Chapter Two—
Freedom of the Press in Times of Crisis

Even if the exact dimensions of the area of unprotected expression were left for the tests of experience, the framers had created an edifice with impressive foundations. From civic republicanism they took a fear of government, coupled with the necessity of participation; from the emerging liberalism they took the view that the individual is the best judge of how to write and speak. The integration of these traditions should have given the First Amendment a strong impetus—much like the one that vested property rights enjoyed—in the young republic.

The tests of experience, however, arrived too soon. Property may be a threat to some governments, but freedom of expression can be perceived as a threat by all governments; and less than a decade after ratification of the Bill of Rights, internal and external events combined to make political dissent appear to the Federalists as something akin to treason. The events surrounding the Sedition Act of 1798 initiated a darker First Amendment tradition, one that would recur periodically when governments perceived a need for all citizens to be, in the words of a federal district judge, "friendly to the Government, friendly to the policies of the Government." Repetitions occurred in the South as the Civil War approached, in World War I and its aftermath, during the early Cold War, and, on a lesser scale, in the South during the late 1950s and early 1960s. Chapter 2 splits its focus between the Sedition Act and World War I, because much of the effort to limit dissent during these periods was directed

at the print media rather than speech, and at the national rather than the local level.^[1]

I

When the citizens of a republic exhibit civic virtue, neither faction nor political parties will exist, or so civic republicans believed. Yet splits, first over Hamilton's ambitious domestic programs and then over the threatened export of the French Revolution, were driving the American elite into faction and, ultimately, parties. The members of the ruling elite had much in common, especially in their determination to preserve republicanism; yet, united on so much, they saw difference, and with difference came distance and concern.^[2]

Each party found in the other's actions the potential subversion of republicanism. The party of Washington and Hamilton—the Federalists—thought the opposing party leaned too far toward "democracy," a term the Federalists associated with legislative excesses and social instability. Unleashed, democracy would lead to despotism. The concern of Jefferson, Madison and their followers was the opposite. Too much distance from the rulers to the ruled, too much pomp and ceremony, was the road to monarchy and aristocracy and the subversion of the republic.^[3]

Virtually everyone had hailed the beginnings of the French Revolution, at least in public. But when the revolution spilled over its borders and plunged Europe into war, it placed pressures on the United States that the young American republic was ill-prepared to bear. France was America's ally and its guarantor against recolonization by Great Britain. Yet the latter was America's largest commercial trading partner. Trying to maintain neutrality between the two warring great powers was difficult, not only in action but also psychologically, because of the universal "assumption that the ultimate fate of America lay in Europe" rather than at home. The strains caused by the shifting European tide created unfortunate tensions at home as the distrust of faction built with "each camp associating the other with the most ominous illegitimacy of all, an attachment to a foreign power."^[4]

A dramatic manifestation of the European influence on America was the rapid creation of the Democratic-Republican Societies along the East Coast in 1793. Modeled loosely after the Jacobin

Clubs of France but with a solid ancestry going back to prerevolutionary American associations, these societies "filled the air with celebrations and pronouncements that intermingled enthusiasms for France and advocacy of liberty at home." The Democratic-Republican Society of Philadelphia, the country's most important, pledged in its statement of basic principles "to cultivate the just knowledge of a rational Liberty, to facilitate the enjoyment and exercise of our civil Rights, and to transmit, unimpaired, to posterity, the glorious inheritance of free Republican Government ."^[5]

The societies believed in an active citizenry "discussing without fear, the conduct of the public Servants, in every department of Government." Eugene Link, the leading historian of the societies, emphasized the prevalence of their "strikingly forthright" defense of freedom of expression. Implementing the Radical Whig ideology, which emphasized the inherent tendency of government to abuse power, they offered its republican antidote—popular citizen vigilance and debate. No individual citizen could perform the watchdog function alone. Therefore the societies "took it on themselves to monitor the government, pledging to warn the general public in times of actual danger to their liberties."^[6]

Reaction to the societies was sharply divided. Jeffersonians easily identified with the societies' American roots and their manifestation of appropriate civic behavior. George Washington—the object of much of the vigilance and, for the first time in his storied career, scorn—had a different view of the Democratic-Republican Societies. He hated them, believing they were "self created," by which he meant self-elected and therefore in clear violation of republican principles. Washington's Federalists saw the societies as importing Jacobinism to North America and accused them of attempting to gain power for a minority in the guise of acting for the people.^[7]

The Democratic-Republican Societies and the response to them mirrored a concurrent development of the press. From around 100 newspapers at the beginning of the decade, the number jumped to about 250 by its end. Printers, if only to fool themselves, formally subscribed to the concept of press neutrality; but in operation the press was anything but objective. Probably no period in our history witnessed such an irresponsibly partisan press. To the Republicans this was a necessary check on the aristocratic tendencies of the government. "Good rulers will not shrink from public enquiry," as

one Democratic-Republican Society noted. Federalists, however, were coming to view partisan attacks on their policies in a more sinister light, as efforts to split the citizens from their government, to undermine republican constitutions, and ultimately to subvert the republic.^[8]

Some Federalists, coalescing around Hamilton, saw ties between the newspaper falsehoods about the administration, the growth of "seditious" organizations (the Democratic-Republican Societies), and domestic anarchy such as the Whiskey Rebellion. These Federalists urged action against a licentious press that they believed no stable government could tolerate. As Joyce Appleby writes, once the societies came under attack, issues of freedom of expression came to the fore and stayed there for the rest of the decade. The issues "represented a complex of new and old concerns: the relationship between dignity and authority, the blurred line between public and private realms, and the competence of ordinary people to deliberate on weighty matters of state."^[9]

Despite hostility to the Democratic-Republican Societies, the Washington administration consciously decided to take no action. Hamilton's views, however, gained wider currency in the aftermath of the XYZ Affair as the Federalists came to believe that it was necessary, maybe opportune, to move against the Republicans—the "French party" as Monsieur Y had referred to them; the "internal foe" as the Federalists soon came to call them.^[10]

