Rights & Resistance: Civil Liberties During Wartime
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Rights & Resistance: Civil Liberties During Wartime

October 25, 2019

>>From the Library of
Congress in Washington, D.C.>>Ryan Reft: Hi, thanks for coming. I’m Ryan Reft. I am a historian in the Manuscript
Division here at the Library. My responsibility is to oversee
— to be overly simplistic, the 20th century collections we
have related to congress, law, journalism, LGBT issues,
things like that. I have a counterpart who
does foreign policy as well. So, thank you for coming
to Rights and Resistance, Civil Liberties During Wartime. We have a great panel here. First I just want to
get some thank yous out. One, thank you to the Madison
Council for its generous funding of this exhibit, and to Mark Conner
and Sue Siegel in Development for helping bring that funding. Thank you to Angela
Newburn in Public Events for helping to organize this. I couldn’t have done it without her. Also, to the Law Library,
James Martin, who’s here in attendance,
thank you for your help. To the new librarian, Jane
Sanchez, the law librarian, who was also was of great help. And Donna Sokol and Isabel Di Costeo
[assumed spelling], who is no longer with the Law Library but was
instrumental in the early stages. I also would just like to highlight
the fact that the Law Library is, as one past law librarian
said, the crown jewel in the Library of Congress, right? The world’s largest library. Over 2.5 million volumes. Do I got that correct, James
[assumed spelling], 2.5 mill? And established in 1832
by an Act of Congress. And I think its proximity in — to Congress and just
the public’s ability to access it has made it
invaluable tool for the library. And I think when you combine it
with the Manuscript Division, a little soft promotion here, it’s
really perhaps the best collection of U.S. legal history
that you will find. And the Manuscript Division
just — just bear with me, we have about two dozen
modern Supreme Court justice, and when I say modern, 20th century
Supreme Court justice, collections. Some of the more, you know, Robert
Jackson, Harlan Fiske Stone, Thurgood Marshall, William O.
Douglas, the notorious RBG, and, of course, Sandra Day
O’Connor, right? Now, the latter two are not really
open yet but they will be one day. And upcoming we have John Paul
Stevens opening up in 2020. And this July, July 24, for those,
the more intrepid researchers in the audience, the Brennan
Papers Correspondence opens, and you can even find
the correspondence between a grizzled Justice
Brennan and a young, naive future law professor
at the University of Chicago, Geoffrey Stone, several
folders worth of correspondence. A lot of bake — a lot of
baking sales, right [laughter]? Yeah. But that opens up. We hope that researchers
will enjoy that. Now, in addition to that we
also have federal justices, like J. Skelly Wright, Harold
Leventhal, Frank Johnson, the legendary Robert Bork,
lawyers like Winn Newman, who was at the head of
gender equality and pay, in addition to Joseph Raul [assumed
spelling], who was head of the ADA in the 50’s and also a
pioneering civil rights lawyer. And finally, journalists
like Anthony Lewis. We are actually right now
processing a huge addition to the Anthony Lewis Papers, and
Lewis is one of the premier kind of journalists to cover the court. And so with all adieu, I’ll
thank my boss, Jim Hutson, and my other boss, Jan Ruth. Sue Siegel, thank you for coming. She was also of great help in
organizing this this panel. And Peggy Wagner, who wrote the
book for the World War I exhibit, who turned me on to Geoffrey
Stone in the first place. That sounds odd, but
she did [laughter]. So, how did I come to World War I? I’ll just give you a brief
overview and let Mary take over, who is a far more — offer you
far more substantial comments than myself. I was lucky enough
to serve as lead — as one of the lead curators
on the World War I exhibit, Echoes of the Great War, American
Experience of World War I. The book version, which Peggy
Wagner, who is in the audience, wrote, Peggy was a great help
to it, but also my colleague, Sahr Conway-Lanz, who is
a 20th century historian in the Manuscript Division
also was of — just super great to work
with as a co-curator. But also in the IPO, the
Interpretative Programs Office, Cheryl Regan, Kim Curry, Betsy
Nahum-Miller were all just critical in putting this together
and really helpful. So, really a lot of talented
people working at the Library who I mentioned already and just
wanted to thank them for that. Now, I’m actually a
post ’45 historian. I worked a lot on housing and all volunteer army,
and things like that. So when I was assigned World
War I I didn’t really know — it’s not that I didn’t know what
to do, but I wasn’t, you know, super conversant on the subject. I think a lot of Americans
kind of could express that. So, you know, you do what you do. You dig in. You read a lot. Did a lot of research
in our primary sources. Talked to other historians, in
addition to those here on the panel, and came up with, you know, what
we think was a good exhibit. Now there’s two takeaways,
I would say, from my experience
during World War I. One is, we didn’t want to
overplay World War I’s significance on some level, because really,
World War II kind of closes the loop that arguably, and
historians like to argue, so arguably closes the loop
that World War I kind of opens. But if there are two
or three things I’d say that World War I definitely
accomplishes is, one, is that a number of key
figures later in World War I — serve in World War
I and prove critical to 20th century developments later. So FDR, the secretary of the navy
who draws upon his experiences there to create the new deal and then
obviously prosecute World War II. Charles Hamilton Houston, who goes
to war, comes back really kind of, embittered is not the right word, but like critical social
consciousness about racism, goes to Harvard Law, becomes Dean
of Howard Law School, trains a cadre of civil rights lawyers,
including Thurgood Marshall. Did I mention we have his papers? He brings — he takes over the
NAAC — well doesn’t take over, works in the NAACP in the ’30s. Kind of becomes one
of the architects of their desegregation
planning, becomes the man who killed Jim Crow and, of course, brings Thurgood Marshall
into the NAACP. Then you have Harlan Fiske
Stone and Felix Frankfurter, who Jeremy Kessler discusses in some
of work, who despite not really — who were working for the government
in various ways but kind of come to defying conscientious objector
status, which you may not think of as a civil liberty but in
some ways really kind of is. And, of course, then you have
the famous George Patton, whose poems we have in the exhibit. He did write poems
and they’re fantastic. He was a tank commander in
World War I, and obviously goes on to World War II to
much greater acclaim. The second thing is the
issue of citizenship. World War I really comes to define,
or begins to define what it means to be a modern citizen in the
U.S. What do I owe the government? What does the government owe me? And part of that is conscription. You know, we did have a conscripted
army in the Civil War, but only 8%. World War I, 72% of the
army is conscripted. And the idea of conscription itself
was something people had to reckon with in terms of what it
meant for liberties, right? And that brings us to the issue of
civil liberties and civil rights, which are kind of dovetailed
within this idea of citizenship and idea of conscription. On the one hand you have the
creation of Civil Liberties Bureau, which will become famously the ACLU,
and you have the famous court cases, these are just two, there are
others, Schenck versus U.S., Abrams versus U.S., where Justice
Holmes goes from — in the — first the majority opinion, limiting
speech to clear and present danger to being a [inaudible]
in Abrams and saying, no, you need to let ideas play
out in the marketplace. You know, a very —
a very sharp shift. And our idea of civil liberties
today, and this is something that Geoffrey Stone and David
Rabban talk about in their work, is not necessarily the same idea of civil liberties
prior to World War I. And World War I had a lot to
do with not creating that, but propelling these — this movement to that end
— that kind of end result. Relatedly, just like you have
the ACLU that kind of pops up during the war, NAACP,
we think of the NAACP as a well-established
civil rights organization, maybe the foundational
organization today, but in 1917 it was only
a couple years old. It increases six fold
during the war. Veterans, this has to do
with conscription as well, this is the first time
we have an office — a black officer’s training
camp is during the war. And despite the military being just
ranked with segregation and racism, does at least create this
wartime service that enables men like Charles H. Houston to come
back and dedicate their lives to fighting for civil rights. Now, the anti-lynching
campaigns that come in the ’20s are a direct
result of the NAACP’s growth, and because black veterans were
targeted when they returned from the war for hostilities. This is something that
Megan Ming Francis discusses in her work as well. So I think that we have a panel
here that’s more than capable of discussing these issues in great
depth and with great interest. I’ll just give you a brief overview. Mary Dudziak, Emery Professor
of Law, author of Wartime, the award-winning Wartime, which
is really almost an existential discussion of war, its meaning,
its influence on law and thought, and it stretches from really
like roughly World War I through 9/11 I would
say, correct [laughter]? She has no chance to answer so
I’m just going to keep moving on. In civil liberties —
in terms of civil — and so Mary is going
to moderate here, and I think she has this really
great grasp of the idea of war and its implications legally and
even socially and politically that I think will enable her to really navigate a
really great discussion. Geoffrey Stone obviously
wrote Perilous Times, a book that was listed on
LA Times’ best book award, New York Times’ notable book. It examines free speech
[inaudible] through 9/11, but with a really cogent
chapter on World War I. And I think he and David
Rabban, who wrote Free Speech and its Forgotten Years,
really a foundational text about the progressive era idea of
civil liberties and free speech, and how really World War
I didn’t create it so much as create a flashpoint over which
these issues had really been the domain of like sexual and political
radicals and laborer agitators, and that changes during
the war and after the war. And Megan Ming — Jeremy
Kessler discusses the rise of the administrative state and mix,
in some ways I would argue, Jeremy, is a somewhat counterintuitive
kind of argument in the sense that you don’t normally think of the
government as maybe being a pioneer in civil liberties, and yet
in Jeremy’s law review article for Columbia makes the argument
that actually, you know, Harlan Fiske Stone and Felix
Frankfurter are at the forefront of creating conscientious
objector status. And in some ways because you create
conscription and these other laws, and that the Espionage Act
kind of hinged its implications on conscription, that
the administrative state that was created around it
did actually push forward in many ways civil liberties that
we would not think of in that way. And finally, Megan Ming Francis
talks about the NAACP in her book, The Creation — The Modern — Civil Rights and the Making
of the Modern American State. And everybody has used their papers,
but Megan used their NAACP papers, which is something the Manuscript
Division is very, very proud of, because it’s just a
massive collection. And I would just say —
tell people that what’s on microfilm is a small
portion of the collection. You have — there is so much
more in that collection. It’s so much richer than
people give her credit for. But she — it was written
about Woodrow Wilson, the fight for the anti-lynching
legislation in the ’20s, and really kind of I think actually
juxtaposes the rise of the ACLU with the expansion of the NAACP
in a very interesting way. Not that it’s in her book, but
I think that the two things kind of parallel in development and ways
that I think we can explore further. And with that I’ll
let Mary take over.>>Mary Dudziak: Thank you so much. Ryan. I want to start by thanking,
I’m so thrilled to be at the Library of Congress, and also at
an event that’s sponsored by the Manuscript Division. And I have to say, historians across
the country and around the world who use the collections
here are in your debt. It’s not just that we are in your
debt for all the work it does to organize archival
collections, make them accessible, advise us about where to look,
help us figure out how to deal with the index to Woodrow
Wilson’s files, which in and of itself could require, you
know, a lifetime of expertise. But really, the American
people are in your debt. American democracy is in your debt. It’s not just people
who care about history, but policymaking is based upon
ideas and assumptions about history. Politics are informed by history. Legal developments are
informed by history. And so the work that you
do is this foundation that helps enable everything else. So I feel privileged
to have an opportunity to thank you for that today. I also thank everybody else who,
it’s kind of an exciting day in Washington, and I’m just so
happy that you either needed a break from it or something
and decided to come. We really have a wonderful panel. All I want to do right now is just
to try to set the stage a little bit and maybe ask a couple
of sort of questions, not for them to deal with,
but for us to think about. So let’s go back to April of 1917. You know, first let me sort of
step back, 1916 election was one of those elections so
close Woodrow Wilson went to bed having been told he had lost. Only gets up in the morning to find that Charles Evans Hughes
had lost the election and Wilson got reelected. That was the election where
the Democratic Party ran on the slogan, he kept
us out of war. And my opinion, the best work on
the 1916 election says that, yes, war issues carried
Wilson over the top. It was that concern about war, not
just in Europe but also with Mexico that led to key votes for Wilson
in the west and in the mid-west. So an antiwar perspective
helps decide the election, then how do we get to April
1917 and Wilson goes to Congress and asks for war declaration. After Wilson himself goes
through this torturous turn that his biographer’s call
Wilson’s Gethsemane, you know, where Jesus prayed the night
before his death and his sweat was like drops of blood
falling on the ground. I mean, it really —
read his letters. And he says to a friend,
my thought is under seize. Even you don’t understand
how difficult it is. So what happened? Well, lots of things
happened, but a crucial thing that happens is Germany starts
doing unrestricted submarine warfare in the Atlantic announced
January 31, you know, February 1 and then ships are being sunk. Now there had been submarine
warfare in the Atlantic. There had just been a deal
with the U.S. We’re not going to go after neutral shipping. Germany says, nope,
everybody’s fair game. And the New York Times had on the
front page the ships that went down, how many casualties, everybody
is watching it day by day. The — and basically the
casualties, you know, step up. There’s more to say about
this than I will right now, but it’s in this moment when
Wilson, little by little, sort of comes to the idea
that the only response is to turn towards war. Now, Wilson in asking
for a declaration of war he basically says, in this context neutrality
is no longer feasible. Germany, he said, was
at war with all nations. So what was the U.S.
