Download Schenk v United States 1919

Schenk v United States 1919
The Espionage and Sedition Acts: Freedom of Speech in War Time
In June 1917, Congress passed the Espionage Act. The piece of legislation gave
postal officials the authority to ban newspapers and magazines from the mails and
threatened individuals convicted of obstructing the draft with $10,000 fines and 20
years in jail. Congress passed the Sedition Act of 1918, which made it a federal
offense to use "disloyal, profane, scurrilous, or abusive language" about the
Constitution, the government, the American uniform, or the flag. The government
prosecuted over 2,100 people under these acts.
Censorship
The act was, on the whole, inoffensive -- even to radicals -- and most of it
remains on the books today. What infuriated liberals and radicals, however,
was the power of censorship it gave to the Postmaster General. The federal
official could declare "unmailable" any material which, in his opinion,
violated the act.
Zealous Postmaster
Postmaster General Albert Sidney Burleson was zealous in his enforcement
of the law. He immediately sent letters to local postmasters, instructing
them to send him any potentially illegal material. His instructions resulted
in the delayed delivery of almost every significant Socialist or radical
periodical, including Emma Goldman's Mother Earth and Max Eastman's
The Masses.
Wartime Raids and Mass Arrests
At the same time, the government stepped up its campaign against
radicals. The nation was at war in Europe -- and a draft had been
reintroduced for the first time since the Civil War. Military recruitment
posters -- like James Montgomery Flagg's famous pointing Uncle Sam -were striking a patriotic chord with the American public. On September 5,
1917, federal agents raided Industrial Workers of the World offices
nationwide. On September 28, 166 people who were (or had been) active
in the I.W.W. were accused of trying to "cause insubordination, disloyalty,
and refusal of duty in the military and naval forces" -- in violation of the
Espionage Act. One hundred and one defendants were found guilty, and
received prison sentences ranging from ten days to twenty years.
More Anti-Radical Sentiment
The Espionage Act was evidently effective in prosecuting the I.W.W. and any others
opposing conscription. Political dissenters bore the brunt of the repression. A
Socialist, Kate Richards O'Hare, served a year in prison for stating that the women of
the United States were "nothing more nor less than brood sows, to raise children to
get into the army and be made into fertilizer." In 1918, it was used to send labor
leader and former presidential candidate Eugene Debs to jail for a decade, because
of a speech he delivered. Yet in some quarters, the law was still deemed insufficient
to deal with the problem of radicalism, and particularly with the influence of the
I.W.W. in the Northwest.
Silencing Radical Voices
On January 16, 1918, the chairman of House Judiciary Committee
introduced a bill which became known as the Sedition Act. This more
wide-ranging law would establish penalties for speaking against the
American government, constitution, flag, or uniform; interfering with
wartime production; promoting the cause of America's enemies;
inciting refusal of military duty; obstructing military recruitment, and
more. It also criminalized advocating or suggesting any of these
activities, so that a radical public speaker like Emma Goldman
became a target. According to Alice Wexler, the war provided an
excuse "for the prosecution of labor activists, dissidents, and radicals
-- especially the anarchists, Wobblies, and left-wing socialists -- who had gained
considerable strength during the previous decade."
Underlying Political Motivations
The bill was clearly aimed at the I.W.W. Its implications for civil liberties
were clear. Georgia Senator Thomas W. Hardwick stated at the time: "I
understand that the real, in fact practically the only, object of this section
is to get some men called I.W.W.'s who are operating in a few of the
Northwestern states, and you Senators from those states have been
exceedingly solicitous to have legislation of this kind enacted... I dislike to
be confronted by a situation in which in the name of patriotism we are
asked to justify the fundamental rights and liberties of 100,000,000
American people in order to meet a situation in a few Northwestern
states." Despite some legislators' objections, the bill passed both houses
of Congress, and President Wilson signed it into law on May 16.
Free Speech? No Speech.
