From the SelectedWorks of Steven R Morrison
July 30, 2013
The Conspiracy Origin of the First Amendment
Steven R Morrison
Available at: http://works.bepress.com/steven_morrison/29/
THE CONSPIRACY ORIGIN OF THE FIRST AMENDMENT©
BY STEVEN R. MORRISON‡
©
Copyright 2013, Steven R. Morrison.
Assistant Professor of Law, University of North Dakota School of Law. I would like to thank Maura
Roessner, of the University of California Press, for her support. This article could have have been possible
without the support of Dean Kathryn R.L. Rand, of the University of North Dakota School of Law. All
errors are my own.
‡
Abstract
Scholars and jurists have misunderstood the import of three seminal 1919 First
Amendment cases—Schenck v. United States, Frohwerk v. United States, and Abrams v.
United States—as primarily free speech cases. They are better understood as free
assembly cases. This is important for two reasons. First, individuals’ speech has the
intended First Amendment effect only when speakers combine into groups. Second, the
1919 cases were the beginning of substantive First Amendment law, and so have resulted
in a First Amendment jurisprudence that favors individual rights over group rights. This
is a constitutional and normative mistake. Combined with the first reason, the preference
for individual speech rights hinders social change that is supposed to be supported by
robust First Amendment rights.
The application of criminal conspiracy law in the period from 1918 through 1927 was the
primary method by which the government pursued dissident groups. Conspiracy law, of
course, is not concerned with lone street corner protestors but with combinations of
organized individuals. The Espionage Act, Sedition Act, and State Criminal Syndicalism
prosecutions that characterized this period were, indeed, mostly conspiracy cases. As
such, they were preoccupied with groups, and not individuals.
This article traces the social, political, and legal history surrounding the World War I
era to make its argument. It responds in part to Professor John Inazu’s 2012 book,
Liberty’s Refuge, in which Professor Inazu shows how courts undermined First
Amendment rights by creating and then preferring a First Amendment associational right
to the textual assembly right. This article fills in some of the blanks left by Liberty’s
Refuge, but it goes one step further, arguing that individual speech rights have been
preferred over both assembly and association rights. Although this article recognizes a
different (but not mutually exclusive) jurisprudential wrong turn, it shares Inazu’s
concerns about the shape of First Amendment rights and their effect on democracy.
2
Table of Contents
Introduction
II. First Amendment
a. Framing the First Amendment
b. States’ Prerogatives
c. The Alien and Sedition Acts
d. Conspiracy and the First Amendment
1. Interest Brinkmanship
III. Schenck, Frohwerk, and Abrams: Substantive First Amendment’s Birth
a. Schenck v. United States
b. Frohwerk v. United States
c. Between Frohwerk and Abrams
d. Abrams v. United States
IV. The Historical Context: 1877-World War I
a. Dangerous Times
b. Fearful Times
c. Social Upheaval, New Realities
d. A Calm Before the Storm
V. The Historical Context: World War I
a. War, Censorship, and Violence
b. The Conspiracy System of Repression
VI. The State Syndicalism Cases: 1918-1921
a. The Early Cases
b. The Role of Conspiracy
c. The House That Jack Built
d. The Principle of Layering
VII. The Red Scare: 1920
a. The First Shots
b. The Red Raids
1. Colyer v. Skeffington
VIII. The State Syndicalism Cases: 1921-1925
a. The Cases
b. Conspiracy, The First Amendment, and Group Criminality
c. Career Government Witnesses
d. Defining Groups, Ensnaring Individuals
IX. Winding Down the Red Scare
Conclusion
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Introduction
In his 2012 book, Liberty’s Refuge,1 Professor John Inazu argues that the Supreme
Court took a wrong turn in First Amendment jurisprudence first by recognizing an
atextual freedom of association in 1958,2 and then applying associational jurisprudence to
the detriment of the now-moribund right of assembly,3 which is explicitly set forth in the
First Amendment. A compelling, but short, argument, Inazu’s book deserves annotation
by other scholars. While this article adds to Inazu’s argument, it primarily makes an
important First Amendment discovery in its own right.
In the pages that follow, I argue that the World War I-era application of criminal
conspiracy law against unpopular groups was the incubator in which incipient First
Amendment values emerged as substantive rights in the seminal 1919 cases Schenck v.
United States,4 Frohwerk v. United States,5 and Abrams v. United States.6 These cases
are viewed as free speech cases,7 but I argue that they—and the countless other
conspiracy cases in the 1918-1927 period that overshadowed the trio—are more
appropriately seen as freedom of assembly cases. This is so because virtually all of these
cases involved defendants who were supposed to have acted or spoken as part of a larger
group, rather than on their own. Indeed, it was groups with which the government was
concerned, not lone dissidents. If the 1919 cases were primarily assembly, rather than
speech, cases, then misreading these cases primarily as speech cases has biased
subsequent First Amendment jurisprudence in favor of individual rights and against
collective rights. While Professor Inazu recognized the problem of preferring
associational rights over assembly rights, this article proposes a more fundamental
problem, that of preferring individual rights over group rights (whether they sound in
assembly or association).
Preferring individual rights over group rights has always been a problem because the
power to effect social and political change has never been found in individuals. Rather, it
has been individuals combining into groups that has driven social change. The impact of
labor unions, lobbyists, industry trade groups, and political parties attests to this. In turn,
individuals who are recognized as influential were only the most gifted members of
groups. Focusing on individual speech rights to the detriment of group rights emboldens
street corner protestors, but inhibits real change.
This article proceeds in eight parts. In Part II, it sets forth the relevant First
Amendment history, context, and law. In Part III, it discusses the First Amendment’s
substantive birth in the three 1919 cases. In Part IV, it describes the forty-year history
leading up to World War I and the United States’ concomitant repression of dissident
groups. In Part V, it introduces the censorship and government violence that were
imposed upon dissident groups during World War I. In Part VI, it describes the early
state criminal syndicalism cases, predating the Red Scare, which is described in Part VII.
1
JOHN D. INAZU, LIBERTY’S REFUGE: THE FORGOTTEN FREEDOM OF ASSEMBLY (2012).
NAACP v. Alabama, 357 U.S. 449 (1958).
3
INAZU, supra note 1, at 1-2.
4
Schenck v. United States, 249 U.S. 47 (1919).
5
Frohwerk v. United States, 249 U.S. 204 (1919).
6
Abrams v. United States, 250 U.S. 616 (1919).
7
David M. Rabban, The Free Speech League, the ACLU, and Changing Conceptions of Free Speech in
American History, 45 STAN. L. REV. 47, 48-49 (1992).
2
4
In Part VIII, it discusses the state syndicalism cases after the start of the Red Scare. In
Part IX, it notes the winding down of the Red Scare and the return to relative normalcy.
II. First Amendment
One cannot understand modern First Amendment rights without understanding
conspiracy law’s role in creating them. The World War I era that, for this article, I define
as 1918-1927, was also the era from which emerged substantive First Amendment rights.
Three Supreme Court opinions written in 1919—Schenck v. United States, Frohwerk v.
United States, and Abrams v. United States—are widely viewed as the beginning of
modern First Amendment jurisprudence.8 That is generally true, but it does not tell the
whole story. These opinions were parts of their time, which was characterized by an
ongoing debate over the contours of First Amendment rights (often at the state, rather
than federal, level9), persistent questions about how the criminal law should treat group
conduct, and wartime hysteria accompanying the country’s entry into World War I,
which trained its paranoia on leftist political and labor groups. In this context, the 1919
trio of cases are revealed as conspiracy cases no less than First Amendment cases.
a. Framing the First Amendment
The standard First Amendment story begins with the amendment’s adoption in 1791.
During House debate, James Madison expressed his concern with proposing specific
liberties the First Amendment was meant to protect. He preferred “an enumeration of
simple, acknowledged principles.”10 If there was any consensus as to these principles, it
was embodied in Blackstone’s Commentaries on the Laws of England, highly influential
on this side of the Atlantic, in which he responded to the elaborate English system of
licensing, under which no publication was allowed without a government-granted permit.
Such a permit, said Blackstone, amounted to a prior restraint.11 It may be that Madison’s
“acknowledged principles” were simply that prior restraints were unacceptable, and that
the First Amendment was meant only to abolish permits, but not the government’s ability
to punish people after they spoke or went to press.
b. States’ Prerogatives
It is difficult to determine whether the Framers intended the First Amendment to be a
narrow prior restraints amendment, the expansive amendment we recognize today, or as
something between the two. It is clear, however, that the narrow view was influential in
the creation of many states’ constitutions. When it was enacted in 1857, Oregon’s
version of the First Amendment read (and continues to read): “No law shall be passed
restraining the free expression of opinion, or restricting the right to speak, write, or print
8
Thomas I. Emerson, Freedom of Expression in Wartime, 116 U. PA. L. REV. 975, 975 (1968); Mathieu J.
Shapiro, When is a Conflict Really a Conflict? Outing and the Law, 36 B. C. L. REV. 587, 589 (1995).
9
Alexis J. Anderson, The Formative Period of First Amendment Theory, 1870-1915, 24 AM. J. LEGAL
HIST. 56 (1980).
10
1 Annals of Congress 766 (Joseph Gales ed., 1834).
11
See 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 151-52 (University of
Chicago Press 1979) (1769).
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freely on any subject whatever; but every person shall be responsible for the abuse of this
right.”12 Nearly every state’s constitution contains similar, if not identical language.13
What “abuse” meant was up to state legislatures. Their constitutions, and the
Blackstonian view of rights, meant that legislatures could pass laws punishing speech that
was “improper, mischievous, or illegal.”14 They could punish speech that had a
“pernicious tendency” to undermine “peace and good order.”15
c. The Alien and Sedition Acts
It was only in 1925 that the Supreme Court applied the First Amendment to the
states.16 Prior to that, it is unclear whether the Framers of the Bill of Rights intended the
First Amendment to limit states’ expansive police power to the detriment of individuals’
First Amendment interests. In addition to Madison’s apparently Blackstonian approach
to First Amendment rights, Congress passed the Alien and Sedition Acts in 1798.
Congress at this time was composed of many of the Constitution’s drafters and ratifiers,
so the Alien and Sedition Acts may indicate what the Framers had intended the First
Amendment to do. This series of four bills enabled the federal government to do a
number of things. First, the acts permitted the deportation of aliens, should the President
judge them “dangerous to the peace and safety of the United States.”17 Second, during
wartime, the acts permitted the government to “apprehend[], restrain[], secure[] and
remove[], as alien enemies,” “all [male, adult] natives, citizens, denizens, or subjects of
the hostile nation or government.”18 Third, section one of the act passed on July 14,
1798, provided for criminal liability
if any persons shall unlawfully combine or conspire together, with intent to
oppose any measure or measures of the government of the United States, which
are or shall be directed by proper authority, or to impede the operation of any law
of the United States, or to intimidate or prevent any person holding a place or
office in or under the government of the United States, from undertaking,
performing or executing his trust or duty, and if any person or persons, with intent
as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot,
unlawful assembly, or combination, whether such conspiracy, threatening,
counsel, advice, or attempt shall have the proposed effect or not.19
Based on the Alien and Sedition Acts, the framers of the First Amendment almost
certainly favored a communitarian police power vision of the amendment rather than the
12
OR. CONST., art. I, sec. 8.
See, for example, AR. CONST., art. II, sec. 6; AZ. CONST. art. II, sec. 6; CA. CONST., art. I, sec. 2(a); FL.
CONST., art. I, sec. 4; ME. CONST. art. I, sec. 4; MT. CONST. art. II, sec. 7; N.D. CONST. art. I, sec. 4; PA.
CONST., art. I, sec. 7; WI. CONST., art. I, sec. 3.
14
See BLACKSTONE, supra note 11, at 151-52.
15
Id.
16
Gitlow v. New York, 268 U.S. 652 (1925).
17
Alien Act, ch. 58, 1 Stat. 571 (1798).
18
50 U.S.C. § 21.
19
An Act in Addition to the Act, Entitled An Act for the Punishment of Certain Crimes Against the United
States, 1 Stat. 596 (1798).
13
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individualist interpretation recognized today.20 This vision left little room for substantive
speech or assembly rights.21 In effect, the Alien and Sedition Acts prohibited such a
broad swath of activity, from truly criminal acts such as kidnaping the President to
publishing a pamphlet advocating a mass strike, engaging in a localized boycott, or
publishing an editorial critical of the government.
It was also an early reflection of the inevitable conflation of First Amendment rights
and conspiracy law. The Alien and Sedition Acts were passed in the aftermath of the
French Revolution when, for the first time, dissident citizen groups that formed around
political goals were able, through the group, to effect radical change. Taming these
“dangerous classes” became a priority for those who held power.22
d. Conspiracy and the First Amendment
Conspiracy is, by its nature, a speech crime rather than an act crime. It is for this
reason a law that lends itself to abuse.23 Few readers will object to a law that prohibits
kidnaping the President. Perhaps only a few more will object to a law that prohibits
agreeing to kidnap the President. But what of laws like the Alien and Sedition Acts,
which prohibit advocating the President’s kidnap as a valid form of regime change? Still
more of us probably have a problem with this. What about conspiring to advocate the
President’s kidnap? Should it be illegal to agree that at some point in the future you will
speak in favor of kidnaping the President as a valid form of regime change?
Furthermore, how should prosecutors be permitted to prove this conspiracy? Should it be
enough that someone was overheard saying, “We should convince our followers that it’s
a good idea to kidnap the President.” What about a published editorial that stated,
“regime change by any means necessary is obligatory for all good Americans”? Should it
be enough that the editorial merely stated that the current form of government does not
serve the needs of the people? These are the questions that tie First Amendment rights to
conspiracy, and the cases show us that they are far from law classroom hypotheticals.
These are, furthermore, novel questions, unasked prior to 1919 and not given their
due attention thereafter. This is so because they become real questions only when
individual First Amendment rights usually trump the state’s police power—a
rearrangement of constitutional priorities that began sometime in the mid-twentieth
century and is still evolving. These questions were not, therefore, asked in 1798, and so
Congress gave to the executive the power to punish any type of speech, assembly, or
20
See Howard Gillman, Preferred Freedoms: The Progressive Expansion of State Power and the Rise of
Modern Civil Liberties Jurisprudence, 47 POL. RESEARCH QUARTERLY 623, 632 (1994) (The key question
in the 19th century was “not whether laws interfered with preferred freedoms but rather whether laws
affecting liberty or property nevertheless promoted ‘the general good of the whole.’”).
21
Id. at 637 (“Throughout this period the Court’s approach to the nature and scope of legislative power was
essentially categorical—laws either promoted the public interest or they didn’t; it did not involve the
modern method of ‘weighing’ or ‘balancing’ the strength of a particular right against the strength of the
government’s interest in infringing on the right.”).
22
Immanuel Wallerstein, Citizens All? Citizens Some! The Making of the Citizen, 45 COMPARATIVE
STUDIES IN SOCIETY AND HIST. 650, 650 (2003).
23
See generally Steven R. Morrison, Conspiracy Law’s Threat to Free Speech, 15 U. PA. J. CONST. L. 865
(2013).
7
press that it deemed inimicable to the public good (the question of religious freedom was
largely irrelevant to the Alien and Sedition Acts, and to conspiracy law that followed).