doing in going to war? Our object now is to vindicate the
principles of peace and justice and [inaudible] of the world as against selfish
and autocratic power. And probably the most
famous line is, the world must be made
safe for democracy. Now to accomplish U.S.
objectives in this war, what did the United
States need to do? Two things. All resources of government
had to be devoted to the war. All resources. And that’s a typical
thing presidents call for. He also demanded that the people
themselves be devoted to war. He said in his speech, if there
should be disloyalty it will be dealt with with a firm
hand of stern repression. It’s sort of a shocking sentence. It will be dealt with with a
firm hand of stern repression. He had been talking about
German Americans, but he says, most of them, they’re loyal. But among German Americans and
others, the problems would come from what he called a
lawless and malignant view. So dissenters, you see,
are lawless and malignant. They’re sort of a cancer
on the [inaudible]. As his speech taught — sought — so as his speech sought to unite
Americans behind a grand purpose, he helped to lay the basis
for the marginalization and criminalization of dissent. In this way, even as he upheld
democracy as this global aspiration, he endangered a central bedrock
of democracy of free people, free to speak politically and free
to criticize their government. It’s the — it’s the protection
of dissent that is a sort of a central aspect of
having a free government. Now when we gauge how well
American institutions have stood up to the pressures during wars,
generally American scholars, especially clinical scientists
and [inaudible] tend to sort of compare wars against each other. Let’s think about one president’s
war power as compared to another, and the Civil War gets
a lot of play in this. And Lincoln’s suspension of
the writ of habeas corpus in the Civil War is a prime example of presidents essentially
overrunning constitutional limits during war. Sometimes it’s used as a way of
— you know, it always happens. Don’t worry so much. It’ll all go back to normal someday. Okay, so when we think about that — these examples, what
kinds of pres — which kinds of presidential actions
are justifiable, and the context of these decisions matters a lot? So Lincoln’s 1861 suspension of
the writ of habeas corpus came when Confederate sympathizers
threatened supply lines through Maryland to the
District of Columbia. The Civil War, as a whole, of
course, obviously happened here. It happened here. And so Lincoln is acting to protect
the ability of the government to function to get food and
other supplies into Washington, D.C. Compare this with 1917. Now the war was happening elsewhere. It wasn’t happening within
the territorial U.S. at all. American supply lines,
were they threatened? Well, the ability of American
companies to ship goods overseas and the United States
companies were trading with everybody to ship
goods overseas. That was cut off and there was
ships backed up in the harbors. And ship companies were, after
Woodrow Wilson saying, what — you got to do something,
because we can’t sail anywhere. There was also a threat
to American lives. And at one point Lincoln says, if Germany does anything
we’re going to do something. And he didn’t really say what. And he didn’t say what the something
was that would generate more action, but it caused the world to focus on
Wilson and to watch every sinking. First death was a working
man about three days after the German announcement, African American merchant
sailor killed on I believe it was a British ship. And that wasn’t the act that would
drive Wilson to call for a war. But these deaths sort of
started to accumulate. So the Americans who were threatened
were people who worked on ships. They were ship captains, and probably the largest number was
basically working-class laborers who worked in the boiler room,
including many men of color. And then there was another
category, Americans who freely chose to travel, often to sail on
fancy British ocean liners, ocean liners that had contraband
in the hole and were armed. In other words, they are warships. They are fair targets. The — And the deaths that then sort
of motivate the press coverage and the emotional tenor of
American politics, it’s actually not about the working men, it’s
about the society ladies and wealthy travelers choosing
to make a trip across a war zone on ships that are fair
targets, and that’s the overact that basically helped shift the,
again, the sort of emotional tenor of American politics
at this point in time. But — and then when the U.S.
enters the war, what does it do? Let’s protect the oceans. Let’s have safe lanes
for American ships. It sounds like we need
to have a naval war to protect American
interests in the Atlantic. Well, instead, the U.S. jumps
all the way in and, of course, Wilson in part has his broader goals
for the world community in mind, wanting to be at the table in
Paris at the end of the war. That’s achieved by sending
American troops to Europe. American shipping in the Atlantic
might well have been managed through a narrower U.S. involvement. So there’s lots of interesting
questions about how the U.S. got to where it got to with
this sort of full engagement for a limited period
of time in World War I. Now, when we think about World
War I and the suppression of civil liberties, we need to keep
in mind, I think, that this isn’t like Lincoln’s experience. And when we have a war somewhere
else that’s then producing this sort of domestic political
environment, where does that come from and what’s driving it? It’s not just war per se happens
and then there’s a reaction at home. And the sort of best work I
think in political science about public reactions to
war says it’s not actually — it’s not war per se that does
it, it’s the way war gets talked about in elite discourse
and partisan politics. So it’s basically a
domestic political and social phenomenon that’s
driving the domestic reaction. At least that’s an argument. The legacy of World War I, which is
tremendously important in the law and policy community, the
legacy is — matters so much. Eventually we get this growth of
this law of civil liberties and a — and a flourishing civil
liberties tradition in spite of its coexistence with
continuing forms of oppression, including race discrimination
and segregation. On these issues there are many
productive points of disagreement, or at least difference
among our speakers today, on whether the federal government
helped or hindered the development of civil liberties on the role of
social movements and organizations, like the NAACP and the ACLU
on the history of ideas, a tremendously important
and rich area of study, and on the role of the course. And so with that, I’d
like to turn this over to Geoff Stone
to get us started. [ Applause ]>>Geoffrey Stone: Thanks. I want to talk a bit about
the issues of free speech, free press during World War I. During the First World War there
were more than 2000 prosecutions of individuals for criticizing
the war or the draft. Sentences of those ranged
up to 20 years in prison. Any person who had the audacity
to make such statements, whether in a speech, in a book,
in a newspaper, or in a pamphlet, were subject to prosecution
and conviction. Those prosecuted included
journalists, politicians, activists, members of the clergy, and
ordinary citizens across the nation. They even included Eugene
Debs, who had received more than a million votes for
president in the 1912 election. The vast majority of
these convictions were for violating the Espionage
Act of 1917. Now, the Espionage Act of 1917
was directed primarily at acts of espionage and acts directed at
the protection of military secrets. But section three of the act also
made it a crime for any person to, quote, cause or attempt to cause
insubordination, disloyalty, mutiny, or refusal of duty in the military
services of the United State, or to willfully obstruct or — the recruiting and enlistment
service of the United States. Now on its face, that
provision would not seem to forbid newspaper
articles, speeches, pamphlets, and the like that did nothing more
than criticize the war or the draft. But the federal courts, with but
a few exceptions, interpreted and applied the Act as making
it crime for any person to make any statement that
might have even a tendency to turn people against the war. Because of that interpretation,
any criticism of the war or the draft was deemed
unlawful resulting in the most aggressively speech
suppressive era in American history. Now, those who were prosecuted
under the Espionage Act for their speech tended to raise
one of two, or both, objections. First, that the Act should not be
interpreted to reach the speech in which they had engaged. And second, and if the Act were
interpreted to reach the speech with which they engaged it
violated the First Amendment. Both objections were, with
only a few exceptions, emphatically rejected by the courts, including the Supreme
Court of the United States. I’d like to focus in my
few minutes on the question of the meaning of the Espionage Act. And I’m sure we’ll have
an opportunity to talk about the First Amendment
issues later. So in the months leading up
to the United States entry into World War I, there was fierce
opposition to that possibility. The American people were
divided about the war. Many Americans did not
understand what the war in Europe was all about, and
many of them had no desire to send their sons off to die in what seemed a senseless
and brutal conflict. Many thought, in short, that
the United States had no dog in this fight, and that the best
course for the nation was simply to stand aside and let the Europeans
fight it out among themselves. President Woodrow Wilson,
though, who, as you heard, had been elected — reelected
president in 1916 on the platform that he had kept us out
of war, had other ideas. And by early 1917 he had come
to the conclusion that our entry into the war was inevitable. But Wilson understood he
faced a serious dilemma. And that dilemma was the
lack of public support. It’s difficult to fight
a war successfully if you do not have the
support of your people. To address the widespread opposition
to our entry into the war, Wilson; therefore, launched
two types of programs. The first, called the Community
for Public Information, was a propaganda program
run out of the White House. It was essentially designed with
the task of demonizing the enemy across the nation and
whipping up a war fervor by basically having editorials and
speeches and pamphlets and posters that showed how horrible the
enemy was and how essential it was to American freedom
to fight in this war. But Wilson understood that
wouldn’t be sufficient to deal with the dissent that was
going on in the country. And he; therefore,
needed legislation that would silence that dissent. Now, the United States government
had not enacted federal legislation making it a crime to criticize the
government of the United States since the Sedition Act of 1798, an episode that had been
roundly condemned over the course of the following century. Indeed having learned the
painful lessons of that history, the United States had intentionally
refrained from enacting such legislation during the war
of 1812, during the Civil War, and during the Spanish American War. Nonetheless, in lead up to our entry
into World War I, Wilson decided that aggressive legislation
was necessary to stifle criticism of his war. Thus, Wilson called upon Congress
to enact legislation, quote, to suppress disloyal activities. The Department of Justice proposed
to Congress the initial version of Espionage Act, which included
a provision declaring it unlawful for any person in time of war
to publish any information that the president, in his judgment,
deemed to be of such character that it might be harmful to
the interests of the nation. This proposal triggered
a firestorm of protest. The American Newspaper Association
declared that the provision, quote, strikes at the fundamental rights of
the American people, and newspapers across the land condemned it as
oppression as a glaring attempt to muzzle free speech, and as an
effort to suppress the freedom of the press and the freedom people
of the to express on its judgments on the acts of public servants. Members of Congress from both
parties similarly condemned the proposed legislation. Senator Johnson of California, for
example, charged that the, quote, preservation of free speech
is of transcendent importance, especially in times
of national stress. And Representative Madden of
Illinois protested that, quote, while you’re fighting to establish
the democracy of the world, we ought not to do the very thing that will establish
autocracy in America. Although Wilson then made a
direct appeal to Congress arguing that such authority, quote,
is absolutely necessary to the public safety, Congress
nonetheless defeated the proposed legislation by an overwhelming
majority. Thereafter, Congress enacted what
became the Espionage Act of 1917, with its much more
narrowly focused provisions which were directed
specifically at speech intended to cause insubordination
in the military or to cause obstruction
of the draft. As enacted, this legislation was
not designed as a broadside attack on all criticism of the war, but it’s a carefully considered
enactment designed to deal with very specific
military concerns. Wilson’s attorney general, Charles
Gregory, was bitterly disappointed, complaining that Congress
had taken the teeth out of the legislation
we attempted to enact. Nonetheless, with the advent of the
war federal judges across the land, acting at the insistence and
encouragement of the Department of Justice and of the
Executive Branch, interpreted these provisions
very broadly. Basically they held that any
speech that criticized the war and the draft could have
the tendency to turn people against the war and;
therefore, could lead people to refuse induction into
the military and could lead to insubordination on the part