The Sedition Act did even more than the Espionage Act to restrict what could be sent
through the U.S. mails. The Post Office was now able to halt the mailing of materials
defending the I.W.W. In fact, the only thing that prevented a complete ban on
I.W.W. material was the Department of Justice's complaint that stopping I.W.W.
mailings would eliminate evidence and jeopardize the criminal prosecution of I.W.W.
defendants.
The Deportation Option
Deportation laws passed in 1917 and subsequent years gave the government
even more power to suppress radicalism. According to Wexler, "deportation,
formerly used only for those convicted of criminal acts, now came to be seen
as a means of expelling all foreign-born radicals from the country."
Purge of Russian Immigrant Workers
Although these laws generally proved ineffective against organizations, on November
7, 1919, the Bureau of Investigation's General Intelligence Division arrested selected
targets. Led by a young J. Edgar Hoover, the federal agents collared members of the
Union of Russian Workers -- a union and mutual aid organization in many ways
similar to the I.W.W. These raids, in which about 1,000 members were detained,
were a prelude to the "Palmer" raids of January 1920 (named for Attorney General A.
Mitchell Palmer).
The Most Dangerous Anarchists
Hoover, the bureau's rising star, had taken a personal interest in the deportation
cases against Emma Goldman and Alexander Berkman. In a memo dated August 23,
1919, Hoover had written, "Emma Goldman and Alexander Berkman are, beyond
doubt, two of the most dangerous anarchists in this country and if permitted to
return to the community will result in undue harm."
Sent Away Forever
On December 21, 1919, Emma Goldman, Alexander Berkman, and 247 others
(the majority of them members of the Union of Russian Workers), boarded
the Buford, a transport ship bound for Soviet Russia. At the time it was
expected that many other "Soviet Arks" would follow in the Buford's wake.
But the Buford -- undoubtedly to Hoover's profound disappointment -- was
the only deportation ship to carry any quantity of radicals from America's
shores.
Details of the Case:
Schenck v United States: The case involved a prominent socialist,
Charles Schenck, who attempted to distribute thousands of flyers to
American servicemen recently drafted to fight in World War I.
Schenck's flyers asserted that the draft amounted to "involuntary
servitude" proscribed by the Constitution's Thirteenth Amendment
(outlawing slavery) and that the war itself was motivated by
capitalist greed, and urged draftees to petition for repeal of the
draft. Schenck was charged by the U.S. government with violating
the recently enacted Espionage Act. The government alleged that
Schenck violated the act by conspiring "to cause insubordination ...
in the military and naval forces of the United States." Schenck
responded that the Espionage Act violated the First Amendment of
the Constitution, which forbids Congress from making any law
abridging the freedom of speech. He was found guilty on all charges.
The U.S. Supreme Court reviewed Schenck's conviction on appeal.
Abrams v United States 1919: In the waning months of World War I, in August 1918,
a group of Russian immigrants was arrested in New York City and charged with
violating the Sedition Act of 1918, which made it a crime to "willfully utter, print,
write, or publish any disloyal, profane, scurrilous, or abusive language about the
form of the Government of the United States" or to "willfully urge, incite, or advocate
any curtailment of the production" of the things "necessary or essential to the
prosecution of the war." Their offense: distributing pamphlets that criticized the U.S.
military's recent deployment of troops to Russia and that, in one case, advocated a
general strike in factories producing military goods. A few months later, the group --
Anarchist
Rally 1914
which included a young anarchist named Jacob Abrams -- was tried, convicted, and
sentenced to prison terms of 15 to 20 years. Their convictions were hardly unique.
Ironically, during the "war to make the world safe for democracy" the federal
government enacted some of the most severe restrictions on civil liberties at home in
the country's history -- in 1919 and 1920, the attorney general reported 877
convictions under the 1918 Sedition Act and other similar federal laws.