This police power view played out in the 19th century as states freely criminalized
not only the speech and conduct of labor unions, but also the labor unions themselves as
criminal conspiracies. The standard First Amendment story is that the 19th century was a
First Amendment desert, with no substantive rights to be found and no appreciation of
any potential rights. But this theory finds its basis not in actual First Amendment
jurisprudence, but in the comparison of 19th century jurisprudence to today’s First
Amendment, which is fundamentally different and so much more protective of individual
rights. David Rabban offered the most prominent challenge to this standard view,
arguing that the substantive First Amendment rights born in 1919 were not immaculately
conceived, but were founded upon decades of judicial and legislative work.24 Incipient
progressive (and, at the time, radical) notions of individual rights informed this work.
Rabban argued that while courts were uniformly unsympathetic to First Amendment
claims, the “rights consciousness” of everyday Americans was growing in the late 19th
century.25 This grassroots awareness of the potential of individual rights to trump the
police power gave rise to groups such as the Industrial Workers of the World (I.W.W.),
founded in 1905, and the American Civil Liberties Union (ACLU), founded in 1917
(when it was called the National Civil Liberties Bureau). This awareness, as well as the
particular social-cultural-economic milieu of the early 20th century, would lead to
substantive First Amendment jurisprudence, but also to state and federal governments’
novel uses of conspiracy law to prosecute, and persecute, unpopular groups.
Blackstone’s view was not, in the end, all bad. It provided that an ex post facto
charge would be considered at trial, where the factfinder would determine whether the
speech, assembly, or publication at issue had a “pernicious tendency” to undermine social
“peace and good order.” There was, therefore, a democratic check on the government’s
ability to punish speech. American courts through the 1919 cases and beyond applied
this Blackstonian “bad tendency” test to prosecutions. If the conduct or speech at issue
had any tendency, however remote, to lead to any social harm, however minor, the charge
comprised no First Amendment violation and a conviction should have resulted. This
bad tendency test was the jurisprudential mechanism for facilitating the police power
model of First Amendment rights, because it was almost entirely deferential to legislative
and prosecutorial decisions regarding the potential harm of First Amendment activities.
Although this deference implied a weak democratic check, subsequent courts would take
advantage of this opening to strengthen individual First Amendment rights through more
robust and substantive tests. The border between protected and unprotected speech and
conduct would be determined by exploring the ultimate value of free speech and the
immediacy and level of danger associated with the speech. Two things have resulted
from this. First, our contemporary First Amendment rights are the most expansive in the
history of organized society. Second, conspiracy law is increasingly applied to elide
these expansive rights.
24
25
DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTTEN YEARS (1997).
Id. at 12.
8
1. Interest Brinkmanship
There is a directly proportional relationship between the extent of First Amendment
rights and the government’s use of conspiracy law, which I call “interest brinkmanship.”
As the rights to speak, publish, and assemble expand, the amount of “suspicious” but
protected First Amendment activity—that which advocates illegal conduct, overthrow of
the government, and other unpopular ideas, legal or illegal—increases. At the same time,
the government and society’s concern with the potentially dangerous import of this
activity does not dissipate. The gap between clearly innocent activity and that which can
be directly prohibited grows. Between these two shores is a growing expanse of
suspicious activity that the First Amendment nonetheless protects. This activity is not,
however, protected from conspiracy prosecutions, which move in to fill the gap and
address the concerns. With such prosecutions, the government does not directly restrict
the activity, which would be unconstitutional. Rather, the government uses the activity
(most often, speech) to charge a conspiracy to commit a substantive act. With
substantive First Amendment rights seeded in the cases between 1918-1927, these cases
illustrate interest brinkmanship.
III. Schenck, Frohwerk, and Abrams: Substantive First Amendment’s Birth
The three 1919 cases, Schenck, Frohwerk, and Abrams, are an important starting
point because of their prominence as seminal First Amendment cases. They are also
important conspiracy cases for two reasons. First, they reflect the zeitgeist of conspiracy
law and popular suspicion of leftist groups in the World War I era. Second, as First
Amendment cases, they say much about the relationship between speech and conspiracy
law, government and dissident groups, and, ultimately, social control.
The defendants in the three cases were charged with conspiracies to violate either the
Espionage Act of 1917, or an amendment to it, known as the Sedition Act of 1918. Both
of these laws were passed explicitly to censor anti-war First Amendment activity.
Campaigning in 1916 for his second term, President Wilson was elected on a neutrality
platform, which coincided with the sentiments of a clear majority of the American public,
especially socialists. Taking office in January 1917, Wilson saw only an ephemeral
peace for any country that entered the war. Nevertheless, as early as April 2, 1917,
Wilson asked Congress to declare war on Germany. Once Congress did so, four days
later, Wilson announced that “censorship . . . is absolutely necessary to the public
safety.”26
Only two months later, on June 15, Congress passed the Espionage Act. Section
three of that Act stated:
Whoever, when the United States is at war, shall willfully make or convey false
reports or false statements with intent to interfere with the operation or success of
the military or naval forces of the United States or to promote the success of its
enemies and whoever, when the United States is at war, shall willfully cause or
attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the
military or naval forces of the United States, or shall willfully obstruct the
26
STEPHEN M. FELDMAN, FREE EXPRESSION AND DEMOCRACY IN AMERICA: A HISTORY 241 (2008).
9
recruiting or enlistment services of the United States, shall be punished by a fine
of not more than $10,000 or imprisonment for not more than twenty years, or
both.27
Section four of the Espionage Act provided that conspiracy to commit any of the offenses
contained in section three was a crime.
a. Schenck v. United States
Decided on March 3, 1919, the defendants in Schenck28 had been convicted of
conspiracy to violate the Espionage Act, conspiracy to use the mails for the transmission
of socialist political tracts declared by the Postmaster General to be non-mailable
(because they were socialist tracts), and the substantive crime of actually using the mails
to send the tracts.29 Charles Schenck was the general secretary of the Socialist party,
which had decided to send 15,000 leaflets to young draft-eligible men.30 The leaflets
asserted that the Thirteenth Amendment, which had outlawed slavery and involuntary
servitude, meant that the military draft was unconstitutional and that a conscript was little
better than a convict.31 The war was in Wall Street’s interest, and the leaflet admonished
readers: “Do not submit to intimidation.”32 On the reverse side, the leaflet was headed,
“Assert Your Rights.”33 It went on: “If you do not assert and support your rights, you are
helping to deny or disparage rights which it is the solemn duty of all citizens and
residents of the United States to retain.”34 As the Supreme Court noted, the leaflet
blamed “cunning politicians,” “a mercenary capitalist press,” and “silent consent to the
conscription law” as supporting the war.35
The Court offered no evidence that this leaflet had any effect on recruitment or the
draft. Instead, it affirmed the conviction based on the defendants’ mere hope of hindering
the war effort. Justice Holmes, writing for the majority, offered the tepid opinion that
there was a possibility that the First Amendment was meant to perform a protective
function beyond merely prohibiting prior restraints.36 He cited, however, his Patterson v.
Colorado37 opinion, from 1907, in which he limited the First Amendment’s application to
prohibiting such prior restraints.
Holmes then offered this thought: “The question in every case is whether the words
used are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right to
27
Espionage Act, Ch. 30, 40 Stat. 217 (1917) (codified as amended at 18 U.S.C. §792 (2011)).
Schenck v. United States, 249 U.S. 47 (1919).
29
Id. at 48-49.
30
Id. at 49.
31
Id. at 50-51.
32
Id. at 51.
33
Id.
34
Id.
35
Id.
36
Id. at 51-52.
37
Patterson v. Colorado, 205 U.S. 454 (1907).
28
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prevent. It is a question of proximity and degree.”38 These are the words that sparked the
development of substantive First Amendment law. They suggested two things.
First, they suggested that there was some type of speech that would be protected from
direct prohibition through laws such as the Espionage Act. More specifically, this “clear
and present danger test” might have protected speakers who advocated illegal conduct,
but in ways that were either unlikely to lead to the conduct or intended to lead to very
minor violations of law. These were Holmes’ questions of “proximity and degree.”
Second, Holmes’ landmark pronouncement suggested that conspiracy prosecutions
ought to be treated not as crimes so much as speech acts. In many conspiracy cases,
defendants are inept, not serious, or evanescent in their criminal intent, and their words,
which often comprise the primary or even sole evidence of a conspiracy, are highly
unlikely to lead to any substantive crime. In Schenck, the conspiracy at issue aimed to
convince others to assert their perceived constitutional rights. Holmes’ assertion of the
clear and present danger test could have been an argument against directly prohibiting
First Amendment activity. It could also have been a statement that would limit, on First
Amendment grounds, the application of conspiracy law.
The latter conspiracy law approach to understanding the clear and present danger test
has never taken hold.39 The former direct prohibition approach has. As a result, Justice
Holmes has been praised as a liberal champion of the First Amendment. This view,
however, ignores the obvious fact that Holmes voted to affirm the conviction of the
Schenck defendants, without a hint of sympathy. While Holmes, at the time of writing
Schenck, did have clear liberal tendencies, he also viewed this case as little more than a
typical criminal law case40; certainly not an opportunity to draft a landmark First
Amendment opinion. There is little evidence that he meant anything substantive by the
clear and present danger test. In fact, just after setting forth the clear and present danger
test, Holmes returned to the bad tendency test in a way that revealed his support for
police power dominance over individual rights: “If the act, (speaking, or circulating a
paper,) its tendency and the intent with which it is done are the same, we perceive no
ground for saying that success alone warrants making the act a crime.”41 The clear and
present danger test emerged, then, as a meaningless gloss on the bad tendency test.
Schenck represented not an attempt to forge new individual First Amendment rights, but
was simply a reassertion of extant constitutional law. It would certainly not be read for
the more tenuous proposition that the First Amendment limited the application of
conspiracy charges.
b. Frohwerk v. United States
Jacob Frohwerk was convicted of conspiracy to violate the Espionage Act because he
was a copy editor for the Missouri Staats Zeitung, a German language newspaper.42 He
was involved with publishing, on a single date, the newspaper that proclaimed it a
38
Schenck, 249 U.S. at 52.
There is one notable exception to this, which is the First Circuit’s opinion in United States v. Spock, 416
F.2d 165 (1st Cir. 1969).
40
FELDMAN, supra note 26, at 263.
41
Schenck, 249 U.S. at 52.
42
Frohwerk v. United States, 249 U.S. 204, 205, 208 (1919).
39
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“monumental and inexcusable mistake to send our soldiers to France,” and that the
decision was one made by the “great trusts.”43 The paper then spoke of the
“unconquerable spirit and undiminished strength of the German nation.”44 For this
Frohwerk received a ten-year sentence.45
Justice Holmes wrote the Frohwerk opinion, which was released one week after
Schenck. No mention was made of the clear and present danger test. Holmes did,
however, reassert the police power-friendly bad tendency test:
It may be that all this might be said or written even in time of war in
circumstances that would not make it a crime. We do not lose our right to
condemn either measures or men because the country is at war. It does not appear
that there was any special effort to reach men who were subject to the draft . . .
But we must take the case on the record as it is, and on that record it is impossible
to say that it might not have been found that the circulation of the paper was in
quarters where a little breath would be enough to kindle a flame and that the fact
was known and relied upon by those who sent the paper out.46
c. Between Frohwerk and Abrams
Soon after Frohwerk, a strange thing happened to Justice Holmes. In Abrams,47 the
third of the 1919 cases and released eight months after Frohwerk, Holmes dissented from
the majority opinion that affirmed the conviction of radicals for conspiracy to violate the
Espionage and Sedition Acts.48 One theory is that Holmes’ friends were shocked at his
dismissal of speech rights in Schenck and Frohwerk, and during the interim between
Frohwerk and Abrams, convinced him of the importance of individual First Amendment
rights.49 Holmes’ chance introduction to Judge Learned Hand on a train in June 1918,
and a subsequent exchange of letters, figures into this story. Harvard Law Professor
Zechariah Chafee’s 1919 Harvard Law Review article, Freedom of Speech in War Time,
does as well. It has been argued that Holmes sought the approval of his friends, among
whom he counted Chafee. If this is true, it would have been stinging to read one
particular passage of the article:
Justice Holmes in his Espionage Act decisions had a magnificent opportunity to
make articulate for us that major premise, under which judges ought to classify
words as inside or outside the scope of the First Amendment. He, we hoped,
would concentrate his great abilities on fixing the line. Instead, like the other
judges, he has told us that certain plainly unlawful utterances are, to be sure,
unlawful.50
43
Id. at 207.
Id.
45
Id. at 206.
46
Id. at 208-09.
47
Abrams v. United States, 250 U.S. 616 (1919).
48
Id. at 616, 624.
49
Richard M. Abrams, Oliver Wendell Holmes and American Liberalism, 19 REVIEWS IN AM. HIST. 86, 89
(1991).
50
Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 HARV. L. REV. 932, 943-44 (1919).
44
12
Another story in the evolution of Holmes is that Harold Laski, a young British
political scientist then teaching at Harvard, invited Holmes to meet Chafee over tea in
July 1919. This was to be a jurisprudential ambush. Prior to the meeting, Laski, who had
given Chafee’s article to Holmes to read, wrote to Chafee concerning his speechprotective article: “[W]e must fight on it. I’ve read it twice, and I’ll go to the stake for
every word.”51 It appears that Holmes relished the praises of these young friends of his—
Holmes wrote to Hand in March 1919, “Old fellows need encouragement almost as much
as young and that which I have had from you and your generation and friends has put a
new spirit into me.”52 But this may not be the only story. During the lobbying of
Holmes, the old justice wrote to a friend, “There was a lot of jaw about free speech,
which I dealt with somewhat summarily in . . . Schenck v. U.S. [and] also Frohwerk v.
U.S.”53 Chafee, for his part, thought his teatime ambush had failed, writing in September,
“I have talked with Justice Holmes about the article but find that he is inclined to allow a
very wide latitude to Congressional discretion in the carrying on of the war.”54
While Holmes’ young friends may have moved him, the Abrams case itself was
sufficiently different than Schenck and Frohwerk to compel Holmes to a different, more
speech-protective response. Historian Richard Abrams has argued that three things set
Abrams apart: the defendant was convicted under the Sedition Act of 1918, not the
Espionage Act; he and his co-conspirators were protesting United States intervention in
Russia, and not the war effort against the Central Powers; and the conspirators’ conduct
was so harmless, even relative to the conduct of the Schenck and Frohwerk defendants.55
On this last point, Holmes called the defendants “poor and puny anonymities.”56
I am not convinced of the legal importance of Richard Abrams’ second and third
distinctions. The Espionage and Sedition Acts did not distinguish among topics of
antiwar protest, and the bad tendency test, which Holmes’ was supposed to have
supported, did not consider the actual or potential harm of the speech at issue.