of individuals in the military. And; therefore, it
had a bad tendency which would cause these effects. But said, the defendants, the
statute talks about intent to cause content obstruction, intent to cause insubordination,
that wasn’t our intent. Our intent was to criticize
the war and the draft. The court said, doesn’t matter. You’re held to have
intended the natural and foreseeable consequences
of your speech. And since this was
one of the natural and foreseeable consequences you
can be punished under the statute. Only a few judges resisted. The most famous of these,
Learned Hand in the Masses case, wrote a memorable opinion in which
held that in light of the history of free speech on issues of
war in the United States, and legislative history
in the Congress, that he would interpret the
Espionage Act as applying only to speech that expressly
incited obstruction of the draft or insubordination in the military,
and that speech that stops short of expressly encouraging
people who refuse induction or expressly encouraging them to be insubordinate was
not prohibited by the Act. That was short lived, however. His opinion in Masses was promptly
overruled by the Court of Appeals, and Hand himself was punished. He had been awaiting a promotion to
the Court of Appeals that was put in abeyance and he remained on the
District Court for another decade, in part as punishment
for his opinion. Indeed a year later, in 1918,
now in the heat of war fever, Congress enacted the
Sedition Act of 1918, which finally gave the Wilson
administration what it had wanted all along. The Sedition Act made it a crime,
among other things, quote, to utter or to publish any disloyal language
intended to cause contempt or scorn for the government of the
United States, the Constitution, or the flag, or to utter any
language opposing the cause of the United States in time of war. The Sedition Act of 1918
was repealed in 1921, but the Espionage Act of
1917 remains on the books. Thank you. [ Applause ]>>Jeremy Kessler: I want to stress in my brief opening comments
the extensive resistance to free speech claims during World
War I, especially from the courts, as Geoff has already mentioned, but
also, and more surprisingly I think, for many progressive
intellectuals as well. As Geoff mentioned,
the judicial resistance to free speech claims
was most obvious in cases construing the
federal Espionage Act of 1917. I think it’s worth repeating the
three main provisions of that act. One is publishing false reports with
intent to injure the war effort. Second, causing or attempting to cause insubordination
in the Armed Forces. And third, willfully obstructing
recruitment into the Armed Forces. And, as Geoff mentioned, convictions
could lead to fines of up to $10,000 and 20 years imprisonment. Government prosecutions under
the Espionage Act overwhelmingly resulted in convictions, and judges
overwhelmingly rejected claims by defendants that to be convicted for antiwar speech violated their
First Amendment free speech rights. The most typical kind of speech that
led to a conviction was speech often by socialists or members
of the industrial workers of the world claiming that
the financial interests of capitalists were
primarily responsible for the American entry into the war. And many juries and
judges construed that kind of opposition to war as false. That’s not what Congress
said in declaring war. And also that that antiwar
speech had a tendency to cause insubordination
and obstruct recruitment. Much milder speech also
led to convictions. This is an extreme case, but
not the only extreme case. A minister was found guilty
of causing insubordination under the Espionage Act because
he distributed a pamphlet teaching that Christians should
not kill during wars. And that was held to have a
tendency to cause the obstruction of recruitment and insubordination. There were some rare acquittals
under Espionage Act prosecutions, but as Geoff mentioned, many of
them were reversed by higher courts. And one of these rare
acquittals prompted Congress to amend the Espionage Act to
make convictions even easier than they already were,
which is very easy. And I think it’s worth telling you
a little bit about the case that led to the passage of the Sedition Act. A judge in Montana directed
acquittal of a defendant. The judge pointed out that the
defendant’s antiwar statements, anti-capitalist statements,
occurred at picnics and during saloon argument
at a small village in Montana that was 60 miles from the nearest
train station and 100’s of miles from the nearest military base. And according to the judge,
that is not enough evidence to show an intent to
cause insubordination. The Attorney General of the United
States cited this rare acquittal as evidence of the ineffectiveness
of the Espionage Act, which overwhelmingly
led to convictions. And the Attorney General
successfully urged Congress to pass the Sedition Act of
1918, which as Geoff said, expressly prohibited, quote unquote,
unpatriotic or disloyal language. Now, this widespread
hostility to free speech claims under the Espionage Act extended
to the United States Supreme Court. The first Supreme Court decisions, as many of you probably
know, were in March 1919. All three were unanimous decisions. All three were written by Justice
Holmes, who still had a reputation as a progressive hero
when I was in law school. Most public attention was focused
on the case of Eugene Debs, who was by far the most famous
defendant in an Espionage Act case. As many of you know, I’m sure
Debs was a major union leader in the United States. He had been a recent
Socialist party candidate for president of United States. I think he got more votes
as a percentage basis until Ross Perot, is that? He was a major candidate. Holmes observed that the speech for which Debs had been convicted
consisted of restatements of socialist opposition to war,
and also praise of socialists who had already been convicted for violating the draft
law and the Espionage Act. And Holmes concluded that the jury
was justified in finding that kind of speech, having a tendency to obstruct the recruitment
service and; therefore, the conviction of Debs was upheld. Notice again the use of tendency to
justify the punishment of speech. Holmes relied on the bad tendency
of speech in upholding convictions in the two companion cases,
called Schenck and [inaudible]. And it’s interesting, many of you
probably have heard the term clear and present danger
from the Schenck case, which for decades was considered to be a protective interpretation
of the First Amendment. Holmes did not even use that
phrase in the other two cases, yet he relied on the bad tendency
of speech to uphold convictions under the Espionage Act for
opposition to American involvement in World War I, basically the claim
it was a capitalists’ war rejecting First Amendment claims. Now, I want to emphasize that
this reliance on the bad tendency of speech to justify convictions and to deny First Amendment claims
was not new under the Espionage Act. This was the standard approach
to rejecting free speech claims of all kinds throughout
the United States, throughout the entire
judicial system, from the Civil War
until World War I. And I want to give you
an example of the use of the bad tendency
approach before the war, and this is by Holmes
himself in a case in 1907 called Patterson
versus Colorado. Okay, Patterson, Thomas
Patterson was a Democratic senator from Colorado who was
also the publisher of a leading newspaper in Colorado. The newspaper published
editorials, cartoons, articles criticizing
the Republican majority of the Colorado Supreme
Court for acting as tools of the wealthy utility corporations. And prodded by the
Colorado Supreme Court, the Colorado Attorney
General brought contempt of court proceedings
against Senator Patterson, and the Republican majority of
the Colorado Supreme Court upheld that conviction for
contempt of court. Patterson appealed to the United
States Supreme Court claiming the conviction violated his First
Amendment rights and asserting truth as a defense, a basic defense
under the First Amendment. Holmes, writing for eight
of the nine justices, rejected the First Amendment claim. Reasoning? Publications criticizing judicial
behavior in pending cases tend to obstruct the administration
of justice, whether or not the allegations are true,
First Amendment claim denied. And this reliance on the tendency
of speech could be found in 100’s of cases throughout the
American judicial system between the Civil War
and World War I. I find it very interesting
that a man named Gilbert Roe, who had been a lawyer
for many defendants in free speech cases
before World War I, testified in the Congressional
hearings about the espionage bill and warned about the potential
use of the bad tendency approach. He says, I know about this danger because I handled free
speech cases before the war. He didn’t object of
a falsity clause, but he did correctly
presciently predict that the courts would construe
unpopular antiwar speech as having a tendency
to obstruct recruitment and cause insubordination, and
he turned out to be right based on the judicial decisions. So very briefly in closing I want
to emphasize that this resistance to free speech claims during World
War I was not limited to judges. It was surprising to me to find out that leading progressive
intellectuals in the United States had at best
ambivalent views about free speech. Now some of this explicable. The progressives identified
constitutional rights with excessive individualism, and
they attributed many of the problems in early 20th century America,
such as destructive inequality, division throughout society, to the
over emphasis on individual rights, including individual
constitutional rights. Now they focused on the individual
rights of property and liberty of contract, which
as many of you know, were used to invalidate
progressive reform legislation, but they weren’t sympathetic
to other expressions of individual rights, including
those based on the First Amendment. Also, the progressives
placed great emphasis on achieving social harmony. That was a key element
of progressive thought. And that attention to harmony
limited their conception of free speech. Yes, free speech that contributes
to social reconstruction is good and should be protected,
but free speech that expresses the
inevitability of class conflict, or that denies the feasibility, possibility of ultimate social
unity, that was not good speech, and they did not really
believe in protecting it. And a great example of this
progressive view is John Dewey, perhaps the leading progressive
intellectual, public intellectual in the country at the time,
probably more sympathetic to free speech claims than most
progressives, yet in an article in the New Republic Magazine soon after the United States
entered World War I in 1917, Dewey criticized pacifist
opposition to the war as a failure to seize its Democratic
possibilities, and he ridiculed dissenters
for invoking, quote unquote, early Victorian platitudes about
the sanctity of individual rights. That’s John Dewey, a progressive. So I’ll stop here with
that, and I look forward to the other presentations and to
the discussion that will follow. Thanks. [ Applause ]>>Megan Ming Francis: Great,
good afternoon everyone. First, I want to follow up on what
Mary said, and really thank Ryan and the rest of the
Library of Congress staff for all that you do here. I spent, what is this now? 2005 through 2013 basically
taking refuge in this building, in part because my first
book centers on the NAACP. And I can attest to what Ryan
said in terms of that’s so much of actually what I cite my book. Some of it is on microfilm,
but a lot of it are just like these wonderful
finds that I found in very well cataloged
folders, as well as the papers of Lauren [assumed spelling] — I
mean, not Lauren, Woodrow Wilson and Warren G. Harding, an often,
unfortunately, forgotten president. I also really want to thank the
panel moderator, Mary Dudziak, for her work on civil rights
in the Cold War period, in part because her work
had a transformative impact on my own scholarship. With that, hey, everyone. All right, so what I
want to do is to — is to, one, depose these three
myths, and then because I believe in truth telling and myth
busting, especially here in D.C., because that’s kind of, I
feel, like the flavor of today. And then we’re going to —
and then I’m going to try to tell you a story, and you can
believe me or not, but it is backed up by archives found
in this building. Okay. So one of the things that
I just want to — I think — I think it’s important to
state first is that to get around I think this kind of — this traditional narrative of
civil rights making that centers around kind of the ’50s and
the ’60s in this country, and to push that timeline back
much further into the early part of the 20th century, there’s
this way, and this is — historians have been really great on
this, especially legal historians, and kind of this — there’s this — been this huge focus on the
Brown v. Board of Education, that whole litigation campaign,
and then what happens after that, obviously, in ’64 and in ’65. But there’s this kind of
world of rights making that happens actually before that. Part of the kind of — the worry
here is that so much of the work, especially in terms of the making
of African American citizenship, has centered around education
as being central to that. And I don’t think that’s
wrong, but I think that needs to be problematized a bit. The second one that I
think is important today, to make very plain here, is
that the fight and the struggle for black lives is not a new civil
rights struggle by any means, right? So I’m just going to say that. And the other one,
and this is something that I actually was a bit surprised about because perhaps I
was brainwashed in college, was that courts were not the
first point of entry for the NAACP in the battle for civil
rights in this country. All right, so what I’m
going to try to do — so those are kind of what