Gitlow V New York: For his publicized connection on the staff of The Revolutionary
Age Benjamin Gitlow was targeted for arrest during the coordinated raid of the
Communist movement conducted by New York state authorities and the Department
of Justice during the night of November 7/8, 1919. Gitlow was charged with violation
of the New York Criminal Anarchy Law of 1902, which made it a crime to encourage
the violent overthrow of government. It was contended that the publication of the
Left Wing Manifesto by The Revolutionary Age earlier that year constituted such
illegal action. Ben Gitlow's widely publicized trial began in New York City on January
22, 1920 and went to the jury on February 5. Gitlow addressed the jury in his own
defense in the case, saying:
"I am charged in this case with publishing and distributing a paper known as The
Revolutionary Age, in which paper was printed a document known as the Left Wing
Manifesto and Program. It is held that that document advocates the overthrow of
government by force, violence, and unlawful means. The document itself, the Left
Wing Manifesto, is a broad analysis of conditions, economic conditions, and historical
events in the world today. It is a document based upon the principles of socialism
from their earliest inception. The only thing that the document does is to broaden
those principles in the light of modern events.... The socialists have always
maintained that the change from capitalism to socialism would be a fundamental
change, that is, we would have a complete reorganization of society, that this change
would not be a question of reform; that the capitalist system of society would be
completely changed and that that system would give way to a new system of society
based on a new code of laws, based on a new code of ethics, and based on a new
form of government. For that reason, the socialist philosophy has always been a
revolutionary philosophy and people who adhered to the socialist program and
philosophy were always considered revolutionists, and I as one who maintain that, in
the eyes of the present day society, I am a revolutionist."
Oliver Wendell Holmes, Jr.:
Schenck decision: The question in every case is whether the words
used are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question
of proximity and degree. When a nation is at war, many things that
might be said in time of peace are such a hindrance to its 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. It
seems to be admitted that, if an actual obstruction of the recruiting service were
proved, liability for words that produced that effect might be enforced. The statute of
1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction. If the
act (speaking, or circulating a paper), its tendency, and the intent with which it is
done are the same, we perceive no ground for saying that success alone warrants
making the act a crime… “Like yelling fire in a crowded theater.”
Abrams decision: Writing for the majority, Justice John Hessin Clarke asserted
that the leaflets were an appeal to violence against the United States government as
opposed to peaceful change. In quoting heavily from the leaflets themselves, Clark
wrote: "This is not an attempt to bring about a change of administration by candid
discussion, for no matter what may have incited the outbreak on the part of the
defendant anarchists, the manifest purpose of such a publication was to create an
attempt to defeat the war plans of the government of the United States, by bringing
upon the country the paralysis of a general strike, thereby arresting the production
of all munitions and other things essential to the conduct of the war."
Clark further discussed the purpose behind the leaflets, stating that they "sufficiently
show, that while the immediate occasion for this particular outbreak of lawlessness,
on the part of the defendant alien anarchists, may have been resentment caused by
our government sending troops into Russia as a strategic operation against the
Germans on the eastern battle front, yet the plain purpose of their propaganda was
to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they
hoped, revolution, in this country for the purpose of embarrassing and if possible
defeating the military plans of the government in Europe."
Clark explained that the leaflets called for a general strike and the curtailment of
munitions production, in violation of the Sedition Act of 1918. Although the
distribution of the leaflets did not incite immediate resistance, the materials or
speech had a "tendency" to encourage violent resistance, and therefore were not
protected by the First Amendment: "...the language of these circulars was obviously
intended to provoke and to encourage resistance to the United States in the war...
and, the defendants, in terms, plainly urged and advocated a resort to a general
strike of workers in ammunition factories for the purpose of curtailing the production
of ordnance and munitions necessary and essential to the prosecution of the war....
Thus it is clear not only that some evidence but that much persuasive evidence was
before the jury tending to prove that the defendants were guilty as charged...."
Holmes’ dissent: In his dissent, Holmes wrote that although the defendant's
pamphlet called for a cease in weapons production, it had not violated the Sedition
Act of 1918 because they did not have the requisite intent "to cripple or hinder the
United States in the prosecution of the war."
