Reading the Sedition Act of 1918 | A Primary Source Close Read w/ BRI

0:04 Hello, everyone, and welcome to today’s Close Reading. I am Joshua Schmid. I work on the education team at the Bill of Rights Institute. And I am joined once again by Tony Williams. Hello, Tony. Hey, Josh, how are you? I’m great. Thanks so much for being here. Last time, we were talking about

0:25 the Sedition Act of 1798, which dealt with free speech. Today we’re going to fast forward a bit to 1918, and there was a Sedition Act passed during that time. Tony, I was wondering if you could give us some background and set the stage for what was happening then.

0:47 Sure. In 1914, we have the beginning of World War I, the Great War, and the Wilson administration. Wilson called on his fellow Americans to be neutral in thought as well as in deed. And the United States generally did

1:09 support the Allies over the next few years and eventually entered the war in April 1917 to, as Wilson said, quote, unquote, make the world safe for democracy. During the few years that the United States is involved in the war, I think we need to know that.

1:30 There was a remarkable amount of censorship going on, a great deal of repression at home. There’s a few examples we can include the Committee on Public Information, which control the propaganda of the United States and tried to shape thinking about the war. We have the vast, widespread repression of German Americans at the time.

1:56 We have even a German American was lynched. There was violence against German Americans. We also have what seemed to us silly things but are repressive things like not teaching German in schools or renaming hot dogs. Hamburgers.

2:16 Hamburgers are known as liberty sandwiches and sauerkraut liberty cabbage and kind of silly things like that. Street names German composers were no longer played in symphonies and so forth. There’s sort of a widespread repression of German Americans.

2:38 The administration actively encouraged the American Protective League, which was sort of a posse, if you will, of citizens that were out there trying to root out the centers and stop the sent. The Postmaster General, Albert Burlson, he censored the mails.

2:59 Thousands were deported under an alien act during the war. And the postwar Red Scare, also socialist and former presidential candidate Eugene V. Debs was convicted and sentenced to ten years in jail for criticizing the war. And then by 1918, we have the end of the war.

3:22 And in 1919, Wilson goes over to Paris and negotiates. That helps negotiate the Treaty of Versailles, which the United States does not ratify. And we do not join the League of Nations, which has created sort of the forerunner to the UN. But those are some general events going

3:44 on at the time, and we can dig around deeper in the primary sources here. Sure. Yeah. Well, let’s take a look at the actual Sedition Act that was passed. Now, this was actually part of a broader act called the Espionage Act. The Sedition Act was a section added to the Espionage Act.

4:11 And it states that whenever the United States is out war, whoever shall, willfully cause or attempt to cause or incite, insubordination, disloyalty, mutiny, refusal of duty in the military of the United States, or whoever shall obstruct or attempt to obstruct the recruiting or enlistment

4:33 services of the United States and whoever, when the United States is out war, shall, willfully utter, print, write, or publish any disloyal, profane, scurulus, or abusive language about the form of government of the United States or the Constitution of the United States, or the military shall be punished by a fine of not more than $10,000 or

4:58 the imprisonment for not more than 20 years or both. Now, if you joined us for the previous webinar on the Sedition Act of 1798, on the surface there appears to be some similarities. Could you go into some detail?

5:21 Was this another just wartime act that was passed to prevent disloyalty? Or what was the difference? Right, well, let me just say, if we can back up a little bit, this is very much guided by the Wilson administration. And here are some of his views on dissent,

5:43 which I think are really quite chilling, but very revealing to help set the stage for understanding what this act is all about. He says they are citizens of the United States, born under other flags, who have poured the poison of disloyalty into the very arteries of our national life. And that, quote, this loyalty must be crushed.

6:05 This is the President of the United States talking. And he also said, Wilson said, if there should be disloyalty, it will be dealt with a firm hand, stern repression. Well, it’s not a surprise we get acts like this when the President is speaking like that. He said just loyalty was not a subject on which there was room for debate.

6:30 So we couldn’t even debate this, right? I mean, citizenship, loyalty demanded sort of an unquestioned obedience in patriotism, right? And that’s quite troubling. And he said finally, that disloyal individuals. I mean, disloyal individuals, that’s a pretty vague statement anyway.