I want to present perhaps. I’m unwilling to talk
more about the — any of these in the q and a. So I
want to tell you a story in terms of my work around the NAACP. And so what I try to focus on, and
my work is the NAACP’s campaign against racial violence in the
first quarter of the 20th century. So my two other panelists
have told a kind of a story around World War — World War II — World War 1 that focuses
on free speech. I’m going to move a little
bit here outside of the courts and depose something interesting. I mean, for me it was focusing
on the development of the NAACP, and then to realize
that actually they begin and they grow very much during
the time of World War I. So the NAACP was founded in 190 around this issue of
racial violence. This big race massacre happened
in Springfield, Illinois. And a lot of really concerned white
abolitionists became, what is this? Why is there this white
violence outside of the south? We should organize and we
should do something, right? And so then what happens
between 1909 and 1911 is they form what
then becomes the NAACP. At the time, I know many people
in here do also know this, the board was all white with
one black member, which is going to be W. E. B. Dubois, right? He’s going to be a single
black member on the board of directors at the NAACP. And the big issue that they
take up, I don’t ever talk about the NAACP also without
talking about Ida B. Wells. So, and I’m going to say one
very quick thing about that. So the big issue they take up is
this issue around racial violence, in part because of
Ida B. Wells’ work around the anti-lynching
crusades at the end of the 19th, in the beginning of
the 20th century. She makes the case very clear that African Americans cannot
actually be free until they are free from the threat of racial violence, meaning lynching and
mob violence, right? And so the beginning planning
meetings of the NAACP, Ida B. Wells is around, but Dubois,
because of serious gender issues that he actually has, then
pushes her to the side, but they still do take
up this issue, right? Like, history is fun because
all these characters are so much more complex
than I think sometimes that at least media
gives them credit for. All right, so the NAACP is formed. And they go after,
they very much believe that this is the way towards
freedom in this country. Sometimes in order to kind of
try to bring home the importance of racial violence to
the early development of the NAACP I often use this
one quote that, when I read it, I just had to kind of
sit back because it — and it had to sit with
me for a while. So at this board meeting in
1916, Mary White Ovington, a white board member,
is a bit confused about why the NAACP is not going
after other important areas that we now associate with
civil rights, such as education, voting, and housing segregation. And one of the black leaders,
he’s now the board of directors at the NAACP, turns to her
and he says, all the Amer — and this is a quote, all the
American Negro wants is a chance to live without a rope
around his neck, end quote. Right? So the point here
is that before we can fight for the other rights, before we
can enjoy these other rights, that African Americans actually
first have to live first. And so this is a statement in 1916, despite what I told you very quickly
earlier that the NAACP was formed and it was kind of this all
white board of directors with Dubois, that changes in 1916. James Wood Johnson comes on board
and assumes leadership of the NAACP, and Walter White, not from
Breaking Bad, but Walter White of NAACP fame, comes on in 1917. And they then resurrect the
membership and it expands. They’re like, why is
all the membership in the mid-west and the north? Like, there is clearly African
Americans, and a lot of them in the south, and we need to
organize and mobilize and set up chapters in the
south immediately. And so you see the numbers
in terms of the membership of the NAACP changing
dramatically between 1916 and 1919, in part because of the leadership
of Johnson and White at the NAACP. So the way they go about this
issue of racial violence, and with my five minutes left
I’m going to condense a lot here, is they believe that the first — and this is one of the things that
I’ve struggled with and I still do, before there was such a
notion of civil rights, right, we today if I say civil rights
you’ll be like, all right, march in Washington [inaudible],
it’s like, things come to mind. But this is like, again,
the early part of the NAACP, the federal government
has not come out, right, to consistently protect
African American rights. So they’re fighting for civil rights
before there’s like this notion of what civil rights actually means. And so they believe, all
right, first what we’re going to do is we’re going to launch
this public opinion campaign. We’re going to organize
people in the streets. And if we can just reach the
hearts and minds of Americans, and then things will change, right? Like white America
will realize the terror of racial violence and
it will stop, right? So they do this and they
organize, and significant inroads, but it doesn’t stop, right? So then they were like, all right,
we have to attack formal politics. So with that — and the
three branches, right? So one, obviously, they
do this whole campaign for anti-lynching legislation
inside of Congress and they make far — they get far. And then a Supreme Court case
around criminal procedure, around basically the
legal lynching, the — kind of the sentencing to die of 12
African American men in Arkansas. And the point that I want to
focus on here though that I — that I found fascinating is the
work inside the executive, right? So here’s the NAACP, this
incredibly outsider organization. That is like, all right, you know
what we’re going to do in 1960? We’re going to go and
talk to Woodrow Wilson. And we’re going to
make the plea to him to make a public statement
condemning lynching, right? And also, you know, what’s
going on in the background here, of course for those who know
a little bit around African, Americans, relationship,
Wilson, you guys are like, that’s been [inaudible], right? Okay. So, Dubois and NAACP actually
come out to support his first term, in part because he — Wilson lobbies
African American organizations, some people don’t know that. And so Dubois wrote — has written
this now, historians like to fight about it, this editorial
called Closing Ranks, which is basically the argument that
African Americans should close ranks and support Wilson and that —
and that serving is perhaps a way to greater sense of kind of
citizenship in this country. But then obviously what
happens is that, right, the civil service gets segregated
and African Americans it seems like progress is rolled
back, and the NAACP and all these other civil rights
organizations are upset with Wilson. The second term though, what I
found fascinating is the NAACP just doesn’t stop their relentless like
kind persistence around Wilson. In the second term, while he
is still the staunch southern segregationist, and not by any
means great on matters of race, there is a softening in Wilson’s
racial tone towards African Americans in his second term
that I found interesting, a tiny bit confusing, but
interesting nonetheless. And so there’s two
very quick things. I know I’m like on two
minutes, Mary, I’m sorry. So two big things for me that I — that I highlight that I think are
worth making mention of in terms of — because at the end of
the day my work and my concern, at least in the academy, is the
impact that social movement actors, specifically black and brown
social movement actors can have on pushing the boundaries
of the American state and American institutions
in new directions. So the — there’s this
horrible race massacre that happens in East St. Louis. And it is — it results because
of labor tensions as a result of the draft and also
of the great migration, and they are resenting this new
African American presence in town. And so what happens one day that
sets this off is they then go — the whites in Phil — not in
Philip’s [assumed spelling] County, excuse me, in East St. Louis, go
to the African American section of town, light houses on fire. So it was either stay inside and
burn alive or face a firing squad as you ran out of the house, right? And so 1000’s of men, women, and
children died in East St. Louis. It’s a horrible massacre. So what the NAACP did to organize
is they launched at that time, to that point, was the biggest
demonstration of African Americans in history in July of 1917, don’t
5th Avenue in New York City, 10,000 African Americans
marched silently down 5th Ave. to protest increasing
violence and the St. — the St. Louis massacre,
East St. Louis massacre. They then afterwards,
a few days afterwards, take a delegation to Wilson. Joseph Tumulty, his personal
secretary, meets them at — meet them, provides buffering. Is like, hey, hey, hey,
you can’t talk to Wilson. He doesn’t want to talk to you. In this really weird exchange, Wilson then sends the following day
Tumulty a letter that is like — that says, I would like to meet with
the delegation if it’s possible. And Tumulty is like, I’ve
already contacted a governor to try to run interference. You don’t need to meet with them. And Wilson says, no, I actually
think I do need to meet with them. And so he sits down, and this is in
James Wood Johnson’s autobiography, he sits down and have a long
conversation and they tell him, at least James — according to
James Wood Johnson’s account, they tell him about racial violence. They ask him to make a
statement condemning lynching, and he actually does. Two months later he
makes a statement to Congress condemning lynching. And in closing I think it’s
important and are useful to think about in times of resistant
president the impact that social movement actors,
even though kind of marginalize, might have on a president
and also on a nation. Thanks a lot. [ Applause ]>>David Rabban: So first I just
wanted to echo previous thanks to Ryan Reft and to the
Library of Congress, to which I’m almost greatly
indebted for my — for my research. And also thank the — my co-panelists, who have
given just a fabulous, I think, panoply of views on World
War I, particularly to Megan, who I think has [inaudible]
up what I want to briefly address very nicely. And that is that we generally
associate World War I, and war more generally, across
history with, on the one hand, the expansion of state capacity,
the development of new forms of governance, and new fiscal power,
the provision of social services, the rationalization of industry. And we often — we often
associate that aspect of war making on the home front and we
see it in a positive way, that that kind state building
is actually a beneficial effect of many major wars. On the other hand, we all recognize,
and Geoff and David have spoken to it very eloquently,
that war tends to lead to massive state repression
of dissent in particular, but often maybe of a variety
of vulnerable social groups. So on one hand, we kind of
like the sort of expansions and transformations of the national
state that we get in wartime. On the other hand, it
seems to come along with some pretty bad,
negative effects. And what I want to
highlight is actually, there’s kind of some overlap
and some contradiction between these two features
of what happens on the home front during
World War I, and I think many American
wars thereafter. And that is that, a third thing
that goes on during World War I, and that would continue to go on — be repeated and really intensified
during World War II in some spheres, is a growth and a form
of state capacity that I don’t think we usually
think of a form of state capacity, and that is the provision
of civil libertarian rights. That actually there
are many examples of the executive branch
during World War I, of wartime administrators trying to either create new
civil libertarian rights or expand the reach of
recognized preexisting civil libertarian rights. And so I want to jut briefly run
through four examples of this and then close by what I think these
examples do and do not show us. So the first example
is the War Department, and Ryan nicely referenced
in his introduction. So in the War Department,
which was responsible not just for fighting the war but for running
the draft during World War I, the War Department was
run by Newton Baker, an avowed pacifist,
prior to World War I. And his second-in-command was
Frederick Keppel, the former dean of Columbia University, also an avowed pacifist
prior to World War I. And they staffed up War
Department with a number of young progressive
lawyers and intellectuals. Foremost most among
them, for my purposes, the young Harvard law
professor Felix Frankfurter, who was very involved in the
creation of the new republic and was a leading progressive mind, and would go on to
be one for some time. Felix Frankfurter was an
assistant in the War Department and he was tasked with
figuring out what to do about conscientious objection. What to do with the problem
of folks who got drafted, but because they were
pacifists didn’t want to fight. The Selective Service Act of
1917 had a very narrow provision for conscientious objection. It basically said that
if you were a member of a well-recognized
pacifist church, a formally organized pacifist
church, you could perform in uniform noncombat
duty in the army. And that was the extent of the
right of conscientious objection. Felix Frankfurter, in his mid-30’s, comes into the War Department
and says, this won’t do. He’s in contact with a lot
of social movement activists on the civil libertarian side
of things and the pacifist side of things, and basically
creates a blueprint for an entirely different
administration of conscientious objection during
World War I, a blueprint that goes on to be implemented,
imperfectly but in a — in a very different way than what
Congress had actually imagined. Frankfurter says that right of
conscientious objection needs to be expanded to pacifists who are
not members of official churches, pacifists or otherwise, and needs
