In the history of the United States, freedom of speech has been curtailed on many occasions. The most famous argument used for limiting free speech is a hypothetical situation. Is it acceptable to allow someone to falsely yell “fire” in a crowded theater, thereby creating panic? This hypothetical was first used in defense of America's sedition law that was on the books from 1918 until 1920. What are the limits of free speech in the United States? Let's review how Americans experienced censorship in the second decade of the 20th century.
Fig. 1: Sedition Act Political Cartoon.
Sedition Act of 1918 Definition
The Sedition Act of 1918 was an amendment to the 1917 Espionage Act. The Espionage Act had made it illegal to perform actions to impede the draft or encourage treason. The Sedition Act went further, making criticizing the government or military at all a crime. Punishments included fines of up to $10,000 and up to 20 years in prison.
Sedition Act Timeline
The events below led up to the passing of the Sedition Act of 1918 and continue through its major outcomes.
- April 4, 1917 - US enters WWI
- May 18, 1917 - Selective Service Act of 1917 authorizes a military draft
- June 15, 1917 - Espionage Act passed
- May 16, 1918 - Sedition Act amends the Espionage Act
- March 3, 1919 - Scheneck v. United States decided
- March 10, 1919 - Frohwerk v. United States decided
- March 10, 1919 - Deb v. United States decided
Sedition Act of 1918 Purpose
President Woodrow Wilson managed to turn much of the American public, who had traditionally been fiercely isolationist, in favor of the war following the sinking of the RMS Lusitania. Anti-war thought in America had largely been an intellectual activity for upper-class Americans. When the draft was instated during WWI, war became a much more real issue to the working-class. Ideological pacifists and civil libertarians joined with radical socialist and workers' movements to create America's anti-war movement. As the anti-war movement, while still a minority of the American population, began to gain power, Wilson looked for any way to halt its progress.
Wilson was not acting entirely against the popular will when seeking to halt the anti-war movement. While the American Expeditionary Force was not all volunteer, most eligible males did register for the draft. Vigilante groups had sprung up, some even given a measure of official support, to round up those believed to be evading the draft.
Fig. 2: Thomas Watt Gregory.
Passage of the Sedition Act
As the anti-war movement pressed on and reactionary mob violence against them increased, Wilson and Attorney General Thomas Watt Gregory pushed for a way to prosecute anti-war speech. Arguments in Congress supporting the bill focused not just on punishing radicals who opposed the war, also on alleviating the vigilante violence which was growing out of hand. Despite some Republicans voicing opposition on the grounds of free speech, Congress voted overwhelmingly supporting the act. The final vote was 48 to 26 in the Senate, and the even larger 293 in favor–with just a single vote opposed in the House of Representatives. On May 16, 1918, the act became law.
Former President Theodore Roosevelt had voiced his opposition to the act.
Any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.”1
Sedition Act of 1918 Significance
The significance of the Sedition Act is in its relationship to the United States constitution. Several famous cases went all the way to the US Supreme Court arguing that the act was unconstitutional. The case of Schenck v. United States set precedent regarding free speech which would be discussed for decades. Other cases such as Frohwerk v. United States and Deb v. United States would further strengthen the Sedition Act of 1918.
Scheneck v. United States
Charles Schenck and Elizabeth Baer were convicted of violating the act for sending literature to conscripts which claimed that the draft was a form of indentured servitude and therefore unconstitutional. Justice Oliver Wendell Holmes Jr wrote an influential opinion that relied on circumstances. His opinion rested on the idea that speech presenting a “clear and present danger” was not protected by the constitution. His famous example was that a dangerous act such as to falsely yell “fire!” in a crowded theater and create a baseless panic should not be protected speech. The Supreme Court upheld the conviction by giving the opinion that spreading information that would convince conscripts not to fight during a war was a “clear and present danger” to the United States.
Conscript: A person who was drafted for military service instead of volunteering.
Frohwerk v. United States
In Frohwerk v. United States, the idea of “clear and present danger” was pushed even further. Jacob Frohwerk had not directly targeted US soldiers to disobey the draft, as Scheneck and Baer had. Frohwerk had simply criticized US involvement in WWI in articles he had written for a Missouri newspaper. The US Supreme Court voted to uphold the conviction. Justice Oliver Wendell Holmes Jr. used the case as an opportunity to broaden unprotected speech during wartime to include anything which criticized the war effort, not just speech that specifically tried to convince soldiers.
Fig. 3: Eugene Debs.
Deb v. United States
The Debs case was the narrowest interpretation yet by Justice Oliver Wendell Holmes. Eugene Debs gave a speech in which he stated that he supported three socialists who had been imprisoned under the Sedition Act of 1918. During the speech, he promoted no illegal activity himself and even told the audience that he must be careful with his words. When his arrest for the speech made its way before the US Supreme Court, it was upheld. The opinion stated that although Debs didn't promote illegal activities overtly, by sharing with audiences that he had to be careful with his words, he had instructed them to read between the lines and pick up on his anti-war message.
Eugene Debs had run against President Wilson in the 1912 presidential election as the Socialist Party candidate. He received 6% of the vote, an unusually high amount for a third-party candidate. While in jail under the Sedition Act of 1918, Debs received another 3.4% of the vote.
Sedition Act of 1918 Repealed
With WWI ended in November 1919, a great deal of WWI legislation was repealed. President Wilson had reduced sentences or released several prisoners convicted under the law in 1919, but his new Attorney General A. Mitchell Palmer held a different position. Palmer had argued for a peace time sedition law to target immigrant and Black communities. Despite his attempts, public and political opinion had now turned against such harsh suppression. In the December 1920, the act was finally repealed.
Sedition Act of 1918 - Key takeaways
- Enacted in 1918 under President Woodrow Wilson
- Amendment to the 1917 Espionage Act
- The act made criticizing the government illegal
- Led the Supreme Court “clear and present danger” decision written by Justice Oliver Wendell Holmes
References
- Sedition Act 40 Stat. 553 (1918)
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