The Espionage Act was passed by Congress in 1917 after the United States entered the First World War. It prescribed a $10,000 fine and 20 years' imprisonment for interfering with the recruiting of troops or the disclosure of information dealing with national defence. Additional penalties were included for the refusal to perform military duty. Over the next few months around 900 went to prison under the Espionage Act.
Criticised as unconstitutional, the act resulted in the imprisonment of many of the anti-war movement. This included the arrest of left-wing political figures such as Eugene V. Debs, Bill Haywood, Philip Randolph, Victor Berger, John Reed, Max Eastman, and Emma Goldman. Debs was sentenced to ten years for a speech in Canton, Ohio, on 16th June, 1918, attacking the Espionage Act.
On 23rd August six members of the Frayhayt, a group of Jewish anarchists based in New York were arrested. Charged under the Espionage Act, the group were accused of publishing articles in the Der Shturm that undermined the American war effort. This included criticizing the United States government for invading Russia after the Bolshevik government signed the Brest-Litovsk Treaty.
One of the group, Jacob Schwartz, was so badly beaten by the police when he was arrested that he died soon afterwards. Mollie Steimer was found guilty and sentenced to fifteen years imprisonment. Three of the men, Samuel Lipman, Hyman Lachowsky and Jacob Abrahams received twenty years. Zechariah Chafee of the Harvard Law School led the protests against the severity of the sentences. He pointed out had been convicted solely for advocating non-intervention in the affairs of another nation: "After priding ourselves for over a century on being an asylum for the oppressed of all nations, we ought not suddenly jump to the position that we are only an asylum for men who are no more radical than ourselves."
Others who joined in the protests included Felix Frankfurter, Norman Thomas, Roger Baldwin, Margaret Sanger, Lincoln Steffens, Elizabeth Gurley Flynn, Hutchins Hapgood, Leonard Dalton Abbott, Alice Stone Blackwell, Henry Wadsworth Longfellow and Neith Boyce. A group, the League of Amnesty of Political Prisoners was formed and it published a leaflet on the case, Is Opinion a Crime? Steimer and the the other three anarchists were released on bail to await the results of their appeal.
Over 450 conscientious objectors were imprisoned as a result of this legislation including Rose Pastor Stokes who was sentenced to ten years in prison for saying, in a letter to the Kansas City Star, that "no government which is for the profiteers can also be for the people, and I am for the people while the government is for the profiteers." Soon afterwards Kate Richards O'Hare was sentenced to five years for making an anti-war speech in North Dakota.
The socialist journal, The Masses was prosecuted in 1918 under the Espionage Act. It was claimed by the authorities that articles by Floyd Dell and Max Eastman and cartoons by Art Young, Boardman Robinson and H. J. Glintenkamp had undermined the war effort. The legal action that followed forced the journal to cease publication.
Emma Goldman complained about the treatment of Mollie Steimer: "The entire machinery of the United States government was being employed to crush this slip of a girl weighing less than eighty pounds." On the 30th October, 1919, she was arrested she was taken to Blackwell Island. While in prison the Supreme Court upheld her conviction under the Espionage Act. However, two justices, Louis Brandeis and Oliver Wendell Holmes, issued a strong dissenting opinion. Steimer was now transferred to the Jefferson City Prison in Missouri.
During this period A. Mitchell Palmer, the attorney general and his special assistant, John Edgar Hoover, used the Sedition Act to launch a campaign against radicals and their organizations. Using this legislation it was decided to remove immigrants who had been involved in left-wing politics. This included Mollie Steimer, Emma Goldman, Alexander Berkman and 245 other people who were deported to Russia. A fellow anarchist, Marcus Graham, wrote: "In Russia their activity is yet more needed. For there, a government rules masquerading under the name of the proletariat and doing everything imaginable to enslave the proletariat."
During the Red Scare (1919-20) A. Mitchell Palmer, the attorney general and his special assistant, John Edgar Hoover, used the Espionage Act and the Sedition Act to launch a campaign against radicals and left-wing organizations. Under these two laws 1500 people were arrested for disloyalty.
I am not opposed to all war, nor am I opposed to fighting under all circumstances, and any declaration to the contrary would disqualify me as a revolutionist. When I say I am opposed to war I mean ruling class war, for the ruling class is the only class that makes war. It matters not to me whether this war be offensive or defensive, or what other lying excuse may be invented for it, I am opposed to it, and I would be shot for treason before I would enter such a war.
Capitalists wars for capitalist conquest and capitalist plunder must be fought by the capitalists themselves so far as I am concerned, and upon that question there can be no compromise and no misunderstanding as to my position. I have no country to fight for; my country is the earth; I am a citizen of the world. I would not violate my principles for God, much less for a crazy kaiser, a savage czar, a degenerate king, or a gang of pot-bellied parasites.