to be extended even to pacifists who do not have religious grounds
for their objections to war. And finally, he argues
that pacifists need to be offered alternative civilian
service, non-uniform service outside of the military during the war. And his fourth suggestion
is that this expanded right of conscientious objection
needs to be implemented not by local draft boards, which
were constituted by volunteers from the community, but by a
centralized committee of sort of nationally respected legal minds. All of those things happen. A Board of Inquiry was
established, headed by the dean of Columbia Law School, Harlan Fiske
Stone, who like Frankfurter will go on to be a Justice
of the Supreme Court. And they basically take
all of the — they go — they find where all of
the alleged pacifists are, all of those who have
not [inaudible] the right of conscientious objection are
being mistreated in the army camps, they basically hold a kind of — this ad hoc form of
administrative adjudication and they get those pacifists into
alternative civilian service. Okay, Frankfurter then, right after
having written that blueprint, goes on and is appointed to Woodrow
Wilson’s mediation commission in 1917, which was having to
deal with the massive problem of labor unrest at the
beginning of World War I. While on the mediation commission
Frankfurter writes another blueprint, which is a blueprint
for a more powerful board, national administration board, that will basically have
primary jurisdiction over labor disputes during the war. That leads to the creation of the
National War Labor Board headed by former president Taft. And the National War
Labor Board in the — as the labor historian
Joseph McCartin has shown, what it basically does is it
creates a massive incentive for nonunionized workers, especially
in industries that are vital to the war effort, to strike. Because the only way the
National War Labor Board can come in to mediate a labor dispute
is if there is a labor dispute or a pending labor dispute. And so there is a massive
strike wave that actually — there’s a first strike
wave in early — in mid-’17, and then in 1918
there’s a massive strike wave — a second massive strike wave once
the — these workers realized that, oh, if we threatened to strike
or strike we’ll get mediation from the National War Labor Board. They do — over a million Americans
join unions during the war. So it’s massive — and particularly in the previously nonunionized
industrial — many nonunionized industrial
sectors. So here we see a massive
expansion of Freedom of Association and what legal historian
[inaudible], a colleague of Geoff Stones,
has called the right to agitate in the early 20th century. Third and fourth examples
are pretty quick. The third example is a
less — a less happy story, and it’s one that actually
Geoff has brilliantly laid out in Perilous Times, and that
is the work by some members of the Justice Department
during World War I to try to mitigate the degree of repression
of antiwar dissenter in the war. This is John Lord O’Brian, who
headed the war emergency division of the Justice Department,
and along with Alfred Bettman. As Geoff has shown, they — although
certainly did a lot of prosecution of wartime dissent, they really did
hold to a narrower interpretation of the Espionage Act than the one that was often implemented
by the courts. They also tried to resist the
Postmaster General, who was engaged in massive censorship at the time. These efforts were not terribly
successful, interestingly, and this will be one of my
takeaways, as Geoff shows, in large part because
the Justice Department at the time was actually
quite decentralized. So even though John Lord O’Brian
and Alfred Bettman had these views, district U.S. attorneys did not,
they were bringing the cases. And then another form of
decentralization was the jury. These cases went to juries, and
even despite the formal views of the heads of the DOJ about
what the Espionage Act entailed, juries would implement a much more
aggressive interpretation leading to many of the prosecutions
that Geoff did – convictions that Geoff
and David talked about. Finally, the Bureau of Immigration,
Louis Post, the assistant secretary of labor, who was in charge at
the Bureau of Immigration during and immediately after World War I, pushed back against then Attorney
General Mitchell Palmer’s famous Red Raid. So this is the Red Scare that
immediately follows World War I, leads to 1000’s of attempted
deportations of supposed radicals. Louis Post cancels over 1500 of
these — of these deportations, sort of trying to vindicate to
some extent the rights of freedom of association and
freedom of speech of — even of immigrants and
even of non-citizens. Okay, so what to take from this? What to take from this idea that actually during World War
I the state doesn’t just repress or violate civil liberties, but actually supplies new civil
libertarian rights, or new vehicles for vindicating civil
libertarian rights. I tell this story not to kind of — not in an effort to
mitigate the story of repression — I’m out of time? Okay, one more minute. Thanks. Not to mitigate the
stories of repression of that Geoff and David have laid out
and that we know so well, and it wasn’t just these
Espionage Act cases. There’s massive racial violence that
continues throughout World War I, massive violence against immigrants. So goal is not to say, yeah, you
know, America did some bad things, but they also did some good things. Rather, I think the importance
of recognizing this side of the wartime civil liberty
story is to help us think about civil liberties
just differently. That civil libertarian
rights are not these kind of transcendental rights that
emerge from civil society that are then used to push
back against state power, but historically have generally
been developed inside the state by relatively powerful
administrative actors that are then supplied
to society to use. So that would be, I think, the
point — the first takeaway. The second takeaway, which is
quite related, is that not only; therefore, do — we to some
extent kind of are stuck depending on a powerful state to provide
civil libertarian rights. As several of these example show,
centralization, which is often seen as one the dangers of
wartime administration, is actually generally
pro-civil libertarian. That in many of these —
in many of these instances, so in the War Department —
in the conscription case, the War Department administrators
and the National Board of Inquiry that’s established, are all for a much
broader conscientious — right of conscientious objection. The local draft boards and many of the local army training camp
commanders are not, and that leads to the difficulties in administrating this more
civil libertarian approach. Similarly, the DOJ, I
have mentioned the juries and the local U.S.
attorneys, similar issue. So centralization actually tends to help the state promote
these civil libertarian norms. And I’ll wrap up there. I’m happy to — I think
— I think — I just would want to say that what
happens during World War I isn’t just kind of, what? These efforts to create new
civil libertarian rights provided by administrative agencies within the national government will
continue and will really, I think, be the fundamental institutional
precursor to a lot of new deal and World War II agencies that we
then come to associate more readily with civil liberties
and civil rights. Thanks very much. [ Applause ]>>Mary Dudziak: I’d like to
thank all of my co-panelists. I thought that was so
interesting and helpful. What we’re going to do now is have a
little conversation among the group, and then open it up to your
questions and comments. Okay, and I — you know,
as I was listening to you, I was sort of thinking
about a lot of things that sort of cut across the talks. But I think I want to think about,
you know, three different things, and I’ll ask different questions, about sort of about consequences
downstream, which you’ve suggested, about causality, and let’s make sure
along the way we talk about the role of the courts within this all? But let me start with the
question of, you know, what’s the sort of
causal engine here? Because sometimes it sounds
like Felix Frankfurter was in the right place at
the right time, right? Or some other character in
history so that the history is sort of being driven by, you
know, individual agency and the happenstance of the —
of certain people being together. Other times, wartime is this
sort of roping causal factor. And so to the extent it’s the war
that’s causing what’s happening in these stories, what’s
exactly the mechanism by that, like what about the war,
the war as a set of — generating a set of ideas, the war generating a set
of institutions, right? So if we think about World
War I causing certain things in domestic politics and
culture, what’s the — what’s actually the trail
there from this fighting war and what we’re seeing at home? Anybody?>>Geoffrey Stone: So in terms
of my particular interest, it would seem fairly obvious that when a nation is
it war it wants unity. Unity is seen as, and
understandably seen, as critical to being able to win. And once you’ve decided to enter
a war, winning is critical. And so that becomes
the paramount goal. And the question is, well,
how do you achieve that? Well, one way it’s been
understood you achieve that is by not creating dissension,
not causing situations where people doubt
whether this is worthwhile. It’s true that if they
doubt that they will go to Canada rather than
to go to Vietnam. Or they will not buy war bonds, or
they will be subordinated if they’re in the military all ready. And all of that has the effect
of dampening the probability of being successful in war. And assuming you believe
that putting our welfare, our lives at stake is
the right thing to do, then you’ve got to be all in. And I think that much
of the causality of what happens during wartime
is the product of the sense that if we’re going to put
American lives at risk by the 1000’s or millions, and America’s wealth
at risk, and freedom ultimately at risk, then we have to be willing
to sacrifice almost everything. And that’s what Wilson was sort of
saying when he was first advocating for his version of the Espionage
Act, which is that, you know, everything has to be
put in place so we win. That’s the only thing that matters. Nothing else makes any difference.>>Jeremy Kessler: So I want
to emphasize how much war at first did not change
the legal tradition, okay. You know, the traditional
understanding was we had this great theoretical tradition of freedom
of expression in the United States, but not much occasion to
invoke it until World War I, our first world war where the
country went crazy and overreacted and repressed civil liberties,
unprecedented in American history, against which there was
an ultimate reaction in favor of civil liberties. As I, to my surprise,
discovered, right, at least the judicial
tradition was extremely hostile to all free speech claims of every
[inaudible] imaginable throughout the 19th century. And World War I only
extended that tradition. It didn’t change it at first,
but war as causal agent. I think many Americans
during the war for the first time
realized the consequences of this long-term repressive,
I would say, tradition. And also, Roger Baldwin
himself, the founder of the ACLU, many others, do we change? People for the first time started
thinking about the consequences of this tradition and worried
about it and decided we need to protect political speech more. So to a great extent, I think,
World War I transformed the views about free speech of many
people who later defended it, most obviously the
leaders of the ACLU.>>Geoffrey Stone: Can
I add a word to that? The transformation of
Oliver Wendell Holmes.>>Jeremy Kessler: Yes.>>Geoffrey Stone: Is
a critical example.>>Jeremy Kessler: Right.>>Geoffrey Stone: So as David
said in the first iteration in which the Supreme Court addressed
the First Amendment question about whether these prosecutions under the Espionage Act
were constitutional, Holmes wrote these opinions, basically adopted the bad tendency
test, and affirmed the convictions without really writing a
serious opinion at all. And then over that next
summer he spent time thinking about free speech, the war
had ended, talking to people who had been critics
of his opinions, some academic, some
lower court judges. And comes back the following
fall, only a few months later, and writes a stirring opinion in which he now says you cannot
punish speech unless it creates a clear and present danger
of serious harm and launches the judicial tradition
of the protection of free speech that we now live with today. But that was also very much
the product of the fact that he did one thing, he
learned from that experience in only a few months to
his credit, came around, didn’t admit he was wrong, of
course, but came around and –>>Jeremy Kessler: Which he
never did about anything.>>Geoffrey Stone: Right, never
did about anything, right. Basically maintained all those
earlier decisions [inaudible] right, but never explained how they
could possibly be reconciled with his new approach. But then he became — he became
really the initial spokesperson for the idea of a really robust
meaning of the First Amendment.>>Megan Ming Francis: In terms
of what war does, I think for me and thinking about the NAACP or black political
activism during this time, I think it made them
reevaluate what was meant by citizenship in this
country, right? And I kind of — these treasured
American ideals, such as freedom and democracy, especially for those
who had volunteered for these kind like separated camps for
training and those who had gone and also come back, right? And I think especially for
those who served and came back and the violence that
occurred to them, and so I think one the well-known
examples is the African American soldier who’s wearing his —
wearing his uniform in the south. I forget what city he’s in. He is then harassed and then
his eyes are gouged out, in part because they
