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Symposium on Rights and Resistance: Civil Liberties During Wartime

From left to right: Mary Dudziak, Geoffrey Stone, David Rabban, Megan Ming Francis and Jeremy Kessler. Photo by Shawn Miller.

On Thursday, June 8, the Manuscripts Division in association with the Law Library sponsored a symposium examining the effects of World War I on civil liberties in the United States.

Mary Dudziak, of Emory University, provided a historical overview of how Woodrow Wilson went from being reelected as the peace candidate- to in April 1917, requesting a declaration of war against Imperial Germany. Media coverage of German submarine attacks on American and other neutral shipping in early 1917 led to public pressure for the government to “do something.” Although Wilson could have responded only with a naval campaign, his interest in promoting his plans for a post-war world required the dispatching of a significant U.S. army contingent to fight on the ground in Europe. In order to raise such forces society had to be united, it could not tolerate any dissent; the “lawless and malignant minority,” had to be suppressed.  To raise such forces Congress, in May, passed the Selective Service Act of 1917.  Suppression of civil dissent by the federal government under the Espionage Act of 1917 and Sedition Act of 1918 was considerably more sweeping than such suppression had been in the 19th century. The concern in 1917 was to avoid needless deaths from German agents collecting information about shipping, and also to promote an efficient and united war effort.

Geoffrey Stone, of the University of Chicago, reviewed the attack on freedom of speech and the press through prosecutions by U.S. attorneys in local federal courts.  There were over 2,000 prosecutions of individuals criticizing the draft under section 3 of the Espionage act; almost all prosecutions resulted in convictions.  There were few cases where a defendant was able to successfully argue that his or her speech was constitutionally protected.  One case was Masses Publishing Co v. Patten, where Federal District Court Judge Learned Hand ruled that the veracity of the content of speech is the only reason to convict under section 3.  A generally unsuccessful defense was that the defendants actions were not prohibited under the act.  Prosecutors, and judges instead adopted the view that almost any acts, no matter how remote, could lead to charges under the acts.

David Rabban, of the University of Texas, reviewed the main features of the Espionage Act.  Prosecutions for speech were often against individuals who cited Socialist or Wobblie arguments against the war; however, there were also prosecutions against individuals who cited religious arguments against killing.  The Sedition Act was passed in part as a result of a rare acquittal in a Montana trial where the judge had directed the jury that because the speech had been given at a rural picnic with an isolated impact, its nature meant that it was not covered under section 3 of the Espionage Act.  Holmes’ dissent in Abrams looked at the “bad tendency,” of the speaker’s words, an actual intent to bring about an action prohibited by the statute.

Megan Ming Francis, of the University of Washington, discussed how the NAACP chose to address issues concerning African-American communities through lobbying.  Because courts in southern states were not willing to consider claims based upon civil liberties or civil rights, the organization recruited community leaders to speak out about social problems and to lobby government officials.  After the conclusion of the war, the organization would reassess its approach and begin to lay the groundwork for the litigation that lead to desegregating public education.

Jeremy Kessler, of Columbia University, provided four examples from the war period where the government promoted civil liberties and rights.  First, the War Department was staffed by a number of young Progressive lawyers including Felix Frankfurter, who was given the task of reviewing procedures concerning conscientious objectors (COs). Frankfurter arranged to change the framework to extend the right to claim CO status to include members of churches beyond the traditional pacifist denominations.  He also allowed non-believers to participate in alternative service.  As it was, however, almost 2,000 men were imprisoned for refusing to cooperate in any fashion in the nation’s war effort.

Frankfurter also played a crucial role in formulating the National War Labor Board which was instrumental in reducing labor disputes.  The board would later serve as a template for further federal labor mediation.

Professor Kessler stated that some of the attorneys in the Department of Justice did attempt to mitigate the crackdown on civil liberties, but their actions were generally ineffectual because local Unite States attorneys could decide how to prosecute sedition cases.

Finally, officials in the Bureau of Immigration in the Department of Labor took steps to try and limit Attorney General Palmer’s actions to deport immigrant radicals.  Professor Kessler believes that the concentration of power in the federal government during this time actually promoted policies that favored civil liberties.

Post presentations discussion focused on the questions of consequences, causality and the role of the courts.  The role of the courts, particularly in enforcing the Espionage and the Sedition Acts, was crucial.  Standards for accepting a First Amendment defense did not change, but as Professor Stone pointed out, Holmes quickly did change his mind after Schenck as is seen in his dissent in Abrams.  The role of the war should also not be discounted.  There was a feeling that “war is the health of the state.”  Holmes himself said something similar in the 1884 Memorial Day speech when he said “Through our great good fortune in our youth our hearts were touched by fire.” War confronted society with the need to address some social and economic concerns that formerly had been ignored or suppressed.  In 1918 President Wilson, concerned about the impact of racial strife on the war effort, even issued a statement calling for the ending of lynching.


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