I am opposed to every war but one; I am for the war with heart and soul, and that is the world-wide war of social revolution. In that war I am prepared to fight in any way the ruling class may make necessary, even to the barricades.
There is where I stand and where I believe the Socialist Party stands, or ought to stand, on the question of war.
This is a nation of free speech; but this is a time for sacrifice, when mothers are sacrificing their sons. Is it too much to ask that for the time being men shall suppress any desire which they may have to utter words which may tend to weaken the spirit, or destroy the faith or confidence of the people?
The other day they sentenced Kate Richards O'Hare to the penitentiary for five years. Think of sentencing a woman to the penitentiary simply for talking. The United States, under plutocratic rule, is the only country that would send a woman to prison for five years for exercising the right of free speech. If this be treason, let them make the most of it.
Let me review a bit of history in connection with this case. I have known Kate Richards O'Hare intimately for twenty years. I am familiar with her public record. Personally I know her as if she were my own sister. All who know Mrs. O'Hare know her to be a woman of unquestioned integrity. And they also know that she is a woman of unimpeachable loyalty to the Socialist movement. When she went out into North Dakota to make her speech, followed by plain-clothes men in the service of the government intent upon effecting her arrest and securing her prosecution and conviction - when she went out there, it was with the full knowledge on her part that sooner or later these detectives would accomplish their purpose. She made her speech, and that speech was deliberately misrepresented for the purpose of securing her conviction. The only testimony against her was that of a hired witness. And when the farmers, the men and women who were in the audience she addressed - when they went to Bismarck where the trial was held to testify in her favor, to swear that she had not used the language she was charged with having used, the judge refused to allow them to go upon the stand. This would seem incredible to me if I had not had some experience of my own with federal courts.
Rose Pastor Stokes! And when I mention her name I take off my hat. Here we have another heroic and inspiring comrade. She had her millions of dollars at command. Did her wealth restrain her an instant? On the contrary her supreme devotion to the cause outweighed all considerations of a financial or social nature. She went out boldly to plead the cause of the working class and they rewarded her high courage with a ten years' sentence to the penitentiary. Think of it! Ten years! What atrocious crime had she committed? What frightful things had she said? Let me answer candidly. She said nothing more than I have said here this afternoon. I want to admit - I want to admit without reservation that if Rose Pastor Stokes is guilty of crime, so am I. If she is guilty for the brave part she has taken in this testing time of human souls I would not be cowardly enough to plead my innocence. And if she ought to be sent to the penitentiary for ten years, so ought I without a doubt.
What did Rose Pastor Stokes say? Why, she said that a government could not at the same time serve both the profiteers and the victims of the profiteers. Is it not true? Certainly it is and no one can successfully dispute it. Roosevelt said a thousand times more in the very same paper, the Kansas City Star. Roosevelt said vauntingly the other day that he would be heard if he went to jail. He knows very well that he is taking no risk of going to jail. He is shrewdly laying his wires for the Republican nomination in 1920 and he is an adept in making the appeal of the demagogue.
Rose Pastor Stokes never uttered a word she did not have a legal, constitutional right to utter. But her message to the people, the message that stirred their thoughts and opened their eyes - that must be suppressed; her voice must be silenced. And so she was promptly subjected to a mock trial and sentenced to the penitentiary for ten years. Her conviction was a foregone conclusion. The trial of a Socialist in a capitalist court is at best a farcical affair. What ghost of a chance had she in a court with a packed jury and a corporation tool on the bench? Not the least in the world. And so she goes to the penitentiary for ten years if they carry out their brutal and disgraceful graceful program. For my part I do not think they will. In fact I feel sure they will not. If the war were over tomorrow the prison doors would open to our people. They simply mean to silence the voice of protest during the war.
The Post Office was represented by Assistant District Attorney Barnes. He explained that the Department construed the Espionage Act as giving it power to exclude from the mails anything which might interfere with the successful conduct of the war.
Four cartoons and four pieces of text in the August issue were specified as violations of the law. The cartoons were Boardman Robinson's Making the World Safe for Democracy, H. J. Glintenkamp's Liberty Bell and the conscription cartoons, and one by Art Young on Congress and Big Business. The conscription cartoon was considered by the Department "the worst thing in the magazine". The text objected to was A Question, an editorial by Max Eastman; A Tribute, a poem by Josephine Bell; a paragraph in an article on Conscientious Objectors; and an editorial, Friends of American Freedom.
