MUSIC: Time transition WWI theme
Recruiting Poster w/ “The Espionage Act, 1917” Superimposed
World War I: The Espionage Act
Cast of Characters:
|Newspaper Reader 1
||Newspaper Reader 2|
|Masses Counsel Hillquit
||Judge Learned Hand|
The fighting raging in Europe in 1914 divided Americans, and both Britain and Germany flooded U.S. newspapers with propaganda. In 1917, as America was drawn into the First World War, the government responded with draconian measures against a whole range of publications. .
Images offront pages announcing US entering war in Europe
(holding newspaper) EXTRA! EXTRA! CONGRESS DEBATES ESPIONAGE ACT!
As with the ill-fated Alien and Sedition Act of 1798, the 1917 Espionage Act made it a crime for Americans to speak against the government, especially its war efforts. Citizens could be jailed for inciting disloyalty or encouraging men to resist the draft. Among other things, the act gave the Postmaster General authority to deny mailing privileges to any publication he believed gave aid or comfort to the enemy. A large number of foreign-language and radical newspapers and magazines were caught in this net.
Congress was uneasy about the press censorship provisions in the Espionage Act, and a heated debate attended its introduction in the House of Representatives:
Honored colleague, kindly read back that provision please!
Section three: Whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.
Image of front pages criticizing US entering war in Europe.
I believe the press censorship in this bill is in flat contradiction of the Constitution! And although I do not claim to be a constitutional lawyer, I think I know something about our Constitution!
I am opposed to giving any man a bridle that he may place upon the free expression of opinions of Americans. Suppose a man writes an editorial condemning the food provided for our soldiers. Is it to be said that he shall be harnessed by some eight or ten upstarts going around enforcing military laws?
To say you cannot criticize a general not fit to command troops would be another outrage! But here you are, fixing it so any malicious person can dig out a paragraph in a paper and cause trouble! We will all get along better if we’re careful about muzzling the press!
This nation cannot afford to adopt a censorship measure that would make it possible to suppress legitimate criticism of the administration of the government in this war.
Even so, Congress left in place one key provision when it debated the final version:
Would my esteemed colleague read back that section?
The President may prohibit the publication or communication of any information relating to the national defense, which in his judgment is of such a character that it is or might be useful to the enemy. That includes recruiting of soldiers!
And publications that contravene the act would be considered unmailable?
That’s correct. The Postmaster General can declare all materials in violation of the act unmailable.
The editors of the nation’s press objected to attempts to muzzle them.
MUSIC: soft drum roll
Newspaper Reader 1
(holding newspaper)The New York Times says: “While conceding the necessity for military censorship, we insist that there should be sense in censorship. A bill pending in Congress would clothe officials, high and low, with a dangerous power to suppress information that would be of no use to the enemy!”
Newspaper Reader 2
The New Orleans Times-Picayune argues: “The American people are entitled to all the news, good and bad, to a full, free and frank statement of all that occurs. The rights to free speech and a free press are to be cherished, whether in war or peace. There has never been a cheaper or more cruel thrust at the American press than is contained in the Espionage bill pending before the Senate!”
Newspaper Reader 1
The New York American says: “The Espionage bill should be trimmed of every word that forbids the freedom of speech or the freedom of publication directly or indirectly. It is, in fact, an unnecessary bill, which ought to be rejected altogether by the Congress!”
ESPIONAGE BILL SIGNED INTO LAW
ESPIONAGE BILL SIGNED! NUMEROUS PROSECUTIONS EXPECTED!
NO CENSORSHIP PROVISION!
MUSIC: drum roll ends with a stinger
Even without the censorship provision, the government relentlessly pursued certain publications and publishers.
Newspaper Reader 2
It says here in the New York Times that a federal warrant was issued for the arrest of Henry Krenning, the former president of an automobile manufacturing company, charging him with violating the Espionage Act because he made a disparaging remark about the Chief Executive at the theater!
EXTRA! Socialists to Test the Espionage Act! Editors of radical publication would establish their right to the mails!
The publishers of The Masses, an illustrated socialist monthly, battled the Post Office censors, who objected to the magazine’s anti-draft campaign. The censors charged the publishers under the sedition provisions of the Espionage Act and revoked their mailing privileges.
Cartoons, "Conscription" from Masses
At issue were these cartoons. The government claimed such publications undermined the war effort. In court, defense lawyer Morris Hillquit argued that The Masses had tried to comply with the law.
