Transcripts For CSPAN3 U.S. Supreme Court Free Speech During World War I 20240712

The Supreme Court. It has been a highly successful series up until now. We expect to finish it this evening in a blaze of glory. So we are looking forward. I want to especially thank Justice Kagan for hosting us this evening. Without the support of the justices about report, we would be unable to host these events in such a gust surroundings. Because the justice has another event immediately after this one, i will give a brief or introduction then she deserves. But she has to make her way to a second event. Justice kagan has an enviable resume. You will hear a little bit about it now. She received her a b summa cum laude from princeton university. She then attended Worcester College at oxford as princeton s daniel em sex graduating fellow. She received a masters of philosophy there. She then earned aj d. From harvard law school, graduating magnet come allowed a, where she was supervising editor of the harvard law review. A Job Description that i assume she means they did the really hard work. She then corked for judge at manner of the u. S. Court of appeals for the district of columbia in 1986 and 1987. She then served as a clerk to Justice Thurgood marshall during the 1987 term. It doesnt stop there. She worked as a lawyer in private practice in the department of justice before returning to harvard law in 1999, a scant four years later. She was appointed the 11th, only the element dean of the harvard law school. President obama nominated her as the 45th solicitor general of the United States. She was confirmed in that position on march 19th, 2009. The following year, president obama nominated her as an associate justice of the United States Supreme Court on may 10th, 2010, and she assumed her present roll on august 7th, 2010. Please join me on giving a warm welcome to our very busy and very generous host, Justice Elena kagan. applause well, thank you so much. Thank you to the Supreme Court Historic Society and what it does for the court and the country. Your programs really educate all of us in the history of the court and the history of american law and its a really terrific institution. We are glad you all do what you do. We are glad that so many people shot to these events. This is actually the second one of this series that ive introduced. Im going to explain to you a little bit why im going to rush out of here pretty soon. Why wasnt intending to introduce this one, but one of my colleagues could not make it. I feel as though ive seen other audiences for this series and its great that so many of you are coming to hear about the Supreme Court and world war i, which is the topic of this leon silverman lecture series. The lecture today is on the free speech cases of world war i. Honestly, this is the high point of the series. This is the most interesting part of what happened in law and at the court during world war i and in the years immediately thereafter. It is being given today by laura one rip, who is a professor Laura Weinrib professor at the university of chicago law school. You are visiting this year at harvard law school, yes . Where . Professor weinrib went there and the reason i know that is she was in two of my classes. My civil procedure class her first year and might Administrative Law class her second year. She informs me that i did not teach your constitutional law, so if you make any mistakes lori you are on your own. Laura was a fantastic student and its just been a pleasure to get a little bit reacquainted today. Laura is the author of a new book called the taming of free speech, americas Civil Liberties compromise. It received this years Franklin Hayman award for distinguished scholarship in freedom of expression. Shes the author of many articles and essays and book chapters and so forth, relating to the history of constitutional law and the history of labor law. So you are in for a treat. But unfortunately, as i said, i am not because im sobbing and did not intend or expect to be here. I do have another event i have to go to. So laura, i hope you will excuse me four rushing out the back way, but i have already made professor weinrib promise that she will give me her speech, the text of her speech, so i will read what you are hearing. Thank you very much again for being here. ,. , ever since i was lucky enough to take this civil procedure and Administrative Law classes she just mentioned beginning in my first semester of law school. 20 years later, law school is mostly a blur but i can recall dozens of distinct a hot moments in justice, then professor,s classes. Ive always considered her a model of excellence in teaching, a model to which i can only inspire. I want to thank Justice Kagan. I also want to thank the Supreme Court Historical Society for inviting me and for hosting this terrific terrific series. And many thanks to all of you for attending this evening. It is heartening to see so much interest in legal history. The 100th anniversary of the armistice has generated a wave of excitement about the wartime cases. Im thrilled to be able to unpack the significance of this historical moment for you. Ill adjust the podium. Okay, so in our polarized political culture, if features of our nations constitutional history command consensus. The free speech cases of the First World War stand out as an exception. Amidst heated debate over constitutional interpretation and judicial role, theres broadbased agreement that the rampant prosecution of political dissenters was misguided and that the judicial decisions upholding their convictions were wrong. On this account, the Supreme Courts cowardly concession to majoritarian suppression wasnt indefensible departure from american values. Yet traditional complicity was generative. It provoked an awakening to the suppression of Constitutional Rights, and