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Intolerable Dissent: The Legal
Aspects of the Suppression of
Socialist Speech During the WWIEra
Sam McCann
4/20/2011
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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.
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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---, 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
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Zinn, Howard,A Peoples History of the United States. New York: HarperCollins, 1980.
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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
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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
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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
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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