III. Labor Unrest

The Espionage Act proved to be a much less successful weapon in the Ninth Circuit when it was directed at labor groups, many of which viewed the war as capitalistic exploitation of the working class. Although hardly sympathetic to the radical labor message, the Ninth Circuit judges

shielded defendants from many federal prosecutorial excesses. The court did not extend free-expression doctrine beyond the limits imposed by the Supreme Court, but the trial procedures it required had the effect of protecting speech by labor leaders. These labor-related cases played an important part in the development by the Ninth Circuit of a less rigid conception of order.^[25]

The labor group most responsible for this altered approach, the Industrial Workers of the World, or "Wobblies," was in some respects an unlikely beneficiary of this jurisprudential change. The I.W.W. rose rapidly in the West after its formation in Chicago in 1905, and it quickly gained a reputation for "unbeatable militancy." The Wobblies launched a massive free-speech battle in 1909 to win the right to disseminate their pro-labor views. Throughout the 1910s, the Wobblies attempted to organize workers in communities from Washington to Pennsylvania, Montana to Missouri, and South Dakota to southern California. They rarely backed down from a fight, and they seemed particularly drawn to labor struggles where violence appeared imminent: "Without question they were tough and lawless in any tough and lawless situation." When the war in Europe began in 1914 and the economy responded with an upsurge, the I.W.W. saw an opportunity to win higher wages and lower hours. By 1917, the Wobblies had attracted approximately 60,000 dues-paying members, and several hundred thousand more held membership cards. But this success in winning adherents came at a high price. It polarized popular opinion, particularly in the West, and encouraged business groups, who had the most to lose from the success of the Wobblies, to incite a number of attacks on the radical labor group. In March of 1917, for example, police broke up a fund-raising dance in Miami, Arizona, that was being held for striking miners and their families. Two months later, 600 men torched the I.W.W. hall in Oakland. And in the summer of 1917, vigilantes intimidated Wobblies following a strike against the Anaconda Copper Company in Montana.^[26]

Meanwhile, state and federal prosecutors throughout the country were filing criminal charges against the Wobblies for various acts of vandalism, property destruction, and anti-war militancy. The most spectacular incident of the federal government's campaign against the I.W.W. took place in the summer of 1917, when United States attorneys and special agents of the Justice Department from Chicago westward investigated the labor organization for suspected acts of sabotage. On September 5, government officials raided I.W.W. headquarters in Chicago and offices throughout the West. The government brought criminal

charges in Chicago, Sacramento, and Wichita based on the papers seized and other signs of subversion. The Chicago trial attracted the most notoriety, because the principal defendant was I.W.W. leader William D. (Big Bill) Haywood. The authorities originally intended the September 5 raid on the California headquarters of the I.W.W. in Fresno to gather evidence for the impending prosecution of the group's leaders in Chicago. They found little evidence suggesting violent subversion, but the United States attorney in Sacramento nevertheless brought a separate indictment in February, 1918, against fifty-four men and one woman. Pre-trial detention facilities were harsh: the jailers provided inadequate food and crowded the prisoners, forcing them to take turns resting while the others had to stand. Five defendants died before trial. The government dropped some of the other indictments and eventually brought forty-six defendants to trial.^[27]

At the trial itself, over which Frank H. Rudkin presided, forty-three of the forty-six defendants refused to defend themselves. They sat mute in the courtroom, represented by no counsel. To draw Rudkin as the trial judge was a fortunate break for the defendants, but their defense strategy poorly exploited the opportunity. Rudkin was one of the best district judges in the Ninth Circuit, and his elevation to the appellate bench in 1923 brought to the court a judge who fearlessly bucked the popular hysteria and ensured fair procedures for criminal defendants. One reporter at the scene described Rudkin as "a powerful man, overtopping all others in the courtroom. Though he is past middle age, his vigor and keenness are unabated, and one feels instinctively that he will see justice done or know the reason why." But without experienced trial counsel to point out the many weaknesses in the government's case, the defendants had little chance to prevail. Even with Rudkin's "moderate instructions," the jury convicted most of the defendants. By the time the case came before the Ninth Circuit, the I.W.W. was on a downhill slide after its numerous battles with federal officials. Thirteen Wobblies from Sacramento appealed, but after carefully scrutinizing the trial record, the court could find no error. In an opinion by Erskine Ross, the Ninth Circuit affirmed on all counts.^[28]

The outcome in the Sacramento Wobblies case derived more from dubious legal strategy than from hostility on the court's part. Early in its jurisprudence of I.W.W. cases, the Ninth Circuit displayed a willingness to strike a balance between overzealous prosecution of I.W.W. radicals and just punishment of law-breakers. Even before the end of World War I, the Ninth Circuit reversed convictions of I.W.W. defen-

dants charged with violating provisions of the Espionage Act. The court ruled in two cases that the indictments had failed to provide notice to the defendants of the facts that purportedly constituted the crimes. These rulings were particularly significant because the Wobblies had polarized public opinion in western Washington. The United States attorney there deployed the Espionage Act, often with very little evidence, to bludgeon the I.W.W. The Ninth Circuit served as an important check on violations of the Wobblies' rights of due process. As William Gilbert stated in one of these cases: "The plaintiffs in error had the constitutional right to be informed of the nature and cause of the accusation against them. To furnish them with that information it was necessary to set forth in the indictment the particular facts and circumstances which rendered them guilty and to make specific that which the statute states in general."^[29]