II

Diplomatic relations with France deteriorated with Jay's Treaty. When Washington replaced James Monroe with Charles Cotesworth Pinckney as ambassador in Paris, the French refused to recognize Pinckney, thereby breaking diplomatic relations between the countries. By the time Pinckney informed the State Department, John Adams was president. Adams then sent John Marshall and Elbridge Gerry to join Pinckney to negotiate for a restoration of ties. Negotiations with Talleyrand, the French foreign minister, went nowhere. But three unofficial agents of the French government—X, Y, and Z—made it clear that unless the Americans paid a bribe and guaranteed a loan (in advance) to the Directory, negotiations could not proceed. The envoys naturally refused.^[11]

Adams received coded dispatches declaring the mission a failure in early March 1798, and a day later he informed Congress. Two weeks later, after fully decoding all the messages, Adams advised Congress that no settlement was likely, and he called for new military expenditures. Jefferson thought Adams's message was "insane" and Republicans demanded that Adams lay before Congress the dispatches from France. It is always a mistake to ask a hostile witness a question when you do not already know the answer. The Republicans were about to learn this basic lesson.^[12]

The dispatches were political dynamite. The growing concern about party attachment to a foreign power seemed confirmed by one of the dispatches, which detailed Y's boast that France had its own party in America and if the envoys attempted to unite the American people in resistance to France's demands for money, they would fail: "The diplomatic skill of France and the means she possesses in your country, are sufficient to enable her, with the French party in America, to throw the blame which will attend the rupture of the negotiations on the Federalists."^[13]

Although the envoys had informed Y that he was mistaken, the Federalists at home now had evidence that, as they suspected, the Republicans—dragging their feet with respect to the affront to national dignity—were "traitors." This view was given additional impetus in June when Benjamin Franklin Bache's opposition newspaper Aurora printed a conciliatory letter from Talleyrand before the secretary of state had sent the letter to the president (and two days before the president informed Congress of its receipt by the government). Federalists, now pushing the Sedition Act through Congress, immediately claimed that Bache's "French paper" had printed the letter on orders from the Directory.^[14]

Because both the United States and Great Britain "were threatened by the same danger—the 'Terrible Republic' and a disloyal domestic faction—the Federalists argued that methods which worked in Great Britain would be equally effective in this country." Starting in the Senate as a bill providing for the death penalty to anyone giving aid and comfort to France, the Sedition Act (formally entitled "An Act in addition to the 'Act for Punishment of Certain Crimes against the United States'") wound up as a liberal, state-of-the-art sedition act. Unlike the law newly passed in Britain, which finally accepted the Zengerian outcome of genuine jury participa-

tion, the American law went even further and provided that truth would be a defense to the crime. Nevertheless, the Sedition Act barely passed a bitterly divided Congress. The Republicans voted nay, but they were outnumbered by the Federalists.^[15]

It is important to note, however, that just as 1798 was not 1789, and just as James Lloyd, who introduced the initial bill in the Senate, was not James Madison, the Federalists of 1798 were not the framers—of either the Constitution or the First Amendment. By 1798 the legislative turnover since the two events was largely complete. Of the ninety-five members of the First Congress, only eighteen remained in 1798; and of those, only ten voted for the Sedition Act. Neither Lloyd nor the House drafter Robert G. Harper nor the other Federalists who dominated the proceedings creating the Sedition Act had been present at the founding.^[16]

The Republicans had no difficulty understanding that they were to be the targets of the new Federalist policy. They fought as best they could in Congress; but since they were outnumbered and a wartime hysteria was in the air, defeat was unavoidable. The enactment of the Sedition Act confirmed the fears of the Antifederalists of 1787 that the federal government would try to usurp a power it did not have. Yet the Federalists of 1798 believed they were acting constitutionally and had little difficulty articulating their constitutional theories.

The Federalist constitutional theory had to clear two hurdles. First, in response to the obvious question, "Where does the power come from?" they had to tie the Sedition Act into the body of the Constitution. Second, they had to meet the further objection that, even if they were correct on the power point, the First Amendment precluded such a federal law.^[17]

Number 84 of the Federalist Papers had noted that only "men disposed to usurp" would contend that there was a power granted to restrict the press. But the Federalists of 1798 were going to claim such a power, and that meant they were going to give a constitutional argument supporting it. Although the debate was brief, and the reporting in the Annals of Congress sketchy, three different explanations for congressional power were given by Harper and his principal lieutenants, James Allen and Harrison Gray Otis: (1) the power was inherent; (2) it was necessary and proper to the preservation of the Constitution; and (3) it was an amplification of the

already existing power in the federal courts to punish common law crimes. All three explanations underscored the Federalist grab for power.^[18]

Proponents of the Constitution had never wavered from the position that it was a constitution of delegated and enumerated powers. Congress had what was given, no more (and no less except if otherwise restricted). Inherent power, a power existing because the government exists, is antithetical to the theory of delegated and enumerated powers. Yet Otis argued that "every government has the right to preserve and defend itself against injuries and outrages which endanger its existence." Given the hysteria that the Federalists found and fanned, their belief that the existence of the republic was at stake is credible. There may be circumstances—as even Abraham Lincoln noted—where forgetting the Constitution is necessary in order to preserve it. But the inherent-powers theory is one that, by finding power outside the Constitution, may subvert the limitations of the Constitution. Only as a last resort—and the nation was not yet reduced to last resorts, as it would be when the Civil War exploded on Lincoln—could such an argument be anything except Federalist 84's "usurpation."^[19]

Unlike inherent powers, the phrase necessary and proper is an express grant "to make all Laws which shall be necessary and proper for the carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof." Textually it invites reference to the delegated powers of the Constitution. Harper, however, used the clause as an alternative means of bolstering the inherent-power argument. Instead of making a textual argument that the Sedition Act was necessary and proper to supplement the war power in the time of crisis with France, he argued that the Sedition Act was necessary and proper because government could not function "if sedition for opposing its laws, and libels against its officers, its proceedings, are to pass unpunished." Harper's argument was just the type that the Antifederalists had feared and used to justify their opposition to the Constitution.^[20]

The argument that Congress could codify common-law crimes, while attractive, was not without its own troubles. First, Supreme Court Justice Samuel Chase on circuit had just hinted that there was no federal jurisdiction over common-law crimes, a view that

the full Court would embrace in 1812. There were, however, contrary opinions among Federalist judges in 1798. Second, if the federal courts did have such jurisdiction, then why was it necessary for Congress to pass a law confirming that jurisdiction? Alternatively, if the federal courts did not have such jurisdiction, where did the congressional power to grant it come from?^[21]

The Federalist constitutional arguments were those of frightened men who knew where they were going. They had the votes (44 to 41 in the House), and they had an explanation for their actions that was satisfactory to that majority. In retrospect, the explanation appears to be just what the Republicans said it was, a pretext for usurpation.