Furthermore, the convictions in Abrams rested on facts not that different from Schenck or
Frohwerk. The Abrams defendants—self-described rebels, revolutionists, anarchists, and
Socialists—were convicted of printing, writing, and distributing 5,000 leaflets in New
York City that opposed capitalism as the enemy of the world’s workers, and appealed to
American workers to arise and put down by force the government of the United States.57
The leaflet’s florid language advised readers to “spit in the face of the false, hypocritic,
military propaganda which has fooled you so relentlessly, calling forth your sympathy,
your help, to the prosecution of the war.”58 It admonished people: “Do not let the
51
Laski to Chafee, July 23, 1919, Chafee Papers, reel 12, page 489, box 14, folder 10.
Holmes to Hand, June 24, 1918, ibid., reel 26, page 486, box 36, folder 3.
53
HOLMES-POLLOCK LETTERS: THE CORRESPONDENCE OF MR. JUSTICE HOLMES AND SIR FREDERICK
POLLOCK, 1874-1932 (Mark DeWolfe Howe, ed., Harvard Univ. Press 1941), Letter from Holmes to
Pollock (April 5, 1919), at 7.
54
DONALD L. SMITH, ZECHARIAH CHAFEE, JR.: DEFENDER OF LIBERTY AND LAW 30 (Harvard Univ. Press
1986); see also G. Edward White, Justice Holmes and the Modernization of Free Speech Jurisprudence:
The Human Dimension, 80 CAL. L. REV. 391, 430-31 (1992).
55
Abrams, supra note 49, at 89.
56
Abrams, 250 U.S. at 629 (Holmes, j., dissenting).
57
Id. at 620.
58
Id.
52
13
government scare you with their wild punishment in prisons, hanging and shooting. We
must not and will not betray the splendid fighters of Russia. Workers, up to fight.”59 If
anything, the speech in Abrams was even more threatening than that in Schenck and
Frohwerk.
Holmes’ young friends probably moved him at least to consider the individual rights
argument over the police power. The Sedition Act and its excesses relative to the
Espionage Act probably also compelled Holmes to dissent. The Sedition Act amended
section three of the Espionage Act to prohibit so much more speech that it could have
become impossible for Holmes to ignore his friends’ concerns. Professor Vincent Blasi
supports this theory, suggesting that it was only with Abrams that Holmes perceived the
prosecution to be in essence an effort to punish ideas as such, rather than for the
substantive evil of interference with the war effort.60 The Sedition Act amendment added
a number of prohibitions to the Espionage Act. With the amendment, it had become a
crime to say anything with intent to obstruct the sale of war bonds or government
securities; say anything to obstruct the making of government loans; incite, attempt to
incite, or attempt to “utter, print, write, or publish any disloyal, profane, scurrilous, or
abusive language about the form of the” government, the Constitution, the military, the
flag, or military uniforms; use any language intended to bring these things “into
contempt, scorn, contumely, or disrepute”; utter, print, write, or publish anything
intended to incite, provoke, or encourage resistance to the United States; willfully display
the flag of a foreign enemy; and urge or advocate any curtailment of production of any
product necessary to the war effort.61 Section four of the Espionage Act, the conspiracy
section, continued to apply to all of these newly illegal acts.
d. Abrams v. United States
Despite his dissent and the historical, speech-protective gloss that has been imposed
upon it, Holmes’ dissent in Abrams was remarkably limited and confusing. He began by
arguing that the defendants had no criminal intent, in part because their object was to help
Russia and stop American intervention there, not to impede the war effort.62 This should
have been the end of it; if there was no intent, there could be no crime. Holmes
continued on, however, to discuss the First Amendment, which he referred to as the
“more important aspect of the case.”63 This was unusual because Holmes could have
disposed of the case without reaching the constitutional issue, and in 1919, as today, the
Court avoided making constitutional rulings in favor of subconstitutional ones whenever
possible.64 One might, therefore, have expected a newly-found appreciation for the First
Amendment, but Holmes reaffirmed the Schenck and Frohwerk holdings.65 Strangely, he
then took seriously the clear and present danger test. He would overturn the defendants’
convictions, he wrote, because “nobody can suppose that the surreptitious publishing of a
59
Id. at 622.
Vincent Blasi, Reading Holmes Through the Lens of Schauer: The Abrams Dissent, 72 NOTRE DAME L.
REV. 1343, 1352 (1996-97).
61
Sedition Act of May 16, 1918, c. 75, 40 Stat. 553 [Comp. St. 1918, § 10212c].
62
Abrams, 250 U.S. at 626 (Holmes, j., dissenting).
63
Id. at 627.
64
United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916).
65
Abrams, 250 U.S. at 627.
60
14
silly leaflet by an unknown man, without more, would present any immediate danger.”66
He went on to expound two important ideas underlying robust speech rights. The first
was the countermajoritarian understanding of the rights:
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 the
speech impotent, as when a man says that he has squared the circle, or that you do
not care whole heartedtly for the result, or that you doubt either your power or
your premises. But when men have realized that time has upset many fighting
faiths, they may come to believe even more than they believe 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 itself
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.67
Holmes would later write, in 1925, that “every idea is an incitement.”68 His point
then, and in Abrams, was that there must be constitutional breathing space for an
individual to convince other people of her point of view, and if that point of view is
worthwhile, for it to flourish and change the status quo. Market competition is about
increasing market share, which, in the context of social movements, means increasing the
size of one’s group. The 1919 cases, like the 19th century labor cases, show a Justice
Holmes who was coming to terms with the importance not so much of speech, but of
speech’s role in creating and growing groups, which could then effect real change.
The second important idea that Holmes expounded was the importance of humility in
dealing with unusual ideas and the need for a legal system that facilitated the public
availability of these ideas. He wrote, “we should be eternally vigilant against attempts to
check the expression of opinions that we loathe and believe to be fraught with death,
unless they so imminently threaten immediate interference with the lawful and pressing
purposes of the law that an immediate check is required to save the country.”69
Only the speech of groups, as in the 1919 cases, could possibly approach this
immediacy threshold. This is why the 1919 cases, and so many of the other World War I
era cases, were conspiracy cases. Like the 19th century sentiment that what one worker
says or does may be legal, but that when 100 workers say or do it, it may be illegal,70 the
World War I era cases were not concerned with lone radicals, speaking to passers-by on a
street corner. They were concerned with real or perceived massive group formations that
threatened to undermine the social order. It is within this larger historical context that the
1919 cases emerged, and to which we now turn.
66
Id. at 628.
Id. at 630.
68
Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, j., dissenting).
69
Abrams, 250 U.S. at 630.
70
State v. Glidden, 8 A. 890, 895 (Conn. 1887) (“Any one man, or any one of several men, acting
independently, is powerless; but when several combine, and direct their united energies to the
accomplishment of a bad purpose, the combination is formidable.”).
67
15
IV. The Historical Context: 1877-World War I
Economist Marjorie S. Turner observed that the 19th century labor conspiracy cases
were part of a “unified legal history stretching into the twentieth century.”71 These early
conspiracy cases are, indeed, part of the history that led to the World War I era’s use of
the law. This latter era was informed primarily by events that occurred from 1880 and
beyond.
a. Dangerous Times
Attempts to form national trade unions began in the 1850s72 and resulted in more than
thirty such unions in 1873.73 By 1886, the Knights of Labor had 730,000 members,74
sympathy strikes and community-wide boycotts flourished,75 and on May 1, 350,000
laborers from coast to coast joined in a coordinated general strike for the eight-hour
day.76 The International Working People’s Association formed in 1883, which “rejected
the political and incremental methods of its socialist predecessors and instead pledged
itself to immediate revolutionary change by any means.”77 Some in the labor movement
proposed “engaging in dramatic acts of violent resistance against state authorities,”78
which included targeting religious institutions, government, elections, courts, jails,
bankers, policemen, and bosses as targets in a war of class liberation.79
Given the rise of labor and pushback from capital and the courts, violence seemed
inevitable. “[L]abor militancy was alive and well,”80 as evidenced by a German workers’
militia, which in 1877 “could marshal four companies with several divisions (each with
forty men). Its officers explained that the militiamen would act only if workers’
constitutional rights were violated.”81 The same year saw the largest strike up to that
time in U.S. history.82 This event began with walkouts of railroad crews on the Baltimore
and Ohio line, followed the next day by an armed clash at Martinsburg, West Virginia.83
At the railroad’s request, the governor deployed the state militia, which killed a
locomotive fireman.84 As news of this spread, strikers garnered support from
71
MARJORIE TURNER, THE EARLY AMERICAN LABOR CONSPIRACY CASES: THEIR PLACE IN LABOR LAW 21
(1967).
72
Deborah A. Ballam, Commentary: The Law as a Constitutive Force for Change: The Impact of the
Judiciary on Labor Law History, 32 AM. BUS. L.J. 125, 129 (1994).
73
Id. at 130.
74
DAVID RAY PAPKE, THE PULLMAN CASE: THE CLASH OF LABOR AND CAPITAL IN INDUSTRIAL AMERICA 9
(1999).
75
Ballam, supra note 72, at 143.
76
JAMES GREEN, DEATH IN THE HAYMARKET: A STORY OF CHICAGO, THE FIRST LABOR MOVEMENT AND
THE BOMBING THAT DIVIDED GILDED AGE AMERICA 145 (2006).
77
TIMOTHY MESSER-KRUSE, THE TRIAL OF THE HAYMARKET ANARCHISTS: TERRORISM AND JUSTICE IN
THE GILDED AGE 11 (2011).
78
Id. at 12.
79
Id. at 13.
80
Ballam, supra note 72, at 130.
81
GREEN, supra note 76, at 86.
82
Ballam, supra note 72, at 130.
83
ANTHONY WOODIWISS, RIGHTS V. CONSPIRACY: A SOCIOLOGICAL ESSAY ON THE HISTORY OF LABOUR
LAW IN THE UNITED STATES 74 (1990).
84
Id.
16
townspeople, farmers, and two companies of the state militia.85 President Hayes sent in
federal troops, and around the country 20,000 troops were on riot duty and between 200
and 400 people died.86
Memories of the 1877 violence had to persist when, nine years later, the Haymarket
riot broke out.87 On May 1, 1886, a mammoth general strike for the eight-hour workday
began at the McCormick Reaper Works in Chicago.88 Two days later, police charged a
line of union members, killing two and wounding others.89 The next day, on May 4,
labor groups organized a rally at Haymarket Square. As police approached the protesters,
someone threw a bomb that killed a policeman and wounded others.90 Police opened fire
and some workers responded with gunfire of their own. Several people died and scores
were injured.91
The Haymarket bombing, and the subsequent conspiracy trial of anarchist August
Spies and others, created fear and political paranoia92 and sparked the country’s first red
scare.93 One judge in 1886 accused non-citizen labor agitators of “socialistic crimes” that
were “gross breaches of national hospitality.”94 The Chicago Tribune was blunter,
holding “aliens” responsible for the Haymarket deaths, calling on the government to
deport the “ungrateful hyenas” and exclude other “foreign savages who might come to
America with their dynamite bombs and anarchic purposes.”95 It seemed that the country
was in a new civil war96 against trade unionists as “irresponsible” and “alien”
troublemakers.97
This notion solidified in the 1880s, as labor unions, corporations, and champions of
laissez-faire economics and one-sided, pro-business views of individual freedom rose to
prominence. For the first time, large combinations of groups could, and did, collectively
perform very harmful acts, which, if done individually, would be legal and harmless.
Such acts included forming trusts and monopolies, against which the Sherman Antitrust
Act of 1890 was passed, and operating strikes, walkouts, and boycotts, the criminality of
which courts struggled to determine.98 For the first time, conspiracies were seen as an
existential threat to the nation.
85
Id.
Id. at 75.
87
GREEN, supra note 76, at 9.
88
Id. at 3.
89
Id. at 5; PAPKE, supra note 74, at 16.
90
PAPKE, supra note 74, at 16.
91
Donald J. Smythe, The Rise of the Corporation, the Birth of Public Relations, and the Foundations of
Modern Political Economy, 50 WASHBURN L.J. 635, 648 (2011).
92
PAPKE, supra note 74, at 16.
93
MESSER-KRUSE, supra note 77, at 4.
94
HATTAM, supra note 148, at 70.
95
GREEN, supra note 76, at 8-9.
96
Edward de Grazia, The Haymarket Bomb, 18 LAW & LITERATURE 283 (2006); GREEN, supra note 76, at
114.
97
GREEN, supra note 76, at 11.
98
See Herbert Wechsler, William Kenneth Jones, & Harold L. Korn, The Treatment of Inchoate Crimes in
the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, Part Two, 61
COLUM. L. REV. 957, 957 (1961) (noting “the early condemnation of the labor union as a criminal
conspiracy and the use of the charge against political ofenders.”).
86
17
b. Fearful Times
The rhetoric of judicial opinions reflected this fear. In 1887, the Connecticut
Supreme Court considered the legality of a conspiracy of workmen to boycott their
company and distribute flyers. Affirming the conviction, the court wrote, “The exercise
of irresponsible power by men, like the taste of human blood by tigers, creates an
unappeasable appetite for more.”99 If boycotts and distribution of flyers were legal, said
the court, “The end would be anarchy, pure and simple.”100 The court took a Lochnerian
turn, noting that the boycott was actually a combination not against capital, but against
the defendants’ fellow laborers. The capitalist may be driven from his business, said the
court, but he has other resources. The “poor mechanic, driven from his employment, and,
as is often the case, deprived of employment elsewhere, is compelled to see his loved
ones suffer or depend upon charity.”101 Conspiracies become “subversive of the rights of
others, and the law wisely says it is a crime.”102
A series of subsequent cases involving labor and capital echoed the Connecticut
Supreme Court’s opinion.103 An Ohio superior court, for example, considering a labor
boycott, wrote, “It is clear that the terrorizing of a community by threats of exclusive
dealing in order to deprive one obnoxious member of means of sustenance will become
both dangerous and oppressive.”104 Such a conspiracy “will be restrained and punished
by the criminal law as oppressive to the individual, injurious to the prosperity of the
community, and subversive of the peace and good order of society.”105 The assumption
that conspiracies posed an evil distinct from their substantive target crimes appeared for
the first time in a criminal law treatise, in 1897,106 which cited for support United States
v. Cassidy, a conspiracy case against railway employees in the great Pullman strike of
1894.107
c. Social Upheaval, New Realities
These cases reflected a response to unprecedented national upheaval, which was
comprised of three major trends: immigration, urbanization, and industrialization.
Between 1880 and 1924, twenty-five million immigrants arrived in the United States.108
This is a massive amount, considering that in 1880, the United States’ population was
99
State v. Glidden, 8 A. 890, 894 (Conn. 1887).
Id. at 895.
101
Id.
102
Id. at 896.
103
Callan v. Wilson, 127 U.S. 540 (1888); Consolidated Steel & Wire Co. v. Murray, 80 F. 811 (Cir. 1897);
Arthur v. Oakes, 63 F. 310 (7th Cir. 1894); In re Grand Jury, 62 F. 840 (N.D. Cal. 1894); Brunswick
Gaslight Co. v. United Gas, Fuel & Light Co., 27 A. 525 (Me. 1893); San Antonio Gas Co. v. State, 22
Tex.Civ.App. 118 (1899); but see United States v. E.C. Knight Co., 156 U.S. 1 (1895); American Fire Ins.
Co. v. State, 75 Miss. 24 (1897); Longshore Printing & Pub. Co. v. Howell, 38 P. 547 (Or. 1894).