Masses Counsel Morris Hillquit
May it please the court! My clients have done everything possible to prove to the Post Office Department that our August 1917 issue conforms to the law. Our business manager went to Washington and asked Solicitor General Lamar to show him what was objectionable under the Espionage Act. The solicitor refused to specify. He insisted that the entire tone and spirit of the issue render it unmailable. Unfortunately, we now must sue in order to distribute our magazine.
The case was argued in district court in New York before Judge Learned Hand, who doubted the government’s claims that the content in question would incite civil disorder.
Judge Learned Hand
Political action arouses the passions and may, in fact, stimulate men to the violation of law. Detestation of existing policies is easily transformed into forcible resistance of the authority that executes them. It would be folly to disregard the causal relation between the two. Yet, to equate agitation with direct incitement to violence disregards our tolerance of all methods of political action, which in normal times is a safeguard of free government.
The distinction is not scholastic hair-splitting but rather a hard-won right in the fight for freedom. If one stops short of urging others to resist the law, it seems to me one should not be guilty of causing its violation. If that is not the test, then I can see no escape from the conclusion that, under this section of the Espionage Act, every political action that might provoke someone to speak against the government is illegal. I am confident that Congress had no such revolutionary purpose in view.
It seems to me quite plain that none of the language and none of the cartoons in this magazine can be thought directly to counsel or advise insubordination or mutiny, without a violation of their meaning quite beyond any tolerable understanding.
The Espionage Act forbids anyone from willfully obstructing the recruiting or enlistment service of the United States. It is quite clear that none of the cartoons that appeared in The Masses fall within such a test. Certainly the nearest is that entitled ‘Conscription,‘ and the most that can be said of that is that it may breed such animosity to the draft as will promote resistance and strengthen the determination of those disposed to be recalcitrant. There is no intimation that, however hateful the draft may be, one is . . . duty-bound to resist it, certainly none that such resistance is to one’s interest. I cannot, therefore, assent to the assertion that any of the cartoons violate the act.
Judge Hand ruled that The Masses did not violate the Espionage Act and said the magazine could be mailed. The government appealed, and a three-judge panel overturned Judge Hand’s decision. Appeals Court Judge Henry Wade Rogers observed that political cartoons have long been used as a very effective means of political propaganda.
Judge Henry Wade Rogers
Cartoons were so employed in France during the French Revolution and in England as early as the days of Walpole. In this country, they were used during the Revolution, in the War of 1812, and in the Civil War. A cartoon can express ideas as lucidly and clearly as printed words! But there is no escape from legal responsibility because pictures, rather than words, are used.
Pleading the case before the Appeals Court, Masses counsel Hillquit concurred:
Masses Counsel Hillquit
May it please the court. We concede that the cartoon in question is a powerful argument against the conscription law. It says, in effect, that the youth of the land are by it forced into military service. It binds workers to military service and causes great agony and suffering to women. Mothers with children too small to be subject to the ‘Draft’ pray to God that the draft law may be repealed before their children come to military age! Democracy is trampled under foot by such a law! That is what this picture says.’
Cartoon: measuring for coffin
That is not what it says to us! It seems to us to say: This law murders youth, enslaves labor to its misery, drives womanhood into utter despair and agony, and takes away from democracy its freedom. Its voice is not the voice of patriotism, and its language suggests disloyalty. We disagree that it would not interfere with enlistment. That it would interfere, and was intended to interfere, was evidently the opinion of the Postmaster General; and this court cannot say that he was not justified in his conclusion.
. . . The question whether the publication contained matter intended willfully to obstruct the recruiting or enlistment service is not in doubt. Indeed, the court does not hesitate to say that, considering the natural and reasonable effect of the publication, it was intended willfully to obstruct recruiting. This publication is indeed unfit for the mail!
MUSIC: EVIL reprise establish and under
The case against The Masses editors went to trial twice, but by the second trial, the war had ended. The jury, hopelessly deadlocked, was discharged, and the editors were free. Floyd Dell, co-editor of the magazine wrote in his autobiography:
While we waited, I began to ponder for myself the question which the jury had retired to decide. Were we innocent or guilty? We certainly hadn't 'conspired' to do anything. But what had we tried to do? Defiantly tell the truth. For what purpose? To keep some truth alive in a world full of lies. And what was the good of that? I don't know. But I was glad I had taken part in that act of defiant truth-telling.
As Justice Louis Brandeis observed a few years later,
. . . Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil feared is so imminent that it may happen before there is opportunity for full discussion. If there be time to expose, through discussion, the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.
MUSIC: “Evil” theme builds & segues into 1960’s civil rights tunes and carries under