On May 16, 1918 Congress passed an amendment to the Espionage Act of 1917, This Amendment is known to history as The Espionage Act of 1918. Here is the text:
Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall willfully make or convey false reports, or false statements, …or incite insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct …the recruiting or enlistment service of the United States, or …shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States …or shall willfully display the flag of any foreign enemy, or shall willfully …urge, incite, or advocate any curtailment of production …or advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than 20 years, or both….
About 2000 people were prosecuted under the Espionage Act and the Supreme Court upheld the Sedition portion against a challenge that it violated the First Amendment. A temporary war time measure, Congress repealed it along with many other war time measures on December 13, 1920.
Theodore Roosevelt was concerned that the Act would be used by the Administration to stifle criticism of the President, and he took up his pen in May of 1917 and wrote the following article:
LINCOLN AND FREE SPEECH
PATRIOTISM means to stand by the country. It does not mean to stand by the President or any other public official save exactly to the degree in which he himself stands by the country. It is patriotic to support him in so far as he efficiently serves the country. It is unpatriotic not to oppose him to the exact extent that by inefficiency or otherwise he fails in his duty to stand by the country. In either event, it is unpatriotic not to tell the truth–whether about the President or about any one else–save in the rare cases where this would make known to the enemy information of military value which would otherwise be unknown to him.
Sedition, in the legal sense, means to betray the government, to give aid and comfort to the enemy, or to counsel resistance to the laws or to measures of government having the force. of law. There can be conduct morally as bad as legal sedition which yet may not be violation of law. The President–any President–can by speech or action (by advocating an improper peace. or improper submission to national wrong) give aid and comfort to the public enemy as no one else in. the land can do, and yet his conduct, however damaging to the, country, is not seditious; and although if public sentiment is sufficiently aroused he can be impeached, such course is practically impossible.
One form of servility consists in a slavish attitude–of the kind, incompatible with self-respecting manliness–toward any person who is powerful by reason of his office or position.. Servility may be shown by a public servant toward the profiteering head of a large corporation, or toward the anti-American head of a big labor organization. It may also be shown in peculiarly noxious and un-American form by confounding the President or–any other official with the country and shrieking “stand by the President,” without regard to whether, by so acting, we do or do not stand by the country.
A distinguished Federal judge recently wrote me as follows:
“Last November [1917?] it seemed as if the American people were going to be converted into a hallelujah chorus, whose only function in government should be to shout ‘Hallelujah!’ ‘Hallelujah!’ for everything that the Administration did or failed to do. Any one who did not join that chorus was liable to imprisonment for treason or sedition.
“I hope that we shall soon have recovered our sense as well as our liberty.“The authors of the first amendment to the Federal Constitution guaranteeing the right of assembly and of freedom of speech and of the press. did not thus safeguard those rights for the sake alone of persons who were to enjoy them, but even more because they knew that the Republic which they were founding could not be worked on any other basis. Since Marshall tried Burr for treason it has been clear that that crime cannot be committed by words, unless one acts as a spy, or gives advice to the enemy of military or naval operations. It cannot be committed by statements reflecting upon officers or measures of government.
“Sedition is different. Any one who directly advises or counsels resistance to measures of government is guilty of sedition. That, however, ought to be clearly distinguished from ‘discussion of the wisdom or folly of measures of government, or the honesty or competency of public officers. That is not sedition. It is within the protection of the first amendment. The electorate cannot be qualified to perform its duty in removing incompetent officers and securing the repeal of unwise laws unless those questions may be freely discussed.
“The, right to say wise things necessarily implies the right to say foolish things. The answer to foolish speech is wise speech and not force. The Republic is founded upon the faith that if the American people are permitted freely to hear foolish and wise speech, a majority will choose the wise. If that faith is not justified the Republic is based on sand. John Milton said it all in his defense of freedom of the press: `Let truth and error grapple. Who ever knew truth to be beaten in a fair fight?’ ”
Abraham Lincoln was in Congress while Polk was President, during the Mexican War. The following extracts from his speeches, during war-time, about the then President ought to be illuminating to those persons who do not understand that one of the highest and most patriotic duties to be performed in his country at this time is to tell the truth whenever it becomes necessary in order to force our government to speed up the war. It would, for example, be our highest duty to tell it if at any time we became convinced that only thereby could we shame our leaders out of hypocrisy and prevent the betrayal of human rights by peace talk of the kind which bewilders and deceives plain people.