find it so offensive that this black man could be
wearing the uniform, right? And so there’s all these
different moments of violence. And I think for them it
actually I think fueled them to push harder, right? That if you want us to serve and die for this country then you all
got to do some more, right? And I think — I mean,
just to pull a little bit on what Geoff was saying here about
Holmes, he’s a fascinating justice. But I think it wasn’t just
for the NAACP and or, right, like African Americans,
that kind of — that pushed them to reevaluate what
citizenship means in this country, but also for political elite. So one of my favorites Supreme Court
cases is Morvey Dempsey [assumed spelling], a case decided by
— a case decided in 1923. Holmes is going to write
the opinion of the court. And basically it’s a case around these 12 African
American men Arkansas, and which is the first case in which
the federal courts get involved in a state criminal court trial. And he’s like, hey, you know what,
mob dominated trial that kind of violate the due
process clause, right. I don’t know. But, and it’s an important
— and it’s really important. I mean, on previous cases
that Holmes I think had been on the right side of history,
but he hadn’t been able to get his fellow justices
on his side. And so this is kind of his
big vindication for him. So it’s not just, I think, kind
of those on the ground or those who were marginalized, I think it’s
also those elite, political elites, again who are — who are
reevaluating this notion.>>David Rabban: Thanks. So how — yeah, this is like
one of the biggest problems that I think I’ve struggled with. And I know Mary has — Mary and many
other legal historians have really shed some light on,
how to deal with the — what is the causal relationship
between war as this kind of an event, a sort of
exogenous shock to the system, and then the individual, whether
it be executive official or judge or social movement activist? I think that one way
of getting at that, and it’s actually been
suggested in some of David and Megan’s remarks just now,
is to introduce a third category between the two, which are
longer-term and long-running social, cultural, and economic conflicts that predate the war
and that postdate it. I think it’s really
important to understand that war emerges precisely
from the social, cultural, and economic conflicts, both
nationally and internationally, and that war then does indeed
overdetermine those social, cultural, and economic conflicts. Now, how does it overdetermine it? Here I think like I would — I would
point to Geoff’s point about unity. So you have a war. It’s complex and we argue
over why exactly it emerges at a particular time. But once we decide we’re going
to have a war, unit, unity, collective sacrifice,
rationalization, all of these, this is needed. On the one hand that push
for unity will indeed kind of sometimes suppress many
of the social, cultural, economic actors involved in
the preexisting conflict. So on the one hand that search for unity will kind
of shutdown conflict. But on the other hand, the very
fact that the state needs unity to run the war actually
renders it vulnerable, and perhaps newly vulnerable to
some of these conflicts and to some of these social forces
involved in them. So precisely to get the unity
that’s needed to fight the war, the state needs to begin to try to
conciliate some of the conflicts that previously could just burn. You know, did not — did not — the state did not necessarily
have an immediate reason to deal with some of the conflicts and
with some of the social movements or social groups prior to
needing everyone to come together to fight the war effectively. So that — I would — I would
introduce that third category, mediating between the individual
and the war event as crucial.>>Mary Dudziak: Yeah, this
is interesting and helpful. And as you were speaking I was
thinking of, it’s Randolph Bourne, right, who says, war is
the health of the state. And that it’s, you know,
in war that people sort of see the state, he said. And so this sort of connection
between moments when there’s a need for sort of broad-based support
for a government project, which we call war, you know, that’s
a point when there are these sort of — as well as sort of the social
and cultural dynamics that come out in the First Amendment context,
the importance of, you know, forms of state formation and their
relationship to the polity, the war and the health — the health of
the state we’re seeing happening. I would just say as an aside, that
this idea about the need for unity, etcetera, you know, we can
probably be on the same page right about through World
War II on that story, and then of course American
history starts looking differently, lots of ideas about how
and why that happens, but really beyond the
scope of the panel. Can I just ask a Holmes question,
Holmes and, more broadly, thinkers at this time, because
as you’re talking about Holmes, who is so important on the
Supreme Court at this point, and Holmes is one of the many
important, in this period, Civil War veterans, right? And Holmes, when he was in the
war, talked about it as barbarism. You know, and he himself
was injured could have died, and really talks about
war as barbarity. And then later on, I
think was in a — in a — in a graduation address in
1895, you know basically talks about how wonderful it is, you know, to have had the opportunity
to participate in war. And so he goes from
hating war as barbarous to celebrating young
men going off to sort of sacrifice their lives
for, you know, anything. And then in Congress, the members of
Congress who declare war on Germany, there were I believe it was 16 Civil
War veterans in Congress who sort of came together, the blue and
the gray, to march with Americans who were being drafted
for World War I. So there’s this sort of
intergenerational thing happening, and I just wondered what you think
either with respect to Holmes or other important actors? How is this sort of Civil War
memory experience filtering through their thinking
about World War I?>>Geoffrey Stone: He was
looking at something –>>Jeremy Kessler: I’m trying to
look up his language in the — even in the case, whereas
Geoff said, he first offered a vigorous
defense of the right of free speech. He said, right before that,
prosecution of opinions with which we disagree is
perfectly natural and predictable. If we were sure of our
convictions we would enforce them. It was an anti-free speech prelude
to a pro free speech statement, and he said, but often
we’re not so sure. That’s — but I would
say his experience in the war made him
skeptical about rights, made him respectful of power. And it — he had to overcome that
to get to his pro free speech fuse. They didn’t help produce them
would be my interpretation.>>Geoffrey Stone: Yeah,
I think that’s right, too. I think that’s right, too.>>David Rabban: One, I think
the Civil War background is very important. But so, too, more proximate in time to World War I I would say is
say is putting these actors into the context of the imperial
moment the late 19th century. And in both in the
United States and in — and in the UK, and in Europe at
this moment, what you really see at the turn of the 20th century is I
think two extreme views of violence that were perhaps at their most —
their kind of modern popular height, and that after this
moment we’re going to see an interesting new third
possibility, or synthesis emerge. So the two extreme
views are pacifism. Pacifism is huge at this moment. Now, not everyone felt this
meant the same thing by pacifism, but it’s astonishing the number. I mentioned that the
secretary of war and his second-in-command during
World War I was a pacifist and had been members of the — some of the major international
pacifist antiwar organizations in the world at this moment. So on the one hand you have
this rich culture of pacifism, on the other hand, in this — I
think we see in the later Holmes, the 1895 Holmes, you have the idea
of regeneration through violence. There is this worry about decadence. There’s some — there’s this worry about industrial civilization
leading to weak bodies and weak minds. And there is a cult of
violence that emerges at the — at the turn of the 20th century. What I think begins to
happen after World War I, and is very much associated
with America — what we call American liberalism,
midcentury liberalism for better or worse, is a — the emergence of
a third position that is comfortable with war, relatively
comfortable with war, does not consider it a
absolute moral nightmare, but thinks it can be wielded
or managed constructively for the betterment
of global society. And that is a position that doesn’t
really exist prior to World War I.>>Mary Dudziak: Yeah.>>Jeremy Kessler: I’d like to read
the six sentences or so of Holmes. Could I?>>Mary Dudziak: Of course.>>Jeremy Kessler: Holmes
was a brilliant writer. But I do think this is
like the major indication of the shift in his own views. And you’ll see some very
familiar language here. So this is Holmes in Abrams. Persecution for the expression of opinions seems to
me perfectly logical. If you have no doubt of
your premises or your power, and want a certain result
with all your heart, you naturally express your wishes in
law, and sweep away all opposition. To allow opposition by
speech seems to indicate that you think speech is
impotent, as when a man says that he has squared the circle, or
that you do not care wholeheartedly for the result, or that you doubt
either your power or your premises. That’s not very free speech, is it? But when men have realized that
time has upset many fighting faiths, they may come to believe
even more than they believe in the very foundations
of their own conduct that the ultimate good desired
is better reached by free trade in ideas, that the best test of
truth is the power of the thought to get accepted in the
competition of the market, and that truth is the
only ground upon which their wishes
safely can be carried out. That, at any rate, is the
theory of our Constitution. It is an experiment, as
all life is an experiment. That’s how Holmes changed his views. And he became — he
doubted the very foundations of his own thoughts
about free speech. I think he’s expressing here
the change in his own views as a very powerful defense
of free speech, okay. He’s a good writer,
right [laughter]?>>Mary Dudziak: Did you –>>David Rabban: I’m good.>>Mary Dudziak: Okay. So do — let’s — do we — do we want to think a
little more about courts? And maybe we start
with Jeremy and Megan. And you’re talking about activities
that are happening outside of courts, but to what degree does
the — what the court’s doing? Because a lot of times when we
do civil liberties now we tend to focus especially on courts. It’s been important to think outside
of courts, but then I kind of wonder about the relationship either
between social movements and what’s happening judicially,
or courts as sites of, you know, coming together, like
criminal trial, as places where communities
get mobilized? But, so how do — how do
courts relate to your project? And then coming back
to David and Geoff, what are the broader stories
outside of these [inaudible] cases that we can think about with
regard to courts during this era?>>David Rabban: So
two thoughts on that. So first, to the extent
that one accepts this idea that where civil libertarian
rights come from, what produces them is the exertion
of state power, that the provision of civil liberties is a function
of the state to giving it to masses of people, courts are not going
to be the obvious institution that is providing those civil
libertarian rights courts. Courts adjudicate individual cases. And in cases of controversies
they do establish precedence that then bind the populace as
a whole, but generally we tend to think of legislatures
or administrative agencies as in a much better position to
craft policy for an entire polity, or at least large social groups. So if — so if one
accepts kind of my story, then that’s one reason
why you would think that non-judicial institutions
are the more effective supplier of civil liberties and civil rights. However, my second point is, I think
in general one just doesn’t want to make the mistake of being
formalistic about this. Of thinking that there
is some, and this is — this is an idea that it’s
very difficult to resist in the legal academy,
that there is some kind of essential institutional
competence that one branch of government as opposed to
another branch of government has. I think the main reason
why the NAACP and the ACLU in its early years and
labor activists went to the Wilson administration and
then the Harding administration, and the [inaudible] administration,
and the Hoover administration, and the FDR administration
throughout that entire period is not because they had that theory
I just had about, you know, the different — the different
competencies of these institutions as such, but is because they saw
the federal courts as being occupied by their class and social enemies,
and they were very clear about that. That the federal courts were largely
populated by very elite social group and were almost entirely
unsympathetic with a few notable
exceptions to the claims of marginal social
and economic groups. And so they just said, well, we’ll
don’t really think they’re going to help us out that much, no
matter how clever our arguments.>>Megan Ming Francis:
So for me in terms of the NAACP during this
period, kind of what the role of courts here, I mean,
the way that I end — the way that I end my book
project is a chapter on the courts. What the NAACP does, right, is they
focus on these different branches of government and then the
argument that I make is that there’s this big Supreme
Court case that happens in 1923. And the NAA — and part of
the reason why, a little bit, very kind of similar to what
Jeremy here is talking about, the reason why they’re — it’s — they’re not going to courts
initially is because they don’t find that courts, or think that courts