104
Moores & Co. v. Bricklayers’ Union et al., 10 Ohio Dec.Reprint 665, *9 (Ohio Super. 1889).
105
Id. at 10 (quoting Crump v. Com., 84 Va. 927).
106
EMLIN MCCLAIN, A TREATISE ON THE CRIMINAL LAW AS NOW ADMINISTERED IN THE UNITED STATES,
VOLUME II 157 (1897).
107
United States v. Cassidy, 67 F. 698 (N.D. Cal. 1895).
108
James R. Barrett, Americanization from the Bottom Up: Immigration and the Remaking of the Working
Class in the United States, 1880-1930, 79 J. AM. HIST. 996, 997 (1992).
100
18
fifty million,109 and by 1920 it was 106 million.110 These new immigrants, primarily
from eastern and southeastern Europe,111 were set apart from the native-born white
population, but they also did not easily assimilate into communities of first wave
immigrants, who were mostly from Britain, Germany, and Ireland.112 These “old”
immigrants had created institutions like the Knights of Labor, political labor parties, and
trade unions.113 This created barriers to social entry for the new immigrants, which
created interethnic tensions but also led the new immigrants to look up to their forebears.
Jews who had immigrated in the second wave, for example, looked up to the Irish, who
had successfully found their niche in the new world.114 While admiring this particular
version of Americanization, defined less by abandoning one’s past and more by carving a
space out in which one could remain distinct yet find a beachhead into mainstream
society, some of the new immigrants, historian Gary Gerstle wrote, “[C]ould not escape
the loneliness, isolation, and sadness they had felt since their original uprooting. They
never found in America the comfort and security they had known in the Old World.”115
Occuring somewhat later and on a smaller numerical scale, the migration north of
African-American former slaves was a tributary that merged with the massive second
wave immigration movement. By 1917, as many as 250,000 southern African-Americans
were resettling in the urban North and East.116 These two movements met in the large
northern factories, joined by Mexican migrants, to create a new working-class
population.117 This population would coalesce over a period of time, through World War
I, but it was shaped throughout by the new immigrants’ “old-country radicalism” that led
to labor radicalism, whose extremes had been on display at Haymarket.118
Established authority responded to the rise of the new immigrants with a concerted
Americanization effort. Prior to World War I, this Americanization was a largely benign
process of assimilation. Teachers, settlement house workers, and professional patriots
worked to acculturate the new immigrants.119 At his Model T assembly plant in
Michigan, Henry Ford arranged a language and civics program for his immigrant
workers, culminating in a pageant in which his newly-American workers would “descend
from a boat scene,” and walk a gangway into large pot depicting the Ford English School.
Teachers on either side would stir the pot, and the workers would emerge as part of one
American nationality.120 Labor unions had a different idea of Americanization. Theirs
109
United States Department of the Interior, Census Office, Statistics of the Population of the United States
at the Tenth Census at xxxiv, June 1, 1880, available at http://www.census.gov/prod/www/decennial.html.
110
United States Census Bureau, Historical National Population Estimates, July 1, 1900 to July 1, 1999,
available at http://www.census.gov/popest/data/national/totals/pre-1980/tables/popclockest.txt.
111
Gary Gerstle, Liberty, Coercion, and the Making of Americans, 84 J. AM. HIST. 524, 525 (1997).
112
Barrett, supra note 108, at 999-1000.
113
Id. at 999.
114
James R. Barrett & David R. Roediger, The Irish and the “Americanization” of the “New Immigrants”
in the Streets and in the Churches of the Urban United States, 1900-1930, 24 J. AM. ETHNIC HIST. 3, 6
(2005).
115
Gerstle, supra note 111, at 532.
116
David Levering Lewis, Parallels and Divergences: Assimilationist Strategies of Afro-American and
Jewish Elites from 1910 to the Early 1930s, 71 J. AM. HIST. 543, 548 (1984).
117
Barrett, supra note 108, at 999.
118
Id.
119
Id.; Gerstle, supra note 111, at 530.
120
Barrett, supra note 108, at 996.
19
was not one of surrender to the capitalist order; rather, it was one of speaking up, giving
voice to one’s aspirations,121 and asserting one’s rights. For some immigrants,
Americanization was at turns alienating and exploitative. It was certainly complex
enough to also, for some, be liberating.122 The new Jewish immigrants who looked up to
their Irish forebears no doubt recognized this liberating strand.
Labor organization was catalyzed by the advent of mass railway transportation in the
late 19th century. In the massive American railway system, unions across the country
found both a common national cause and a valuable and vulnerable target. They could
stop the trains, paralyzing national and even international trade. Organizers could rally
support around the country for localized grievances. Group conduct in an age of growing
interdependence and reliance on labor to maintain complex systems of trade was
powerful, compelling, and potentially dangerous. The railways, indeed, were viewed as a
vital part of American civilization as much as trade.123 The country had changed rapidly
and radically, and more changes seemed inevitable. Even more, the changes entailed
group divisions that were unpredicted, fluid, and multivalent. The anti-labor and antiradical pushback by capital and the courts was not simply the manifestation of paranoid
fears of the Other; it was also a rational psychological response to novel situations.
The complexity and unpredictability of the labor movement in the late 19th century
created a perfect incubator for the expansive application of conspiracy law.
Psychologists have observed that systemic complexity hinders learning from data,
prevents people from recognizing feedback loops in a system,124 and promotes
confirmation biases.125 Part of confirmation bias includes thinking that is “static, narrow,
and reductionist.”126 Complexity also breeds “experiential urgency,” which entails a
perception of threat that triggers “survival mode.”127 Confirmation bias, then, “connotes
the tendency to seek or interpret evidence in ways that support existing beliefs,
expectations, or hypotheses.” Confirmation bias is expressed in people seeking
“information that confirms their hypotheses and [avoiding] information that would
disconfirm their hypotheses.”128
Confirmation bias produces “context-inappropriate” responses because it is “selfconfirming.”129 It is also self-sustaining because it causes those who experience the bias
to seek re-exposure to the perceived threat, as we tend to look for evidence “consistent
with prior beliefs rather than potential disconfirmation.”130 Throughout history,
121
Gerstle, supra note 111, at 527.
Id. at 526-27.
123
Mona Domosh, Selling Civilization: Toward a Cultural Analysis of America’s Economic Empire in the
Late Nineteenth and Early Twentieth Centuries, 28 TRANSACTIONS OF THE INSTITUTE OF BRITISH
GEOGRAPHERS 453, 456, 461 (2004).
124
John D. Sterman, Learning from Evidence in a Complex World, 96 AM. J. PUB. HEALTH 505, 506
(2006).
125
Id. at 513.
126
Id. at 506.
127
Claude M. Chemtob et al., Anger Regulation Deficits in Combat-Related Posttraumatic Stress Disorder,
10 J. OF TRAUMATIC STRESS 17, 23 (1997).
128
Keith A. Findley, Tunnel Vision, in CONVICTION OF THE INNOCENT: LESSONS FROM PSYCHOLOGICAL
RESEARCH 6 (Brian L. Cutler ed., 2011); see also Özge Pala & Jac A.M. Vennix, A Causal Look at the
Occurrence of Biases in Strategic Change (unpublished manuscript) (on file with author).
129
Chemtob, supra note 127, at 23.
130
Sterman, supra note 124, at 816.
122
20
confirmation bias as the result of real social changes has produced paranoid conspiracy
theories and, in the United States, actual criminal conspiracy charges. This is so because
during periods of upheaval, people fear a loss of control and seek some explanatory
heuristic. The cognitive dissonance associated with upheaval—the belief that society is
stable versus the observation that society is rapidly changing—demands a bridging belief.
Conspiracy theories fill the gap by explaning that stable society is experiencing a
temporary disturbance as the result of a minority faction of misguided, but dangerous
malcontents. This theory is much less discomforting than the truth as it was in the early
20th century: that society was changing fundamentally, never to return to its former state.
While the late 19th century had not yet seen the deluge of anti-radical conspiracy charges
that would emerge in 1918, the stage was set; the milieu was one of growing jingoism
and imperialism, and what historian Richard Hofstadter called a national “psychic
crisis.”131
Developments in the early 20th century contributed to this crisis. Between 1900 and
1920, the female labor force doubled, and the Women’s Trade Union League, founded in
1903, played an important socializing role for immigrant women.132 Five years later,
women’s clubs began holding open-air campaigns to draw attention to their interests,133
and from 1907 to 1917 the National American Woman Suffrage Association’s
membership grew from 45,000 to two million.134
Women and African-Americans started working together. In 1908, for example,
prominent feminists, African-American leaders, and other Americans called for a
conference to discuss “present evils, the voicing of protests, and the renewal of the
struggle for civil and political liberty.”135 The first National Negro Conference that
followed would lead to the formation of the NAACP in 1909.136 Added to this was the
work of muckraking journalists, who publicized the poor working conditions in factories,
the slums of big cities, the treatment of African-Americans in the deep South, and the
growing power of trusts.137
At the same time, socialist and anarchist sentiments were on the rise. President
McKinley was assassinated in 1901 by an anarchist, and the socialist party would gain
substantial support across the country for its position of neutrality going into World War
I.138 These developments, along with the concerning history beginning with Haymarket,
led to the Immigration Act of 1903 (also called the Anarchist Exclusion Act), which
authorized the exclusion and deportation of anarchist aliens.139
The I.W.W. was founded in 1905, which would become the target of the lion’s share
of criminal conspiracy charges in the World War I era. Three years later, the Federal
131
John Braeman, World War One and the Crisis of American Liberty, 16 AM. QUARTERLY 104, 111
(1964).
132
Barrett, supra note 108, at 1013.
133
INAZU, supra note 1, at 44.
134
Id. at 45.
135
Id.
136
Id.
137
Dimitri von Mohrenschildt, Reformers and Radicals in Pre-World War I America, 17 RUSSIAN REVIEW
128, 129 (1958).
138
James Weinstein, Anti-War Sentiment and the Socialist Party, 1917-1918, 74 POL. SCI. QUARTERLY 215,
216 (1959).
139
The Immigration Act of 1903, ch. 1012, 32 Stat. 1213 (1903).
21
Bureau of Investigation (then called the Bureau of Investigation) was created by the order
of Attorney General Charles Bonaparte. Bonaparte intended that the Bureau enforce
interstate commerce and anti-trust laws, and denied that it would monitor dissent against
the country.140 That would change in the 1910s.
d. A Calm Before the Storm
In the years prior to World War I, Americanization was a relatively benign, if
paternalistic and ham-handed, process. There were no substantive federal disloyality
statutes, and there existed an intellectual push against the paradigm of “‘Angloconformity’—the Wilsonian dogma that a ‘hyphenated’ American was an
impossibility.”141 These intellectuals hoped to defuse racist and nativist opinions by
convincing Americans that Jews in America were no different than them.142 At the same
time, there was a growing realization that the First Amendment deserved more
attention—a move that signaled a perception of social stability and a willingness to let
dissenting views be aired. Indeed, in 1958, historian, anti-communist, and member of the
Office of Strategic Services (the forerunner to the CIA), Dmitri von Mohrenchildt
observed that “the two decades preceeding World War I saw the most extensive
movement of social protest this country had thus far known.”143 By around 1911, a new
generation of protesters emerged who were more radically inclined and had little faith in
political reform.144 In the same year, the Free Speech League formed,145 which would
defend many of the Wobblies in court.146
These developments were remarkable. In the 1880s, anarchists at Haymarket were
convicted of killing police officers and one contributor to the Albany Law Journal
commented that there was “no shibboleth more absurb than the cry of free speech.”147
After a period of massive immigration and fundamental social upheaval, society seemed
nevertheless to be coming to terms with radicalism, and some appeared to support
extending individual speech rights to radicals, which implicitly enfeebled the
government’s police power. While radical groups had still to be watched for any
subversive activities, conspiracy law as applied in the context of subversive group
conduct, suspicious speech, and the imperative of social control appeared to be
normalizing. Relative to its time, dissenting speech was treated as we tend today to think
it should be treated: as protected and given a wide bearth until it indicates a true criminal
plot.
One reason for this relatively liberal period was that the labor conspiracy cases of the
19th century had fallen away. The injunction had replaced them as a tool of union
140
Athan G. Theoharis, Dissent and the State: Unleashing the FBI, 1917-1985, HIST. TEACHER 41, 41
(1990).
141
Lewis, supra note 116, at 553.
142
Id. at 554.
143
Mohrenschildt, supra note 137, at 129.
144
Id. at 134.
145
Anderson, supra note 9, at 60.
146
Laura M. Weinrib, The Sex Side of Civil Liberties: United States v. Dennett and the Changing Face of
Free Speech, 30 LAW & HIST. REV. 325, 334 N. 27 (2012).
147
Anderson, supra note 9, at 62.
22
control.148 Part of that replacement included a normalization and stabilization of labor
law. By the 20th century, it had become clear that unions played an important role in
industry, and their legal rights had been largely defined. The harms that capital could
impose had likewise been recognized, and the law limited what companies could do. The
Sherman Anti-Trust Act of 1890,149 which limited the right of capital to collaborate, is an
example. Another is the Adamson Act of 1916,150 a federal law that established the
eight-hour workday and overtime pay for interstate railway workers, passed to avoid an
impending strike.151 Looking back in the pre-war years, there was much less of a need to
use conspiracy against unions. Looking forward, radical protesters did not yet have an
antiwar cause to persue, and so government had little need to silence them.
V. The Historical Context: World War I
The First World War began on July 28, 1914. This triggered no immediate
crackdown on German sympathizers or other radicals in the United States because the
country and the Wilson administration remained staunchly neutral. President Wilson, in
fact, campaigned for his second term in 1916, and won, on a platform of strict
neutrality.152 The first months of 1917, however, brought German attacks on U.S.
maritime interests, specifically the sinking of the U.S. cargo ship Housatonic153 three
days after Germany resumed its policy of unrestricted submarine warfare on February
1.154 As a result, Wilson broke off diplomatic relations with Germany.155 Meanwhile,
Wilson learned of the Zimmermann telegram from British intelligence. In the telegram,
Germany informed Mexico of its intent to resume unrestricted submarine activity, and its
hope that the U.S. would remain neutral. If, however, neutrality were not maintained,
Germany proposed an alliance with Mexico, for which it would receive generous
financial support and a free hand to reconquer the lost territories in Texas, New Mexico,
and Arizona.156
Wilson authorized the State Department to publish the text of the telegram, which
appeared in newspapers on March 1.157 On April 1, a German submarine torpedoed the
148
VICTORIA C. HATTAM, LABOR VISIONS AND STATE POWER: THE ORIGINS OF BUSINESS UNIONISM IN THE
UNITED STATES 39 (1993).
149
Sherman Anti-Trust Act (1890): Document Info, Our Documents.gov,
http://www.ourdocuments.gov/doc.php?flash=true&doc=51 (last visited July 27, 2013).
150
Adamson Act of 1916, 45 U.S.C. §§ 65-66 (repealed 1996).
151
See Wilson v. New, 243 U.S. 332, 376 (1917) (Pitney, J., dissenting) (mentioning in his dissenting
opinion that the Adamson Act should be invalidated and that “[t]he suggestion that it was passed to prevent
a threatened strike” gives it no greater legal effect).