These quotations can be found on pages 100 to 146 of Volume I of “Lincoln’s Complete Works,” by Nicolay and Hay.
In a speech on January 12, 1848, Lincoln justified himself for voting in favor of a resolution censuring the President for his action prior to and during the war (which was still going on). He examines the President’s official message of justification and says, “that, taking for true all the President states as facts, he falls far short of proving his justification, and that the President would have gone further with his proof if it had not been for the small matter that the truth would not permit him.” He says that part of the message “is from beginning to end the sheerest deception.” He then asks the President to answer certain questions, and says: “Let him answer fully, fairly, and candidly. Let him answer with facts and not with arguments. Let him remember that he sits where Washington sat, and so remembering, let him answer as Washington would answer. Let him attempt no evasion, no equivocation.” In other words, Lincoln says that he does not wish rhetoric, or fine phrases or glittering statements that contradict one another and each of which has to be explained with a separate key or adroit and subtle special pleading and constant reversal of positions previously held, but straightforward and consistent adherence to the truth. He continues that he “more than suspects” that the President “is deeply conscious of being in the wrong; that he feels that innocent blood is crying to heaven against him”; that one of the best generals had “been driven into disfavor, if not disgrace, by the President” for insisting upon speaking unpalatable truths about the length of time the war would take (and therefore the need of full preparedness); and ends by saying that the army has done admirably, but that the President has bungled his work and “knows not where he is. He is a bewildered, confounded, and miserably perplexed man. God grant he may be able to show there is not something about his conscience more painful than all his mental perplexity.”
Remember that this is Lincoln speaking, in war-time, of the President. The general verdict of history has justified him. But it is impossible to justify him and not heartily to condemn the persons who in our time endeavor to suppress truth-telling of a far less emphatic type than Lincoln’s.
Lincoln had to deal with various critics of the “stand by the President” type. To one he answers that, “the only alternative is to tell the truth or to lie,” and that he would not “skulk” on such a question. He explains that the President’s supporters “are untiring in their efforts to make the impression that all who vote supplies or take part in the war do of necessity approve the President’s conduct,” but that he (Lincoln) and his associates sharply distinguished between the two and voted supplies and men but “denounced the President’s conduct” and “condemned the Administration.” He stated that to give the President the power demanded for him by certain people would “place the President where kings have always stood.” In touching on what we should now speak of as rhetoric, he says
“The honest laborer digs coal at about seventy cents a day, while the President digs abstractions at about seventy dollars a day. The coal is clearly worth more than the abstractions, and yet what a monstrous inequality in the price!” He emphatically protests against permitting the President “to take the whole of legislation into his hands”–surely a statement applying exactly to the present situation. To the President’s servile party supporters he makes a distinction which also readily applies at the present day: “The distinction between the cause of the President . . . and the cause of the country . . . you cannot perceive. To you the President and the country seem to be all one. . . . We see the distinction clearly enough.”
This last statement was the crux of the matter then and is the crux of the matter now. We hold that our loyalty is due solely to the American Republic, and to all our public servants exactly in proportion as they efficiently and faithfully serve the Republic. Our opponents, in flat contradiction of Lincoln’s position, hold that our loyalty is due to the President, not the country; to one man, the servant of the people, instead of to the people themselves. In practice they adopt the fetichism [sic] of all believers in absolutism, for every man who parrots the, cry of “stand by the President” without adding the proviso “so far as he serves the Republic” takes an attitude as essentially unmanly as that of any Stuart royalist who championed the doctrine that the king could do no wrong. No self-respecting and intelligent freeman can take such an attitude.
The Wisconsin legislature has just set forth the proper American doctrine, as follows
“The people of the State of Wisconsin always have stood and always will stand squarely behind the National Government in all things which are essential to bring the present war to a successful end, and we condemn Senator Robert La Follette and all others who have failed to see the righteousness of our nation’s cause, who have failed to support our government in matters vital to the winning of the war, and we denounce any attitude or utterance of theirs which has tended to incite sedition among the people of our country.”