6:53 But he said that they had sacrificed their right to civil liberties. Let me say that again, this loyal individuals have sacrificed their rights to civil liberties. That’s really quite chilling. It’s really a frightening proposition for the President to speak like that.

7:16 So as we’re looking at this act, this Sedition Act, I think that it is very similar, as you say, to 1798, because you’re basically saying that any criticism, these things are very vaguely put, right? If you’re inciting or attempt to incite some kind of insubordination or just

7:40 loyalty, mutual refusal, duty, disloyalty, that’s a very vague concept, right? So you’re criticizing anything to do with the military, with the war effort, you’re obstructing enlistment, and somehow and that could merely be writing a pamphlet against the draft.

8:10 Again, anything about the form of government or the Constitution or the military, I mean, it really can include just about any opposition to the war. And we do need to remember that as part of the historical context, there are a lot of people who are socialists or anarchists at the turn of the century,

8:32 people who would be really quite critical of the war. They would see it as sort of imperialistic or capitalist venture and so forth. And so there really is a great deal of criticism about the war. Most of it probably pretty harmless.

8:56 But these people are threatened with jail and fines if they criticize sort of the war effort in general, or really the Wilson administration in just about any way. And then that really does have, as I said, a chilling effect upon free speech and upon civil liberties.

9:16 Sure. Yeah. One thing that just as we’re comparing the acts, one thing that really stands out of me is the significant prison time for this act. Compared to the 1798 act, it seems like Wilson really is fearful that this loyalty is going to threaten

9:43 the heart of the American system and he’s really pushing to stop it in its tracks. Yeah. 20 years. I mean, that’s kind of like the amount of time you spend in jail for murder today. So you’re right. That is a very lengthy prison sentence for an illegitimate law.

10:10 Right. For an unconstitutional law which violates free speech. Right. For getting 20 years in prison, or at least not more than 20 years in prison for nothing more than criticizing the government or saying we shouldn’t have a draft, or saying that

10:30 somebody doesn’t want to serve in the military.Or really just about any criticism of the administration, as I’ve said, as it’s really broadly interpreted and really strongly executed, probably way more than its actual authors in Congress had intended. So the Wilson administration really uses

10:51 this to go after literally thousands of people. Yeah. Now, what was the free speech precedent at this time? During our last webinar, we talked about how there really wasn’t much precedent and that’s why the

11:12 Sedition Act of 1798 was able to be passed without the courts putting an end to it. Now, had there been much change in the century in between? Not really. In a sense, we do have slightly different historical contexts. Right. But still, I think it’s hard for us to understand.

11:35 So I think we want to avoid some presentism here, sort of imposing our understanding or our ideas back on history. We see this is just blatantly unconstitutional, and we would see the courts, especially the Supreme Court, declaring this unconstitutional if anything like this were passed.

11:59 But back then, they didn’t really have that kind of precedent. As you mentioned, the exact meaning of free speech had not in any kind of modern sense, had really still not developed yet it’s still mostly protected against the government having prior restraint on publishers.

12:24 Okay. And so not allowing newspaper editors to print certain stories that seems unconstitutional, but really relatively little beyond that. The Court really still at this point gave a lot of latitude to the other branches

12:47 of government, to the Executive and the Congress, to make laws and to execute laws related to constricting free speech. Sure. How was this act met then, you say? There wasn’t a ton of precedent, but obviously this presented the Court

13:10 with the chance to potentially establish precedent on free speech during wartime. So who was charged and what was the outcome? Right, well, a man named Schenck and other defendants. They’re socialists, and they had attacked the draft in a pamphlet.

13:37 Okay. There are few more details, but that’s the essential of what happens here. And it’s probably very surprising to us, right, and to the students who are watching probably, that the Court actually decides in a nine to nothing unanimous decision against the defendant, against Schenck,

14:01 and Justice Oliver Wendell Holmes writes the opinion for the Court. And as you say here, the document would not have been sent unless it had been intended to have some effect. And we do not see what effect it could be expected to have upon person subject

14:24 to the draft except to influence them to obstruct the carrying of it out. So in other words, what Holmes is saying is, look, they were clearly trying to obstruct the draft, right? It’s not that they were just merely being critical of it. It’s not that they were just expressing some political views. It’s not that they were just pushing maybe

14:45 their socialist ideas about the draft or American imperialism. They were doing that. But more importantly, rather than just free speech, they were trying to obstruct the draft and recruitment of soldiers. And so therefore, it violated the Sedition Act. Now Holmes goes even further.

