Chapter II: Opposition to the War with Germany

Vital as is the necessity in time of war not to hamper acts of
the executive in the defense of the nation and in the prosecution
of the war, of equal and perhaps greater importance, is the
preservation of constitutional rights.—JUDGE MAYER, in _Ex parte_
Gilroy, 257 Fed. 110, 114 (1919).

On April 6, 1917, Congress declared war against Germany. On May 18 it enacted the Selective Service Act for raising a National Army. The people, by an overwhelming majority, believed conscription to be a necessary and just method of waging an unavoidable war, and the machinery for enforcing the draft by civilian aid was admirably planned. “The result,” says Attorney General Gregory,[78] “was that the ultimate opposition to the draft by those liable was surprisingly small, considering the persistent propaganda carried on against the policy of the law and against its constitutionality.” And his Assistant, Mr. John Lord O’Brian, adds, “No anti-draft propaganda had the slightest chance of success.” The decision of the Supreme Court sustaining the validity of the statute[79] merely fulfilled the general expectation.

[78] Report of the Attorney General, 1917, p. 74. “Civil Liberty in War Time,” John Lord O’Brian, 42 Rep. N. Y. Bar Assn. 275, 291 (1919), cited hereafter as O’Brian.

[79] Selective Draft Law Cases, 245 U. S. 366 (1918).

Besides the military and civilian organization for reaching the men who were liable to registration and subsequently called into service, the government had at its disposal several criminal statutes enacted during the Civil War, which it could and did use to punish conspiracies to resist recruiting and conscription by riots[80] and other forcible means, or seeking by speeches and publications to induce men to evade the draft.[81] In some respects, however, these statutes were felt to be incomplete. It was not a crime to persuade a man not to enlist voluntarily, and an attempt by an isolated individual to obstruct the draft, if unsuccessful, was beyond the reach of the law, unless his conduct was sufficiently serious to amount to treason. The treason statute, the only law on the books affecting the conduct of the individual, was of little service,[82] since there was considerable doubt whether it applied to utterances. Therefore, although it is probable that under the circumstances the existing conspiracy statutes would have met any serious danger to the prosecution of the war, new legislation was demanded.

[80] Bryant _v._ U. S., 257 Fed. 378 (C. C. A., 1919); Orear _v._ U. S., 261 Fed. 257 (C. C. A., 1919); U. S. _v._ Reeder, Bull. Dept. Just., No. 161 (1918); Reports of the Attorney General, 1917, p. 75; 1918, p. 45.

[81] Emma Goldman _v._ U. S., 245 U. S. 474 (1918); Wells _v._ U. S., 257 Fed. 605 (C. C. A., 1919); U. S. _v._ Phillips, Bull. Dept. Just., No. 14 (1917); and other cases in the bulletins; Reports of the Attorney General, _supra_.

[82] O’Brian, 277. Among the treason cases of the war were U. S. _v._ Werner, 247 Fed. 708 (1918), and Nelles, Espionage Act Cases, 4, cited hereafter as Nelles; U. S. _v._ Robinson, 259 Fed. 685 (1919); U. S. _v._ Fricke, 259 Fed. 673 (1919). See Bibliography, on treason.

If the government had been content to limit itself to meeting the tangible needs just mentioned, the effect on discussion of the war would probably have been very slight, for treason, conspiracies, and attempts constitute a direct and dangerous interference with the war, outside the protection of freedom of speech as defined in the preceding chapter. Two additional factors, however, influenced the terms of the new statutes, and even more the spirit in which they were enforced. First, came the recollection of the opposition during the Civil War, which was handled under martial law in so far as it was suppressed at all, a matter which I shall take up later. Some persons, full of old tales of Copperheads, were for stigmatizing all opponents of this war as traitors. Senator Chamberlain of Oregon introduced a bill which made the whole United States “a part of the zone of operations conducted by the enemy,” and declared any person who endangered or interfered with the successful operation of our forces by publishing anything to be a spy subject to trial by court martial and the penalty of death. The bill was dropped upon receipt of a letter from the President, in which he attacked the constitutionality and advisability of the law.[83] Whatever control was exercised over civilians should be through the ordinary courts, and it was evident that the conspiracy statutes did not make that possible on a large scale. The second factor was the fear of German propaganda and the knowledge of legislation and administrative regulations guarding against it in Great Britain[84] and Canada.[85] Although we did not adopt the British administrative control, which combined flexibility with possibilities of despotism, it was easy to forget our own policy of non-interference with minorities and put the United States also in a position to deal severely with written and spoken opposition to the war.

[83] “Freedom of Speech and of the Press in War Time: the Espionage Act,” Thomas F. Carroll, 17 _Mich. L. Rev._ 663 note; cited hereafter as Carroll. Such a bill seems clearly unconstitutional in view of the Fifth Amendment and _Ex parte_ Milligan. See note 71 in chapter I.

[84] The Defense of the Realm Consolidation Act, 1914, 5 Geo. 5, c. 8, § 1, gives His Majesty in Council power “to issue regulations.” A very wide scope is given to this power by the House of Lords in Rex _v._ Halliday (1917) A. C. 260, Lord Shaw of Dunfermline dissenting. See 31 _Harv. L. Rev._ 296. Regulation 27 of the Orders in Council makes various forms of speech, writing, etc., offenses. Regulation 51 A provides for the seizure of publications on warrant, and Regulation 56 (13) for the punishment of press offenses. See Pulling, _Defense of the Realm Manual_, revised monthly. These regulations have been construed in Norman _v._ Mathews, 32 T. L. R. 303, 369 (1915); Fox _v._ Spicer, 33 T. L. R. 172 (1917); Rex _v._ Bertrand Russell, _infra_, note 114. The practical effect has been to establish an administrative censorship. H. J. Laski, _Authority in the Modern State_, 101.

[85] Carroll, 17 _Mich. L. Rev._ 621 note.

I. _The Espionage Acts of 1917 and 1918_

The result of these various influences was the third section of Title I of the Espionage Act. As originally enacted on June 15, 1917, this section established three new offenses:[86]

(1) Whoever, when the United States is at war, shall willfully
make or convey false reports or false statements with intent to
interfere with the operation or success of the military or naval
forces of the United States or to promote the success of its
enemies (2) and whoever, when the United States is at war, shall
willfully cause or attempt to cause insubordination, disloyalty,
mutiny, or refusal of duty, in the military or naval forces of
the United States, (3) 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.

[86] Act of June 15, 1917, c. 30, Title I, § 3. The numerals are inserted by me.

Although most of the Espionage Act deals with entirely different subjects, like actual espionage, the protection of military secrets, and the enforcement of neutrality in future conflicts between other nations, the section just quoted is buttressed by four provisions.