will be friendly, especially trying to litigate cases around criminal
procedure in the south, right? They don’t believe that local
and state courts will decide on their behalf, and nor do
they think that they’re going to be able take these
cases outside of the south. And so that at some level was a
nonissue, and you go through kind of the early, at least first
decade of the NAACP papers and board minutes, and
it’s like a nonfactor. They’re not — I mean, every now
and then somebody will bring up, oh perhaps, right, in terms
of their legal division that perhaps we should like file
court case and it’s dismissed because they don’t
think that they’re going to make any types of
inroads in courts. This horrible incident
happens in 1919, and they eventually then begin
legal proceedings in the state of Arkansas, and then
they eventually are able, by a mistake at some
level, they’re able to — they’re able to get the
case outside of the state of Arkansas into the Supreme Court. But there was this — I mean,
the way that they also talk about things, if they can
just get it into the kind of the federal court system
at least then perhaps — then they’ll actually
have a fighting chance. But part of the reason they’re going
to focus more attention on courts, and this is what I argue
at the end of the — of the teens and the early 1920’s,
is because they’re not getting that much from the
presidents, right? They’re not getting
that much on the ground. And they’re — and Congress, and these anti-lynching bills
are dying in committee, right? So nothing is moving. And so the way that I, at least I
understand the NAACP’s relationship to courts in the first quarter of
the 20th century, it’s the last kind of — the last frontier in terms of a federal government
institution for them, right? They get this big win and the
argument obviously that I make is that it then puts them on a new
path of development and a new way of seeing kind of the pathway
forwards for civil rights. And then they begin this massive
obviously campaign at the end of the 1920’s, beginning of the
’30s, around education segregation. But initially, kind of courts
are not viewed as friendly. They are viewed — courts outside,
more friendly I think later on, but that was only as a result of
these other branches of government, at least in their eyes not getting
— not getting what they want.>>Jeremy Kessler: So I just
want to refer to a book published by Geoff’s colleague, [inaudible],
others have mentioned all ready, and she emphasizes correctly
that the ACLU in its early years of existence following World War I
expressly did not go to the courts to vindicate free speech claims. They went to administrators. They worked on their own. They had no hope for the courts
because the courts were — had been so unsympathetic
of free speech claims. Laura’s [assumed spelling] probably
most innovative argument I think is when the ACLU ultimately turned
to the courts in the ’30s and got some free speech victories. They were double-edged. And I think her book is called
The Taming of Free Speech. And her point is, the ACLU’s
more progressive interpretation of free speech was compromised
when they worked kind of across the political spectrum
and tried to get the Supreme Court, a more receptive Supreme Court,
to accept free speech arguments. So that’s one thing I wanted to say. The second thing, I don’t know
how many of you are lawyers here or have come across this argument. I was taught, I think I was even
taught this in high school civics, but it came through in law
school, what is the role of the unelected judiciary
in the system of government in the United States? How can you defend that? And judicial review is
stronger in the United States than virtually any other
country in the world. It’s because the judges could
defend individual rights, such as free speech,
against popular majorities, the people generally,
even the legislatures. That was overwhelmingly
the lesson in law school. So I was surprised. I did research on the
history of free speech, and I wasn’t investigating
this issue. You know, there was no
institution less sympathetic to free speech claims than
the American judiciary. I’m saying compared to police
commissioners were more sympathetic, okay. So that’s just a fact. And it makes me wonder. You know, it’s true that the
courts during [inaudible] in court, did protect individual civil
liberties, including free-speech. I wonder whether that might be an
exception to the long tradition. Anyway, the history of repression
of free speech casts doubt on the alleged role of the judiciary
that’s protecting individual rights.>>Geoffrey Stone:
So I would build on, or vary a bit from
what David just said. One of the questions one might
ask is, why do we have a judiciary that is authorized to
interpret the Constitution, and to override the judgments of the
elected branches of the government, at least with respect
to certain areas that are governed by
the Constitution. And the reason for that was
that the framers understood that majoritarian rule
was dangerous. It had obvious advantages
relative to a monarchy, but it also was dangerous
because majorities will misbehave. And one of the reasons
that they settled on adopting ultimately a Bill
of Rights and looking explicitly to the courts to be the ones
who would enforce that was because with life tenure and
with the training and enforcement of the laws, judges
would have insulation against the political
process and would understand that their responsibility was to protect those rights
against majorities. Now, in a more refined
view, the precise areas in which I think courts are
most needed are those situations in which laws disadvantage
historically oppressed groups, disadvantaged groups, who are likely
to be disadvantaged in majoritarian and political process because
they’re not adequately represented. And also, when the political
process attempts to redefine itself, either through the electoral process
or through regulating free speech in a way that perpetuates
its own authority, it keeps itself in
office indefinitely. Those are the two areas in
which it’s most important for judges to be aggressive. So the question then is, why haven’t
judges always or often, in fact, fulfilled those responsibilities? Part of it is, judges have
been reluctant in many times in our history to override
the judgments of the elected branches
of government. They’ve been timid
in their willingness to exercise a responsibility. Second is that sometimes they have
not their responsibility correctly and they thought they were
originalists or whatever and didn’t really understand
what constitutional law from their perspective was
most fundamentally about. And I think that the war in court I
think was probably the best period of American history in which if you
look at the decisions of the war in court, they actually
did a pretty good job of fulfilling the two particular
areas that I identified. That is, protecting against one —
guaranteeing one person one vote, [inaudible] wide range of
restrictions on freedom of speech, and guaranteeing in Brown and
Board of Education and Loving versus Virginia the
rights of minorities. But I think that’s been kind
of an anomaly in our history. And part of the problem is that
presidents have appointed justices with goals other than that, and those goals are often completely
incompatible with those values. So you see the current Supreme
Court, for example, holding things that campaign finance
laws unconstitutional, and holding affirmative action
unconstitutional, and those are two of many possible examples, or I would say are just total
abuse of judicial review. They are not enforcing
what the responsibility of the courts is to enforce. So the idea of having courts with really strong judicial
review is a great idea. It’s a critical and
valuable component to a well-functioning democracy. But you’ve got to have judges
who under what their job is, and too often in our
history they haven’t.>>Mary Dudziak: So helpful. You know what I’d like to do
is, we’ve got a few more minutes and then I want to have
your questions and comments. And why don’t — why doesn’t
everyone say a little bit about, because so much happens
right after 19 — you know, so the Red Summer of 1919. There were race riots, you know,
right at the end of World War I. There is also a Red Scare that
breaks out in, you know, 1919. And after [inaudible] rather then
we go from period of repression to period of celebration of rights, we go into another
period of repression. So, you know, can you say a
little bit about what you think of as this sort of legacy, or sort
of aftereffects of this period, what kind of trajectory are we
seeing for civil liberties coming out of the World War I years? Go ahead.>>David Rabban: So I would say that
clearly both the Red Scare and then, you know, famously the
republican administration of the 1920’s are not — even
before we get to the Red Scare or republican administration
of the 1920’s, I actually think perhaps
the most salient phenomenon, at least for the civil liberty — the civil libertarian
story I would want to tell, which the puts the
administrative state, puts the nontraditional federal
government at center stage, is immobilization,
wartime demobilization, which is one of the major
causes of the Red Scare, because it creates both a
massive unemployed population, soldiers return and don’t haven
jobs, and creates a massive — there’s a inflationary spike. And you have — so you have
massive social and economic unrest, and this is the — this is the
political economic background of the Red Scare. So that decision to demobilize,
which many progressive thinkers and many wartime administrators
did not want. There was a fight over the
politics of demobilization. Many wanted to continue to extend
the administrative experiments of the war era into the peace, and
that would include these elements of a civil libertarian or
perhaps potentially civil rights bureaucracy maybe. The main reason why
that doesn’t happen is because of Wilson’s commitment
and the commitment of the sort of large — most of the
legal and political elite to rapid demobilization, as
well as many ordinary Americans. What you then see, though, is it
only takes you about nine years from the decision, or 10 years,
from the decision to demobilize to the beginning of
the Great Depression, where already under Hoover you start
seeing actually Hoover resurrecting at the end of his presidency
a number of the administrative experiments
of World War I period and trying to put them into play in
order to manage the economic and social unrest at the
beginning of the Great Depression. And then FDR just puts that into
really high gear with a more, I would say, civil libertarian
and labor — pro labor slant. And I would just point to — for sort of direct continuities
from the National War Labor Board to the NLRB, the National
Labor Relations Board, from the kind of maverick
war department experiments with conscientious objection
in World War I to the creation of the Selective Service System
and the Civilian Publics — Civilian Public Service
of World War II, which really just amplifies
Frankfurter’s vision. And then finally you have the
creation of the Civil Liberties Unit in the Justice Department,
now the Civil Rights Division. And ’39 making good, I think, on
both some of the anti-lynching — some of the administrators who
were sympathetic to anti-lynching at the World War I period, and
also a more rights protected vision of a — of what the
DOJ should be about.>>Megan Ming Francis:
I think you see — I’m going to focus
on three things, too. I’ll go very quickly. One I think, especially for the
NAACP, I think post, I think, World War I this [inaudible] kind
of reevaluation of citizenship. And there’s new ideas that never
leave them because of, I think — I think, the war that they
then go and fight for. I think that a lot of obviously
what happens in the ’50s and ’60s, a number of these rights
movements, not just the NAACP, not just the Urban League, but a
lot of them get like constituted in the late ’20s and in the ’30s. Second, I think one of the
things that comes out in part because some African Americans
are filling jobs left by those who are — who — of those who
got drafted, as well as kind of new understandings is part of the
great migration, but labor becomes, I think, it’s always been a huge
issue for African Americans, but I think postwar
you see more calls, especially in civil
rights organizations, to focus on discriminatory wages and
the issue around peonage farming, sharecropping in the south,
and this is obviously — I mean, for those who know
a lot about W. E. B. Dubois, he very much has like
a transformation in what he thinks is
a critical issue for African American
advancement, and that is labor. The big thing for me, and part of
the work that I do that you see for me coming out in the — in the aftermath of the war is
for the NAACP, and I think it’s — I think it’s transformative,
a re-understanding of — like a new understanding,
I should probably say, but how to fight for rights. And so they move we know from a
huge focus between around 1909 and about 1925, ’27 to a
focus on education, right? So they get this big grant from an
organization called The Garland Fund in 1931, but they’re in talks about
this grant between 1927 and 1928. And there’s this whole new
idea that, oh my goodness, the NAACP has this big case 1923. The NAACP is an organization
that can fight for civil rights. The Garland Fund was an
organization about — funded by white radicals that
really believed the way forward was through, at some level,
labor and education. And so they really
believed and wanted to fund this big campaign
around education. The NAACP’s leaders,
Johnson and White, were both very actually
resistant about that idea. They were like, no,
we actually still need to focus on racial violence. It’s still a critical issue. Education is not going to be kind
of the issue that rights are going to actually turn on, because African
Americans can still get killed. They didn’t really care. And I’m nothing saying that education is not a
