Postmaster General Albert Burleson, charged with the responsibility of purifying the mails, announced that no one could write "that this government got in the war wrong, that it is in it for wrong purposes, or anything that will impugn the motives of the Government for going into the war. They can not say that this Government is the tool of Wall Street or the munitions-makers" or "campaign against conscription and the Draft Law." His decisions were consistently approved by the courts, which held that "We must in good faith and with courage accept the reasons which the authorities have deemed sufficient to justify war" (Judge Aldrich, District of New Hampshire). Burleson barred a pamphlet on the suffering under British Rule in India, and removed from a Catholic journal a statement by the Pope in which he said that "no man can be loyal to his country unless he first be loyal to his conscience and his God." Washington's Committee on Public Information, the government propaganda bureau, was permitted "to circulate the official portrait of Lenin," but the Rand School in New York was not allowed "to circulate Lenin himself," among many other cases.¹⁸⁶

This state repression was accompanied by extensive mob violence on the part of a public inflamed by jingoist appeals and encouraged by state authorities.¹⁸⁷ The same period saw severe weakening of unions and political organizations, sentencing of presidential candidate Eugene Debs (in 1919) to ten years' imprisonment for a pacifist speech, internment of the conductor of the Boston Symphony Orchestra for declining to play the national anthem, barring of dozens of newspapers from the mails, and so on, all of this minor in comparison to Woodrow Wilson's "Red Scare."¹⁸⁸

There were some 2,000 criminal prosecutions for unacceptable dissent. Reviewing these, Harvard Law School professor Zechariah Chafee observed that

the courts treated opinions as statements of fact and then condemned them as false because they differed from the President's speech or the resolution of Congress declaring war... [I]t became criminal to advocate heavier taxation instead of bond issues, to state that conscription was unconstitutional..., to urge that a referendum should have preceded our declaration of war, to say that war was contrary to the teachings of Christianity. Men have been punished for criticizing the Red Cross and the Y.M.C.A.¹⁸⁹

This extraordinary assault on freedom of expression, it should be recalled, took place at a moment when the country had incomparable wealth and growing power, and faced no threat.

In a 1943 review, the ACLU praised the "state of civil liberty" during World War II in contrast to World War I, when governmental and other pressures "resulted in mob violence against dissenters, hundreds of prosecutions for utterances; in the creation of a universal volunteer vigilante system, officially recognized, to report dissent to the FBI; in hysterical hatred of everything German; in savage sentences for private expressions of criticism; and in suppression of public debate of the issues of the war and the peace."¹⁹⁰ But this positive evaluation of the state of civil liberty during World War II should be tempered in the light of the (Court-approved) dispatch of 110,000 Japanese-Americans to concentration camps; the 1940 Espionage Act and Smith Act,¹⁹¹ initiation of repressive activities of the FBI that persisted at a high level for at least thirty years; government strike-breaking and destruction of the Socialist Workers Party; full-scale martial law in Hawaii barring trial by jury, habeas corpus, and other due process rights; jailing of dozens of people for such seditious acts as counselling draft opposition; barring of dissident press from the mails and seizure of newspapers and other publications; surveillance of all international message traffic under wartime censorship; brutal treatment of conscientious objectors, etc.¹⁹² Meanwhile, left-liberal opinion called for restricting the Bill of Rights to "friends of democracy" and "exterminating" the "treason press," while Reinhold Niebuhr stressed the "greater measure of coercion" required during a national emergency and approved infringements on "the freedom of organizations to spread subversive propaganda" and community drives "to eliminate recalcitrant and even traitorous elements."¹⁹³

All this was at a time when opposition to the war was minuscule, the United States was by far the richest and most powerful state in the world, and its national territory had not been threatened with attack since the War of 1812.

The opinions of Holmes and Brandeis after World War I constituted the first significant break in the pattern of state control of expression, but in a limited way. In 1919, Justice Holmes formulated the "clear and present danger" test, regarded as a significant victory for civil liberties. The doctrine is hardly a forthright defense of freedom of speech, particularly when the circumstances are considered. In this opinion, Holmes affirmed the conviction of a Socialist Party leader whose crime was to have distributed a leaflet to draftees criticizing World War I and urging them to challenge their conscription, which he alleged to be unconstitutional, on legal grounds and by legal means. It was not until 1969 that the Supreme Court held that the "clear and present danger" test was inadequate, adopting instead the criterion of direct incitement for the banning of speech by the state.¹⁹⁴

Implicitly endorsing the perspective outlined by Rocker in the remarks quoted above, Kairys makes the important point that "the periods of stringent protection and enlargement of civil rights and civil liberties correspond to the periods in which mass movements posing a credible challenge to the existing order have demanded such rights," that is, have demanded the enforcement of the theoretical right to free expression: primarily the left, labor, and other popular movements, again in the 1960s.

To this analysis, one should add that dominant classes have their own reasons to oppose state power that might infringe on their rights, and will often protect the rights of which they are the primary beneficiaries. Others, particularly those who share privilege, will then benefit as well from these constraints on state power, including dissidents. In a well-functioning capitalist society, everything becomes a commodity, including freedom; one can have as much as one can buy, and those who can buy a lot have every reason to preserve an ample supply.

¹⁸⁶ Burleson, cited in introduction, Nelson, op. cit.; William Hard, New Republic, May 10, 1919, in Nelson, 253f.

¹⁸⁷ For a review of hundreds of cases from April 1917 through June 1918, see the 1919 report of the National Civil Liberties Bureau, which became the ACLU a year later, reprinted in Nelson, op. cit., 307f.

¹⁸⁸ Robert J. Goldstein, Political Repression in Modern America (Cambridge: Schenkman, 1978). See also appendix II, section 2.

¹⁸⁹ Chafee, Free Speech in the United States (Harvard, 1941), cited by Kairys, op. cit.

¹⁹⁰ ACLU Review of the Year (to June 1943), reprinted in Nelson, op. cit., 264.

¹⁹¹ A "sweeping federal sedition law," Harry Kalven observes, making it a crime "to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence," to organize or help to organize any group that teaches, advocates or encourages such doctrines or "to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof." The membership clause of the Smith Act was upheld by the Supreme Court in Scales v. United States in 1961. Kalven, op. cit.

¹⁹² Goldstein, Political Repression.

¹⁹³ Ibid., citing the New Republic, New Leader, Nation; Fox, Reinhold Niebuhr, 293.

¹⁹⁴ Richard Polenberg, Fighting Faiths (Viking, 1987, 367).