152
FELDMAN, supra note 26, at 241.
153
Correspondence Between the United States and Belligerent Governments Relating to Neutral Rights and
Commerce, 11 AM. J. INT’L L. 52, 132 (1917).
154
H.E. Goemans & Mark Fey, Risky but Rational: War as an Institutionally Induced Gamble, 71 J. POL.
35, 47 (2009).
155
National Archives, Teaching With Documents: The Zimmermann Telegram, available at
http://www.archives.gov/education/lessons/zimmermann/.
156
Id.
157
www.ourdocuments.gov, Zimmermann Telegram (1917), available at
http://www.ourdocuments.gov/doc.php?doc=60.
23
armed U.S. steamer Aztec.158 The next day, Wilson asked Congress for a declaration of
war,159 in order to make the world “safe for democracy.”160
a. War, Censorship, and Violence
Immediately after the war declaration, the government moved to censor dissenting
speech, investigate dissident groups, and use conspiracy law to undermine First
Amendment activities. Ham-handed Americanization was out; a nativist drive for “100%
Americanism”161 was in. Wilson was a quick adopter of strict censorship, and his
administration attacked any perceived disloyalties. As Stephen M. Feldman wrote,
“Probusiness, antiunion, antialien, and anti-immigrant” groups joined with the
administration, and “belligerently demanded universal conformity organized through
total national loyalty.” He went on: “[I]n hundreds of incidences, German aliens,
German Americans, Socialists, pacifists, Wobblies, and other outsiders were flogged,
tarred and feathered, forced to kiss the flag, and murdered.”162
In the Summer of 1917, I.W.W. strikes were broken up by Army troops in the
northwest.163 Anti-union mob violence emerged in the Spring of 1918.164 By October of
that year, a new immigration law facilitated the deportation of a handful of Wobblies,
which would pick up during the Red Scare a few years later.165 The Bureau of
Investigation, now a tool for monitoring dissent,166 participated in the 1918 “Slacker
Raids,” which indiscrimately rounded up young men in major cities, ostensibly to enforce
the war’s draft law.167 In addition to dissent groups, the Bureau began to monitor
politicians, judges, and anyone else perceived to be disloyal.168 Within one year of its
passage, 250 people had been convicted under the Espionage Act.169
Given these repressive moves, it seems ironic that World War I had benefits for the
socialist party. As the only major political party to retain an antiwar plank in its platform,
the socialists continued to garner substantial grassroots support.170 It was, unfortunately,
the party’s success that led to its downfall. In June 1917, the Postmaster-General
withheld Socialist mailings, seriously harming the party.171 Unable to send its message
out by post, the party started fielding local political candidates, who were finding success
at the polls throughout 1917 and 1918 and gaining members on the strength of the party’s
158
Correspondence Between the United States and Belligerent Governments Relating to Neutral Rights and
Commerce, 11 AM. J. INT’L L. 52, 152-53 (1917).
159
FELDMAN, supra note 26, at 241.
160
Charles A. Ellwood, “Making the World Safe for Democracy”, 7 SCIENTIFIC MONTHLY 511, 511 (1918).
161
FELDMAN, supra note 26, at 246.
162
Id. at 247.
163
Braeman, supra note 131, at 106-07.
164
Id. at 111.
165
Id. at 107.
166
Theoharis, supra note 140, at 41-42.
167
Christopher Capozzola, The Only Badge Needed Is Your Patriotic Fervor: Vigilance, Coercion, and the
Law in World War I America, 88 J. AM. HIST. 1354, 1380 (2002).
168
Theoharis, supra note 140, at 41-43.
169
FELDMAN, supra note 26, at 248.
170
Weinstein, supra note 138, at 223-24.
171
Id. at 222.
24
antiwar stance.172 These election results suggested that the socialists were a true threat to
the war effort. Two things, in the end, undermined the socialists’ success. First,
President Wilson’s Fourteen Points, delivered on January 8, 1918, promoted peace and so
peeled away some issue voters,173 who may have liked the socialists’ antiwar stance but
not much else about the party. Second, speech restrictions—such as withholding socialist
mailings—harmed the party. The governor of Minnesota even placed a blanket ban on
all socialist meetings in most counties.174 Add to these restrictions “mass sedition
indictments” under the Espionage and Sedition Acts,175 and the anti-socialist moves had
their intended effect. It did not help that some antiwar agitators engaged in armed
resistance. One group, for example, fired upon a troop train outside of Toledo, Ohio, and
in California, a band of twenty-five men cut off the last two cars of a troop train and
fought the soldiers.176
World War I was also ironic for labor unions. Despite anti-union mob violence and
the concatenation of labor and political radicalism embodied in the I.W.W. and other
leftist groups, workers were needed to produce war materials. From 1916 to 1921, union
membership grew from 2,772,000 to 4,881,000.177 The I.W.W. even enjoyed a brief
period of influence as well. This would not last long.
b. The Conspiracy System of Repression
While the Espionage Act, Sedition Act, and a collection of other war enabling acts
were being used to charge dissidents with conspiracy at the federal level, a much more
impactful system of repression was emerging state by state. Criminal syndicalism
statutes began to be passed around 1917, and by 1921 the majority of the states had
nearly identical laws.178 The Oregon Supreme Court likened these laws to conspiracy
and observed that they received their primary principles from broad conspiracy law.
Criticizing both syndicalism and conspiracy, the Court wrote, “This branch of criminal
law may very well be described as the quicksands of the law. It too frequently is subject
to the shifting public sentiment which always affects matters pertaining to
government.”179 These comparisons unfairly maligned traditional conspiracy law;
criminal syndicalism, as applied from 1919 on, was criminal conspiracy, and conspiracy
of a sort far broader and more subject to abuse than traditional conspiracy law.
The California syndicalism act, passed in 1919 and applied more than any other
state’s syndicalism law, had facsimiles around the country. Section one defined
“criminal syndicalism” as:
Any doctrine or precept advocating, teaching or aiding and abetting the
commission of crime, sabotage (which word is hereby defined as meaning willful
172
Id. at 224.
Id. at 236
174
Id. at 221.
175
Id. at 236.
176
Id. at 218.
177
Michael Stohl, War and Domestic Political Violence: The Case of the United States 1890-1970, 19 J.
CONFLICT RESOLUTION 379, 407 (1975).
178
People v. Lloyd, 304 Ill. 23, 106 (1922) (Carter, j., dissenting).
179
State v. Boloff, 138 Or. 568, 646-47 (1932).
173
25
and malicious physical damage or injury to physical property), or unlawful acts of
force and violence or unlawful methods of terrorism as a means of accomplishing
a change in industrial ownership or control, or effecting any political change.180
Section two provided that
Any person who: Organizes or assists in organizing, or is or knowingly becomes a
member of, any organization, society, group or assemblage of persons organized
or assembled to advocate, teach or aid and abet criminal syndicalism [is guilty of
a felony.]181
Syndicalism statutes therefore criminalized mere membership in any group that
advocated—but did not necessarily commit—unlawful acts as a means of accomplishing
industrial or political change. These statutes created a new type of extremely broad
conspiracy. Traditional conspiracy law required an agreement to commit a crime, an
overt act in furtherance of it, and intent to both agree and to commit the substantive
crime.182 Syndicalism statutes required none of these elements. Instead, it made certain
groups radioactive. These statutes were used almost solely to target Wobblies, and in
application, the use of syndicalism laws was patently abusive.
VI. The State Syndicalism Cases: 1918-1921
The first syndicalism case seems to have been State v. Moilen,183 in which the
Minnesota Supreme Court affirmed a conviction in April 1918. The defendant had
posted around town, at night, four types of 1x2-inch “posters,” proclaiming, “Beware
Sabotage,” “Join the One Big Union,” (One Big Union was and remains today another
name for the I.W.W.184), “Industrial Unionisn, Abolition of the Wage System, Join the
I.W.W.,” and “Sabotage means to push back, pull out or break off the fangs of
Capitalism.”185 Sabotage was the Court’s major concern, which it referred to as
“terrorism.”186 Charitably, the Court observed that there were innocent meanings of
sabotage, and that “the posters which [the] defendant distributed and caused to be
publicly displayed do not attempt to limit the sabotage thus advocated.”187 This should
have resulted in reversal of the convictions, because the Court indicated that the state
failed to prove that the defendant advocated any illegal conduct.188 In a remarkable fit of
burden shifting, however, the Court went on: “If [the] defendant intended some innocent
phase of the doctrine of sabotage he should have made it appear on the face of the
180
People v. McClennegen, 195 Cal. 445, 450 (1925).
Id. at 451.
182
See Windsor v. United States, 286 F. 51, 54-55 (6th Cir. 1923).
183
State v. Moilen, 140 Minn. 112 (1918).
184
See http://www.iww.org/about.
185
Moilen, 140 Minn. at 118.
186
Id. at 116.
187
Id. at 119.
188
See id.
181
26
posters.”189 Because, furthermore, one of the posters depicted a “snarling black cat,” the
Court found sufficient evidence to convict.190
Moilen was not a conspiracy case, but it did contain important elements thereof.
These elements included a priori assumptions of the meaning of words like “sabotage”
and the nature of groups like the I.W.W. They also included de facto burden shifting.
The Moilen Court couched its burden shifting in the guise of a sufficiency of the evidence
argument, thus insulating the jury’s guilty verdict from appellate review and absolving
itself of the responsibility of reversing what was probably a socially and politically
popular conviction. Such moves, and the conspiracy charges they usually accompanied,
were necessary because criminal syndicalists often engaged in the most minor of conduct,
which would have been comical if not for the tragedy of the long sentences that resulted.
a. The Early Cases
In Howenstine v. United States (1920),191 the defendant was convicted of conspiring
to violate the Espionage Act by giving to another man, who was subject to the draft, a
pair of eyeglasses that would impair the man’s vision, permitting him to avoid
induction.192 Reviewing the case, the Ninth Circuit observed that this gift
“unquestionably would tend to cause disloyalty on [the draftee’s part] and refusal of
military service.”193 In State v. Townley (1921),194 the Minnesota Supreme Court
affirmed convictions for conspiracy to teach or advocate that men should not enlist in the
military, or that citizens should not aid the United States in its war effort.195 The
defendants made anti-war speeches and distributed pamphlets that were intended to
dissuade people from buying Liberty Bonds; teach people that it was the poor farmers,
rather than the rich, who were being drafted; show that the poor were paying for the war
twice, with their lives and their tax dollars; and to oppose American autocracy at home
before attempting to relieve Europeans of German autocracy.196 In In re O’Connell
(1920),197 the California Supreme Court disbarred an attorney because he had been
convicted of conspiracy to violate the Selective Service and Espionage Acts.198 He had
been sentenced to seven years for conspiring to persuade others to avoid the draft and
“mak[ing] false certificates concerning liability for military service.”199 The issue was
whether the attorney’s crimes amounted to “moral turpitude,” defined as “an act of
baseness, vileness, or depravity in the private and social duties which a man owes to his
fellow men, or to society in general, contrary to the accepted and customary rule of right
and duty between man and man.”200 The California Court entertained “no doubt that the
189
Id.
Id. at 118.
191
Howenstine v. United States, 263 F. 1 (9th Cir. 1920).
192
Id. at 2.
193
Id. at 5.
194
State v. Townley, 149 Minn. 5 (1921).
195
Id. at 7-8.
196
Id. at 12-14.
197
In re O’Connell, 184 Cal. 584 (1920).
198
Id. at 585.
199
O’Connell v. United States, 253 U.S. 142, 147 (1920).
200
In re O’Connell, 184 Cal. at 587.
190
27
offense with which the accused was charged and of which he was convicted comes within
these definitions.”201
On one hand, the California Court’s decision makes sense. Attorneys are ethically
bound to obey the law as embodied in the Constitution, the courts, and statute. Whether
one agreed with the intent of the Espionage Act and war enabling laws, the fact was that
Attorney O’Connell intentionally violated them. He was disbarred for that violation, and
not for any legitimate political goal that may have informed the violation. On the other
hand, attorneys commit crimes all the time for which they are not disbarred. Drunk
driving, domestic violence, and other convictions are not said to impinge upon an
attorney’s fiduciary role as officer of the court. What mattered in O’Connell was that the
federal laws at issue drew a rhetorical line in the sand, backed by the force of the criminal
justice system. Laws made manifest the social border between loyal American and
enemy. Complete loyalty, in word and deed, was required. Anything less than that, for
any reason, would result in social ostracism and, often, a conspiracy charge.
There were no exceptions to this. In Sykes v. United States (1920),202 members of the
Church of the Living God encouraged other church members not to contribute to the Red
Cross, buy Liberty Bonds, display the American flag, visit the homes of others who
displayed the flag, or register as alien enemies.203 The defendants also told their
congregation that the German army represented the Lord’s chosen people and would be
victorious.204 They were convicted of conspiracy to violate a number of the war enabling
acts and the Espionage Act.205 Just as notions of free speech were inchoate and
subservient to the state’s police power at this time, there was very little jurisprudence
regarding the freedom to practice one’s religion. Religion may have been a more obvious
force than free speech in American life prior to World War I, but it had remained
relatively apolitical. When the police power demanded it, and when what was loyal and
disloyal were defined, religion, like other First Amendment rights, carried no
countervailing weight.
Indeed, even after it entered courts’ consciousness, the clear and present danger test
did not impede any conspiracy convictions. In United States v. Steene (1920),206 a
defendant was convicted under the Espionage Act for distributing antiwar leaflets.207
One leaflet depicted a man and the descriptive words: “Hung by the wrists from ceiling
for 8 Hours a Day. McNeil’s Island, Washington”208 (Emil Herman, the secretary of
Washington’s Socialist party, had been imprisoned there209). Another depicted a man
who had apparently been beaten with a club, under which appeared, “Political Prisoners
Beaten with a Baseball Bat at Leavenworth Penitentiary.”210 Another depicted a man
201
Id. at 587.
Sykes v. United States, 264 F. 945 (9th Cir. 1920).
203
Id. at 946.
204
Id.
205
Id. at 945.
206
United States v. Steene, 263 F. 130 (N.D.N.Y. 1920).
207
Id. at 131.
208
Id. at 132.
209
STEPHEN MARTIN KOHN, AMERICAN POLITICAL PRISONERS: PROSECUTIONS UNDER THE ESPIONAGE AND
SEDITION ACTS 106 (1994).
210
Steene, 263 F. at 132.