inspires courageous to sentence opinions from out of our window jr. And brenda. Thus, the cautionary tale of wartime capitulation culminates in a shared celebration of american constitutional heritage. The great dissent, watershed in constitutional understanding. The dawn of a new age of judicial review. Im afraid that my goal for this evening is to unsettle this rare, remaining point of convergence. To be sure there is truth in the conventional story. The enforce conformity of the First World War was tie filling and it was pervasive. The arbitrary application of coercive state power inflicted great personal harms and depleted democratic discourse. As contemporaneous critic alleged, a war ostensibly intended to defeat autocracy abroad, produced domestic repression on an unprecedented scale. Yet, our path narrative of tyranny and liberation, misrepresents the history of Civil Liberties in the United States into fundamental ways. First, as a matter of historical causation, the wartime cases were far less formative for the First Amendment then scholars have long assumed. Indeed, from the perspective of prewar progressives, the most salient feature of the wartime repression was its persistence after the armistice. The ease with which censorship and contrast to parallel expansion of state power spilled over into peacetime. Second, anxiety about what now seems an obvious alternative to state overreach. Namely, the judicial enforcement of the First Amendment to invalidate democratically enacted laws. Stemmed not only for more hysteria, but from deeply rooted concerns about counter majoritarian points. In the course of my remarks, this evening, i will review the familiar history of the free speech cases. In so doing, all endeavor to exploring why opposition to the wartime cases was so muted, despite increasing concern for preserving free speech. To make sense of this evening dysfunction, we need to push beyond the conventional depiction of the wartime decisions as an inexplicable lapse in judgment. An attempt to understand the cases in their historical moment. To that and we will need to take seriously the debates about judicial role that royal American Society before and after the First World War. We are going to need to desegregate the edge additional enforcement of the First Amendment. From a democratic commitment to freedom of speech. So with that, let me begin by sketching a portrait of the conformist climate of world war i. In what would become the foundational techs for the modern First Amendment, freedom of speech in wartime. A law professor named zakharova junior, described a quote, unprecedented extension of the business of war over the whole nation. According to , the governments wartime Propaganda Campaign had transformed the United States into a theater of war. If case intended a double meaning, the metaphor of cedar was act. And the stage was set at the highest levels of government. The wartime work of the committee on public information, under the leadership of george curio is well known. To mobilize public opinion, the committee issued inflammatory pamphlets, political cartoons and motion pictures, among other material. Such propaganda inflamed anti immigrant sentiment, and antiradicalism, along with antipathy to the localized. Are patriot earring groups formed for the purpose of sniffing out german sympathizers. Sometimes they reported their suspicions to the authorities. Often they took matters into their own hands. Engaged in unlawful surveillance and vigilante violence, in including brutalizing. Years later, george creole acknowledge these facts and high stereo manufacturing bodies, whose but your chisholm was at the time icing of screens violence and extreme, in his words. Others, at the time, anticipated cradles retroactive assessment, norment thomas, the presbytery minister who would go on to lead the socialist party, described a war psychology that invaded the home, the street, and the marketplace. He esteemed legal scholars complained about waves of militant nationalism that threaten Americas Free institutions. In short, opposition to the war was treated as tantamount to treason. And across the nation, as ordinary americans organized patriotic parades, Public Officials turned to prosecuting dissenters. In the thousands of cases that resulted in judges eagerly convicted, with a handful of exceptions, federal judges denied that the defendants appeal and upheld they are draconian sentences. So, how did all of this come to pass . How did the courts permit convictions on the basis of straight remarks about the efficacy of the armed forces or petitioned state officials to adjust the administration at the draft . What drove judges to our probe official actions that today would qualify as patently unconstitutional incursions on freedom of speech . At one level, of course, the courts fell victim to the same virulent patriotism that was affecting the other branches. On this view, war forever simply supplanted rational argument. As it was finally put, the voice of reason was not heard. Many excellent histories have explored the political economic, and cultural conditions that catalyzed the crushing conform using of world war i. A mob mentality on such a massive scale was difficult to escape. The few judges who issued speech protective decisions exposed himself to critique, negative career repercussions, and in some cases, threats of violence. So in a climate of suffocating uniformity, judges proved unwilling to stand up for cherished american rights. There is truth to this assessment. But its also incomplete. As an initial matter it bears emphasis that the wartime cases rarely turned on constitutional interpretation. Hardly anyone regarded the First Amendment as a serious obstacle to the prosecution of anti war descendants. More to the point, those scholars and judges who express