Holmes expanded upon his new interpretations of the First Amendment and argued
that the First Amendment left no room for the government suppression of dangerous
ideas, except where a threat was imminent. The Majority Opinion had held instead
that the First Amendment left the common law rule of seditious libel intact. Holmes
felt that the founders expansion of free speech was "an experiment, as all life is an
experiment" and he opined that a twenty year sentence against the defendants was
an unconstitutional punishment for their beliefs. Holmes wrote:
Persecution for the expression of opinions seems to me perfectly logical. If you have
no doubt of your premises or your power and want a certain result with all your
heart you naturally express your wishes in law and sweep away all opposition...But
when men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundation of their own conduct that
the ultimate good desired is better reached by free trade in ideas. Wilson eventually
pardoned Abrams
Gitlow decision: The opinions in this case are notable for their attempt to define
more clearly the "clear and present danger" test that came out of Schenck v. United
States, (1919). The majority opinion written by Justice Edward Terry Sanford,
embracing the bad tendency test that came out from Abrams stated that a "State
may punish utterances endangering the foundations of government and threatening
its overthrow by unlawful means" because such speech clearly "present[s] a
sufficient danger to the public peace and to the security of the State." According to
Sanford, "a single revolutionary spark may kindle a fire that, smoldering for a time,
may burst into a sweeping and destructive conflagration."
Holmes’ Dissent: In the dissenting opinion, Justice Holmes, the original author of
the clear and present danger test, disagreed, arguing that Gitlow presented no
present danger because only a small minority of people shared the views presented
in the manifesto and because it directed an uprising at some "indefinite time in the
future."
Sabotage on American Soil
There were 50 acts of terrorism recorded within the United States. Surprisingly, 30
of these “incidents” took place in the New York City and New Jersey area. Despite
being “neutral”, the United States was shipping ammunition and dynamite to the
Triple Entente members on a regular basis. This fact was well known to the Germans
and their response was to stop these valuable war materials reaching their enemies
in any way possible. The German embassy in New York (as well as Washington,
D.C.) was staffed by diplomats and workers who were known to be active spies.
Perhaps the best-known diplomat was Count Johann Von Bernstorff who headed a
regime of espionage agents including the German master spy Franz Von Rintelen.
From various sources found, it appears that Von Rintelen had an open checkbook
from the German government; some sources say that it was close to $150 million to
spend on espionage. He is best known for using the “pencil” bomb and causing $10
million in damage to 36 cargo ships and their cargo. ($10 million then is worth about
$144 million today). The bomb was the creation of a Dr. Scheele in Germany and
was a simple, time-delayed device. It consisted of a pencil-like container, which
contained two acids separated by a strip of copper. Once the acids corroded through
the copper, the device ignited. Rintelen used different thicknesses of copper, either
speeding up or slowing down the corrosion rates so that these fires could begin once
a vessel was far out at sea. What is amazing is that Rintelen and his fellow spies
were easily able to put these devices into the ships cargoes while they were birthed
at their piers. There appears to have been little or no security. What is also amazing
are the quantities and frequency of these ammunition shipments exported from the
port of New York/New Jersey. The Germans were able to set-up a large spy ring
within the United States (see Howard Blum’s book “the Dark Invasion”).
Individual Actions
There were also unbalanced individuals who supported the Germans on their own,
like Eric Muenter who While teaching German at Harvard
University in 1906 he poisoned his pregnant wife. He fled
before this was discovered, and spent the next decade in
various places in the United States under assumed
identities.
He was a committed German nationalist and opposed the
US policy of selling arms to Great Britain and France.
On July 2, 1915, Muenter hid a package containing three
sticks of dynamite with a timing mechanism set for nearly
midnight under a telephone switchboard in the Senate
reception room in the United States Capitol, Washington,
D.C. His original target had been the Senate chamber,
which he found locked. The bomb exploded at
approximately 11:40 PM resulting in no casualties. Muenter wrote a letter to The
Washington Star under a pseudonym,
explaining his actions, which was published
after the bombing. He said that he hoped
the explosion would "make enough noise to
be heard above the voices that clamor for
war. This explosion is an exclamation point
in my appeal for peace."
After setting off the bomb in the Capitol, he
fled to New York City, where he hid a time
bomb on SS Minnehaha, a ship loaded with munitions bound for Britain. He then
made his way to the home of financier J. P. Morgan, Jr. in Glen Cove, New York.