202
28
with a pistol and army hat, kicking a hapless victim, described as “Punishment of a
Conscientious Objector in Disciplinary Barracks.”211
The Steene defendants’ free speech argument landed on deaf ears. The New York
District Court concluded that these leaflets
must be taken to mean that the form of government of the United States and the
Constitution upon which it rests have proved inadequate to secure justice for
American citizens . . . . Such an allegation, made during a period of war, when
loyalty is to a great extent predicated upon belief that the form of government of
the United States rests upon liberty and justice, is calculated to bring into
disrepute the form of government and its Constitution . . . and likewise its military
forces, whose members are responsible for the brutalities portrayed in the lastdescribed picture.212
These leaflets, concluded the court, were “well calculated to have the effect of
arousing the contempt, scorn, contumely, and disrepute which Congress has sought to
prevent.”213 Without applying the clear and present danger test, the court overruled the
defendants’ motion to dismiss the charges.214
Two months after Steene, the same result obtained in Schoborg v. United States.215 In
that case, defendant Charles Schoborg, a 66-year old immigrant from Germany who had
arrived in the United States as a child, ran a cobbler’s shop.216 He had been a city
policeman, marshal, a member of the board of trustees, and a city council member.217
His shop was used by the local German community as a place for meeting, gossip, and
conversation.218 Frequent attendees included a 65-year old tobacco dealer and banker,
who had been born in the United States, and a 56-year old native-born treasurer of a local
brewery.219 These men often visited the cobbler’s shop “‘as a loafing place’ to sit down
and talk and ‘meet the same old crowd.’”220
“Desiring to know what was going on,” a group of citizens in March 1918 hired a
detective agency to wiretap the cobbler’s shop.221 Agency employees recorded some of
what they heard for a period of five or six weeks from March to July.222 Based on this
information, the three loafers were indicted for conspiracy to violate the Espionage Act.
Affirming their conviction, the Sixth Circuit ostensibly applied the clear and present
danger test, but in fact applied the most police power-deferential form of bad tendency
possible, writing:
211
Id.
Id. at 133.
213
Id.
214
Id.
215
Schoborg v. United States, 264 F. 1 (6th Cir. 1920).
216
Id. at 3.
217
Id.
218
Id.
219
Id.
220
Id.
221
Id.
222
Id.
212
29
It is strenuously insisted that defendants’ conduct could not be thought to have
any direct tendency to cause the obnoxious ‘substantive evils,’ because what they
said was spoken secretly and among themselves. However true this might be of
the ordinary, casual conversation, it cannot reach the long-continued maintenance
of an intensive school of disloyalty. Even if the talk had been confined to the
three respondents, the cumulative effect upon each of what the others said would
be to aggravate, if not cause, an extremity and recklessness in opposition to the
war and favor to the enemy which would be an incitement to direct obstruction
and injury in the many ways open to the evil disposed in that vicinity. But the
talk was not confined to these three. Several others were present more or less,
and that the influence of such a center would radiate through an appreciable part
of the community is too sure for doubt.223
This need not have been the result. Four days before the decision in Schoborg, the
Supreme Court issued its opinion in Pierce v. United States.224 In that case, the Court
affirmed the conviction of the defendants, who had been found guilty of an Espionage
Act conspiracy based on their distribution of a pamphlet called “The Price We Pay.”225
Issued by the Socialist party in Chicago, the antiwar pamphlet advised readers that
draftees would be given guns and taught not to think but obey, and “shipped thru the
submarine zone by the hundreds of thousands to the bloody quagmire of Europe . . .
Black death will be a guest at every American fireside. Mothers and fathers and sisters,
wives and sweethearts will know the weight of that awful vacancy left by the bullet
which finds its mark.”226 It went on to assert that the entry into the war was “determined
by the certainty that if the Allies do not win, J. P. Morgan’s loans to the Allies will be
repudiated, and those American investors who bit on his promises would be hooked.”227
The Court left to the jury the task of interpreting the pamphlet, determining the
probable effects of its distribution, and discerning the defendants’ intent.228 This
deference to the jury was in fact a burden-shifting sleight of hand. To be sure, it is the
jury’s province to say what the facts are, which includes a defendant’s intent, but it is the
Court’s role to say what the law requires. By deferring to the jury, the Court rejected the
defendants’ free speech claim—based as it was on the increasingly substantive clear and
present danger test. The Court also insulated the popular prejudice of the jury from
judicial review.
Justice Brandeis pushed back in his dissent. Only four months after his landmark
Abrams dissent, Justice Holmes joined Brandeis in a full-throated assertion of the
substantive clear and present danger test. Brandeis argued that the trial court should have
directed a verdict for the defendants because the pamphlet “was not distributed under
such circumstances, nor was it of such a nature, as to create a clear and present danger of
causing either insubordination, disloyalty, mutiny or refusal of duty in the military or
naval forces.”229 The dissenters were shaping a clear and present danger test that would,
223
Id. at 6-7.
Pierce v. United States, 252 U.S. 239 (1920).
225
Id. at 241.
226
Id. at 245-46.
227
Id. at 247.
228
Id. at 244, 249-50.
229
Id. at 272 (Brandeis, j., dissenting).
224
30
ultimately, interpose a First Amendment check between anti-speech laws and
convictions. Under the bad tendency test, legislators were given nearly free reign to draft
anti-speech laws, and juries were given primary responsibility for imagining the dangers,
however remote, of a particular speech act, and convicting based on those perceived
potential dangers. The clear and present danger would come to limit the power of
legislatures to pass certain laws and expand the power of judges to direct verdicts before
the case reached juries. This was not to be, however, for a number of decades.
b. The Role of Conspiracy
The role of conspiracy law in this was not only to provide a mechanism for
prosecuting people who only spoke (either through extemporaneous words among friends
or in written pamphlets as members of groups), but it had the added benefit of providing
an end-run around nascent First Amendment rights. In the World War I era, the concept
of individual First Amendment rights was a real one, and so the law continued to require
routes through which speech and assembly suppression appeared legal. Conspiracy was
one of those routes.
Because prosecutors had to find legal justifications for prosecutions arising out of
defendants’ exercise of First Amendment protected activity, there were limits to what
conspiracy law could justify. In United States v. Strong (1920),230 a Washington District
Court took the rare—but not unheard of—step of dismissing an Espionage Act charge,
predicated upon the publication of an editorial in the Union Record, charged to be
disloyal, scurrilous, and abusive toward the form of the U.S. government. The Court
observed:
It is conceded, I think, that the advocacy of anarchy and sedition, or overthrow of
government, is no crime, under the general statutes or law as presently enacted,
unless the acts amount to treason, rebellion, or seditious conspiracy; nor is
advising or advocating unlawful obstruction of industry, or unlawful or violent
destruction of private property, a crime under the laws of the United States.231
But advocating sedition or overthrow of the government could easily be seen as an
Espionage Act violation! The court certainly knew this, and so it was not making a
statement regarding the statutory law, but rather, possibly, a statement that the First
Amendment protected such advocacy despite the law. Even this progressive and speechprotective statement, however, highlighted conspiracy’s usefulness as a work-around: one
could not be charged directly with advocacy, but one could be charged with conspiracy,
which, to the court, was on par with treason and rebellion.
c. The House that Jack Built
Other courts recognized the problems with conspiracy law. On review of the
conspiracy conviction of I.W.W. leader “Big” Bill Haywood,232 the Seventh Circuit
230
United States v. Strong, 263 F. 789 (W.D.Wash. 1920).
Id. at 791-92.
232
Haywood v. United States, 268 F. 795 (7th Cir. 1920).
231
31
admitted its exasperation at the layered structure of conspiracy charges that create what
the court called a “house that Jack built” problem.233 Haywood had been convicted of
interfering with the operations of private companies that had contracted to provide war
munitions to the government.234 Inquiring into the congressional intent of a law that
criminalized conspiracies to “use force to prevent, hinder, or delay the execution of any
law of the United States,” the court observed that
the question under section 6 covers not only war supplies, but also peacetime
supplies which the government might intend to buy or had contracted to buy. The
Government Printing Office is conducted under laws directing, and making
appropriations for, its operations. Any direct interference by force with its
operations might possibly be held to be a forcible prevention of the execution of
laws of the United States . . . But the printing office cannot operate without paper.
Suppose the workmen in a paper mill that has a contract to supply paper to the
printing office, with knowledge of the contract and with intent to prevent the mill
from fulfilling it, go on strike and forcibly prevent the running of the mill.
Suppose that workmen in a hemlock forest, whose owner has a contract to supply
paper to the printing office, with knowledge of those contracts and with the intent
to prevent their execution, go on strike and forcibly stop the timberman’s
operations. And so on, along the whole imaginable line of “the house that Jack
built.”235
Substantive First Amendment protections could have limited the scope of the House
that Jack Built problem. If lumberjacks in one camp went on strike, wood could be
procured from other camps, and so their strike would represent no clear and present
danger of interfereing with governmental functions. The crime of conspiracy, however,
is virtually complete when the agreement is made, and the impossibility of achieving a
crime’s intended result is generally no defense. Lumberjacks in some remote camp who,
at the best of times, produced little wood ultimately destined to become government
paper, could conspire to strike. Even if, like the defendants in Abrams, the lumberjacks
were puny, ineffectual anonymities, their crime would be complete and they would be
exposed to criminal liability.
d. The Principle of Layering
The House that Jack Built problem is part of a larger concept that I call the Principle
of Layering. Layering entails a system of redundant, overlapping legal rules that operate
to permit the prosecution for a particular act or cluster of acts in a number of ways.
Layering generally occurs only in politically controversial instances, because such
instances involve acts whose criminality, social value, and even definition, are open to
debate. In the case of radical World War I First Amendment activity, layering operated
in part through laws that exposed potential defendants to a multitude of criminal charges
for the same conduct. The California Supreme Court, for example, in People v. Steelik
233
Id. at 800.
Id. at 799.
235
Id. at 800.
234
32
(1921),236 observed that one could violate the state’s criminal syndicalism statute in a
number of ways: by committing a crime for the purpose of effecting political or industrial
change; advocating the commission of such a crime; or “forming a criminal conspiracy
for the purpose of committing such a crime.”237 The “conspiracy” in Steelik was the
I.W.W. itself.238 A particular member’s criminal intent in joining the Wobbies often did
not matter—it was the membership itself that was criminal.239 The Washington Supreme
Court in State v. Hennessy (1921)240 upheld a man’s conviction for being an I.W.W.
member, concluding that “the defendant voluntarily became a member of a group of
persons prohibited by statute, and in doing this act he became guilty of the offense
whether he intended to violate the law or not.”241 The court noted that its syndicalism
law created a strict liability crime; no guilty knowledge or intent needed to be proved.242
The California Appeals Court in People v. Wieler (1921)243 went further than the
Supreme Court did in Steelik, offering five poorly-defined ways of violating the law. A
person could be found guilty if she advocated syndicalism; justified it; printed it; became
a member of a body of syndicalists; or practiced syndicalism.244
VII. The Red Scare: 1920
These cases were just the beginning. Worse days were yet to come, bringing with
them additional abuses of conspiracy law. The politically motivated conspiracy charges
that had run their course by 1921 appear, in hindsight, to be mere preparation for the
onslaught against First Amendment rights during the post-WWI Red Scare.
a. The First Shots
On June 2, 1919, a bomb exploded at the home of Attorney General A. Mitchell
Palmer, the architect of the Red Raids that would follow only five months later.245
Already concerned with leftist disloyalty, and fueled in part by discriminatory BI
investigations and the formation of the Lusk Committee in 1919 to investigate people and
groups for sedition,246 Palmer was no doubt shaken by this real physical attack. By this
time, furthermore, the Socialist party had been marginalized by the Post Office’s
censorship and President Wilson’s Fourteen Points speech. With the war over and
wartime production no longer an imperative, the labor unions no longer had the leverage
they so recently had. Soaring prices in 1919, however, compelled them to ask for higher
wages, which led to large-scale industrial strikes and “bombings and riots” in May and
236
People v. Steelik, 187 Cal. 361 (1921).
Id. at 368.
238
See id. at 369.
239
Id. at 376-77.
240
State v. Hennessy, 114 Wash. 351 (1921).
241
Id. at 367.
242
Id. at 368.
243
People v. Wieler, 55 Cal.App. 687 (1921).
244
Id. at 691.
245
Braeman, supra note 131, at 108-09.
246
John Lord O’Brian, Restraints Upon Individual Freedom in Times of National Emergency, 26 CORNELL
L. Q. 523, 525 (1940-1941).
237
33
June 1919.247 The country was worried about the effects of the Bolshevik revolution and
Soviet Russia’s stated intent to spread communism throughout the world, manifest in the
establishment of the Third Communist International in March 1919.
b. The Red Raids
November 1919 saw the first of the Red Raids, during which federal and local
authorities would raid meeting places, close down presses, seize records, and jail or
deport immigrant activists.248 Many conventional political figures were targeted for
investigation. Even Zechariah Chafee, Judge Felix Frankfurter, and others—Holmes’
young friends who convinced him of the value of individual speech rights—were
investigated as subversives.249 Others who favored various causes, such as Jews who
advocated the establishment of a national homeland in Palestine, Irish-Americans who
favored Irish independence, civil libertarians who defended the rights of dissidents, and
anyone who supported recognizing the Soviet Union, were investigated.250
On January 2, 1920, the Red Raids reached their peak. On that Friday night, BI
agents, in conjunction with local police, fanned out over thirty-three cities to arrest as
many as 10,000 people. While many, or perhaps most, targets were members of the
Communist or Communist Labor parties, “many persons not affiliated with communist
parties and not mentioned in arrest warrants were seized simply because they had
attended lawful political or social functions that [BI Director] Hoover and his staff
regarded as subversive.”251
1. Colyer v. Skeffington
In Colyer v. Skeffington (1920),252 a group of twenty aliens petitioned for writs of
habeas corpus as a result of the January 2 raids. They had been arrested that night in
Boston simply for their membership in the Communist or Communist Labor party. U.S.
District Court Judge Anderson, highly critical of the raids, described them in detail. They
were notable for three reasons. First, government agents who conducted the raids
envisioned a vast, well-organized conspiracy of leftist radicals. Second, the deprivations
experienced by the targets of the raids were serious and unfair. Third, Anderson
recognized that these raids were predicated largely on a paranoid conspiracy theory.
On December 27, 1919, Frank Burke, Chief of the BI in the Department of Justice in
Washington, sent to the head of the Boston bureau, George Kelleher, a letter, in which he
admonished Kelleher to read his briefs on the Communist Party and Communist Labor
Party “with instructions that these briefs be carefully examined and studied for the
purpose of familiarizing yourself and the agents under your direction with the principles
and tactics of these two respective organizations.”253 Burke advised Kelleher to surveille
247
Braeman, supra note 131, at 108-09.
Barrett, supra note 108, at 1019.
249
David Williams, The Bureau of Investigation and Its Critics, 1919-1921: The Origins of Federal
Political Surveillance, 68 J. AM. HIST. 560, 572 (1981).
250
Id. at 561.
251
Id. at 577.
252
Colyer v. Skeffington, 265 F. 17 (D.Mass. 1920).
253
Id. at 31.