the most anxiety about the repressive political climate, where the most reluctant to address the problem through tradition enforcement of Constitutional Rights. To understand why we need to move backwards in time, to the decade or so before the war began. In those years, conflicts over Constitutional Rights were at the center of public debate. But instead of a speech clauses, of the First Amendment, controversy centered on the due process clauses of the fifth and 14th amendment. With their purported protection of liberty and contract. To use the language of contemporaries, the courts of the progressive area policed Property Rights, not personal right. Among the many prewar constituencies who accused the courts of pandering to industrial interests where mainstream progressives. The progressives of the early 20th century deferred on many issues. They are conflicting policies and proposal range from housing laws, to municipal ownership of public utilities, to eugenics. Yet, there was one point on which virtually all progressives agreed. Namely, theyre deep seated distrust of court constitutionalism. After all, the courts had relied on alleged interference with Property Rights and liberty of contract to invalidate some of the most celebrated reform initiatives of the progressive areas. Including, workers compensation, minimum wage laws. The most notorious example of the courts, 1905 decision in new york, struck down a maximum hours law and furnished the label the lochner area, a shorthand for the judiciary approach to the socalled constitutional limitations. Many progressives also shared concerns raised by labor leaders about the courts more routine and active role in policing labor disputes. Through criminal law, and through labor injunctions. Some accepted the comments charged that judges, whether by temperament or training, or graft, inevitably privileged capital over neighbor. Progressive hostility to judicial power carried over to the conception of individual rights on which the courts decisions were reportedly wrapped. In place of the autonomous individual, progressives championed the common good. Ross go pound, who shaped the Progressive School of legal thought, known as sociological jurisprudence, was emblematic of this approach. In countering, individual rights deserve protection only in so far as they promoted the public welfare. The problem, with the lochner area constitution, west at eighth exaggerated private rights. At the expense of Public Interest. He and other progressive rejected the formalist fiction that individuals are autonomous social actors, with equal Bargaining Powers. Along with the notion that courts should protect personal autonomy from the encroachment of state laws. So in short, on the eve of american entry into world war i, progressives had articulated a fierce critique of the judiciary as an institution, and especially of the judicial enforcement of Constitutional Rights. Even a congressional commission, linked labor unrest to our perception among workers that justice wasnt available to them on allegedly capitalist courts. Notably, few progressive suggested that the solution to judicial preference for Property Rights was to supplement enforcement of personal rights. Instead, they sought to curb traditional power. They issued proposals to trip jurisdiction, to enable the popular recall of judges and judicial decisions, and to illuminate judicial review. It shouldnt surprise us, then, that this thorough going critique of court centered constitutionalism would in pete the development of a speech protected First Amendment jurisprudence during the First World War. I emphasize development, here, because a periodic effort to expand the sweep of the First Amendment during the 19th and early 20th centuries, had failed to produce a meaningful constitutional commitment to express our freedom. The First Amendment, of course, begins with the Words Congress shall make no law. And it wasnt consider finding on the states until the mid 19 twenties. But even with respect to federal law, courts declined to intervene with official suppression. Now, this perceived failing was of course part of the progressive critique of the courts. Conservatives, who otherwise favored a judicial approach, were willing climbed to pursue an aggressive interpretation of the First Amendment freedom. This mac them of hypocrisy because conservatives included freedom of speech among the rights, purportedly guaranteed by the constitution and enforceable by the courts. But they distinguished between liberty and license. And designed radical agitation to the licensed side of the line. Yet progressives, did leader to redress the deficiency. Its not that progressives rejected free speech as a democratic value, in fact, they were generally hostile to censorship and suppression. This progressive area, of course, was marked by rapid social and scientific transformation premised on robust intellectual exchange. Progress is understood that many ideas condemned as heretical at the turn of the century were broadly accepted a decade later. Moreover, progressive officials and advocates regarded to suppression of subversive believes as counterproductive. More likely to provoke violence then to forward it. Bear in mind, here, that they years before wars were not precisely peaceful ones in the United States. Contemporary spoke of class war. And the rhetoric was not as hyperbolic as it may seem. Economic dislocation and income inequality prompted massive strikes, worksites avatars, and occasionally assassinations and bombings. As they would, during world war one, hostile officials cast unrest as apparel to Public Safety and a threat to american institutions. They routinely prosecuted political radicals who were critical cap of capitalism, among with labor leaders who engaged in picketing and boycott. Many progressives