III

Once the Federalists disposed of the issue of power, they had no troubles with the First Amendment, because, they asserted, the First Amendment was not a limitation on congressional power; instead it confirmed the existence of the very power the Congress had exercised. Freedom of the press meant no prior restraints, but allowed subsequent punishment. That was exactly what the new state-of-the-art Sedition Act did. Furthermore, as noted earlier, the Federalists' ideology had been evolving during the decade, and by 1798 they were able to offer a full neo-Blackstonian explanation for their law against lies.

The Federalists may have moved from the idea of the Constitution as exclusively containing delegated powers, but they did not move from the bedrock idea that sovereignty flowed from the people. In the decade since ratification, the Federalists had come to believe that popular sovereignty could be undermined by lies about the government. "To mislead the judgment of the people where they have no power [in a monarchy] may produce no mischief. To mislead the judgment of the people where they have all power, must produce the greatest possible mischief." Furthermore, because everyone agreed that the states were appropriately republican, and the states retained the common law of seditious libel, it was not possible to argue with consistency that seditious libel law could not coexist with republican principles. Indeed, the Federalists were going farther; the law of seditious libel was a necessary part of republicanism.^[22]

The Federalists held that an attack on government was an attack on the people themselves. Elections were the exercise of popular sovereignty; but after an election, the people delegated power to those elected. Those public officials then needed protection from unjust criticism in order to govern effectively. An attack on a public official was therefore an attack on the people. Supreme Court Justice Samuel Chase perfectly summarized this neo-Blackstonian Federalist position:

Since ours is a government founded on the opinions and confidence of the people, if a man attempts to destroy the confidence of the people in their officers, their supreme magistrate, and their legislature, he effectively saps the foundation of their government. A republican government can only be destroyed in two ways; the introduction of luxury, or the licentiousness of the press.

Unstated, but implicit in the argument, was the assumption that the government meant the governing majority. A decade earlier Hamilton had written in Federalist number 71 that "the representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves; and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter." The Federalists of 1798 had done exactly this. Opposition to Federalist policies was opposition to the government and therefore opposition to the people, a position that Hamilton now enthusiastically embraced.^[23]

The Federalists identified opposition to their policies with support of France, and their name for the Republicans—the "internal foe"—expressed their view that the Republican party was a threat to the republic. Jefferson had forecast that the Federalists would turn on the opposition. Federalist leaders like Harper, who believed philosophers were the "pioneers of revolution," and John Allen made clear in their speeches that they believed the political statements of the Jeffersonians properly constituted a crime under their proposal. Even a congressman, Matthew Lyon of Vermont, was convicted under the act. To the Republican targets it did not matter that the Sedition Act was more liberal than Great Britain's recently liberalized law of seditious libel. A seditious libel law, whether liberal or strict, was a tool of the governing majority to beat down opposition.^[24]

Two facial aspects of the law made its partisan nature unmistak-

able. First, its expiration was tied neither to the duration of the potential hostilities with France nor to the end of the enacting Fifth Congress. Instead it expired on March 3, 1801, the last day of the Adams administration. Second, the act made it a crime to "write, print, utter or publish . . . any false, scandalous and malicious [statement] against the government of the United States or either house of the Congress of the United States or the President of the United States with intent to defame." Conspicuously omitted was any like protection for the vice-president, Thomas Jefferson. From the law's perspective, he was fair game; had it been otherwise, Alexander Hamilton, as well as the leading Federalist editors, would have transgressed the act as freely and frequently as the leading opposition editors.^[25]

The unsuccessful opposition to the bill was led by the able Jeffersonian House leader, Swiss born—and therefore potential Federalist target if the Naturalization Act were amended—Albert Gallatin. Noting the "temporary majority in Congress," Gallatin offered an analysis that would be vindicated by history. "This bill must be considered only as a weapon used by a party now in power in order to perpetuate their authority and preserve their present places." Prosecutions under the Sedition Act, initiated largely by Secretary of State Timothy Pickering, fully confirmed Gallatin's views. Benjamin Bache of the Aurora escaped conviction only by his premature demise in the yellow fever epidemic of 1798. His successor William Duane was convicted, as were two other prominent opposition editors, Thomas Cooper and James Callender. Four of the leading opposition newspapers were prosecuted; three of them were forced to cease publication, two permanently. The papers selected for prosecution—the Aurora , the Boston Independent Chronicle , the New York Argus , the Richmond Examiner , and the Baltimore Examiner —were precisely those from which most of the lesser opposition papers copied their political material. Whether in good faith or not, the Federalists attempted to decapitate the opposition press, while, as Gallatin observed in the Sixth Congress, scandalous misrepresentations by Federalist papers were untouched: "How has it been executed? Only by punishing persons of politics different from those of the administration."^[26]

The Sedition Act trials showed, as their counterparts in Great Britain also did, that the Zengerian inclusion of full jury participa-

tion was no guarantee of a free press. Juries might be stacked or, as was the case on both sides of the Atlantic in the 1790s, anti-French hysteria might be such an overriding concern that the jury would easily convict for the exercise of legitimate dissent. Nor was the defense of truth, available only on our side of the Atlantic, a factor. In no case brought under the Sedition Act did a defense of truth prevail. Prescient as always, Gallatin had accurately forecast that truth would be too elusive to be useful: "And how could truth of opinions be proven by evidence?" If an individual wrote that the Sedition Act was intended not for the public good, but rather "solely for party purposes," would a jury "composed of the friends of that Administration hesitate much in declaring the opinion ungrounded or, in other words, false and scandalous and its publication malicious?" Opinions cannot be proven true, even in the best of times; and the 1790s were not the best of times.^[27]

IV

Defeated in Congress, defeated in the 1799 congressional elections, defeated by a Federalist judiciary actively participating in the Sedition Act prosecutions, the Jeffersonians retreated to the few places they had strength, Southern legislatures. There, especially in Virginia and Kentucky, through Madison and Jefferson (who were echoing Gallatin's and John Nicholas's losing arguments in the House), the Republicans used their control of the legislatures to create a forum to counter with their own constitutional theories. They also offered a novel remedy—nullification—for the "deliberate, palpable and dangerous" usurpations of authority (the Virginia Resolution's apt label for the Sedition Act).^[28]

It was not difficult to demonstrate that Congress had grasped a power not delegated. But the Republicans were answering all constitutional arguments, and this meant that the Federalist view of the role of criticism in a republic would not go unchallenged. The Jeffersonians, too, had been thinking about freedom of expression during the decade, especially in conjunction with the earlier debate over the Democratic-Republican Societies. Not surprisingly, the Jeffersonians saw the consequences of popular sovereignty in a markedly different manner than the Federalists.

