Although FIRE fights contemporary battles against censorship, we enrich our dedication to the principle of free speech with an appreciation for history, which reveals the unique tradition of free expression in America. Justice Oliver Wendell Holmes, a key actor in the twentieth-century development of First Amendment jurisprudence, once wrote, “The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.”
So on this 104th anniversary of the armistice that ended World War I, today is an opportunity to recount one of the most blatant assaults on the First Amendment in our nation’s history: the Espionage Act of 1917.
“From the very outset of the present war,” President Woodrow Wilson declared in April 1917, Germany “has filled our unsuspecting communities and even our offices of government with spies and set criminal intrigues everywhere afoot against our national unity.”
Since America had not joined World War I in response to some catalyzing foreign attack, Wilson needed to excite the masses to join the war effort. To do so, he adopted nativist rhetoric and patriotic propaganda. He sought to unite Americans with a common suspicion of all German Americans — and of all political dissidents, for that matter.
In the face of this extreme adversity, the First Amendment we cherish today took shape.
In this pursuit, Wilson garnered among American citizens a profound intolerance for political dissent in the name of patriotism, thereby leading the movement for radical suppression of civil liberties.
In response to Wilson’s concerns about internal subversion and disloyalty, Congress adopted the Espionage Act in June of 1917, just two months after the United States formally declared war. The act, among other things, made it a crime to “willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military . . . [or] wilfully obstruct the recruitment or enlistment service of the United States.”
The law gave the Department of Justice and its many federal prosecutors the power to charge individuals with disloyalty, and gave the postmaster general enormous and unchecked power to restrict messages and circulars sent via the mail.
Despite its apparently sweeping criminalization of anti-war speech, Congress refused to enact many of Wilson’s requests to squash dissent. Most notably, Congress, after a fierce debate, rejected an initial draft of the bill that would have privileged Wilson to censor the press whenever he deemed information to be “of such character that it is or might be useful to the enemy.”
Wilson and Attorney General Thomas Gregory complained that the Act, as amended, was far too weak to protect America from domestic disloyalty. Nonetheless, Gregory pledged to capitalize on the power he held: “May God have mercy on [the disloyal], for they need expect none from an outraged people and an avenging government.”
Gregory made well on his promise. He urged Americans to serve as “voluntary detectives” and report suspicious activity to the government. Groups like the American Protective League emerged, aiming to systematically “stamp out perceived threats to the security of a nation at war.” The APL alone had more than 200,000 members, or a share of the population equivalent to about 750,000 citizens in 2022. An appreciative Gregory stated that these organizations enabled the DOJ “to investigate hundreds of thousands of complaints and to keep scores of thousands of persons under observation.”
Wilson, despite his nativism, was uneasy about these patriotic vigilante groups. His fears materialized in April 1918, when a mob in Collinsville, Illinois, lynched a German immigrant suspected of disloyalty.
Instead of condemning the mob, however, Gregory and the DOJ seized the opportunity to push Congress for more speech restriction.
“Until the Federal Government is given power to punish persons making disloyal utterances,” a statement from DOJ read, more lynchings will ensue. As legal scholar Geoffrey Stone put it in his book “Perilous Times,” this response “takes the idea of the heckler’s veto to new extremes.”
Within a month, Congress appeased Gregory and the mob by passing the Sedition Act, which increased the government’s ability to stifle dissent.
Under the Espionage and Sedition Acts, the federal government prosecuted 2,168 people and convicted 1,055 of them, punishing the perpetrators with fines as high as $10,000 and imprisonment of up to 20 years. Among those convicted was Eugene Debs, leader of the Socialist Party of America, who had received nearly one million votes for president in 1912.
Federal prosecutors’ efforts were enhanced by a judiciary that adopted the infamous “bad tendency” test. According to this test, speech was punishable under the Espionage Act if “the natural and probable tendency and effect of the words . . . are such as are calculated to produce the result condemned by the statute.” For example, a person who utters a true statement of fact about the war, which might encourage a young man, upon further reflection, to dodge the draft, would be punishable under the bad tendency test.
The Supreme Court, in this vein, upheld Debs’s conviction on grounds that his speech had the effect of undermining the draft effort, despite the fact that he took care not to advocate for draft dodging or any other illegal act. The Court reasoned that Debs’s speech had the “natural tendency and reasonably probable effect to obstruct the recruiting service,” even though he had called for no such actions.
The bad tendency test dramatically reduced the scope of protected speech. When Congress passed the Espionage Act in 1917, it insisted that speech critical of the war be protected. The Act was, as Stone put it, “a carefully considered enactment designed to deal with specific military concerns.” A court system of “patriotic” judges and juries, however, discarded this restraint by issuing convictions for political speech that could conceivably lead to actions that subverted the war effort. Jurors focused on loyalty and patriotism, not civil liberties. As one judge put it, “Men believed during that period that the only verdict in a war case, which could show loyalty, was a verdict of guilty.”
The bad tendency test was not explicitly overturned until 1969, when the Court replaced it with the modern “incitement” test in Brandenburg v. Ohio.
Still, in the face of this extreme adversity, the First Amendment we cherish today took shape. The National Civil Liberties Bureau, which eventually became the ACLU, was founded in response to the suppression of civil liberties during the war. And despite early missteps, such as upholding the conviction of Eugene Debs, Justice Holmes’s view of free speech evolved and he penned some of the most eloquent defenses of free speech ever written.
This episode of blatant disregard for free speech — ironically, during what Wilson himself dubbed as a war to protect democracy — ignited debate that shaped our conception of the First Amendment. As Holmes put it, any contemporary understanding of the law “embodies the story of a nation’s development.” The First Amendment is no exception.
For further reading, I recommend “Perilous Times: Free Speech in Wartime” by Geoffrey R. Stone and “The Wilson Administration and Civil Liberties: 1917-1921” by Harry N. Scheiber.