bridal, at the suppression, and some supported efforts by socialists and wobble east to provoke arrest for street speaking, and thereby to draw attention to the uneven application of Constitutional Rights. Still, there antagonism lead most progressives to pursue discursive openness through political rather than judicial channels. Progressives trusted that a strong state could exercise restraint in the Public Interest. They urged legislatures and executive actors not to criminalize dissent, not to prosecute dissenters, rather than asking judges to invalidate convictions. So with this background in mind, we are ready to turn our attention again to the repressive climate of world war i. What we will find upon closer inspection is a reprise of many prewar themes. Certainly the wartime repression was more palpable, it swept in more constituencies, but the basic terms of the problem were familiar ones and the solutions were similarly recognizable. As before the war, conservatives distinguished between liberty and license, and assigned anti war advocacy to the latter bucket. It was not that conservatives suspended their emphasis on liberty altogether. On the contrary, the notion that a strong judiciary was necessary to preserve american liberties from the long arms of the state, only intensified after the 1917 bolsheviks revolution, which almost immediately dismantled most existing courts. What motivated conservatives in this moment, however, was the bolsheviks threat to private property. But the panic barr referred to as the menace of socialism. What they strove to preserve was free competition not free speech. More to the point, conservatives had little discomfort about framing the concerns in straightforward language about the danger of economic redistribution. They assured the public that the courts would serve as a bulwark against what they called extreme collectivism. In later years, Civil Liberties would emerge as a foil to soviet style authoritarianism. New deal conservatives, eager to preserve substantive due process, understood that Property Rights had lost their luster and they touted judicial review for its defense of free speech and minority rights instead. But during world war i, conservative lawyers unabashedly cautioned against the unprecedented expansion of government power into americans economic life. The president of the American Bar Association lamented that state regulation was eroding, quote, individual freedom. But what he decried as astonishing was the baldness of congressional economic regulation, which extended, quote, two fixing hours of labor and rates of wages upon the transportation system. Not postal censorship or the policing of private beliefs. To be sure, the war effort had required temporary suspension of constitutional limitations. But according to conservatives, radicals were contriving to make such concessions permanent. Quote, to establish a government by human win in the place of a government by law. In preventing this evil from taking root, the suppression of dissent was a tool, not a barrier. For their part, progressives believed that individual rights needed to yield to public welfare. As ross go pound and put the point, the individual interest in free belief and opinion must always be balanced with the social interest in the security of social institutions. When they assess the wartime dissent in terms of its infringement on personal liberty, the National Interest in a successful war effort seemed clearly to prevail. Of course, progressives also recognized a Public Interest in open debate. They had long advised state actors to tolerate disfavored speech, if for no other reason than to what earns freund described as political prudence. But such policy interests proved inadequate to safeguard free speech during wartime. Many progressive felt that the window for democratic deliberation had closed when war was declared. And in any case, that the world would not be safe for free speech until victory in the war made it safe for democracy. So as a result, there was little public opposition to the 1917 espionage act, the federal statute that served as the basis for many of the wartime prosecutions. President Woodrow Wilson signed that bill in june 1917, two months after the United States entered the war. Enacted at his urging, the espionage act made it unlawful to interfere with the recruitment of troops or to disclose information that would be damaging to the war effort. More than 1000 convictions eventually resulted along with the exclusion of 100 publications from the males. The fact that the espionage act didnt provoke greater opposition at the time of its passing is partly a function of the unexpectedly zealous prosecutions that followed. When the statute was debated, few legislators anticipated that defendants would face 20year prison terms at and 10,000 dollar fines, foreign politics remarks about deficiencies in the nations war policies. There was, by contrast, extensive discussion of a section can for a unilateral power on the post office to ban the mailing of any communication unlawful under the statute. Nonetheless, the espionage act passed with considerable progressive support. And yet as warp fervor intensified, some scholars and public figures began to grow uneasy. Theyre ambivalence flowed in part from the sheer scale of the wartime repression, which pervaded private life. Even more salient was the sense that the espionage act was serving as cover for the suppression of groups that had long aggravated government officials, but were only incidentally opposed to war. Chief among these were the socialists, anarchists and labor radicals who regarded american militarism as a concession to industrialists and profiteer. It wasnt lost on contemporaries that almost all of the import wartime cases involve radical defendants. Some, like perennial socialist Party