F30D17FC355B11738DDDAE0A94DB405B888DF1D3http://query.nytimes.com/mem/archive-free/pdf?res=F30D17FC355B11738DDDAE0A94DB405B888DF1D3http://www.jstor.org/stable/1600562/http://www.jstor.org/stable/1600562/http://www.jstor.org/stable/1600562/http://www.jstor.org/stable/3109722http://www.jstor.org/stable/3109722http://www.jstor.org/stable/3109722http://www.jstor.org/stable/1600562/http://query.nytimes.com/mem/archive-free/pdf?res=F30D17FC355B11738DDDAE0A94DB405B888DF1D3http://query.nytimes.com/mem/archive-free/pdf?res=F30D17FC355B11738DDDAE0A94DB405B888DF1D3http://journals.iupui.edu/index.php/advancesinsocialwork/article/viewArticle/169http://www.jstor.org/stable/787437


34/38

---, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the Waron Terrorism. New York: Norton, 2004.Streitmatter, Rodger, Voices of Revolution: The Dissident Press in America. New

York: Columbia University Press, 2001.

Ward, Kyle, History in the Making. New York: The New Press, 2006.

Zinn, Howard,A Peoples History of the United States. New York: HarperCollins, 1980.


35/38

i Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the Waron Terrorism. (New York: Norton, 2004), 146.ii Ibid 223iii

Ibid, 145iv Wilson, Woodrow, Constitutional Government in the United States. (New York:Columbia University Press, 1917.), 38.v Ibid, 38viEricson, Timothy L. Building Our Own Iron Curtain: The Emergence of Secrecy inAmerican Government. (American Archivist, Vol. 68 (Spring/Summer 2005): 18-52.), 33.vii U.S. Senate, Commission on Protecting and Reducing Government Secrecy Report,(Washington, D.C.: A-15, 1997.), A-15viii Rabban, David M, Free Speech in its Forgotten Years. (Cambridge: CambridgeUniversity Press, 1997.), 251ix Ibid, 249

xWarren, Charles, What is Giving Aidand Comfort to the Enemy?. The Yale LawJournal(Vol. 27, No. 3 (Jan., 1918): 331-347), 347.xi Ibid, 347xii Stone Perilous Times 147xiii Ward, Kyle, History in the Making. (New York: The New Press, 2006.), 254.xiv Stone Perilous Times 148-151xv 54 65th Cong, 1stSess, in 55 Cong Rec H 3134 (May 31, 1917)xvi Stone Perilous Times 151xvii Ibid 151xviii Stone, Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled,(The University of Chicago Law Review70, No. 1, (Winter, 2003):335-358), 336.

xix Ibid, 335-358xx Ibid, 358xxi Stone Perilous Times 152xxii Rabban, Free Speech in its Forgotten Years 250xxiii Ibid 251xxiv Ibid 251xxv Stone, Perilous Times 151.xxvi Espionage Actxxvii Stone Perilous Times 150-152xxviii Ward, 254xxix Stone Perilous Times 184xxx Ibid 191xxxi Stone, Perilous Times, 184xxxii Ward History in the Making, 255xxxiii Stone Perilous Times 156xxxiv Stone The Origins of the Bad Tendency Test: Free Speech in Wartime, 413xxxv Stone Perilous Times 151xxxvi Ibid 153


36/38

xxxvii Streitmatter, Rodger, Voices of Revolution: The Dissident Press in America. (New

York: Columbia University Press, 2001.), 111xxxviii Stone Perilous Times 158xxxix Rabban Free Speech in its Forgotten Years 256xl