Not only did the Ninth Circuit check the work of overreaching prosecutors, it also restrained excesses by district judges handling I.W.W. trials. In one case the court reversed a conviction brought against a Wobbly who had been indicted in Oregon and convicted for saying that liberty bonds were "not worth the paper they were written on" and "To hell with the government." The Ninth Circuit found no fault with the indictment; the problem lay in District Judge Charles E. Wolverton's instructions to the jury. The judge had imprudently added to the jury instructions the following: "The I.W.W. is a disloyal and unpatriotic organization. Adherents thereof owe no allegiance to any organized government, and so far as the government is concerned the organization itself is thoroughly bad." In striking down this jury instruction and reversing the conviction, Judge Hunt walked the delicate line between protecting the defendant's rights and bowing to popular sentiment. "Of course," he wrote, "where it is proven that an organization has such purposes, it should be held to be disloyal and unpatriotic. But without some further evidence to show that the pamphlet was issued by some one whose position in the order was such that the writing should be regarded as an authoritative statement of the attitude of the organization as a whole toward the government of the United States, . . . we are not satisfied that it justified the conclusion that, as a matter of law, the organization is disloyal and unpatriotic, and that its adherents owe no allegiance to any organized government." Contemporaneously with this decision, he wrote for the court in another case that the government need not prove the falsity of statements accusing the United States of entering the war against Germany for capitalist reasons. As these and other

statements by Hunt show, Wobblies fared much better under his scrutiny of procedural rights than did other Espionage Act defendants.^[30]

After the Ninth Circuit, in spite of popular anti-Wobbly sentiment, reversed a number of I.W.W. convictions under the Espionage Act, the Justice Department tried a new tactic, this time invoking the 1917 Immigration Act to smash the I.W.W. That statute provided that "any alien who at any time after entry shall be found advocating or teaching the unlawful destruction of property, or advocating or teaching anarchy, or the overthrow by force or violence of the Government of the United States or of all forms of law or the assassination of public officials . . . shall, upon the warrant of the Secretary of Labor, be taken into custody and deported." Since many Wobblies were aliens, this immigration statute augmented the government's arsenal of prosecutorial weapons. The immigration office in Seattle acted with special diligence, arresting one hundred aliens in a two-week period in January of 1918.^[31]

The Seattle labor situation fueled the antagonism underlying the deportation proceedings. Ordinarily, the city each year absorbed anywhere from 5,000 to 13,000 migratory workers. After a successful lumber strike by the I.W.W. in 1917, these displaced workers began to join the Wobblies. "To already nervous and frightened Seattle citizens, therefore, the 1917 migration cityward seemed more like a seditious invasion than the normal backwash of the rural proletariat." Prosecutions under the 1917 immigration statute succeeded for a time, but Judge Frank Rudkin, then eastern Washington's federal district judge, dealt a harsh blow to these efforts to criminalize guilt-by-association. Most of the deportation cases occurred in the western district of Washington, but Rudkin heard several such cases in Spokane and in his district effectively prohibited the government from deporting foreign-born Wobblies for being members of the labor organization.^[32]

In one such case, Rudkin rejected the government's theory that the organization's views could be imputed to the defendant even when no evidence existed that the defendant had ever uttered such views: "From this conclusion there is no escape unless a person can advocate and teach by silence and I am clearly of the opinion that such was not the sort of advocacy or teaching that Congress had in mind." However much this position must have heartened I.W.W. members who faced prosecution, because Rudkin's counterpart in the western district of Washington, Judge Jeremiah Neterer, held a different view, attempts to halt use of the immigration law as an anti-Wobbly weapon did not succeed easily.

Neterer generally upheld a broad interpretation of the 1917 immigration law that permitted deportation of any I.W.W. member who supported the organization. Years later, in a celebrated case, the Ninth Circuit itself was decisively to reject Neterer's position.^[33]

The western federal courts often ruled against the popular anti-I.W.W. sentiment in an attempt to maintain adequate procedural protections for Wobbly defendants. The Justice Department's take-no-prisoners attitude made the federal courts' task all the more difficult. After assuming office in June, 1919, Attorney General A. Mitchell Palmer launched a campaign of "summary arrests, brutal interrogations, and arbitrary mass deportations" to wipe out radicalism. He was responding in part to a massive outbreak of labor activity. Workers in Seattle had walked out in February of 1919, and over the next six months nearly 2,000 strikes erupted across the nation, from a low of 175 in March to a high of 388 in May. The Justice Department's crusade against the Wobblies, coupled with a lack of sympathy among the general public for the group's radicalism, contributed to the eventual extinction of the I.W.W. One historian attributes its swift downfall after World War I to attacks by federal, state, and local governments that "gave it no quarter."^[34]

The demise of the I.W.W. occurred despite its victories in the Ninth Circuit. Historians of the American labor movement have recognized the I.W.W.'s importance in the evolution of employer-employee relations. In terms of the Ninth Circuit's legal history, federal prosecutions of the I.W.W. served as a vehicle for the court's close scrutiny of criminal procedure in an important, if somewhat subtle, departure from the court's jurisprudence of other anti-war radicals. Undoubtedly a law-and-order court during this period, the Ninth Circuit was not so strict as to enforce order at the expense of law. Even in 1918, in the midst of intense war-related popular hysteria, the court coolly reversed convictions of Wobblies on narrow procedural grounds.^[35] This approach failed to save the I.W.W. from extinction, but it did highlight the linkage, in the court's nascent jurisprudence, between two fundamental rights: free speech and freedom from unreasonable searches and seizures. The court's predominant tendency in Espionage Act cases was to uphold the strictest and narrowest interpretation of free-expression rights. When it reviewed convictions of I.W.W. members for expression-related actions, however, the court became increasingly protective of defendants' rights, and this attitude ripened when the court faced judicial challenges posed by Prohibition.