President ial candidate eugene be dubbed, were familiar targets. Many were less prominent would be recognizable to todays lawyers from the names of the foundational First Amendment cases. Charles shrink, jacob abrams, all were radicals who asserted, as the Supreme Court put it, the usual repetition that we went to war to protect the loans of wall street. In the progressive mindset, it was one thing to suspend Civil Liberties to beat the kaiser, to win the war to end all wars. It was an entirely different matter to use expansive wartime legislation as a lever for suppressing radical agitation. Bolsheviks revolution or no. Concerns of this sort were amplified by postal censorship of the masses, and respected socialist magazine. As it happened, the editor of the masses was max eastman, whose sister krystal, had served as executive secretary of the American Union against militarism and helped to found its Civil Liberties bureau, which subsequently reorganized as the national Civil Liberties bureau and eventually became the aclu. In typical progressive fashion, the nclb first reaction to the censorship of the masses was to attempt to negotiate with administration officials. But the postmaster general refused to budge and invited the disaffected representatives to pursue the matter in court. So despite their real reservations about a court centered approach, the founders of the nclb accepted the challenge. Within months, the organization had assembled a team of cooperating attorneys throughout the country who are assisting in an average of 125 cases per week. The organization to find itself as a clearinghouse for information and legal aid, providing legal advice and representation to individuals whose Constitutional Rights were violated. Over the course of the war, the Court Leadership of the ncl became to embrace the substantive causes of the radicals they represented. But in their outward communications, they dissociated their Civil Liberties work from the underlying communications of their clients. As cofounder Roger Baldwin explained to a correspondent in the socialist party, the nclb wasnt entire sympathy with the socialist program, but would lead to other groups the task of mobilizing the masses. The role of the nclb was, quote, to keep peoples mouths open and their Printing Presses free. Of course, this strategy would become the hallmark of the aclu. In subsequent decades, it proved wildly successful. But during world war i, the Litigation Campaign generated few genuine victories. In fact, the nclb failed to save even the masses despite inauspicious start that had made litigation appear promising. In one of the most celebrated speech protective decisions of the war, a judge decided in late july as a matter of statutory interpretation, that the suppression of the masters on the basis of its anti war editorials and political cartoons exceeded the authority conferred on postal officials by the espionage act. In contrast to the socalled bad tendency test, the judges typically applied in the wartime cases, which held the speakers criminally accountable for statements likely to lead to prohibited conduct. Hand wouldve required direct incitement to violation of the law. But in early november, the Second Circuit reversed the decision. Deprived of its second Class Mailing privileges, the masses was forced to shut down. Courts throughout the country followed the Second Circuit in deferring to the administrations expansive interpretation of the espionage packed. Okay. If the nclb failed to shield its clients from the espionage act, it proved moderately more successful and its fall back task. According to baldwin, even judicial defeats could show up miscarriage of justice. And thereby stimulate change. Indeed, motivated by cases like the masses, progressive outlets began by the fall of 1918 to feature ambivalent appeals to free speech. The nation insisted, october, that, quote, the right to free speech must be upheld throughout the country. That freedom of legitimate criticism must not be denied. In the new republic, they philosopher john do we initially doubted the prospect of widespread suppression, though he enjoyed the irony of, quote, ultra socialists rallying to the sanctity of individual rights and constitutional guarantees. Two months later, do we revised his views. He remained skeptical of claims to individual autonomy, but he articulated a defenses of wartime tolerance that emphasized pluralism and the social good. Now what is striking about all of these defenses of free speech, from hand to dewy, is there seeming indifference to constitutional constraints. Subsequent scholars have portrayed progressive silence on the First Amendment as a failure of imagination or a concession to pragmatic constraints. In its moment, however, the progressive preference for statutory interpretation and policy moderation was understandable. After all, even as it upheld massive extensions of government power during war, the Supreme Court remained deeply committed to its traditional conception of individual rights. In december 1917, the same month that it heard oral argument in and which it argued confront the legality of conscription, the court issued a bitterly divisive decision in a labor case. Its decision upheld a sweeping injunction against the United Mine Workers for interfering with the Constitutional Rights of personal liberty and private property. According to the new republic the case would, quote, confirmed the popular feeling that a majority of the Supreme Court are indifferent to enforce their own reactionary views about Public Policy in direct opposition to the more enlightened views prevailing in a legislatures and among the public. No wonder that progressives proved unenthusiastic about defending the rights of dissenters through constitutional litigation in the courts. Developments over the