The Federalist argument that criticism of the government was

criticism of the people was countered by arguments from Nicholas and Madison on a far different theory of popular sovereignty. As Madison explained in his famous Report on the Virginia Resolutions , the "essential difference between the British Government and the American constitutions" provides the "clearest light" on why neither the British view of no prior restraints nor the Federalist view that publications could be punished for their criticisms of government was compatible with limited government in the United States. In Britain, rights against encroachment are "understood" as confined to the executive. Parliament is the "omnipotent" guardian of the people "against executive usurpation."^[29]

"In the United States the case is altogether different because the people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power." Because of this difference from Britain, American theory on the press necessarily had to be different. The abolition of prior restraints might be a sufficient check on the royal prerogative there, but under American constitutions the press must be free "not only from the previous inspection of licensers, but from the subsequent penalty of laws."^[30]

With his explicit equating of prior restraint and subsequent punishment—it would be a "mockery to say that no laws should be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made"—Madison agreed with Gallatin's view of freedom of the press. Their views, along with that of Nicholas, were built on the Radical English Whig view of sovereignty that rejected Blackstone and his theories. Leonard Levy concluded that the debates on the Sedition Act and Madison's Report represent a sudden breakthrough of libertarian thought; but this is to overstate their novelty and ignore the implicit rejection of Blackstone already existing in American theory.^[31]

Just because Blackstone's theoretical position on sovereignty had been rejected, this did not mean that all the interstices were worked out immediately, or even that people recognized all the logical implications of their new beliefs. It took the drastic step of Federalists attempting to secure the national government as their own preserve to bring the full implications of the meaning of citizen sovereignty to the fore. It is not that the generation living through

the 1790s lacked other demands for their time. The conclusion that Gallatin and Madison voiced in the Sedition Act controversy had been latent in the theories going back to Oswald's battles with McKean in Pennsylvania and the more recent debates over the Democratic-Republican Societies.

This is not to say that they were the only conclusions that could be drawn from the experiences of the prior quarter-century. The splits of the 1790s, including splits over the degree of reverence (and possibly longevity) that should attach to the Constitution, brought forth differing views on the amount of criticism of government that a new republic could withstand and still survive; meanwhile, the opposition press was busy creating an empirical record. The Sedition Act, even if adopted in hysteria and with motives that cannot withstand examination, was an outgrowth of the maturing of alternative views on the relationship of citizen to government. Both the Federalist and the Jeffersonian views could point backward to antecedents; both sides could claim support among the framers (although neither would cite the framing because that generation believed that the views of those drafting and ratifying a document were not relevant in ascertaining the meaning of the words they chose); neither side could claim a lay-down victory because the newly independent nation had not had the time to think the issues through and come to a definitive solution, even if one was possible.^[32]

As a historical matter the Antifederalists had feared the national government might exercise a power to pass a press law, and the Antifederalist position was that if such an exercise occurred it was wrongful. They were right. But 1798 was not the last time that the Constitution in crisis times would prove to be, contrary to Madison's hopes, only a "paper barrier."^[33]

V

While Jefferson and Madison were correct on the issue of congressional powers, their Virginia and Kentucky resolutions and the Virginia report, as helpful guides to the meaning of the First Amendment, suffered a double historical blow. One was their move, especially Jefferson's, from congressional usurpation to its remedy. The other was that they did not, because they could not,

foresee that future First Amendment debates would not implicate the issue of the constitutional source of legislative power. Twentieth-century laws impacting the press are justified as either "necessary and proper" to the furtherance of a delegated federal power or else passed by states which, by reason of their police power, have the necessary powers—subject only to constitutional provisions limiting power.

The Virginia and Kentucky resolutions and Madison's Virginia report not only asserted that the national government had usurped powers, but going beyond the claim of right, they offered a remedy. The milder statements Madison drafted for Virginia looked to the state legislatures to declare the meaning of the Constitution. That novel constitutional theory was at least as great a move from the Constitution as was the Sedition Act. But Jefferson, for Kentucky, went even farther with his claim that a state had the right of nullification.^[34]

When Madison and Jefferson moved from right to remedy they undermined their own claims for adherence to the Constitution. It is not surprising—although an older, wiser Madison protested—to find that the "Spirit of '98" was claimed by other Southerners in the four decades of national crisis culminating in the imposition of the Fourteenth Amendment as the price of military victory in the Civil War. The theoretical justifications for freedom of the press simply became lost and forgotten amidst the more radical—and for a time, useful—theoretical justification for nullification and state power to withdraw from the union.^[35]

The next difficulty with the Republican position was more constitutionally rooted, and therefore more lasting, than the nineteenth-century detour to nullification. It is not enough that everyone agree there is no power to pass a press law and that the "necessary and proper" clause does not provide any independent justification to do so. Congress might pass a law clearly implementing a delegated power and nevertheless restrict the press. Madison flirted with this problem in the Virginia report, when he argued that Congress, having claimed an implied power to suppress insurrections, could not go on to claim an implied power to prevent them "by punishing whatever may lead or tend to them." To do this, Madison argued, would be to claim far too much.^[36]

What Madison did not do—and he did not have to, because by

the time he wrote the Virginia report the potential for war with France had evaporated with the French navy at the Nile—was consider whether Congress could pass wartime measures that would necessarily restrict what the press printed. If Congress did so, then Congress would be exercising its delegated powers and therefore not simply passing a press law. What then?

One thing is plain. The way the debates over the new Constitution and its lack of press guarantees were structured would be of little help, because Congress would be exercising a specifically delegated power. Instead, the First Amendment claim would come to the fore; and here, at least, the governing elites had not thought of the solution because they had not thought of the problem.