Morgan had arranged for Britain to borrow large amounts in the US to finance its war
effort against Germany, which angered Muenter. Muenter shot Morgan twice in the
groin, but failed to kill him and was captured. (Morgan's butler subdued Muenter with
a lump of coal.)
He was charged with both crimes and soon after committed suicide in jail. On July 7,
just two days after his jail cell suicide, the bomb he had planted on Minnehaha
exploded. It had been placed far away from the munitions, and the resulting fire only
caused minor damage.
Here are two local incidents that took place and even though the United
States government does not fully claim that they were acts of espionage.
The Roebling Fire
The Roebling Plant On January 18th, 1915, the factory owned by John A.
Roebling’s Son Co. in Trenton, New Jersey was the target of espionage.
The Roebling factory was a very large facility produced structural steel
and wire during peacetime but during the war, even though the family
were of German decent, they designed and built wire netting to trap
German U-boats and wire strands for the army biplanes. Within a few
hours, an eight-acre factory and several workers homes were burnt to the
ground. There is no doubt that this was an act of espionage because the
factory was in full production at the time of the fires. Fortunately, none of
the 300 employees were killed.
Black Tom Explosion
Black Tom is an island at the rear of the Statue of Liberty
which is currently part of Liberty State Park. During the early
1900s, it was used by the Lehigh Valley Railroad as a staging
point for railcars of ammunition and dynamite prior to them
being loaded onto ships heading for the ports in England,
France, and Russia. In the early morning of June 30, 1916 a
massive explosion, equal to an earthquake of 5.5 on the
Richter scale, killed seven people and destroyed the island.
Estimates of the damage were in the millions. Included in the
damage was the arm of the Statue of Liberty. Even though there were only seven
people killed, the headline below was released as an “extra” edition and it appears
that “Yellow Journalism” drastically increased the death toll. The biggest question of
all is who was responsible for this explosion. The person most associated with the
blast is a 23 year old from Bayonne, New Jersey called Michael Kristoff. He was
turned in by his aunt, who was also his landlady. Her story was that he used to work
at the rail yard but keep “strange” hours and would come and go throughout the
night. On the day of the incident, her testimony was that he came home shortly after
the blast, visibly shaken, mumbling about the damage that he caused. Kristoff died
while in the custody of federal officials. There were also the two Norwegians who
lived in the same boarding house in Jersey City.
According to an article in The New York Times of
August 10, 1916, Erling Iverson and Axel Larsen
were detained by Jersey City police on the charge
of being suspicious persons in the complicity of
the Black Tom fire and explosions. Larsen worked
on a Pennsylvania Railroad tugboat on the night of
the explosion. Iverson was stated as being
unemployed at the time. Two local detectives
went to their boarding house and noted that
their bags were packed and the two men were
about to leave town. Upon a search of their
room, the detectives found “a mass of papers”
which included drawings of a United States
naval submarine capable of traveling 73 miles
per hour. In addition to these plans, the
detectives found several bundles of personal
letters and a book written in shorthand. Also
stated was that the letters contained details
that they were both pro-German.
Black Tom
Island
Senator Lee Slater Overman
The Overman Committee
The Overman subcommittee of the Senate Judiciary Committee began as an
investigation of pro-German propaganda in relation to the United States
Brewers’ Association in September 1918. Initial investigations centered on the
claims of the then Alien Property Custodian and Attorney General from March
1919, A. Mitchell Palmer, that German breweries had purchased a major city
newspaper that presented prohibitionist, propaganda, and disloyalty concerns.
Chaired by Lee Slater Overman of North Carolina, the subcommittee held hearings
between September 27, 1918 and March 10, 1919. The subcommittee appointed
Palmer to attain evidence and documents related to the investigation. Palmer later
initiated, with the aid of J. Edgar Hoover, the “Palmer Raids” in 1919 and 1920.
On January 21, 22, and 23 the subcommittee heard testimonies from Archibald E.
