Chapter IV: Legislation Against Sedition and Anarchy

If there be any among us who wish to dissolve this union, or
to change its republican form, let them stand undisturbed, as
monuments of the safety with which error of opinion may be
tolerated where reason is left free to combat it. I know indeed
that some honest men have feared that a republican government
cannot be strong; that this government is not strong enough.
But would the honest patriot, in the full tide of successful
experiment, abandon a government which has so far kept us
free and firm on the theoretic and visionary fear that this
government, the world’s best hope, may, by possibility, want
energy to preserve itself? I trust not. I believe this, on the
contrary, the strongest government on earth.—JEFFERSON’S _First
Inaugural_.

Long before the armistice it became clear that the problem of freedom of speech would not end with the war, but would be raised for us in a different aspect and with added difficulties by the unaccustomed prevalence and outspoken expression of radical ideas. Despite my own adherence to traditional political and economic views, I believe that this phenomenon was bound to result from the war. The routine of the day’s work ordinarily holds in check the eternal antagonism of the “have-nots” to the “haves,” but habits of mechanical obedience and adjustment to the prevailing scheme of life were suddenly destroyed for many by the rapid shift to new scenes and occupations and a novel conviction of the power of unskilled labor. The immense amount of thought and discussion caused by the war during the three years preceding our entry has been often remarked. Such an overhauling directed popular attention to the part played by economic factors in the origin and conduct of the war. Many extreme radicals claimed therefrom fresh proof of the economic interpretation of history and the class struggle. The official emphasis on democracy against autocracy inevitably stimulated discussion of those two concepts and their application to industrial and other non-political fields. Labor programs in England and France crossed the ocean. Then came one of the earthquakes of history, from whose remote influence it was as impossible for us to escape as from the French Revolution which produced the Alien and Sedition Laws of 1798. Jefferson’s _First Inaugural_ states the controversy of to-day.

During the throes and convulsions of the antient world, dur^g
the agonis^d spasms of infuriat^d man, seeking through blood
& slaughter his long lost liberty, it was not wonderful that
the agitation of the billows should reach even this distant &
peaceful shore: that y^s sh^d be more felt & fear^d by some, &
less by others, & sh^d divide opinions as to measures of safety.

Much of this radicalism had identified itself with the opposition to the war, and thereby been involved in prosecutions under the Espionage Act and the state laws. A few members of the Non-Partisan League were tried in the federal courts, and its leaders and several of the rank and file were convicted in Minnesota. Much use was made against Debs, Berger, and Mrs. O’Hare of the St. Louis Socialist platform, with its declaration for “continuous, active, and public opposition to the war, through demonstrations, mass petitions, and all other means within our power.” The Industrial Workers of the World had taken advantage of the nation’s hour of need to withhold assistance which they felt under no obligation to give. Their position was stated to Carleton Parker in plain language by one of their chiefs.

You ask me why the I.W.W. is not patriotic to the United States.
If you were a bum without a blanket; if you had left your wife
and kids when you went West for a job, and had never located
them since; if your job never kept you long enough in a place to
qualify you to vote; if you slept in a lousy, sour bunk-house,
and ate food just as rotten as they could give you and get by
with it; if deputy sheriffs shot your cooking cans full of holes
and spilled your grub on the ground; if your wages were lowered
on you when the bosses thought they had you down; if there was
one law for Ford, Suhr, and Mooney, and another for Harry Thaw;
if every person who represented law and order and the nation beat
you up, railroaded you to jail, and the good Christian people
cheered and told them to go to it, how in hell do you expect a
man to be patriotic? This war is a business man’s war and we
don’t see why we should go out and get shot in order to save the
lovely state of affairs that we now enjoy.

Parker, Colonel Disque, and the President’s Mediation Commission had striven with much success to bring these irreconcilables into the great stream of national effort. Others thought coercion a better method to end the dangerous menace of sabotage and the recurrent strike. W. D. Haywood and one hundred more members of the I.W.W. were convicted and imprisoned under long sentences for threats and designs of tangible obstruction to war work.

This union of hostility to the war with strange economic and political doctrines set its mark on the later war legislation. The amended Espionage Act of 1918 included the clauses about defamation of our form of government and curtailment of production which played such a prominent part in the Abrams case. A federal Sabotage Act was enacted. States punished the advocacy of syndicalism and sabotage in their war statutes or more often by separate acts. Much of this legislation extended automatically to peace-time utterances, and when it did not, it was easy and natural to adapt it for that purpose by the omission of a few military phrases. In the legislative sessions which followed the armistice, emergency laws against anarchy and criminal syndicalism were adopted by state after state with a coincidence of time and phraseology which proved either a uniform danger throughout the country or the operation of M. Tarde’s Laws of Imitation.