248
34
the targets, and “at the appointed time,” take them into custody.254 Leaders of the
targeted organizations were supposed to have instructed their members to refuse to
answer questions and “to destroy all evidence of membership or affiliation with their
respective organizations.”255 Kelleher was therefore ordered “to ascertain the location of
all of the books and records of these organizations” and obtain admissions that the targets
were group members.256 Burke wrote, “I cannot impress upon you too strongly the
necessity of obtaining documentary evidence proving membership,”257 and therefore
ordered that “[a]ll literature, books, papers, and anything hanging on the walls should be
gathered up; the ceilings and partitions should be sounded for hiding places.”258
“[P]articular effort [should be] given to finding the membership book.”259
Burke was also concerned with leaks, and informed Kelleher, “Under no conditions
are you to take into your confidence the local police authorities or the state authorities
prior to the making of the arrests.”260 If Kelleher needed the assistance of local agents,
“Such assistance should not be requested until a few hours before the time set for the
arrests.”261
Government agents had infiltrated the target organizations, and it appeared that they
had attained positions of authority. Burke suggested that Kelleher, “[A]rrange with your
under-cover informants to have meetings of the Communist Party and Communist Labor
Party held on the night set.”262
Burke’s letter was to be read in connection with another document issued two days
later by Anthony Caminetti, Commissioner General of Immigration, to the Commissioner
of Immigration at Boston. Caminetti submitted 306 arrest warrants to Kelleher, with
locations where the targets could be found.263 The charges contained therein pertained
“to [Communist Party] membership merely.”264 Evidence of membership, therefore, was
particularly important, which included “individual tenets, beliefs and practices.”265
Judge Anderson observed that government officials involved in these arrests
“described these proceedings, properly enough, as a ‘raid’ and as ‘catching the
Communists in the net.’ The word ‘raid’ seems appropriate, and will hereafter be
used in this report.”266 In Boston alone, the raids involved as many as 500
government agents.267 A Boston BI superintendant estimated the arrests at 600;
Judge Anderson believed the number was as much as double that.268
While the judge criticized the quantity of arrests, it was their quality that
particularly concerned him. He observed that “a mob is a mob, whether made up of
254
Id.
Id.
256
Id.
257
Id.
258
Id.
259
Id. at 32.
260
Id.
261
Id.
262
Id.
263
Id. at 33.
264
Id.
265
Id. at 34.
266
Id. at 36.
267
Id. at 38.
268
Id. at 39.
255
35
government officials acting under instructions from the Department of Justice, or of
criminals, loafers, and the vicious classes.”269 The government mob on January 2
acted with a “disregard of law and of properly verified facts.”270 For example,
authorities arrested and held overnight thirty-nine people in Lynn, who were meeting
to discuss forming a co-operative bakery.271
The court also described the arrest of Mrs. Stanislas Vasiliewska. A mother of
three children, aged thirteen, ten, and eight, Vasiliewska
was arrested in a hall in Chelsea, taken in the police patrol wagon with her eldest
girl to the police station, and both put with another woman into one cell. About
midnight they took her child and sent her home alone to a remote part of the city.
Mrs. Vasiliewska was taken the next day to the wharf, where . . . she was
confined for about 6 hours in a dirty toilet room. She was then taken to Deer
Island, where she was kept 33 days.272
Another woman was arrested at her home at six a.m. She was told to get out of bed
and dress, and was taken to a police station while officers searched her home for I.W.W.
literature. No warrant was produced.273
The court described the abuses that were visited upon targets, the evidentiary
problems, and the paranoia that drove the raids:
[A]liens were subjected to questionnaires, subsequently used as, and generally
constituting an important part of, the evidence adduced against them before the
immigration inspectors. Pains were taken to give spectacular publicity to the raid,
and to make it appear that there was great and imminent public danger, against
which these activities of the Department of Justice were directed. The arrested
aliens, in most instances perfectly quiet and harmless working people, many of
them not long ago Russian peasants, were handcuffed in pairs, and then, for the
purposes of transfer on trains and through the streets of Boston, chained together.
The Northern New Hampshire contingent were first concentrated in jail at
Concord and then brought to Boston in a special car, thus handcuffed and chained
together. On detraining at the North Station, the handcuffed and chained aliens
were exposed to newspaper photographers and again thus exposed at the wharf
where they took the boat for Deer Island. The Department of Justice agents in
charge of the arrested aliens appear to have taken pains to have them thus exposed
to public photographing.274
Despite the many invasive searches performed, the court doubted whether any search
warrants were issued and, if they were, whether they were valid. The authorities, in any
case, produced no warrants.275 And the conditions of confinement were horrendous. At
269
Id. at 43.
Id.
271
Id.
272
Id. at 43-44.
273
Id. at 44.
274
Id.
275
See passim, and at 44.
270
36
Deer Island, where many were detained,
Some of the steam pipes were burst or disconnected. The place was cold; the
weather was severe. The cells were not properly equipped with sanitary
appliances. There was no adequate number of guards or officials to take a census
of and properly care for so many. For several days the arrested aliens were held
practically incommunicado.276
In the early days at Deer Island one alien committed suicide by throwing himself
from the fifth floor and dashing his brains out in the corridor below in the
presence of other horrified aliens. One was committed as insane; others were
driven nearly, if not quite, to the verge of insanity.277
The court also questioned the reliability of arresting so many people simply for group
conduct. It observed that
many of these aliens were arrested in boarding houses or halls in which were
found large quantities of literature and pamphlets, the origin and ownership of
which were necessarily largely matters of guesswork. In cases of doubt, aliens,
already frightened by the terroristic methods of their arrest and detention, were, in
the absence of counsel, easily led into some kind of admission as to their
ownership or knowledge of communistic or so-called seditious literature.278
Rejecting the allegation that the Communists were engaged in a conspiracy to use
force or violence, Anderson accused government agents of creating the suspicious
conditions that the raids were designed to address, citing for support Burke’s December
27 letter to Kelleher. To the court, Burke’s instruction to have undercover agents arrange
party meetings showed that “the government spies were then active and influential in
these proscribed parties; they were not mere onlookers.”279 To the judge, this was
unacceptable conduct for law enforcement agents, and led to unreliable judicial outcomes
for the raid targets:
I cannot adopt the contention that government spies are any more trustworthy, or
less disposed to make trouble in order to profit therefrom, than are spies in private
industry. Except in time of war, when a Nathan Hale may be a spy, spies are
always necessarily drawn from the unwholesome and untrustworthy classes. A
right-minded man refuses such a job. The evil wrought by the spy system in
industry has, for decades, been incalculable. Until it is eliminated, decent human
relations cannot exist between employers and employes, or even among
employes. It destroys trust and confidence; it kills human kindliness; it propagates
hate.280
276
Id. at 45.
Id.
278
Id. at 47.
279
Id. at 65.
280
Id. at 69.
277
37
Prior to becoming a judge, Anderson was the United States Attorney in Boston.
Historian David Wiliams noted, “Experience taught [Anderson] that ‘99 percent of the
spy plots were pure fake’ . . . [that g]uilt . . . was personal, and the government could not
deport persons because of membership in certain political or labor organizations . . . Guilt
by association, he declared, had no place in American society.”281 For his stance, the
Bureau of Investigation opened a file on and monitored Judge Anderson.282
VIII. The State Syndicalism Cases: 1921-1925
The public at first supported the raids, which resulted in the passage of a spate of state
syndicalism laws, dating mostly (but not entirely) from 1921 to 1922. I.W.W. members
were the overwhelming targets of these laws, and not for any violent actions they took,
but simply for being a member of the group. It was, in fact, a model of group conduct
that existed in the World War I era (and persists today) that drove these laws and their
application. One of the more problematic and central aspects of this model is that the
perceived nature of the group usually relies on a priori assumptions about its criminality,
single-mindedness, and cohesiveness. The I.W.W. was, by definition, supposed to be a
criminal syndicate, its only goals the illegal destruction of the economic and political
status quo, and all of its members sharing in and actively pursuing those goals. The result
of these assumptions is that it need only be proven at trial that an individual defendant is
a member of the group. In extreme cases, that membership would be enough to comprise
the actus reus of the crime and to prove the defendant’s mens rea.
a. The Cases
In People v. Lesse (1921),283 for example, the California Appeals Court affirmed the
conviction of a man for being an I.W.W. member. The Court approved the introduction
in evidence of a book entitled The New Unionism, which was produced by the I.W.W.284
This book was said to “relate[] to and expound[] the doctrines of [the] syndicalism
organization,” the I.W.W.285 The appeals court did not suggest that the defendant had
anything to do with The New Unionism. The Court also described no part of the book,
which might have been necessary to demonstrate that the I.W.W. was a criminal
organization. Instead, the court observed, “[T]he purposes of the I.W.W. are a part of the
current history of the day—a part of the history of the times. We are informed by the
magazines, encyclopedias, and dictionaries of the day that the organization advocates
criminal syndicalism, revolutionary violence, and sabotage.”286 The Court went on to
repeat the definition of “I.W.W.” in the 1916 International Encyclopedia and the
Mirriam Webster’s New International Dictionary definition of “sabotage.”287 Without
expressly doing so, the court took judicial notice of the I.W.W.’s criminal nature because
281
Williams, supra note 249, at 565, 567.
Theoharis, supra note 140, at 42.
283
People v. Lesse, 52 Cal.App. 280 (1921).
284
Id. at 282.
285
Id.
286
Id. at 282.
287
Id. at 283.
282
38
that nature was supposedly common knowledge. Judicial notice is generally taken of
universally known or reliably provable facts, such as the fact that the sun rises in the east
or that the United States has troops deployed overseas. The I.W.W.’s nature was an
element of the crime of syndicalism, and so by taking judicial notice as it did, the
California court made an a priori assumption of the group’s criminality, and relieved the
prosecution from having to prove an element of the crime.
The court maintained this assumption and permitted jurors to sit who had the same
assumption, noting that although “[s]everal jurors stated on their voir dire that they
entertained unfavorable opinions of the I.W.W. . . . All jurors who read must know in a
general way all about the I.W.W. Those who cannot read are not competent jurors
anyway.”288 Because the defendant admitted his membership in the I.W.W., and because
of the court’s assumption, his conviction would easily stand. In People v. Thompson
(1924),289 the defendant pointed to this a priori prejudice, arguing that criminalizing
membership in the I.W.W. was “an attempt to create the crime of constructive conspiracy
in violation of the constitutional right of personal liberty.”290
b. Conspiracy, The First Amendment, and Group Criminality
The role that conspiracy and substantive First Amendment rights (or their lack)
played in bolstering the assumption of group criminality was on display in People v.
Lloyd (1922).291 In that case, the Illinois Supreme Court affirmed the conviction of
eighteen members of the Communist Labor party for conspiracy to violate the state’s
syndicalism law.292 In the absence of any substantive First Amendment rights, people
who exercised rights of speech, press, or assembly that had little chance of resulting in
any violence or illegal conduct could be prosecuted. In response to the defendants’ First
Amendment argument, the court observed, “[I]f the acts are too trivial for the law’s
notice, and create no apparent danger and no perturbation in the peaceful order of things,
then no crime is committed; but if the means advocated are apparently adapted to the end,
then the public peace, so far as advocacy is concerned, is as much disturbed as if they
should be so actually.”293 It is ironic that the court would apparently relieve defendants
of criminal liability for acts that were designed to overthrow the government, if they had
no chance of leading to success, but that it would hold defendants accountable for
advocacy of these acts, even if the advocacy had no chance of leading to any actual
conduct.
This irony was most on display in conspiracy charges. Rejecting the defendants’ free
speech claims in Lloyd, the court observed,
[C]onspiracy is complete when the agreement to do the thing forbidden by law
has been made. The conspiracy is none the less punishable because it is not
successful. The essence of the offence is not the accomplishment of the unlawful
288
Id. at 284.
People v. Thompson, 68 Cal.App. 487 (1924).
290
Id. at 490.
291
People v. Lloyd, 304 Ill. 23 (1922).
292
Id. at 29.
293
Id. at 35.
289
39
object, but it is the unlawful combination or agreement to accomplish the criminal
or unlawful purpose.294
Conspiracy law related closely to the rejection of substantive individual First
Amendment rights and the a priori assumption of certain groups’ criminality. Both the
rejection of rights and the assumption were based upon notions of group conduct as
potentially very dangerous, and so requiring close monitoring and interdiction at the
earliest sign of criminality. Substantive First Amendment rights could have prevented,
and have come to prevent, some excessive speech-based prosecutions. Conspiracy law,
however, has never been so limited. As a result, prosecutions in the World War I era
were based on a theory of group criminality, with otherwise protected speech comprising
all or most of the evidence.
Judge Carter, dissenting in Lloyd, recognized this, observing that the Illinois
syndicalism law was not passed to protect the government from real threats, but to
“forbid[] any person who held opinions distasteful to the majority of our citizens to
express those opinions.”295 If strictly enforced, the law could be used to punish not only
disloyal acts but also to punish “citizens because they are thought to be disloyal at heart,
or not in sympathy with the policies of the government.”296
c. Career Government Witnesses
The Lloyd court’s a priori assumption of the I.W.W.’s criminality was a little—but
not too—extreme. Most courts during the World War I era eschewed the absolute
assumption and required some evidence that the I.W.W. was in fact a criminal
organization. This is not to say that most courts did so in a way that was reliable or fair.
Then, as today, prosecutors were fond of using group members who had supposedly
rejected their criminal pasts as witnesses to testify to the group’s ill-intent.
In the California syndicalism cases, a man named Elbert Coutts often testified for the
prosecution. He was an admitted former member of the I.W.W., during which time he
made his living, according to Aviam Soifer, “primarily by stealing.”297 After he left the
Wobblies, “his chief source of income was the $250 per case, above expenses, he got
from the government for his testimony in more than 40 trials of I.W.W. members.”298
Coutts, along with other former I.W.W. members, testified consistently at multiple trials
that the I.W.W. had been responsible for a series of mysterious haystack burnings. In
fact, in People v. Wright (1924),299 Coutts himself admitted to making chemical
explosives “for the purpose of carrying on the destructive policy of the I.W.W.” and that
he himself had set fires to haystacks for the group.300 There was never, in any of these
cases, evidence that anyone other than Coutts set fire to any haystack.
294
Id. at 43.
Id. at 109 (Carter, j., dissenting).
296
Id. at 112.
297
AVIAM SOIFER, LAW AND THE COMPANY WE KEEP 63 (1995).
298
Id.
299
People v. Wright, 66 Cal.App. 782 (1924).
300
Id. at 786.
295
40
In People v. Roe (1922),301 another former Wobbly, John Dymond, testified that the
“wholesale destruction of property was caused by the direct acts of members of the
I.W.W.,” and that “while no specific action was ever taken by the organization,” one of
the I.W.W.’s rules was that its members should “act on their own initiative whenever
they thought it necessary to accomplish” the goals of the organization.302
Another story often told at Wobbly trials was through Joe Arada, a regular
government witness. In numerous cases,303 Arada testified that he had been employed on
a potato farm.304 On one particular day, other workers showed up, worked, and slept in
the laborers’ bunkhouse with Arada and others.305 They left early the next day, before
the others awoke, without taking their breakfast or asking for their day’s pay.306 Later, in
the fields, Arada’s feet started to burn.307 This was a result, he claimed, of the potassium
hydroxide that had been placed in his shoes by Wobbly saboteurs.308 I.W.W. papers, he
would testify, were found in the bunkhouse the morning the mysterious laborers left,
which had not been there before.309
Coutts’, Dymond’s, and Arada’s testimony connected no specific defendant to the
I.W.W., nor did it provide extrinsic evidence that the I.W.W. in fact ordered its members
to engage in arson or sabotage whenever possible. These professional witnesses were
credible only to the extent the jury held an a priori assumption that the I.W.W. was a
criminal group. Based on the number of convictions for I.W.W. membership, this
assumption was widely held. The assumed nature of the I.W.W. was, furthermore,
particularly potent and damaging to defendants’ cases. The belief was that the I.W.W.
was a loosely-organized, nationwide collection of independent minded actors who were
unified by an idea. In People v. Bailey (1924),310 the California district court considered
the testimony of Coutts and another unreliable former Wobbly, W.E. Townsend.311 The
court held this evidence admissible “upon the theory that the Industrial Workers of the
World constituted a confederation or combination whose purpose was to accomplish its
objects by unlawful or criminal means, and that it is a continuing conspiracy, and will
remain so until its ultimate objects are accomplished.”312 Some of the I.W.W. literature
introduced to prove the group’s criminality was of “ancient vintage,” published prior to
the passage of California’s syndicalism act.313 “[S]ome of it advocated, though in an
indirect way, the resort to unlawful activities to carry out its great central idea.”314
301
People v. Roe, 58 Cal.App. 690 (1922).