15:06 Rather than just saying yes, they in fact broke the law. As a matter of fact, he goes on to sort of reflect upon the larger constitutional meaning of the act. And he says, we admit that in many places and in ordinary times, the defendants, in saying all that was said would have been within their constitutional rights.

15:26 So the during times of peace, they could have said this with no problem. But he said, the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man and falsely

15:48 shouting fire in a theater and causing a panic. So he’s saying, look, there are reasonable restrictions upon free speech, and that’s still true today. There are boundaries of the First Amendment for sure. Okay? And he is the example of yelling fire in a crowded theater and causing a panic

16:09 in which there might be people get injured. He says, the question in every case is whether the words use are used in such circumstances and are of such a nature as to create a clear and present danger. Okay? And that’s really important. He establishes this. He said, there is a clear and present

16:31 danger in this time of war if you’re obstructing the draft, you’re creating a clear and present danger to the country and its ability to defend yourself or to prosecute execute this war that it has declared. He says he wrote that although the principle of the right to free speech is always the same, war opens dangers that do not exist at other times.

16:56 So he’s really establishing this debate that saying that war somehow seems to change things, okay? That national security requirements necessities require us to restrict speech in certain ways, that this right is not absolute,

17:19 that war, in fact, does somehow change things because of national security. Yeah. And that’s definitely precedent setting decision here with Schenck. My understanding is that it established it for decades to come,

17:42 up until, I believe, the Brandenburg versus Ohio case, when a new standard was set for limits of free speech, if I’m not mistaken. Right. And we see, just broadly, a perennial debate in this country. We see more recently with the Patriot Act. And I know that’s not what we’re talking

18:03 about today, but Americans are for against it, are debated in our free society. Are there limits on free speech? Does war change the requirements to national security needs? How are they balanced against free speech? Because sometimes they’re at odds with each other and so on this continuum?

18:28 Is free speech literally just the same in every case, regardless of the circumstances? Or is Holmes right, that somehow war changes things? I don’t think we’re going to settle that today because we really value the principle of free speech. And yet there is this debate throughout American history.

18:50 Does war change things? Do national security needs somehow change things, at least to some degree? So it’s a perennial debate, definitely. And not even if does war change things. As Holmes says, the character of every act depends upon the circumstances in which it is done.

19:13 And I think that’s a great transition, actually, to the next case that Holmes wrote a dissent in. Actually interestingly, he does not support the prosecution of this man who’s being charged under this Sedition act. He actually dissents against the application of the law, I should say.

19:37 But could you go into the details of this case? Yeah, it’s very interesting that he wrote the decision. Now he’s a dissenter very quickly after the Schenck decision. But this decision in Abrams case does in fact follow this clear and present danger doctrine established in Schenck, but it does so by 7-2 margin.

20:04 It’s not unanimous in this case. Jacob Abrams and some fellow socialists, they opposed the war, called for a general strike in a leaflet many ways similar to the facts in Schenck, and were convicted for violating the Sedition Act. And although he’s on the losing side of the case right,

20:25 which again goes against the defendants in yet another case, Holmes write this very famous dissent that is really quite complex and really quite famous, he says, but when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very

20:47 foundations of their own conduct, that the ultimate good desired is better reached by free trade and ideas, that the best test of truth is the power of thought to get itself accepted in the competition of the market. I think that we should be eternally vigilant against attempts to check the expression of opinions that we lose.

21:12 And that is a very interesting dissent and really one that maybe we should take note of in today’s world is in our highly charged part of some times. But, you know, he’s saying that the measure of truth is not just merely in what we hold dear in our own fighting faith, but in this free trade of

21:38 ideas, we would call the marketplace of ideas, and this free exchange that we may differ. No one has a monopoly on truth. No one has all the answers. But he believes that truth will come out through debate, through deliberation, through this free exchange, through this marketplace of ideas,

22:01 rather than just imposing our truths on other people or a majority imposing their viewpoint on a minority view. Okay. And he says we should be eternally vigilant against attempts to check those opinions. The expression of those ideas that we

22:22 load, we may hate those ideas, we may be very much against them, but we have to be vigilant against attempts to suppress those ideas. Right. It reminds us of the old saying, I may not agree with you, but I’ll defend to the death your right to say it.

