Subversion in the US government

Through out the history of the United States, at times of war there has always been the question of how citizens’ rights should be regulated. Should citizens at times of war have the same rights as in times of peace, or should the government control the ways in which citizens receive their rights? Through the Espionage and Sedition Acts the government decided to regulate the rights which citizens’ receive in seemingly extreme ways. How can it be constitutional to arrest and imprison a person who voiced their opinion about the war? These issues were very prominent during World War I when many Americans began to voice their opinion in new ways.
Charles Schenck was the general secretary of the Socialist Party of America. He participated in many antiwar activities which violated the Espionage Act of 1917, which set penalties for anyone who uttered or circulated incorrect statements intended to interfere with the war efforts. The most noticeable violation Schenck committed was when he sent out 15,000 leaflets urging draftees and soldiers to resist the draft in 1917. He was arrested, convicted, and sentenced to prison for violating the Espionage Act, by trying to cause disobedience in the military. He then appealed his case to the United States Supreme Court. In Schenck v United States (1919), the questions that were presented to the Supreme Court, were Schenck’s political statements protected by the First Amendment which says that “Congress shall make no law…abridging the freedom of speech”. What does that statement mean and are there different standards for protecting freedom of speech at times of war and at times of peace? Was the Espionage Act of 1917 constitutional?
Schenck, the petitioner, said that the First Amendment was there to protect citizens’ rights from “tyranny from majority”, also saying that it was unconstitutional for Congress to decide when citizens’ rights were to be upheld. The respondent, the United States, said that a nation at war can take necessary steps to insure the success of the nation’s war efforts. They said it was not a First Amendment issue but rather congressional draft policy. The actions and words of Schenck and the Socialist Party endangered the nation at a time of war.
The Supreme Court upheld Schenck’s conviction in a unanimous 9-0 decision saying that the Espionage Act of 1917 was a reasonable limitation of speech at a time of war. Justice Holmes delivered the opinion of the court, he said, “the question in every case is whether the words used are used in such circumstances …that they will bring about the substantive evils that Congress has a right to prevent”. However, how can a leaflet cause the entire United States army and draftees to resist the war? This is where the unanimous decision seems absurd, thinking that Schenck’s actions could have caused such an uproar in the United States during World War I.
The Supreme Court also heard another case in 1919 dealing with the First Amendment and the Espionage and Sedition Acts. In Debs v United States, the petitioner, Eugene Debs was an American labor and political leader, and a member of the Socialist Party. On June 16, 1918 Debs made an antiwar speech in Canton, Ohio protesting the United States involvement in World War I. He was then arrested under the Sedition Act of 1918, which forbade Americans from using abusive language about the United States government during war. Debs was convicted and sentenced to 10 years in prison.
The constitutional questions raised by this case were, is the statute (Sedition Act of 1918) unconstitutional as it interferes with freedom of speech?
The Supreme Court decided 9-0 in favor with the opinion of the lower courts, “for obstructing and attempting to obstruct the recruiting service of the United States”, and that the verdict must be sustained. As seen in Schenck v United States the Supreme Court used the clear and present danger test to determine that the speech Debs made wad intended to cause danger to the nation at a time of war by trying to obstruct the draft through his speech. Justice Holmes who gave the opinion of the court said that this case was very similar to Schenck v United States where the court upheld a similar decision.
In Abrams v United States (1919), petitioner, Jacob Abrams was a Russian immigrant and an anarchist. On August 23, 1918 Abrams along with other companions were arrested in New York City for writing, printing, and distributing two leaflets. The first of the two leaflets titled, “The Hypocrisy of the United States and her allies”, denounced President Wilson for sending troops to Russia. The second leaflet was in Yiddish and it was titled, “Workers—Wake Up”. “The purpose of this obviously was to persuade the person…to turn a deaf ear…and to cease to render it assistance in the prosecution of the war.” Abrams along with the others were convicted under the Sedition Act; they were tired in October 1918 before a federal district court judge Henry Clayton Jr. and were found guilty and sentenced to 15-20 years in prison. They then appealed the decision to the Supreme Court.
The questions that were posed in this case were, does the Espionage Act and Sedition Acts violate the freedom of speech clause of the First Amendment? The court found 7-2 that no the Espionage Act did not violate the First Amendment. Justice Clark gave the opinion of the court saying that the Espionage Act was not a violation of the freedom of speech clause of the First Amendment. Clark believed that these leaflets had the ability to encourage war resistance, which was a threat to the current state of the nation at war. Justice Holmes gave the dissenting; he said that “I believe the defendants had as much right to publish as the Government had to publish the Constitution of the United States now vainly invoked by them”. He believed that the “silly leaflets” posed no threat to the government and the governments’ involvement in the war.
Justice Holmes delivered the court opinion for both Schenck v United States and Debs v United States, in both of these cases Holmes had a stricter verdict about the constitutionality of the Espionage Act, however, in Abrams v United States he gave the dissenting, saying that the courts opinion about threat of the leaflets was absurd. This shows how much the current state of the nation and the world can change a Justices view in the span of one year.
In Gitlow v People of New York (1925), Benjamin Gitlow was a member of the Communist Labor Party. He participated in writing and distributing 16,000 pamphlets called Left Wing Manifesto, they encouraged citizens to overthrow the government and bring about a communist revolution. He was arrested in New York in 1920 for violating the New York Criminal Anarchy Law of 1902. That law stated that anything that advocated the overthrow of the government is guilty of a felony and punishable by imprisonment or fine. The Court of Appeals held that the Manifesto advocated an overthrow of the government and they held that the statute was constitutional. So Gitlow then appealed his case to the Supreme Court.
The questions that were addressed in this case were, could the due process clause of the Fourteenth Amendment be used to extend First Amendment rights to freedom of speech and press. Did New York’s Criminal Anarchy Law deprive Gitlow of his constitutional rights to freedom of expression? Is it possible that the Fourteenth Amendments due process clause could be used to hold state governments to the free press and speech standards of the First Amendment?
The Court decided 7-2 to uphold Gitlow’s conviction, however, the Court agreed with Gitlow’s argument that states need to be required to comply with the First Amendment, since the protections are set forth through the due process clause of the Fourteenth Amendment. Justice Holmes gave the dissenting in which he though the judgment needed to be reversed, saying that in order to prosecute the government must show that the speech presented a clear danger to the nation in order to be punishable. This dissenting is contradicting to both Schenck v United States and to Debs v United States since in those two decisions Holmes said that the speeches presented a clear and present danger to the nation.
Through these four cases dealing with subversion the Supreme Court has decided in all the cases that the government has the right to choose when to control citizens’ rights, at times of war and at peace since it is for the good of the nation. With these decisions it would seem that the Supreme Court is for regulating rights when there is a “clear and present danger”.
-Harbhajan