Nor, of course, was there reason for them to think about what would happen if a state passed a press law. That changed with the Fourteenth Amendment. With its passage, the United States Supreme Court would face cases where the issue of power was not relevant because the issue of affirmative power had already been settled in the state courts. Only the First Amendment, applicable to the states because of the Fourteenth, mattered. Patterson , discussed in the introduction, while a transition case, is nevertheless illustrative. Although Holmes first wrongly concluded that the Fourteenth Amendment did not protect rights of press freedom—a point corrected two decades later—he nevertheless decided the case as if the Fourteenth Amendment did protect the press. Recall that Holmes concluded that the guarantees of freedom of the press were simply the transmission of Blackstone's common law of no prior restraints into the United States Constitution. In the century since the Sedition Act, the framers' move from Blackstone had been largely forgotten. What that era's legal research could find easily was Blackstone's Commentaries and McKean's contempt judgment against Oswald. Holmes was notoriously quick in his judicial writing, and here his haste produced the erroneous conclusion that freedom of the press in the United States, as in England, simply meant no prior restraints. As he aptly summed up in a 1922 letter: "I simply was ignorant."^[37]

Holmes's analysis never questioned Colorado's substantive power to do as it pleased. Under American law, state governments have whatever powers their state constitutions grant. The right of a state to act as a matter of state law cannot be questioned by a federal

court. The latter can only apply federal constitutional limitations, typically the Fourteenth Amendment, to state actions. To put this in the context of the founding, any state—if its constitution permitted—could have passed a press law in 1792. Because Madison's state press clause was rejected, the Bill of Rights was no bar. As Patterson showed, all that changed once the Fourteenth Amendment came into being, because it extended to state governments the restrictions that the Bill of Rights imposed on the federal government. Nevertheless, there was a theoretical difference between state and federal cases. In state cases, only the restrictions of the federal Constitution applied, whereas federal cases could also, as the Sedition Act controversy showed, raise the question of whether Congress acted in pursuance to a constitutional grant of authority.

Even on the federal level, however, the Sedition Act controversy over affirmative power was to be a historical anomaly. In twentieth-century cases—beginning with those coming out of federal wartime censorship—if the federal government wished to pass a law, it was considered to have the power to do so unless the First Amendment trumped. Thus federal cases and state cases became identical, with each focusing exclusively on how far the constitutional guarantee of freedom of the press restricted legislative action. The Sedition Act controversy remained relevant on the First Amendment issue. No one wished to replicate 1798 and the Federalists' attempt to perpetuate themselves in power. But few in the government wanted the populace up in arms against the war either.

VI

Even before the United States entered World War I in April 1917, preparations for entry had been under way. Ultimately, government policy was to conscript both men and minds for the fight, virtually matching Elihu Root's view at the outbreak of the war that "we must have no criticism now."^[38]

In the Justice Department; lawyers were thinking to the future while remembering the past. During the Civil War there had been considerable opposition to the draft and it was correctly assumed that that would be the case again. Attorney General Thomas W. Gregory noted a year later that "when war broke out we had no real, substantial set of laws with which to confront the emergency "

The Justice Department wanted laws that would repress "political agitation . . . of a character directly affecting the safety of the state:"^[39]

The administration had three legislative goals: one would authorize the president to censor information that "might be useful to the enemy"; the second would prohibit "willfully" making false statements to interfere with military success or "willfully" causing insubordination in the military or obstructing the draft; the third would render "nonmailable" any publications that transgressed the provisions of the second. The first was hotly debated, narrowed, and then ultimately defeated; the second was passed virtually without debate; the third was enacted after considerable debate.^[40]

What the administration wanted most—the "teeth" of its proposals—was presidential control over defense information. President Wilson saw this as "necessary for the protection of the Nation." He believed that while the "great majority" of newspapers would exercise "patriotic reticence" there were some that would not, and it was "imperative" that the president have powers to do something about them. The "great majority" of newspapers were not as enthusiastic as Wilson about his desire to censor them, and they mobilized to defeat the proposal.^[41]

The censorship provision was attacked on two fronts: because it was a prior restraint, and because it could be a means to suppress criticism of government policy. Critics were uneasy about granting even a wartime president such powers; and although the administration acceded to a specific limitation precluding restrictions on "any discussion, comment, or criticism of the acts or policies of the Government and its representatives, or the publication of the same," fears were not allayed. Harold Edgar and Benno Schmidt, in their careful study of the legislative history of the Espionage Act of 1917, were ultimately unable to determine whether First Amendment concerns or political anxiety about the grant of powers predominated in the House; but the combination resulted in a House vote instructing its conferees to delete the censorship provision.^[42]

Most of the litigation under the Espionage Act involved the provisions that prohibited willfully making false reports with intent to interfere with the armed forces or willfully causing insubordination or obstructing recruiting of the armed forces. Yet in the extensive debate, little attention was directed to this section. The

House deleted a Senate provision that prohibited willfully causing "disaffection" because, in the words of Judiciary Chairman E. Y. Webb, "disaffection" was overly "broad," "elastic," and "indefinite." In discussing the prohibitions in general, Webb assured his colleagues that the provisions "guarded" all true speech, a point that the conviction of Eugene Debs, to name only one, later proved wholly wrong.^[43]

Debs, the leading labor figure in the nation, and the Socialist party's presidential candidate from 1904 to 1912, was convicted for giving an outdoor speech in Canton, Ohio, about "socialism, its growth, and a prophecy of its ultimate success." Although a leading opponent of the war, his discussion of the issue was mild. He said that his listeners were "fit for something better than slavery and cannon fodder" and that he was proud of three jailed socialists who had been convicted for failing to register for the draft. Beyond belying Webb's assurances, Debs's conviction—and its unanimous affirmance in an opinion by Justice Holmes—indicated that no one who criticized the war could be assumed immune from conviction. From jail, Debs received almost a million votes in the 1920 presidential election. Prosecuting Debs was as if the Nixon administration had prosecuted George McGovern for his speeches against the Vietnam War.^[44]