The Masses harassed by the post-office authorities, was suppressed in October, 1917, by the Government, and its editors were indicted, myself among them, under the so-called Espionage Act, which was being used not against German spies but against American Socialists, Pacifists, and anti-war radicals. Sentences of twenty years were being served out to all who dared say this was not a war to end war, or that the Allied loans would never be paid. But the courts would probably not get around to us until next year; and we immediately made plans to start another magazine, The Liberator, and tell more truth; we would stand on the pre-war Wilsonian program, and call for a negotiated peace.
At a recent convention of the National Association for the Advancement of Colored People (NAACP), a member of the Administration's Department of Intelligence was present. When Mr. Julian Carter of Harrisburg was complaining of the racial prejudice which American white troops had carried into France, the administration representative rose and warned the audience that the Negroes were under suspicion of having been affected by German propaganda.
In keeping with the ultra-patriotism of the oldline type of Negro leaders the NAACP failed to grasp its opportunity. It might have informed the Administration representatives that the discontent among Negroes was not produced by propaganda, nor can it be removed by propaganda. The causes are deep and dark - though obvious to all who care to use their mental eyes. Peonage, disfranchisement, Jim-Crowism, segregation, rank civil discrimination, injustice of legislatures, courts and administrators - these are the propaganda of discontent among Negroes.
The only legitimate connection between this unrest and Germanism is the extensive government advertisement that we are fighting "to make the world safe for democracy", to carry democracy to Germany; that we are conscripting the Negro into the military and industrial establishments to achieve this end for white democracy four thousand miles away, while the Negro at home, through bearing the burden in every way, is denied economic, political, educational and civil democracy.
The judge was astonished when he saw us and read what we had written in the Messenger. Chandler and I were twenty-nine at the time, but we looked much younger. The judge said, why, we were nothing but boys. He couldn't believe we were old enough, or, being black, smart enough, to write that red-hot stuff in the Messenger. There was no doubt, he said, that the the white socialists were using us, that they had written the stuff for us.
He turned to us: "You really wrote this magazine? We assured him that we had. "What do you know about socialism? he said. We told him we were students of Marx and fervent believers in the socialization of social property. "Don't you know," he said, "that you are opposing your own government and that you are subject to imprisonment for treason?" We told him we believed in the principle of human justice and that our right to express our conscience was above the law.
We Socialists knew the relation of profits to war and we insisted on telling the truth about it. We talked war and profits, war and profits, war and profits until the administration was compelled, in sheer self-defense to attempt to squelch us. First the administration violated the constitutional provision for free press and by the stroke of a pen destroyed the greater portion of the Socialist press. But we could still talk if we could not publish newspapers, and we did talk and talk and talk. And the best method the limited intelligence of the administration could devise for squelching talking Socialists was to send them to prison.
In my case it was a frightful strain on the "brains of the administration" to find some plausible excuse for sending me to prison. With the best sleuthing the Department of Justice could do it was compelled to admit that I had violated no law; I was of American blood for many generations; my family had always been properly patriotic and had participated in every war the United States had ever waged; my public utterances and private life proved that I was not pro-German and was most emphatically pro-American; I was entirely "nice" and "respectable" and "ladylike" and I had managed to amble along to comfortable middle age with the same husband and children I started with. In fact I had but one vice - I did insist on telling the truth about war and politics. And war and profits was the one subject the Democratic administration dared not permit me to discuss.
So many people have marveled that I should have traveled all over the country telling the truth, as I saw it, about war and profits unmolested, until I landed in a little, unknown town in the north-west, and there to have been "framed", arrested, tried, convicted and sent to prison. But there is really nothing marvelous about it, I was simply more dangerous to the capitalists, the war profiteers and the Democratic Party in the northwest than in any other section of the United States.
In a visit full of dramatic incidents, Kate Richards O'Hare visited Eugene V. Debs in the Federal penitentiary in Atlanta on 2nd July, to carry to him the love of Socialists everywhere.
Kate O'Hare was ushered into the prison; the two comrades met and embraced; Kate Richards O'Hare recently freed from the Federal prison and Eugene V. Debs in prison garb with nine years of prison life before him, with both his hands still upon her shoulders, said, "How happy I am to see you free, Kate."
"Your coming here is like a new sunlight to me. Tell me about your prison experiences," said Debs. She answered, "Gene, I am not thinking of myself, but of little Mollie Steimer who now occupies my cell at Jefferson City and of her appalling sentence of fifteen years. She is a nineteen-year-old little girl, smaller in stature than my Kathleen, whose sole crime is her love for the oppressed.
Then Kate opened her leather card-case and showed Debs her family group picture which she had carried with her during the fourteen months of prison life. The sight of that picture had afforded her much consolation through the hours of dreaded prison silence and monotony.
