From Civil War to World War I

In Federalist No. 10, Madison argued that the diversity of a people spread throughout a geographically expansive republic would help secure liberty. He recognized that the positions of a majority and a minority race had led to injustice and that over time these injustices had become more geographically concentrated. Northerners, as they abolished slavery, increasingly viewed the institution as an abomination, and as Southerners perpetuated slavery, they increasingly defended it as a positive good. Congress’s gag order in the 1830s against anti-slavery petitions stirred fierce debates over the right of petition. Southerners conceived of such petitions as being as incendiary as the abolitionist doctrine they reflected. The abolitionist leader Elijah Lovejoy and his presses fell victim to a lynch mob, but the voices of Harriet Beecher Stowe and others were not silenced. War inevitably came.

Many leaders in Congress associated the Civil War not only with the institution of slavery, but with the inadequacy of state protections for individual rights. The Fourteenth Amendment, ratified in 1868, subsequently extended to all persons born or naturalized in the United States the citizenship that the decision in Scott v. Sandford (1857) had sought to limit and guaranteed all citizens basic privileges and immunities and due process rights. Some clearly thought this amendment would effectively overturn the decision in Barron v. Baltimore that had limited the application of the Bill of Rights to the states. Others focused on the more immediate and pressing deprivations of the rights of former slaves.

In the early 20th century, the Supreme Court would face another set of national laws challenging First Amendment freedoms, at which point it would begin the process of “incorporation” to clearly establish that the provisions of the First Amendment equally bound state and national governmental entities. It is common for legal casebooks to open discussion of freedom of speech and freedom of the press with cases from the World War I era that began to change the nature of this debate. In the words of free speech historian Paul L. Murphy, this period in many ways witnessed the “origin of civil liberties.” It would be comforting to think that the movement was always in the direction of protecting civil liberties, but the record lays out a crooked path.

During World War I, Congress enacted the Espionage Act of 1917, which criminalized attempting to foment insubordination of the war effort, willfully attempting to cause insurrection, and obstructing the recruiting or enlistment of potential volunteers. Another section of the law gave the postmaster general the power to ban from the mail any material “advocating or urging treason, insurrection, or forcible resistance to any law of the United States.” Congress then passed the Sedition Act of 1918, an amendment to the Espionage Act that further infringed on First Amendment freedoms. The law prohibited


[u]ttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language intended to cause contempt, scorn . . . as regards the form of government of the United States or Constitution, or the flag or the uniform of the Army or Navy . . . urging any curtailment of the war with intent to hinder its prosecution; advocating, teaching, defending, or acts supporting or favoring the cause of any country at war with the United States, or opposing the cause of the United States.

The Supreme Court first developed its body of First Amendment jurisprudence when examining Espionage Act charges leveled against political dissidents, that is, socialists, communists, and anarchists who opposed the U.S. effort in World War I. In Schenck v. United States (1919), Justice Oliver Wendell Holmes Jr. unveiled the clear and present danger test when he wrote, “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. It is a question of proximity and degree.” Holmes wrote this famous phrase in his majority opinion affirming the conviction of socialist Charles Schenck.

The Court used Holmes’ doctrine to affirm similar convictions in other cases, including Abrams v. United States (1919). Holmes and Justice Louis D. Brandeis dissented, however, with Holmes penning an opinion that introduced the marketplace of ideas metaphor that still permeates modern First Amendment law:  “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.”

The Court continued to examine free expression cases involving political dissidents, struggling to calibrate the proper balance between protecting individual liberty and safeguarding national security interests. In Gitlow v. New York (1925), it upheld another criminal conspiracy conviction of a socialist, but it also assumed that the First Amendment freedom of speech extended to the states. The Court wrote that freedom of speech and press “are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Before long, the Court was applying other provisions of the Bill of Rights to the states as well, including the free exercise clause in Cantwell v. Connecticut (1940) and the establishment clause in Everson v. Board of Education (1947).

The Supreme Court had taken on relatively few cases involving the First Amendment, or the Bill of Rights in general, during the 19th century, but in the 20th century the justices became key interpreters of First Amendment freedoms. Justice Brandeis broadened Justice Holmes’s justifications for freedom of expression, most notably in his classic concurring opinion in Whitney v. California (1927), introducing the counterspeech doctrine: when confronted with harmful speech, “the remedy to be applied is more speech, not enforced silence.” Holmes and Brandeis are often called the “fathers of the First Amendment.” Their legacy lived on in Justices Hugo L. BlackWilliam O. DouglasHarlan Fiske StoneFrank Murphy, and William J. Brennan Jr., who carried forth their vision of vigorously protecting free expression.