In view of the recent attitude of the Administration as expressed through the attorney-general and postmaster-general I commend to its attention the utterances of Abraham Lincoln in 1848 and of the Wisconsin legislature in 1918. The Administration’s warfare against German spies and American traitors has been feeble. The government has achieved far less in this direction than has been achieved by a few of our newspapers and by various private individuals. This failure is aggravated by such action as was threatened against The Metropolitan Magazine. The Metropolitan–and the present writer–have stood and will continue to stand, “squarely behind the national government in all things which are essential to bring the present war to a successful end” and to support “the righteousness of the nation’s cause.” We will stand behind the country at every point, and we will at every point either support or oppose the Administration precisely in proportion as it does or does not with efficiency and single-minded devotion serve the country.
From this position we will not be driven by any abuse of power or by any effort to make us not the loyal servants of the American people, but the cringing tools of a man who at the moment has power.
The Administration has in some of its actions on vital points shown great inefficiency (as proved by Senator Chamberlain’s committee) and on other points has been guilty of conduct toward certain peoples wholly inconsistent with its conduct toward other peoples and wholly inconsistent with its public professions as regards all international conduct. It cannot meet these accusations, for they are truthful, and to try to suppress the truth by preventing the circulation of The Metropolitan Magazine is as high-handed a defiance of liberty and justice as anything done by the Hohenzollerns or the Romanoffs. [Roosevelt uses these royal families as examples of German and Russian tyranny, respectively.] Such action is intolerable. Contrast the leniency shown by the government toward the grossest offenses against the nation
with its eagerness to assail any one who tells unpleasant truths about the Administration. The Hearst papers play the German game when they oppose the war, assail our allies, and clamor for an inconclusive peace, and they play the German game when they assail the men who truthfully point out the shortcomings which, unless corrected, will redound to Germany’s advantage and our terrible disadvantage. But the Administration has taken no action against the Hear[s]t papers. The Metropolitan Magazine has supported the war, has championed every measure to speed up the war and to make our strength effective, and has stood against every proposal for a peace without victory. But the Administration acts against the magazine that in straightforward American fashion has championed the war. Such discrimination is not compatible with either honesty or patriotism. It means that the Administration is using the great power of the government to punish honest criticism of its shortcomings, while it accepts support of and apology for these shortcomings as an offset to action against the war and, therefore, against the nation. Conduct of this kind is a grave abuse of official power.
Whatever the Administration does, I shall continue to act in the future precisely as I have acted in the past. When a senator like Mr. Chamberlain in some great matter serves the country better than does the Administration, I shall support that senator; and when a senator like Mr. La Follette perseveres in the course followed by the Administration before it reversed itself in February, 1917 [urging that the U.S. stay out of World War I], I shall oppose him and to that extent support the Administration in its present position. I shall continue to support the Administration in every such action as floating the liberty loans, raising the draft army, or sending our troops abroad. I shall continue truthfully to criticise any flagrant acts of incompetency by the Administration, such as the failure in shipping matters and the breakdown of the War Department during the last fourteen months, when it appears that such truthful criticism offers the only chance of remedying the wrong. I shall support every official from the President down who does well, and shall oppose every such official who does ill. I shall not put the personal comfort of the President or of any other public servant above the welfare of the country.
In a self-governing country the people are called citizens. Under a despotism or autocracy the people are called subjects. This is because in a free country the people are themselves sovereign, while in a despotic country the people are under a sovereign. In the United States the people are all citizens, including its President. The rest of them are fellow citizens of the President. In Germany the people are all subjects of the Kaiser. They are not his fellow citizens, they are his subjects. This is the essential difference between the United States and Germany, but the difference would vanish if we now submitted to the foolish or traitorous persons who endeavor to make it a crime to tell the truth about the Administration when the Administration is guilty of incompetence or other shortcomings. Such endeavor is itself a crime against the nation. Those who take such an attitude are guilty of moral treason of a kind both abject and dangerous.