The provisions of the Espionage Act making certain items nonmailable combined aspects from each of the two prior provisions. First, nonmailability tracked the "obstructing the armed forces" section (although it also went beyond it); and second, for all practical purposes nonmailability is censorship. But in contrast to the fate of presidential control over defense information, on this provision the administration prevailed. There was already a precedent with the Comstock Laws—named for Anthony Comstock's post—Civil War efforts to cleanse the American mind of any impure thought—for giving power to the Post Office to exclude certain harmful materials from the mails. And, although those affected might not notice any difference, excluding printed matter from the mails is not a prior restraint in the same way that presidential censorship would have been; censorship would prevent any circulation of the information, whereas exclusion from the mails affected only what needed the mails for transmittal. Yet these reasons are too tenuous to account for allowing nonmailability

while forbidding presidential censorship. David Rabban persuasively argues that the legislative history "suggests that the majority wanted to restrict antiwar speech it considered dangerous, while protecting major newspapers and other nonthreatening expression." Thus it was not that Congress trusted postmasters more than the president; that is preposterous on its face. Rather it was that the nonmailability provision better expressed a "judgment about the appropriate wartime boundary" of acceptable reporting. As Postmaster General Albert Sidney Burleson later stated, "there is a limit."^[45]

The debates on the Espionage Act did reflect the traditional hostility to censorship. But as Rabban notes, another underlying feature was an effort to draw boundaries, to separate good speech from bad. Efforts to preclude mail censorship were unsuccessful, and even congressmen who opposed giving postmasters power to block publications agreed that advocating opposition to the war effort ought to be punished; but their problem with the proposed legislation was that postmasters would mistakenly exclude "legitimate" publications. Thus even congressmen taking the anticensorship position indicated objections to publications that might harm the war effort. It is hardly surprising that the majority who prevailed were even less protective of First Amendment interests. As Representative James Robert Mann of Illinois noted: "A whole lot of people here and elsewhere seem to think that if a man does not agree with you he is a traitor and is guilty of treasonable utterances."^[46]

Historians have noted that in the Progressive Era, "freedom of expression did not rank high in the hierarchy of values." Freedom of speech and freedom of the press were perceived as linked to other liberty issues, such as freedom of contract, and were seen as a hindrance to the need "to discipline American society" and create "a tight national cohesion." The traditional view is that there was an "absence of a libertarian concern with protecting basic freedoms" and that the "war hysteria" was "unchecked by a tradition of civil liberties." Mark Graber demonstrates, however, that what he identifies as a tradition of "libertarian concern with protecting basic freedoms" was part of conservative libertarian tradition that most Progressives were repudiating (and that future historians would forget). The needs of wartime mobilization simply rein-

forced the emphasis of many Progressive nationalists on national unity and subordination of the selfish individual to the social order. Thus, although the Espionage Act did not incorporate the boldest efforts at censorship, its underlying premise was that criticism of wartime policies could and should be limited.^[47]

VII

The Espionage Act produced Schenck and Debs , the Supreme Court cases traditionally seen as the beginning point in modern discussions of freedom of expression. Schenck, an important official of the Socialist party, was convicted for mailing to men accepted for military service a document charging that the draft violated the Thirteenth Amendment (prohibiting slavery) and that entry in the war was simply an effort to assist "Wall Street's chosen few." Debs's speech extolling socialism, opposing militarism, and praising several "comrades" who were in jail for draft resistance has already been mentioned. For all that the record of the case shows, possibly the most damaging piece of evidence was his address to the jury stating: "I have been accused of obstructing the war. I admit it. Gentlemen, I abhor war. I would oppose the war if I stood alone." Sandwiched between these two cases was a third, involving a German-language newspaper in Missouri and a defendant so obscure that even his position with the newspaper is unknown.^[48]

Jacob Frohwerk combined with Carl Gleeser to prepare and publish the Missouri Staats Zeitung in Kansas City. The two German immigrants were charged with conspiring to violate the Espionage Act in a series of articles printed during the second half of 1917. Justice Holmes, again for a unanimous Court, found these articles "not much" different from that sent by Schenck. The first of the articles carried the essential thrust of them all: "We can not possibly believe it to be the intention of our administration to continue the sending of American boys to the blood-soaked trenches of France." What followed was nothing original, just the standard antiwar litany: it was a rich man's war but a poor man's fight, designed to fatten the great trusts and protect the loans of Wall Street; the Germans have an unquenchable spirit and were fighting a defensive war, thus presenting no danger to the United States;

Americans were being sacrificed only in the interests of England. "We say therefore, cease firing."^[49]

Frohwerk's facts raise directly the issue of whether or not public opposition to the war was criminalized in the Espionage Act, and if so, whether the First Amendment precluded that legislative choice. Schenck , decided a week earlier, provides the beginning point. Recall that the Espionage Act required specific intent; that is, before a person could be convicted a jury must find that he or she intended "willfully" to encourage obstruction of the draft. Schenck simply found intent from publication, concluding that "the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out." Holmes was equally direct on the First Amendment point, holding that freedom of speech was not absolute and war was a limiting factor on an individual's rights. Schenck coined the "clear and present danger" test, according to which "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 prevent."^[50]

In Frohwerk it turned out that Schenck's targeting those about to enter the military may not have been relevant. On its facts, there was no showing that the Missouri Staats Zeitung aimed specifically at potential draftees. Yet that did not matter, because "on this 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." The case against Frohwerk was thus weaker than that against Schenck on both contested points; the recipients of the writings and the intensity of the writing. Nevertheless, the First Amendment protected neither the writing nor the defendant from a jury's finding that Frohwerk violated the Espionage Act.^[51]

Holmes wrote in Frohwerk that "we do not lose our right to condemn either measures or men because the Country is at war." Yet Frohwerk , more than either Schenck or Debs , contradicts that very statement. The cases hold that the circumstances of war do matter and do affect the scope given to antiwar dissent. Apparently war itself is likely to create a clear and present danger that antiwar

writings will hinder the war effort, thereby producing a "substantive evil that Congress has the right to prevent." Holmes never asked when it was legitimate to discuss the causes of war. Before a war begins? That would be interesting. After the war ends? That, alas, will be done with frequency. But when it really matters is when discussion of war policy matters—that is, when such discussions can influence government policy.^[52]

Holmes's statements about the right to condemn a war are thus hollow rhetoric. Frohwerk was sentenced to ten years in jail, and the Frohwerk opinion all but limits discussions of war policy to those who support the war; those who do not may be convicted if a jury wishes to attribute forbidden motives to their discussion, a circumstance all too frequently found. Just as with the Sedition Act of 1798, when a time of national crisis existed, juries functioned as instruments of the government, and the pressures to conform to the official governmental line became too much. Once again it bears noting that Zenger was tried by a jury in a community agreeing with his side. In a democracy that possibility becomes, as Frohwerk (and Tocqueville) could have noted, increasingly unlikely.