Id. at 700-01.
303
People v. Wright, 66 Cal.App. 782 (1924); People v. La Rue, 62 Cal.App. 276 (1923); People v. Roe, 58
Cal.App. 690 (1922).
304
Wright, 66 Cal.App. at 787.
305
Id.
306
Id.
307
Id.
308
Id.
309
Id. 310
People v. Bailey, 66 Cal.App. 1 (1924).
311
Id. at 6.
312
Id. at 11.
313
Id.
314
Id.
302
41
d. Defining Groups, Ensnaring Individuals
As a loose, geographically expansive conspiracy organized not to achieve a specific
criminal purpose but to pursue an idea, the I.W.W. became a great amorphous bogeyman,
adaptable to the needs of any given case. Alluding to this problem, Supreme Court
Justice Robert Jackson observed in 1949, “The modern crime of conspiracy is so vague
that it almost defies definition . . . [C]hameleon-like, [conspiracy] takes on a special
coloration from each of the many independent offenses on which it may be overlaid.”315
The first ever critical treatment of conspiracy law, Harvard Law Professor Francis
Sayre’s Criminal Conspiracy, published in the Harvard Law Review in 1922, offered, “A
doctrine so vague in its outlines and uncertain in its fundamental nature as criminal
conspiracy lends no strength or glory to the law; it is a veritable quicksand of shifting
opinion and ill-considered thought.”316 The law could be applied to any unpopular group
du jour. Once applied, courts’ and jurors’ a priori assumption of the I.W.W.’s
criminality virtually ensured a guilty verdict. The mens rea required of the defendant
varied from case to case, but was always set at a low bar. Some courts, such as the
California Supreme Court in People v. Steelik (1921),317 required that the defendant
knowingly belong to an organization “which in its nature was a criminal conspiracy.”318
Other courts, like the Washington Supreme Court in State v. Hennessy (1921),319
interpreted syndicalism as a strict liability crime.320 The California Supreme Court in
People v. McClennegen (1925),321 contradicting its position in Steelik, explicitly rejected
any mens rea requirement, writing,
The maxim, actus non facit reum, nisi mens sit rea [“the act is not a crime unless
the mind is guilty”], does not always apply to crimes created by statute . . . The
only fact to be determined in these cases is whether the defendant did the act. In
the interest of the public the burden is placed upon the actor of ascertaining at his
peril whether his deed is within the prohibition of any criminal statute.322
The Oregon Supreme Court followed suit in State v. Boloff (1932),323 holding that the
only necessary proof of syndicalism was “the defendant’s membership in an
organization which teaches or advocates violence and crime . . . Membership alone is
sufficient.”324
Put another way, it was illegal to associate with the I.W.W., whether one intended to
commit a crime or not. This meant that the primary goal of a prosecution was to prove
the criminal nature of a group, not the actual crimes of either the group or an individual
315
Krulewitch v. United States, 336 U.S. 440, 446-47 (1949) (Jackson, j., concurring).
Francis B. Sayre, Criminal Conspiracy, 35 HARV. L. REV. 393, 393 (1922).
317
People v. Steelik, 187 Cal. 361 (1921).
318
Id. at 376.
319
State v. Hennessy, 114 Wash. 351 (1921).
320
Id. at 368.
321
People v. McClennegen, 195 Cal. 445 (1925).
322
Id. at 469-70.
323
State v. Boloff, 138 Or. 568 (1932).
324
Id. at 615.
316
42
defendant. In Burns v. United States (1927),325 for example, the U.S. Supreme Court
affirmed the conviction of a defendant for violating a state syndicalism statute on federal
land. The evidence was primarily intended to establish the nature of the I.W.W., not the
defendant’s conduct. Justice Brandeis, dissenting, noted that the evidence regarding the
group related mainly to acts of individuals.326 Burns, in this way, represents a perennial
problem with proving conspiracy: the charge is predicated on collective group conduct,
but evidence is always of the conduct of individuals and the question is whether such
evidence proves collective activity. In politically charged cases, the group is usually said
to be geographically large and amorphously organized around an idea rather than a
specific, isolated criminal act. The probativeness of the conduct of individual A, who
may have been a member of the group, to prove the criminal intent of individual B, who
may also have been a member of the group, becomes increasingly tenuous if the
individuals’ only link is an amorphous, poorly-defined group that is assumed to be
criminal. In such cases, guilt by association operates in reality. Such association could,
and did, lead to criminal liability, often in the most absurd circumstances.
People v. Wright (1924)327 was such a case. It is commonly believed that criminal
conspiracies operate in secret.328 This makes sense, for if they were obvious, they would
not succeed and the conspirators would be caught easily. Wright, however, subverted
that model. In that case, agents raided a house, the front of which hung a three foot-byeight inch sign reading “I.W.W. Office.” An I.W.W. member who had not been in the
house when the raid commenced approached an officer, delivering to him his I.W.W.
membership card.329 Coutts, Townsend, and Arada testified for the prosecution.330 It
was, in fact, at this trial that Coutts admitted to being an arsonist.331
In People v. Johansen (1924),332 the defendants had been convicted of syndicalism
for being members of the I.W.W. in Sacramento county, where they were arrested. They
resided in Alameda and Los Angeles counties, but had been subpoenaed to testify at
another I.W.W. trial, which was taking place in Sacramento county.333 They obeyed the
subpoenae, appeared and testified, and after they were done, they were arrested and
indicted.334 Although they had been tried and acquitted on a prior occasion for I.W.W.
membership, the court affirmed their second conviction, stating, “The conspiracy [of
I.W.W. membership] is a continuing one and its illegality is not alone in the act of
engaging therein as a member, but in the continuance of such membership . . . A prior
acquittal or conviction is not a bar to a subsequent continuance in the conspiracy.”335
Addressing itself to the apparent catch-22 of either being charged with I.W.W.
membership or with contempt for disobeying a subpoena, the court noted that the
325
Burns v. United States, 274 U.S. 328 (1927).
Id. at 340 (Brandeis, j., dissenting).
327
People v. Wright, 66 Cal.App. 782 (1924).
328
Grunewald v. United States, 353 U.S. 391, 402 (1957) (“[E]very conspiracy is by its very nature
secret.”).
329
Wright, 66 Cal.App. at 785.
330
Id.
331
Id. at 786.
332
People v. Johansen, 66 Cal.App. 343 (1924).
333
Id. at 345.
334
Id.
335
Id. at 347.
326
43
defendants “had ample opportunity to sever their connection with the unlawful
organization of which they were members before coming into that county.”336
In De Jonge v. Oregon (1937),337 the defendant was convicted of syndicalism for
attending an open Communist Party meeting at which he was a speaker. Although the
Supreme Court reversed his conviction, he had been sentenced by the trial court to seven
years for assisting in the conduct of a public Communist Party meeting that was
otherwise lawful.338 The Court, writing in 1937, could look back at the post-World War I
hysteria and recognize the problem of pursuing individuals for their affiliation with
political groups, however unpopular:
If the persons assembling have committed crimes elsewhere, if they have formed
or are engaged in a conspiracy against the public peace and order, they may be
prosecuted for their conspiracy or other violation of valid laws. But it is a
different matter when the State, instead of prosecuting them for such offenses,
seizes upon mere participation in a peaceable assembly and a lawful public
discussion as the basis for a criminal charge.339
Judge Belt, dissenting in Boloff, described the extent to which this absurdity could go.
By showing that the defendant was a Communist Party member, the state would hold him
responsible for “all of the strange doctrines and teachings that any member of such
organization ever advocated.”340 Belt observed,
Applying the same logic, if some Democrat should go so far as to assert in a
public speech that all Republicans should be shot at sunrise, then every member
of the Democratic Party would be guilty of crime. The doctrine of criminal
conspiracy, when thus extended, leads to absurdity.341
Prosecutors would also inflame the prejudice of the jurors. In Lloyd, the prosecutor,
in his closing argument,
[S]tamped all of the [defendants] with disloyalty and appealed to the loyalty of
the jurors. He pointed out to them the wholesome effect of the conviction of the
Haymarket rioters 32 years ago, and cautioned them against a verdict of not guilty
in the face of the present condition of unrest. He called their attention to the fact
that the people of Chicago would wait for the coming of the dawn, as Francis
Scott Key had waited, to see if the flag now flying over the criminal court
building was still there. He closed his argument by reciting to the jury the four
stanzas of The Star-Spangled Banner.342
336
Id. at 350.
De Jonge v. Oregon, 299 U.S. 353 (1937).
338
Id. at 362.
339
Id. at 365.
340
State v. Boloff, 138 Or. 568, 657 (1932) (Belt, j., dissenting).
341
Id.
342
People v. Lloyd, 304 Ill. 23, 98 (1922).
337
44
IX. Winding Down the Red Scare
By the mid-1920s, state syndicalism and Espionage Act conspiracy prosecutions
began to wane. After an initial favorable view of the Red Raids, the public began to
recognize the excesses of indiscriminate arrests, the need to restore political freedoms
restricted during World War I, and the emptiness of the perceived Red menace.
Anarchists may have seemed violent, but they did not control any debate and were never
an effective force.343 Francis Fisher Kane, the United States attorney for eastern
Pennsylvania expressed his belief that antisocialism laws went too far and were applied
to those who were not involved in any conspiracy.344 Acting Secretary of Labor Louis F.
Post stopped the deportation of Wobblies after the war because of governmental abuses
in the deportation process.345 The Red Raids produced no evidence that, except for the
general strike, Wobblies or any other targets were violent or advocated the use of serious
force.346 Historian Joseph R. Conlin has shown that the I.W.W. in fact rejected violence.
He reported, for example, that a Colorado police chief, the Federal Council of Churches,
and the federal Immigration Bureau all noted the I.W.W.’s nonviolence.347 Professor
Michael Stohl has demonstrated that throughout the war and after, it was authority
entities, rather than dissident groups, that were primarily responsible for any rise in the
rate of violent incidents.348 Conlin argued that the I.W.W.’s reputation for violence was
created by agents provocateurs, sometimes enlisted by employers to discredit workers’
unions.349 And in 1927, the U.S. Supreme Court reversed a syndicalism conviction in
Fiske v. Kansas,350 finding no evidence that the I.W.W. advocated change by other than
legal means.
By around 1925, people had tired of the war’s hysterical excesses, and a period of
legal normalization was setting in. 1924, for example, saw a restrictive new immigration
policy,351 which reflected a persistent nativism and gave a sense of protection from future
dissidents. The next year, in Gitlow v. New York,352 the Supreme Court incorporated the
First Amendment into the Fourteenth, limiting states’ ability to censor rights that were
embodied in that amendment. These moves seemed contradictory—one targeted
dissidents and the other seemed to give them more rights—but they also represented a
balancing of rights and security after the war, which corresponded with the end of the
Red Scare.
At the federal level, Espionage Act cases were fading into memory. Perhaps the last
such case in the World War I era was Dickson v. Young,353 which made it to the Iowa
343
Mohrenschildt, supra note 137, at 134.
Williams, supra note 249, at 571.
345
Braeman, supra note 131, at 107.
346
See Fiske v. Kansas, 274 U.S. 380, 387 (1927); Colyer v. Skeffington, 265 F. 17, 61, 63 (D.Mass. 1920);
People v. Thornton, 63 Cal.App. 724, 728 (1923).
347
Joseph R. Conlin, The IWW and the Question of Violence, 51 WISC. MAGAZINE OF HIST. 316, 323
(1968).
348
Stohl, supra note 177, at 396.
349
Conlin, supra note 347, at 324.
350
Fiske v. Kansas, 274 U.S. 380 (1927).
351
Immigration Act of 1924, ch. 190, 43 Stat. 153 (1924).
352
Gitlow v. New York, 268 U.S. 652 (1925).
353
Dickson v. Young, 208 Iowa 1 (1928); Dickson v. Young, 202 Iowa 378 (1926); Dickson v. Young, 199
Iowa 589 (1924).
344
45
Supreme Court as a civil suit against government agents three times between 1924 and
1928. Dickson had been arrested on January 20, 1920, probably as part of the Palmer
raids, and charged with seven counts under the Espionage Act.354 His arrest resulted
from complaints that Dickson “was not doing his part in the matter of contributions to the
Red Cross and other war necessities and in other respects.”355 He was acquitted of six of
the charges, and an appellate court reversed the sole conviction in December 1921.356
Dickson sued the government agents for conspiracy to maintain a malicious prosecution
against him.357 Dickson would ultimately lose his lawsuit.358
And so, the last Epionage Act case ended without fanfare, on shaky factual grounds,
acquittal or reversal on all counts, and a failed attempt to sue the government for abusive
prosecution. In 1923, President Coolidge commuted the sentences of the last thirty
Wobblies imprisoned for violating the Espionage Act, and in 1933 President Roosevelt
pardoned those convicted under the World War I laws.359 To paraphrase T.S. Eliot, who
wrote his famous lines in 1925,360 this was the way the war ended, not with a bang but a
whimper.
Conclusion
The period from 1918 to 1928 witnessed unprecedented expansion in the application
of criminal conspiracy law. It also saw the birth of substantive First Amendment rights.
Scholars continue to underappreciate the important concatenation of this law and these
rights, and at the same time have not recognized that conspiracy cases gave birth to
speech rights. Indeed, it may be that without expansive, abusive conspiracy charges,
development of substantive First Amendment jurisprudence would have been delayed.
It certainly would have looked different. As Professor Inazu argues, the right to
assemble is an important, but elided, First Amendment right. This article goes further,
arguing that not only is assembly an important right, but that at the First Amendment’s
substantive birth, it was the dominant right, over and above the individual right to speak.
If this had been appreciated, Inazu’s book may not have been necessary, First
Amendment law would have looked very different than it does today, and, as a result, our
society and government might have looked just as different.
***
354
Dickson, 199 Iowa 589, 200 N.W. 210, 211 (1924).
Dickson, 208 Iowa 1, 221 N.W. 820, 821 (1928).
356
Dickson, 199 Iowa 589, 200 N.W. 210, 211 (1924).
357
Id. at 210.
358
Dickson, 208 Iowa 1, 221 N.W. 820 (1928).
359
Braeman, supra note 131, at 107.
360
T.S. Eliot, The Hollow Men, in POEMS: 1909-1925, at 123, 128 (Harcourt, Brace & Co. 1932) (1925).
355
46