radical issue, I do think it is. But I do think in terms
of some of these moments, especially if you look at
the trajectory of the NAACP, they kind of post theories,
not obviously exclusively, but they become very much focused
on this issue of education. And you see this very, I think,
like sharp turn actually happening in 1931, 1930, between
1931 and 1933. And so for me, in terms
of the NAACP, that is a big shift
that happens postwar.>>Jeremy Kessler: So I can be brief
because my expertise largely runs out [laughter] after World War I. But my impression is,
I think it’s consistent with what you two have been saying. It really took into the
’30s for civil liberties to become the real focus of widespread popular attention
and judicial attention. So the war changed many people’s
views, but it took another decade to focus on civil liberties. So there wasn’t that
immediate impact, my sense is.>>Geoffrey Stone: I’ll take a
somewhat different tact on this, which comes out of the fact that I just published a book
called Sex and the Constitution. And it said the generation
that went through World War I, that is the soldier age generation,
came out of that war with a sense that the world was not, as
they had been born into it, was not such a great place. And that led to the ’20s and to
this era of much greater degree of freedom in their
individual lives. And so one began to see a much
greater movement towards the legalization of contraception, a much greater movement towards
limiting the laws against obscenity, a openly gay culture in New
York, Chicago, Los Angeles, and other cities, which
began to sort of burgeon, and that part of the society
really came into the light. Unfortunately, with the
depression it was stamped largely out of existence. And indeed, particularly the
gay part of that culture, largely disappeared even from
historians until the last 15 or 20 years when historians
went back and unearthed it. But clearly one of the consequences of the war was this very different
attitude towards day-to-day life, particularly in these areas
to sexual freedom and openness and living your life in a happy way.>>David Rabban: Could I
just jump very quickly, Mary, on Geoff’s last point? I mean, when we focus on
institutions, and I think Geoff has like nicely reminded us the risks
of that just now, the ’20s can look like a period of senescence
from a variety of angles. But in point of fact, nothing
that happens, even if you accept that at the institutional
level, nothing — almost everything that’s
being done during the new deal at the institutional level
is being done by folks who themselves are veterans
of the World War I moment, whether that be soldiers
or often, more importantly for these new legal institutions,
administrators, low level bureau — folks who are low level bureaucrats
during World War I, or were involved at the rank and file
level of unions, they’re around during the ’20s,
they’re organizing, they’re writing, they’re associating, they’re
creating new organizations like the ACLU, and they’re
ready to go in the ’30s.>>Mary Dudziak: So interesting. So let’s — yes? [ Inaudible ]>>Jeremy Kessler:
So, David, go ahead. You probably have a
more structural — I have two incidents to
mention involving Germans that I think are interesting. But, go ahead.>>David Rabban: So what I — what
I was just going to — on the — one of the things, I really think
the striking things as you pointed to is the different vis-a-vis German
Americans, there’s a difference in their treatment between World War
I and World War II, and a great deal of that, and it’s something
that the lawyers and the administrators
are hugely conscious of, is the different degree
of latitude local mobs and local collectives were given
in World War I versus World War II. The kind of all — like
the postmortems provided by John Lord O’Brian and
a host of progressive — young, middle-aged progressive
lawyers immediately afterward World War I, and then during
the Red Scare, is — and even that’s their analysis
of the Red Scare itself, even though it’s being led
by an Attorney General, is that what this really
is, this sort of oppression of German Americans and then other
foreign [inaudible] Americans is a problem of mob rule and the answer to it is further centralization
of state power. And there’s this amazing moment when Robert Jackson becomes Attorney
General, and they see the war coming and it’s 1940, in the spring
— early spring of 1940. And Robert Jackson all of a
sudden, Felix Frankfurter, Harlan Fiske Stone sitting
on the Supreme Court, and a number of other World War
I officials all send Jackson all of the materials they produced
during World War I and immediately in its aftermath talking about
precisely this problem of the need to crackdown, not on
disloyal Americans or traders, but rather to crackdown on
patriotic organizations. And actually Jackson and Hoover, J.
Edgar Hoover are utterly committed to the repression of
loyalty leagues and other — the American Legion and
other patriotic groups, because they identify
that as at least one of the main drivers
of anti-Germanism.>>Jeremy Kessler: So I wanted to
make two points through examples. One is, although socialist
opposition to World War I was kind of the major category of defendants
who were prosecuted and convicted under the Espionage Act, there were
quite a few cases involving German Americans who kind of praised
the Kaisers, we have no fight with the Kaiser, and that was enough
to be considered to have a tendency to cause insubordination
and to obstruct recruitment. So there’s that example. Also, I’m interested in the history of academic freedom
as a separate right. And when the classic defenses of academic freedom
came during World War I, there was a German professor at Harvard I think named
Musterberg [assumed spelling], something like that, who said
we shouldn’t get into a war with Germany and praise
German civilization. And a major donor to Harvard
threatened to withdraw his pledge of $20 million, when that
was real money, you know. And the president of Harvard
said, we are not going to monitor the speech
of our professors. Our job is to worry about academics. His views about politics, it’s
up to the state to monitor. So this was kind of a major
defense of political rights anyway, and limits of the role
of universities in monitoring political speech, having to do with a
German American professor.>>Geoffrey Stone: And one
other point about this which is, it’s important not to forget
about the Japanese and German. The fact is that, you
know, a, when you think about the current situation to remember what we’re
capable of as a nation. And second, the distinction
between how the government chose to treat Japanese Americans
and German Americans, right? German Americans, well, we can tell
the good ones from the bad ones. That was literally the policy, the
Roosevelt administration, right? And it’s also worth remembering that
J. Edgar Hoover opposed the Japanese and German, in terms
of giving credit where credit is rarely
due [laughter].>>Jeremy Kessler: The early Hoover.>>Geoffrey Stone: The
early Hoover, yes, right. The [inaudible] Hoover. And Felix Frankfurter voted to uphold the Japanese
and German by the way. So — [ Inaudible ] And so did Robert Jackson. [ Inaudible ] Oh, he did not, right,
that’s right, correct.>>David Rabban: Political question.>>Geoffrey Stone:
He [inaudible] right.>>Mary Dudziak: In the green. [ Inaudible ]>>Geoffrey Stone: It’s not
too late to go to law school. [ Inaudible ] It’s not too late to
go to law school.>>Jeremy Kessler:
Don’t do that to her.>>Geoffrey Stone:
Don’t do that to her.>>David Rabban: Don’t
do that, no [laughter]. [ Inaudible ]>>Geoffrey Stone: You know, I
think it’s a semantic question that doesn’t carry a lot of weight. If I were going to simplistically
answer it I would talk about civil liberties being freedom
of speech, freedom of religion, and civil rights being
more about equality issues. But there’s a lot of
stuff besides that. I’m not sure which
box I’d put them in.>>Mary Dudziak: Yeah.>>Jeremy Kessler: Me, too. [ Inaudible ]>>Mary Dudziak: Okay, can I just
say on the gender point, of course, this was — the World War I
years were when Jeannette Rankin, the first female member of
Congress, before women had the vote, her first — Wilson called
Congress into session early so that her first day in Congress
was his World War I declaration speech and her first vote, that’s
right, was against the war. [ Inaudible ] Yeah, she the only — and
the only term she served in Congress were the term when
Congress voted on World War I and the — and the term that
Congress voted on World War II.>>Geoffrey Stone: So
it was all her fault?>>Mary Dudziak: But really,
but this shows us something about politics, which is, you
know, there was — that she — many people argued for war
referendum after World War II. Let’s not go into a foreign war like this unless there’s a
public referendum over it. And on some level Americans
do have war referenda, right? When she ran for Congress again, members of her constituency
could vote against war in 1940 by voting for Jeannette Rankin. So, you know, so that’s
how voting — the public voting about war happens. It happens through voting
for candidates like, you know, Wilson in 1917.>>Jeremy Kessler: Just in terms
of free speech, the major defenders of free speech before World
War I were defenders of people who were called sex radicals. And I was fascinated to learn that
the first prosecution [inaudible] for obscenity involved not something that we would consider obscene
today, but radical speech about sexual relations
between men and women, and particularly it was a
radical attack on language. So you probably just
see a recent book, there was this pamphlet
called Cupid’s Yokes. It took me forever to find it.>>Geoffrey Stone: I got it online. It was like that.>>Jeremy Kessler: See, that’s what’s changing
in the last 20 years. You know, I found it in the
New York Public Library. So like, what did people
think, you know, would be obscene, salacious in 1873? I find this pamphlet. Okay, people are different
in different times. But it was inconceivable
to me that anyone in 1873 could have considered
Cupid’s Yokes salacious or titillating. Basically, Cupid’s Yokes — it
was an argument against religious and state regulation of marriage. Rather, people should
be confined only by Cupid’s Yokes, the yokes of love. And what prompted the prosecution
of Cupid’s Yokes were not, you know, sexually explicit passages,
but statements such as marriage is a form of
slavery, a prostitute is bought for a night, a wife becomes
a prostitute for life. So I just thought that was
relevant to your question.>>Mary Dudziak: Just
two little points and then I want to take questions. But, you know, of course the
women got the vote, you know, in part out of World War
I when Wilson finally came to support the suffrage movement, after the women’s suffrage
moment had basically promised to support war. So they had a sort of a partnership. But, so the other thing
is, in terms of books, you and D.C. have someone local,
Michael Kazen [assumed spelling], who has a new book about
pacifists during this era, and I highly recommend, you know,
keeping an eye out for book talks. I know there had been a
couple more questions. If I can take questions now.>>One?>>Mary Dudziak: Just —
I was going to say, ask — get a couple of people to
ask questions now together, and then we can do sort
of lightning answer. Yes? [ Inaudible ] And is there another question? No? Okay. Yes? [ Inaudible ] But make it quick. Sorry. [ Inaudible ] Geoffrey Stone: The Sedition
Act was repealed in 1921. The Espionage Act is
still on the book.>>Jeremy Kessler: Right, and I know
the answer to your second question. I can be quick.>>Megan Ming Francis: I think
it just — it changes over time. And groups tend to be — try to
be strategic about where they go.>>David Rabban: So on that
question I would say that, you know, there is a kind of [inaudible]
in our history in the sense that Madison, going back to
federal 10, makes the argument that larger republics,
because they will like — because they will give [inaudible]
too many different interests, will tend to be less to
tyrannical than smaller republics. But I actually agree that it
probably just changes over time. [ Inaudible ] I do want to take the
opportunity, though, because I thought the
immigration point that you raised is really
well taken, both this idea that the massive demographic
shifts of the late 19th and early 20th century I do think
are a profound material basis of both the First Amendment — First Amendment struggles
and the labor struggles of the period we’ve
been talking about. And it also is [inaudible]
not too much excitement about the green shoots
of civil libertarianism that we’ve been recounting
to some extent, right, because what do you have ’23, ’24? A massive system of
immigration restriction. And then what do you have
along with Japanese internment, but Geoff rightly emphasized,
you have the Smith Act in 1940 and you have a new massive wave of
deportations and denaturalization, every bit as destructive personally, and I think probably more
destructive at a policy level, of foreign born Americans during
World War II and the 1950’s.>>Ryan Reft: So that wraps up. And I’d like to thank our panel. I thought that was a great
discussion [applause]. And I’d also just be remiss
not to mention, you know, the next three days in the Jefferson
Building we are having a LGBTQ pop-up exhibit to celebrate
gay pride month and the parade that’s
coming on Saturday. So please do check that out. And if you get a chance, check
out the Drawing Justice exhibit and the Echoes of the
Great War exhibit also in the Jefferson Building. And you’re all invited
to drinks and [inaudible] in the next room afterwards. See, I’m not — I probably
said that wrong. But, thank you very much
for coming [applause].>>This has been a presentation
of the Library of Congress. Visit us @loc.gov.

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