Even the government attorney who prevailed in Frohwerk knew an injustice had been perpetrated. In private correspondence he wrote that Frohwerk's articles advocated change in existing governmental policy "as distinguished from advocacy of obstruction of existing policy, and seemed to me therefore to fall within the protection of the constitutional guarantee of free speech and press." Frohwerk was, he concluded, "one of the clearest examples of the political prisoner."^[53]

VIII

If the "obstructing the armed services" provisions of the Espionage Act could be used to jail antiwar dissenters such as Frohwerk, it should hardly come as a surprise that the nonmailability provisions had a similar use. Postmaster General Burleson, a confidant of Wilson, was known for his "ability and efficiency," and he was in charge of dealing with antiwar publications that used the mails. According to Josephus Daniels's diary, Burleson said at a cabinet meeting that he "wanted something done" about Tom Watson, the Georgia Populist, who was writing articles against the draft; and

two weeks later he urged "drastic action" against a newly formed peace group that was trying to obtain a statement of peace terms. These are not the statements of a man who takes dissent lightly—even though Daniels's diary noted in the first case that it was impossible to "go after all the DFs [damned fools]" and in the second that the better policy was to do nothing and "let them show their impotence." That was not Burleson's style, however; and when the problems fell under his jurisdiction, he acted.^[54]

By mid-July, issues of at least a dozen socialist publications, including The Masses , the New York Call , and the Milwaukee Leader , had been excluded from the mails under the nonmailability provision. Complaints began coming into the White House. Max Eastman, Amos Pinchot, and John Reed of The Masses ; former Congressman and conservative socialist Victor Berger of the Milwaukee Leader ; Hearst columnist Arthur Brisbane; Wilson's friend Grenville Macfarland of the New York American ; and Herbert Croly and Walter Lippmann of The New Republic —all wrote, expressing a similar concern; that the Post Office was exceeding its statutory powers in moving against all antiwar criticism. The poignant letter from the journalists of The Masses noted that they could not obtain from the Post Office any specific complaint against an article; rather postal officials asserted it was the "general tenor" of the magazine that rendered it unmailable. The authors stated that The Masses had been studious not to violate the law, because the editors were "anxious in [the] crisis to put their opinions before the public." But without knowing how they had run afoul of the Post Office, they did not know how to attempt to conform their dissent to acceptable standards.^[55]

Wilson forwarded the letters to Burleson, often asking for a response, and urging caution or suggesting that Burleson act with more leniency: "very careful weighing," "expressed doubt," "must act with utmost caution." But ultimately Burleson prevailed; Wilson wrote, "Well, go ahead and do your duty." In one case Burleson wrote on the bottom of Wilson's note that he had turned down the request. "Pres[iden]t expressed doubt but yielded." Twice, however, Burleson responded to Wilson more fully; and these responses give a fair picture of what he thought his powers were.^[56]

The letter from The Masses stated that the magazine had been suppressed even though it had tried to stay within the law, and that

the Post Office would not tell them what they had done wrong, mentioning only the "general tenor" of the magazine. Burleson responded to all the points. First, he was precisely legal. No socialist publication had been suppressed or suspended; rather, particular issues which were unlawful had been refused transmission in the mail. Second, Burleson stated that the reason they were found unmailable was that "they contained matter which would interfere with the operation or success of the military or naval forces of the United States, or would promote the success of its enemies, or would cause insubordination, dissent, disloyalty, mutiny, or refusal of duty in the military or naval forces, or would obstruct the recruiting and enlistment service of the United States, or that such matter advocated or urged treason, insurrection or forcible resistance to some law of the United States." Burleson was simply quoting to Wilson the relevant provision of the Espionage Act; this was hardly responsive to the authors' point that no one would tell them how they had run afoul of the law. It is clear, however, that Burleson thought that point spurious. "The terms of the law are perfectly plain, and publishers should have no difficulty in avoiding a violation." But some publications, such as The Masses , went beyond mere criticism to obstruction. Four months later in his other major response to Wilson, Burleson sounded an identical note. After directly quoting the Espionage Act, he stated: "These are the things prohibited by the law I am directed to enforce." Criticism of government policy was protected as long as the person was "loyal to the United States."^[57]

If Wilson's letters are to be credited, Burleson persuaded him. Wilson wrote to one correspondent that Burleson "wanted to do the right thing," to another that Burleson was "inclined to be most conservative" in the exercise of his powers. But Burleson's statements during the cabinet meetings were a better gauge than his responses to Wilson. Burleson believed there was no power to suppress proper criticism; but he found the criticism in the socialist press to be improper. Furthermore, given the way he stretched the laws in the Milwaukee Leader case, he provides apt illustration of why we should fear censors who assert that they are merely doing their duty.^[58]

In his response to Wilson about the Masses letter, Burleson took the dryly legal position that there had been no suppression of the

magazine, just an exclusion from the mails of those issues found to violate the law. However excessive his actions may have been, they plausibly accorded with the nonmailability provisions of the Espionage Act. But in the Milwaukee Leader case Burleson went much further and used instead the Mail Classification Act of 1879. Briefly, that act created four classifications for mailable material; one of these, second class, applies to newspapers and magazines which are "regularly issued at stated intervals." Second-class mailing privileges are really a huge subsidy to those who qualify, a subsidy justified because of "the historic policy of encouraging by low postal rates the dissemination of current intelligence." Without such a subsidy, periodicals would be significantly more expensive to subscribers.^[59]

What Burleson did to the Leader was yank its second-class mailing privileges, affecting some 9000 of its subscribers. Burleson's theory was as ingenious as it was threatening to a free press. He argued that because he had found the Leader frequently violated the Espionage Act in the recent past, it could be expected to do so in the future. And because issues violating the act could not be mailed, the Leader would no longer be "regularly issued at stated intervals" for mailing. Therefore, it no longer qualified for second-class mailing privileges. In his responses to Wilson, Burleson had emphasized that he was just following the directions of clear law. With the Leader , Burleson was not following the law, he was making it.^[60]