following months lead a few progressives to revise their views. In the spring of 1918, president wilson endorsed the sedition act amendments to the espionage act, which explicitly empowered the government to suppress disloyal speech. The bill forbade all disloyal profane, scurrilous or abuse of language about the form of government of the United States, the constitution, the armed forces and the american flag. Significantly, it also prohibited advocacy of any curtailment of production in this country, of anything necessary to the prosecution of the war. In other words, the law seemed expressly to outlaw strikes and slow down in a war related industries. This bill engendered a heated debate, and if you legislators bulked. Citing the dangers of democratic censorship, the acts of protection for joyful criticism and, the potential for partisan abuses. Still, this edition act passed easily. And on may 16th, president wilson signed it into law. Now, the new legislation posed a difficult challenge for progressive critics of counter majoritarian constitutionalism. In practice, some of the old arguments for pursuing administrative moderation remained available. Wilsons attorney general was concerned about the reach of the statue, and he immediately cautioned u. S. Attorneys that this edition act quote, should not be permitted to become the medium whereby efforts are made to suppress honest, legitimate criticism of the administration, or discussion of government policies. A few months later, he issued a supplemental circular requiring his express authorization of any prosecution under this act. Still, plenty of prosecution went forward. This edition act demonstrated palpably that putt working people of enacting laws that were deeply inconsistent with progressive principles. And that administrators were capable of enforcing them. The new statute made it practically impossible to engage in hand waving about statutory authority, or prosecutorial overreach. The terms of the statute were more clear. Such was a situation then, on the eve, of the armistice. Concerning the espionage and sedition acts on dangerous agitators, progressives worried about stifling legitimate dissent but retained their strong aversion to court senate constitutionalism. There werent as yet, no champions, for the modern First Amendment. All right, so so far, ive pressed the point. I said the first of the point that i set out to demonstrate to you this evening. The progressives and radicals who were most critical of the wartime suppression were the least disposed to invoke additional enforcement of the First Amendment to stop it. Their hesitation was not simply another concession to the war hysteria, rather, it was based on extensive experience defending progressive measures from constitutional litigation. And a thorough going critique of the judiciary as an institution, that disinclined progressives to invest the courts with more authority. Let alone, to legitimate judicial review. So im going to turn with my remaining time to the second point. Namely, that the importance of a wartime cases to the Subsequent Development of the First Amendment, has been greatly exaggerated. On november 11th, 1918, hostility in europe seized. This service and sedition act enacted by the armistice, although some pending prosecutions continued. But the end of the war did not bring an end to state suppression. As the nation transitioned from a war hysteria to read hysteria, the machinery of repression was quickly retooled to target radicals expressly. As the nation leader lamented, when worries declared on a foreign foe, it is also declared on every forwardlooking cause, every liberal, every reformer at home. The postwar red scare was triggered in part by reports of radical violence abroad, and especially the russian revolution. But its primary impetus was domestic. During the war, the foreign deployment of workers had increased Bargaining Power of organized labor. Although the government had targeted radical unions the American Federation of labour, with the weight of the administration behind it had made significant gains. But the concessions it obtained during the war pollute proved fleeting. After republicans took control of congress and 1918, wilson shifted his labor to the industry. Meanwhile the reintegration of soldiers into the labor force sparked race riots and has still 80 to immigrants along with militant. Shortages of consumer goods increase the cost of living, fueling support for labor radicalism as well as in zahi about revolution. In the spring of 1919, the frenzy climate intensified when bombs were mailed to public figures along with a leaflet signed the anarchist fighters. Jay edgar hoover worked quickly and thoroughly to locates a missives, and attorney general palmer initiated the deportation of foreign born radicals. Congress to join sign joined the crusade, and sent the Committee Hearings on alleged bolsheviks in the United States. At the state level, legislatures enacted of lobs criminal cynical is immense addition laws. Meanwhile, within a few short months, minions of American Workers went on strike. For the most part, state and federal officials responded by assisting employers and ushered in a crushing defeat for the labor movement. For our purposes, several features of the red scare are particularly salient. First, two american progressives, the specter of bush ofism appeared contrived. A political lever as opposed to a legitimate threat. Moreover, oppressive government practices could no longer be justified as incidental to an extensive war power. Related lee, the red scare in contrast to wilsons wartime policies targeted only the left. During the war the expansion of state power had assumed act cast. Businesses resentful of wilsons relationship with the a fail had accused the administration of abusing its war power to pander to