Ibid 256xliNew York TimesEditors Acquittedxlii Rabban Free Speech in its Forgotten Years 256xliii Shafferxliv Ibidxlv IbidxlviStone The Origins of the Bad Tendency Test: Free Speech in Wartime, 410 -423xlviiMassesPublishing Co. v. Pattenxlviii Stone Perilous Times 164xlix Ibid 164lMassesPublishing Co. v. Patten

li Ibidlii Rabban 256liii Ibid 255-256liv Stone Perilous Times 170lv Ibid 170lvi Ibid 170lviiSchenck v. United Stateslviii Ibidlix Ibidlx Stone Perilous Times 192lxi Ibid 192

lxiiDennis v. United Stateslxiii Stone Perilous Times 192lxivSchenck v. Untied Stateslxv Ibidlxvi Stone Perilous Times 193lxvii DucatConstitutional Interpretation: Rights of the Individual, (Boston: Wadsworth,2009), 782lxviii Ibid 782-783lxix Streitmatter Voices of Revolution, 103lxx Kipnis The American Socialist Movement, 367lxxi Zinn, A Peoples History of the United States, (New York: Harper Collins, 1980),367lxxii Ibid 367lxxiiiDebs, Eugene V. The Canton, Ohio Anti-War Speech. 16 June,1918.lxxiv Zinn, A Peoples History of the United States, 367lxxv Ibid 368lxxviDebs v. United Stateslxxvii Zinn, A Peoples History of the United States, 368lxxviiiDebs v. United Stateslxxix Ibid


37/38

lxxx DucatConstitutional Interpretation: Rights of the Individual, 782lxxxi Merryman Stanford Legal Essays, 208lxxxii Ibid 208lxxxiii Ibid 209lxxxiv

Letter from Learned Hand to Olvier Wendell Holmes, June 22, 1918 excerpted inMerryman Stanford Legal Essays, 210lxxxv Letter from Oliver Wendell Holmes to Learned Hand, April 19, 1918, excerpted inStone Perilous Times, 200lxxxvi Letter from Learned Hand to Oliver Wendell Holmes, Mar 1919, excerpted inMerryman Stanford Legal Essays 235lxxxvii Stone, Perilous Times, 201lxxxviii Merryman, Stanford Legal Essays, 240lxxxix Chafee, Zechariah. "Freedom of Speech in Wartime." (Harvard Law Review 32, no.8 (1919)): 932973.xc Stone, Perilous Times, 202-203

xci Letter and enclosure from Oliver Wendell Holmes to Harold Laski, May 13, 1919,excerpted in Stone Perilous Times, 202xcii Stone Perilous Times 205xciiiAbrams v. United Statesxciv Ibidxcv Stone, Perilous Times, 208xcviAbrams v. United Statesxcvii Stone, Perilous Times, 222xcviii Ibid 180xcix Streitmatter, Voices of Revolution, 98c Ibid 108

ci Ibid 110cii Ibid 98-112ciii Stone, Perilous Times, 180civ Ibid 181cv Stone Perilous Times, 222-223cvi Finan From the Palmer Raids to the Patriot Act: A History of the FightFor Free Speech in America, 1cvii Stone, Perilous Times, 222cviii Ibid 222cix Finan From the Palmer Raids to the Patriot Act: A History of the FightFor Free Speech in America, 3cx Stone Perilous Times 222cxi Ibid 223cxii Finan From the Palmer Raids to the Patriot Act: A History of the FightFor Free Speech in America, 2cxiii Ibid2cxiv Stone, Perilous Times, 222cxv Ibid 223cxvi Ibid 224


38/38

cxvii Ibid 224cxviii Ibid 223-224cxix Ibid 224-225cxx National Popular Government League, To the American People: A Report Upon the

Illegal Practices of the United States Department of JusticecxxiColyer v. Skeffingtoncxxii Finan From the Palmer Raids to the Patriot Act: A History of the FightFor Free Speech in America, 3cxxiii Stone, Perilous Times, 226cxxiv Ibid 230cxxv Ibid 232cxxvi First Amendmentcxxvii Stone, Perilous Times, 232cxxviii Ibid 186cxxix Greenwald, How Would a Patriot Act, (New York: Working Assets Publishing,

2006).cxxxBesthorn, Fred. Post 9-11 Hysteria: Social Work Practice and the US Patriot Act.cxxxi Stone, Perilous Times 158cxxxii Ibid 226cxxxiii Ibid 230

intolerable dissent

Documents