The Espionage Act resulted in filling the civil and military prisons of the country with men sentenced to incredibly long terms; Bill Haywood received twenty years, his hundred and ten International Workers of the World co-defendants from one to ten, Eugene V. Debs ten years, Kate Richards O'Hare five. These were but a few among the hundreds railroaded to living death. Then came the arrest of a group of our young comrades in New York, comprising Mollie Steimer, Jacob Abrams, Samuel Lipman, Hyman Lachowsky and Jacob Schwartz. Their offence consisted in circulating a printed protest against American intervention in Russia.
In early September 1917, Department of Justice agents made simultaneous raids on forty-eight IWW meeting halls across the country, seizing correspondence and literature that would become courtroom evidence. Later that month, 165 IWW leaders were arrested for conspiring to hinder the draft, encourage desertion, and intimidate others in connection with labor disputes. One hundred and one went on trial in April 1918; it lasted five months, the longest criminal trial in American history up to that time.
The judge sentenced Haywood and fourteen others to twenty years in prison; thirty-three were given ten years, the rest shorter sentences. They were fined a total of $2,500,000. The IWW was shattered. Haywood jumped bail and fled to revolutionary Russia, where he remained until his death ten years later.
In spite of a ruling by the Attorney General that "the constitutional right of free speech, free assembly, and petition exist in wartime as in peacetime," nearly two thousand men and women were jailed for their opinions during the First World War, their sentences running as high as thirty years.
The Espionage Act, signed by Wilson one month after our entrance into the war, although it contained no press censorship clause, and was ostensibly designed to protect the nation against foreign agents, established three new crimes which made it dangerous to criticize the war policy and impossible to voice the faintest objection to conscription.
A subsequent amendment known as the Sedition Act, defined as seditious, and made punishable, all disloyal language and attacks on the government, the army, the navy, or the cause of the United States in the war. Under this act it became a crime to write a "disloyal" letter, or an anti-war article which might reach a training camp, or express anti-war sentiments to an audience which included men of draft age, or where the expression might be heard by ship-builders or munition-makers.
In our June and July numbers (of The Masses) we had two anti-war cartoons by Boardman Robinson: a picture of Uncle Sam in chains and handcuffs, "All ready to fight for liberty," and one of Jesus Christ being dragged in on a rope by an idiotic recruiting officer. George Bellows contributed another Jesus, in stripes now, with ball and chain and a crown of thorns: "The prisoner used language tending to discourage men from enlisting in the United States army: "Thou shalt not kill - Blessed are the peacemakers."
I think that resistance to the United States means some forcible act of opposition to some proceeding of the United States in pursuance of the war. I think the intent must be the specific intent that I have described, and, for the reasons that I have given, I think that no such intent was proved or existed in fact. I also think that there is no hint at resistance to the United States as I construe the phrase.
In this case, sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the government has to publish the Constitution of the United States, now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer, not for what the indictment alleges but for the creed that they avow - a creed that I believe to be the creed of ignorance and immaturity when honestly held - as I see no reason to doubt that it was held here, but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court.
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 wholeheartedly 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. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that 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.
I wholly disagree with the argument of the government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law . . . abridging the freedom of speech." Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.
Let us bear in mind, my friends, that these men are not in prison at the present time by reason of any acts of violence to either person or property. Whatever might have inhered in the case with reference to these matters in the beginning has long since passed out of the case, and these men are in prison today, separated from their families, deprived of an opportunity of earning a livelihood, their health being undermined for the sole and only reason that they expressed their opinions concerning the war and the activities of the government in the prosecution of the war. They are distinctly and unquestionably political prisoners in the true sense of that term. They are not there for the violation of ordinary criminal statutes or for deeds of violence of any kind.
They are, in other words, in prison some four years after the war for expressing an opinion in regard to it. I was thinking today as I was reflecting over this situation that six months before the time we declared war some of the most prominent members of the government at that time would have been guilty of the same offense for which these men are now in prison. Six months before we entered the war it was considered most objectionable in the United States to advocate going into the war. Six months before the war began we were told that this great World War had its roots in causes which we did not understand and with which we were not concerned and that we should keep out of it. It would seem that the gravest offense upon the part of these men, so far as expressing their views was concerned, is that they were late in catching up with the procession. They did not or were unable to adjust their views to the changed condition of affairs as readily as others.
Do not misunderstand me. I am one of those who believe that when my country is at war, engaged in deadly strife with an enemy, as a matter of policy, we ought to surrender our individual views and get behind the government if we can possibly do so. In such times we ought to reconcile ourselves to our government's successful conduct of the war. But while that is my belief, it is also my contention, grounded in the deepest principles of free government, that if a man thinks a war is unjust or improvident, or that it is being carried on in a corrupt manner, it is his absolute right to say so. Indeed, if it is a question of the method of carrying on the war and he believes it is unwise or unjust, it is his duty to say so.