label. In fact, they complained repeatedly that their own civil liberty was under attack. But this sort of an easy equilibrium did not survive the war. In contrast to other wartime expansions in power that had been discussed in this lecture series, enforced conformity did not retreat with the armistice. As Civil Liberties lawyer broken planed in december 1919, almost exactly hundred years ago, the president told us yesterday that the moment the armistice was signed he took to harness off from business. But he did not say anything about taking the halter off from free speech. These constellation of features provoked progressive repudiation of state repression of a kind that swamped their earlier wartime ambivalence. As they had before the war, progressives who rejected radical methods and aspirations, nonetheless believe that it was better to tolerate dissent than to push underground, or to commit murders of the agitators. Even president wilson, purported always to have, quote, believe that the greatest freedom of speech was the greatest safety. In march 1919, socialist newspapers welcome to the news that american liberals were willing at last, to aid in the struggle to restore political democracy in the United States. And then chilly, eating establishment lawyers acknowledge the excesses of the red scared repression. When the new York Assembly expelled its socialist members in january 1920, charles heavens hughes wrote a letter condemning the action on behalf of the new york bar. Hughes was celebrated for his courageous stance, as literary digest reported, in republican, democratic, and socialist newspapers alike. Okay although my task today is to discuss the free speech cases of world war i, i dwelled on the wrap of the evolving attitudes towards their red scare repression. Because it was during the red scare, not the war, that the foundational First Amendment cases were drafted. Even more than the war, the red scare prompted progressives, who increasingly rallied to the label liberal, to consider the potential pathologies of majority therrien democracy and the dangers of unbridled administrative discretion. Now, it was not that liberals doubted the legitimacy of state power. On the contrary, they believe that an increasing complexity of modern society required careful coordination by a robust administrative state. More and more, though, they saw free speech as a necessary prerequisite for the prudent exercise of state power. That is, free speech would serve to buttress and legitimate estate role in regulating social and economic decisions, not to undermine. It was an understanding of this kind that the pioneering free speech scholar, zakharova, articulated in the harvard law review, in 1919. Shortly after, the first of the Supreme Courts wartime cases came down. Like his progressive for bearers, k fee emphasized what he called a social interest in the attainment of truth. Not individual rights. Unlike prewar progresses, he carved out a rule for the judiciary in the limiting the scope of constitutional protection. Or as he put, it of defining where the law lines runs. His article, which was expanded in 1922 a book form, is widely considered to be the blueprint for the modern First Amendment for modern First Amendment theory. And the powerful influence on Justice Holmes. He lamented in his piece that we had squandered an opportunity to demarcate the boundaries of protecting free speech. He also argued disingenuously that the clear and present standard, which homes had introduced in his majority opinion, affirming to defendants conviction under the espionage talked, meant that speech could be punished only at the brink of unlawful action. He enlisted a small culprit of prominent intellectuals and jurist and came to disseminate the new constitutional understanding. Together with others he scored some considerable successes. The most notable convert to the cause was Justice Holmes himself. In the summer of 1919, he arranged a meeting between holmes and chafee, in november, homes joint with the first of his famous dissent. When men have realized that time has upset many fighting feeds they may come to believe even more that they believe the very foundations of their own conduct, that the ultimate good desired is better reached by free trade and ideas. He poignantly proclaimed for the United States. So just over a year after insisting that freedom of speech, quote, stands no differently than freedom of vaccination, holmes declared that open intellectual exchange was the only sound basis for Public Policy. And homes revised view, only the president danger of immediate evil or an attempt to bring it about would Warn Congress in setting a limit to the expression of opinion. A more restrictive rule would run afoul of the First Amendment, he reasoned. Now, the homes to sense in the remaining espionage and sedation act cases, certainly spurred support for free speech. Some progressives immediately embraced the new First Amendment understanding. But i would emphasize that many retained reservations about a court centered approach that rested on Constitutional Rights. Even if dairy were grounded in social interests. Frankfort traditional overreached and preferred to pursue administrative tolerance, notwithstanding the proven limitations of that approach. It was less sink went about administrators, but no more enthusiastic about the courts. He criticize disappearing courts interpretation of the espionage act which traded, he said, an arbitrary executive for arbitrary judicial power. The distinguished constitutional scholar, edward corwin, prefer to pursue a responsibility of legislators, not they are lack of power. Even chafee hand self considered the First Amendment to be an exhortation and a guidance for the action of congress. Anticipating subsequent calls for constitutionalism outside the courts. But