by Thomas Healy, professor of law at Seton Hall Law School. A graduate of Columbia Law School, he clerked on the U.S. Court of Appeals for the Ninth Circuit and was a Supreme Court correspondent for The Baltimore Sun. He has written extensively about free speech, the Constitution and the federal courts.
Over the past few months, the Obama administration’s effort to crack down on leakers has sparked a heated debate about the scope of First Amendment protection for those who shed light on government misconduct. The details of this debate are new, but the conflict between national security and expressive liberty that underlies it has a long and stormy past.
Nearly a century ago, the country was racked by another struggle over the limits of free speech, this one triggered by World War I and the rise of communism. The outcome of that struggle – and its legacy today – is the subject of my new book, The Great Dissent: How Oliver Wendell Holmes Changed His Mind – and Changed the History of Free Speech in America.
In many ways, the pressures a hundred years ago were similar to the ones we face now. The country was at war – although against a known and visible enemy, not a dispersed and shifting one. Fears ran high, especially with regard to immigrants. And many citizens were willing to give the government a free rein in dealing with the threats of the day.
The results, of course, were not pretty. One month after declaring war on Germany, Congress passed the Espionage Act of 1917, which made it a crime to do or say anything that might obstruct the draft or cause insubordination in the military. A year later it approved the Sedition Act, which outlawed nearly any criticism of the government or the war.
Nearly two thousand indictments were brought under these laws, many based on the thinnest of reeds. One person was convicted for forwarding a chain letter that advocated an immediate peace; another for producing a movie that depicted British soldiers killing Americans during the Revolutionary War; and still another because she claimed that the war benefited capitalists. The punishments were also severe. At least two dozen people were sentenced to prison for 20 years, while many others received terms of five, 10 and 15 years.
Although the Espionage and Sedition Acts ceased to have effect when the war ended, the persecution didn’t stop. As the fear of German sympathizers was transformed into a fear of communism, the government found new methods to crack down on dissent. Congress allocated large sums of money to investigate seditious activities, a Senate committee released a list of 62 activists who were said to be enemies of the state, and Attorney General A. Mitchell Palmer authorized a series of violent raids on the homes and meeting places of Russian immigrants.