22:44 This is a lasting sort of reflection on the importance of free speech in our society and in any free society? Sure. Now, do you have any take on why Holmes seems to make a complete 180?

23:05 Was he just trying to establish a broad precedent and then when it came down into the nitty gritty details, he realizes, wait, I need to backtrack because we don’t want to become too oppressive. What is your take on that? Yeah, I think there’s some of that that he

23:25 kind of sees kind of where it’s going and doesn’t want to become too oppressive. But he does affirm, he does affirm this idea of clear and present danger. But I think he does want to assert the idea that, well, I think he’s just more conclusively and firmly on the side of really expressing the importance

23:51 of free speech, even as he’s admitting that, sure, according to this clear and present danger doctrine, war does somehow change things. Yet here’s the expression that the First Amendment is still critically important, and it’s especially critically important in a free society,

24:14 in a democratic society, in which debate, deliberation and our very liberties are based upon the idea of free speech among the citizenry. Yeah definitely.

24:34 Now, Wilson, I’m sorry, the Sedition Act actually ends up being repealed in 1921. What are the long term effects then? If it disappeared, what happens to free speech in the 20s and on to today?

24:55 Yeah, I think that it is important to note that it was repealed. Right, it was repealed. It didn’t just merely expire, but Congress actually repealed it. They sort of saw the vast repression of thousands of citizens under the fact the act is repealed.

25:23 Eugene Debs, by the way, is released from prison, pardoned by President Warren Harding and a couple of dozen others were released as well in 1921. And so you have this collective sigh and kind of this desire of what was called at the time or return to normalcy and kind of an end of that wartime repression.

25:50 But as much as First Amendment protections and doctrines have developed over the course of really the latter half of the 20th century, still during World War II, during the Vietnam War, most famously in the Tinker versus

26:13 Des Moines case, and even during the War on terror with the Patriot Act, we see that the government is taking steps against free speech and against those criticisms during war. And there is this continuing debate,

26:35 as we said, between free speech and those national security needs. And so the question, as much as free speech is increasingly protected today and over the course of the last 50 odd years, that the debate keeps coming up.

26:55 And if I had a guess, I’m a historian, not a futurist, but if I had to predict the future, I would imagine that it’s going to come up time and again, because I think we need to admit, as much as we see this principle of free speech is pretty clear. Also, I think it’s pretty clear

27:17 that there are no simple answers and that history is very complex. We’ve seen that in these two episodes on this edition, acts in 1790, 1918, and that it will continue to be something that Americans grapple with and we continue to date and deliberate over.

27:38 Definitely yeah. Now, I want to give you the last word on any final connections that you can see between. Like you said, we’ve looked at two acts now, one from 1798, one from 1918. Any connections, any themes?

28:02 Are we on a trajectory towards greater liberty? Or does the 1918 Sedition Act prove that we actually, sometimes might take a step back and free speech liberty? There’s a lot in there, but I think, in a nutshell, I think we are on a trajectory of liberty.

28:24 Of course, we do need to be eternally vigilant against those violations of free speech, but I would like to think we’re on a greater trajectory towards protecting those essential liberties. And as we’ve seen in these two episodes, I just don’t think this question is going to go away anytime soon.

28:45 I think it’s really good fodder for students to discuss and debate and deliberate over as citizens. And I think if there’s anything we’ve learned, it’s not only that, but that we do need to study the historical context in which these laws were written and enforced and perhaps

29:06 declared constitutional or unconstitutional. The historical context is very important because it does point out differences along the way in each of these unique historical circumstances. And yet these eternal and lasting constitutional principles are very important to hold dear throughout all the historical changes as well.

29:29 Certainly yes. We’re trying to add nuance without turning our back on the foundational principle of free speech. Well said. Much better than I do. Thank you so much, Tony, for joining me. As always, it’s very informative to hear your take on it.

29:53 And as for our audience, thank you so much for joining, and we hope to see you again soon in the future. Thanks Josh. Thank you all for joining us. Bye.