When Berger was informed that the Leader was to be denied second-class privileges, he wrote Burleson that such actions would obviously weaken those socialists who advocated evolutionary tactics and would thereby strengthen the revolutionaries. Burleson was unmoved: "The instant you print anything calculated to dishearten the boys in the army or to make them think this is not a just or righteous war—that instant you will be suppressed." When Berger pressed for guidance, he was advised to ignore the war entirely.^[61]

With such advice being offered, it is not surprising that the Leader lost at the hearing to which it was statutorily entitled. As a result, its out-of-town subscription rate dropped by 85 percent. Nevertheless, it survived; indeed its circulation in Milwaukee grew after the Post Office action. Sure that it was a target, and maybe

anticipating his own future indictment as well as trying to soften the government, Berger ordered the Leader to shift its editorial policies. Fewer editorials would be published; they would be double-checked, and the readers would be left to draw their own conclusions. "We will say nothing we don't think, although we think a great deal that we can't say." As his indictment with four other national officers of the Socialist party only ten days before the Wisconsin senatorial primary—which he mistakenly thought he might win—showed, the government was unrelenting.^[62]

Nor was the Supreme Court a better forum than the administrative hearing. Three years after the war ended—a fact underscoring Justice Brandeis's warning that this case did not at all turn on the war powers of government—the Supreme Court sustained Burleson's actions. Its reasoning was direct. Second-class mailing was a privilege that the government could withhold. "The Constitution was adopted to preserve our Government, not to serve as a protecting screen for those who while claiming its privileges seek to destroy it." In one paragraph "without going much into detail" the Court explained how the Leader had so abused its privileges that they could be taken away. Without the slightest trace of irony, the Court gave as an example the Leader 's denunciation that the Food Control Law was "Kaiserizing America." Apparently the justices had forgotten that only one week earlier they had held that the very same Food Control Law violated the United States Constitution.^[63]

IX

Crisis times make protecting any freedoms, especially public dissent, difficult. Nor is this a lesson from a quaint and forgotten past. It is true that I have focused on events occurring in the distant past. I chose to do so because the World War I cases involved the press, they have intrinsic interest, and the hysteria of seventy years ago can be viewed with detachment. But I could have used the 1950s instead and replicated the discussion with majoritarian arguments about the need to protect the United States from a Communist fifth column. Crisis times happen, and the pathology they give rise to is unchanging.^[64]

The events I have related show that during a period of crisis it becomes all too easy to see vigorous opposition to majoritarian

policies as something akin to treason. Thus the Federalists saw the Republicans as the French party, the internal foe. The socialist press during World War I was perceived as pro-German, not loyal to the United States. Once opposition to government policy can be identified with opposition to the United States, the First Amendment is not seen as any great bar to action—although it may, as in the Espionage Act debates, block the most excessive proposals for censorship.

Furthermore, everyone is involved, not just the policy-making branches of government. Joseph Gilbert, an important figure in Minnesota's Non-Partisan League, had given an antiwar speech with a number of angry questions about how democratic the United States was, grouped under his topic sentence: "We are going over to Europe to make the world safe for democracy, but 1 tell you we had better make America safe for democracy first." The Supreme Court believed democracy in the United States was working just fine, thank you. "The war . . . had been declared by the power constituted by the Constitution to declare it, and in the manner provided for by the Constitution. It was not declared in aggression, but in defense, in defense of our national honor, in vindication of the [now quoting Wilson's war message to Congress] 'most sacred rights of our Nation and our people.'" Gilbert's denunciation of the war was thus "false, a deliberate misrepresentation." How dare he.^[65]

The Supreme Court, agreeing with Wilson, was echoing a federal district judge in Iowa who sentenced a defendant to twenty years for circulating a pamphlet urging voters not to reelect the Congressmen who had voted for conscription. The Espionage Act was passed to "protect the feeling and spirit of the American people against the work of those who defy authority; it was not intended for ninety-five per cent of the American people, but necessary for the few who will not heed the judgment of the ninety-five per cent; who assume to know more than all the others put together." If young men can be conscripted to die for a cause, do those at home have any lesser duty? Jury behavior held no; the right to a jury trial for antiwar dissent became simply a right to be convicted. Thus a Vermont minister was convicted for distributing a pamphlet teaching that Christians should not kill in wars, while a group of South Dakota farmers met a similar fate because they petitioned the

governor to change his decisions on draft exemptions. In a time of national unity all, from high to low, participate.^[66]

The crisis mentality, finding the First Amendment no bar, also fails to see that freedoms are affected. Frohwerk asserted that criticism of war policy was legitimate; Burleson stated that public officials were not immune from appropriate criticism. But "appropriate" becomes synonymous with tame. Policies can be criticized, but only on terms acceptable to those who approve of the policies. Thus the line drawn in the Espionage Act debates left the major newspapers, with their likelihood of nonthreatening expression, in the clear, while restricting the antiwar speech of those who were intensely opposed to intervention. Not surprisingly, the more that individuals believe a policy is fundamentally wrong, the more likely they are to be considered beyond the pale. Their writings are perceived as "creating hostility to, and encouraging violation of," the majority's policies. Furthermore, Gallatin's apt point from the Sedition Act debates is proven correct again and again: safeguards of truth are of no help when a person enters the realm of opinion. As Gilbert learned, to question President Wilson's version of events was to willfully misrepresent. The majority not only criminalizes dissent; it brands dissenters as liars, further separating them from the body politic.^[67]

The message is that dissenters should play by the rules, directing their efforts to amending or repealing offending policies. But, like Holmes in Frohwerk , the messenger never asks how. When a solid majority favors a policy and has the votes to maintain it until a future election, there is no way to change that policy except by attempting to create significant vocal opposition to it. Yet this is precisely what the restraints preclude. Maybe the Catch-22 is not unintended.

What are we to make of a tradition with so little tolerance of dissent? One response is that it is precedent, and as such it could justify similar actions in the future. An alternative response is that it is well in our past and the lessons learned offer confidence for the future. It depends. Political agitation may well lead to lawbreaking; it may also lead to a change of government. The Federalists of '98 serve as an apt reminder that a majority may well fear a change of government far more than an outbreak of lawlessness.