Stevenson, purported special agent to the Department of
Justice Bureau of Investigation (which will eventually become
the modern FBI). Stevenson’s testimony presented a
characterization of pacifist, socialist, and radical movements as
being in effect pro-German, and linked the “Bolsheviki
movement [as] a branch of the revolutionary socialism of
Germany.” Stevenson presented a deterministic conflation of
pacifist, socialist, and radical movements “merging in the
development of Bolshevism” and submitted lists of individuals,
publications, and organizations that he claimed to be a part of
a conspiracy to overthrow the government and capitalism,
united under the red flag. At the conclusion of his testimony,
Stevenson recommended the exclusion and deportation of
alien agitators, the suppression of foreign language
publications and seditious literature, and an education
campaign, as Overman put it, “propaganda by Americans for
America.” On 4 February 1919 the subcommittee’s investigation was extended to
include Russian propaganda, and to “inquire into any effort to incite the overthrow of
the Government of this country or all government by force, or by the destruction of
life or property, or the general cessation of industry.”
The Committee did little to demonstrate the extent of communist activity in the
United States. In its analysis of what would happen if capitalism were overthrown
and replaced by communism, it warned of widespread misery and hunger, the
confiscation of and nationalization of all property, and the beginning of "a program of
terror, fear, extermination, and destruction." Anti-Bolshevik public sentiment surged
after release of the report and ensuing publicity.
German investigation: Johann Heinrich von Bernstorff, Karl Boy-Ed, Franz von
Papen, Dr. Heinrich Albert, and Franz von Rintelen, among others, were Germans
investigated for producing propaganda. All were previously evicted from the United
States for being part of a German espionage ring. The United States Brewers
Association, the National German-American Alliance, and the Hamburg-American
steamship line were investigated. The final report concluded that these
organizations, through financial support, bribes, boycotts, and coercion, sought to
control the press, elections, and public opinion.
Bolshevism investigation: "The [Bolshevik]
Government is founded upon class hatred, its avowed
purpose is the extermination of all elements of society
that are opposed to or are capable of opposing the
Bolshevist Party. 'Merciless suppression' and
'extermination' of all classes except the present
governing class are familiar slogans of the Bolsheviki,
and confiscation is adopted as an essential instrument in
the governmental formula."
—The Committee's final report
The report described the Communist system in Russia as
"a reign of terror unparalleled in the history of modern
civilization". It concluded that instituting MarxismLeninism in the United States would result in "the
destruction of life and property", the deprivation "of the
right to participate in affairs of government", and the
"further suppress[ion]" of a "substantial rural portion of
the population." Furthermore, there would be an
"opening of the doors of all prisons and penitentiaries".
It would result in the "seizure and confiscation of the
22,896 newspapers and periodicals in the United States"
and "complete control of all banking institutions and their
assets". "One of the most appalling and far reaching consequences ... would be
found in the confiscation and liquidation of ... life insurance companies." The report
also criticized "the atheism that permeates the whole Russian dictatorship"; "they
have denounced our religion and our God as 'lies'."
Despite the report's rhetoric and the headlines it produced, THE REPORT
CONTAINED LITTLE EVIDENCE OF COMMUNIST PROPAGANDA IN THE
UNITED STATES OR ITS EFFECT ON AMERICAN LABOR.
Recommendations: The report's main recommendations included deporting alien
radicals and enacting peacetime sedition laws. Other recommendations included
strict regulation of the manufacture, distribution, and possession of high explosives;
control and regulation of foreign language publications, and the creation of patriotic
propaganda.
Assignment:
Free Speech versus Security
You will be assigned a position on this issue of Freedom of
Speech in War time:
You will as a group read the content on the Espionage and
Sedition Acts, look for the most influential arguments that
support your assigned position. Assign different sections of the
reading to the group and have them prepared to defend the
assigned position on the class.
Create a bullet point list to put on the white board (you will
only be able to use your assigned space) that defends the
Espionage and Sedition Acts or refutes them.
Defend your assigned position using the reading and any presentation from the
class, and the textbook.
To be followed by a class debate on the positions using the bullet points