whatever their disagreements, the Crucial Point is that such squabbles would reserve for academic rip the bait. However stirring their language, the great dissent were just that. Despite their stubborn appearance to their retold clearance present danger task they did not managed to sway their fellow justices. Over the course of the 1920s, the Supreme Court upheld a slew of convictions for subversive speech. First, under the espionage and sedation act, and later undid estate clinical laws. Compelling through the descends may appearance in retrospect, there was little reason in 1920, to believe that they would win a majority. After all just as home had issue another dissent, in lock the new york. His insistence there that a constitution is not intended to embody a particular economic theory, which he and Justice Brandeis repeated resolutely over the years, was for the removed from the majority position in 1920 that it had been when it was decided. So then, how did the modern First Amendment take root . I have argued in my Historical Research that the constitutional is a shun of free speech in the United States was a product of a peculiar coalition of progressives and conservatives who distrusted state regulation and hoped to buttress judicial legitimacy, along with socialists and radical unionists. At the helm of this Awkward Alliance was the aclu, which explicitly committed itself at its founding in 1920 to the cause of organized labor, and which sought to preserve a right of agitation, encompassing labors most powerful weapons, the rights to pickett, to boycott and to strike. The founders of the aclu had started out as progressive reformers. As such, they were deeply skeptical of the judiciary. For the first half of the 1920s, they undertook constitutional litigation, above all to discredit the courts, with the goal of eroding their power. But the prospect of meaningful labor agitation quickly dimmed. As it did, the aclu said in for a more protracted fight. It began to litigate in less controversial areas like Academic Freedom and sex education, in which a speech protective stance might garner mainstream support, and in its radical and labor cases, it argued about procedural irregularities instead of demanding and validation of repressive laws. Well into the new deal, the aclus leadership continue to distressed the courts. In fact, the organization helped to draft the legislation of the federal courts of their injunctive power in labor disputes. But theyre gradual bakeries made it increasingly possible that the court might someday identify a First Amendment right to strike. The goal came to pass, however fleetingly and incompletely, on the brink of world war ii. I cant flesh out these claims this evening, but i hope you will trust me when i assure you that ambivalence about judicial enforcement of a strong First Amendment persisted among both progressives and conservatives, albeit for different reasons, well into the 1930s. The last holdouts were new deal liberals, were convinced that the judicial enforcement of free speech would eventually undermine democratic gains. The Free Speech Coalition included business groups and corporate lawyers who hoped to use the First Amendment as they stand in for substance of due process, and mechanism for protecting commercial advertising, lobbying and workplace anti unionism as constitutionally protected speech. That fact was not lost on leftist lawyers, who insisted, quote, that judicial protection for Civil Liberties by means of the power to invalidate a laws cannot be separated from judicial protection for the selfish interests of large property. Today, in this period when black robed rulers are weaponizing the First Amendment to borrow Justice Kagans apt expressions, i leave it to other scholars to assess whether history has proven them right. In any case, in the immediate aftermath of world war i, such debates would have seemed fanciful. In 1921, the first item on aclu list of factors suppressing Civil Liberties after the war, was the, quote, reactionary decisions of federal and state Supreme Courts. The abrams case, despite Justice Holmes dissent, had left the status of civil liberty hopeless so far as it is the concern of the court of law. When the conventional account has heralded as the arrival of the modern First Amendment was only a distant prelude. So my lecture this evening has put me in the awkward posture of speaking at the Supreme Court about the comparative unimportance of some of the most storied opinions in the history of constitutional law. But if the effect of the great dissents was more attenuated than constitutional law casebooks have suggested, that does not render the history of the wartime cases any less instructive. The free speech cases of world war i will live on as a reminder about the dangers of patriotic exuberance as well as the importance of political dissent, its vital role in democratic governance. But i hope i have convinced you that the cases deserve and even more capacious legacy. The agonized debate over the espionage act and the First Amendment offers lessons of profound importance for a constitutional democracy that is struggling to establish the appropriate limits of legislative and executive power, and that is confronting, with new urgency, the appropriate role for judicial review in defining the purpose and meaning of the First Amendment. Thank you. applause now on American History tv on cspan three, play class from the university of Tennessee Law school about the history of how the Supreme Court has interpreted the First Amendment. From our lectures in history series, this is just over an hour. Hi, welcome to a second episode, Global Pandemic addition. Here we are. I think the first class went pretty well, so lets open with those two. We are being recorded for cspan. So for the folks out at cspan, i am professor