This coercive legislation was held by its supporters to have unanswerable justification in the succeeding outrages of 1919. A large number of bombs addressed to federal officials and judges were seized in the mails, and the houses of Attorney General Palmer and several other individuals prominent in sedition prosecutions and legislation were wrecked by explosions, one of which caused loss of life. There was much street fighting at May Day Parades in Boston and Cleveland, and a clash of very obscure origin between the I.W.W. and the American Legion in Centralia, Washington, resulted in the death of five ex-service men, four shot and one lynched. Meanwhile, the Department of Justice and a special Senate Committee to investigate Bolshevism accumulated a mass of evidence on the large number of revolutionary periodicals and publications in the United States.

The presence in our midst of new forces that make for disorder and violence renders it desirable to review the resources of our law for dealing with insurrection, bombs, and assassination, and to examine calmly recent and pending legislation to prevent the promotion of anarchy. The disruption of our social and economic fabric by revolution, or even the continual recurrence of local outrages, would be so disastrous that they ought to be prevented in the wisest and most effective manner. Many persons take it for granted that any statute which is directed against those evils must be beneficial. That does not necessarily follow. If an emergency really exists, it behooves us all to keep cool, and consider with great care any new laws, and particularly the bills lately introduced in Congress, to see whether they are actually needed to combat the danger, whether they will really meet it, and whether in the haste and excitement of the moment our legislators may not be going much too far.

This country has been able without any anarchy acts to cope with several insurrections like Shay’s Rebellion and the Dorr War, a considerable amount of anarchy, and a great many turbulent strikes. May it not be that a wise and vigorous enforcement of the ordinary criminal law will meet most, if not all, of the present danger?

I. _The Normal Law Against Violence and Revolution_

As far as state prosecutions are concerned, there has been very little need of specific legislation against anarchy and criminal syndicalism. Actual violence against government, life, and property is punishable everywhere. Those who plan or counsel such violence are liable even if they do not actively participate. When several policemen were killed by a bomb at the Haymarket in Chicago in 1886, Spies and other anarchists were convicted and executed though it was clear that some one else threw the bomb. Nor is it necessary that any criminal act shall take place. An unsuccessful attempt at a serious crime or a definite solicitation of another to commit it is punishable under the general criminal law. Chief Justice Morton of Massachusetts said in 1883, while upholding the sentence of one Flagg for urging another without success to burn down a barn: “It is an indictable offense at common law to counsel and solicit another to commit a felony or other aggravated offense, although the solicitation is of no effect, and the crime counseled is not in fact committed.” Consequently the normal law of the states and the District of Columbia, apart from any legislation against anarchy, enables the police and the courts to deal vigorously with actual or threatened insurrection, explosions, or assassination.[266] The persons of the President and other federal officials are protected by these laws in the District and the various states. Thus the assassin of President McKinley was convicted in New York. If it is felt to be safer that crimes against such men should also be subject to prosecution in the federal courts, it may be that Congress has power so to provide, since any injury to them would seriously impede the operation of the national government, although this is a question which requires subsequent consideration. If such a statute can be constitutionally enacted, it should punish not only actual injuries to officials, but also unsuccessful attempts and incitement of others to commit such injuries, for such abortive conduct would not be criminal in the United States courts unless expressly made so.[267]

[266] For purposes of illustration I have added in Appendix IV references to the normal law of four jurisdictions which have lately been alarmed over anarchy. If the law of any other state is incomplete, a definite provision as to criminal attempt or solicitation will meet the need far more wisely than the enactment of a vague and sweeping act against anarchy.

[267] Section 332 of the U. S. Criminal Code punishes one who “aids, abets, counsels, commands, induces or procures” a crime; but this section has only been applied to men who have aided in a crime which has actually been committed. It probably can not be used against unsuccessful incitement. U. S. _v._ Rogers, 226 Fed. 512, so holds, though there is a suggestion that the crime need not be committed in Billingsley _v._ U. S., 249 Fed. 331. Section 4 raises the same question.

No Congressional legislation is needed to make criminal any scheme to overthrow the United States Government by bombs or any other means. A glance at the first eight sections of the Federal Criminal Code suffices to prove this.[268] Levying war against the United States is treason punishable with death, and recruiting or enlisting for armed hostility against the United States is a serious crime. Conduct short of insurrection is penalized in section 6. “If two or more persons ... conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States,” they are each liable to six years in prison or $5,000 fine or both. It is of course well settled that conspiracy does not have to succeed to be punishable. All that is required is a common design to commit a crime, and some overt act in pursuance of the design. The act may be entirely innocent in itself, and may consist in speech or publication. If any further protection against threatened revolution is needed, it is furnished by section 37 of the Criminal Code, which punishes with severity conspiracy “to commit any offense against the United States.”[269]

[268] U. S. Comp. Stat, 1918, §§ 10165–10172.

[269] _Ibid._, § 10201.