Civil rights do not fare well in wartime, tested against the feverish jingoism of the martial spirit. As the old adage goes, inter armas silent leges — in war the law is silent. In the United States, liberty has too often been sacrificed (without hesitation, we might add) to the gods of wars, forced to prostrate herself before them, accede to their demands. But never completely is liberty’s light extinguished; undaunted and filled with righteous indignation — and, perhaps, naivety — a few idealists always stand as her partisans, prepared to sacrifice their own liberty in their own kind of war.

Eugene Debs, whatever his faults, was one of this kind, a true believer. He was born in 1855 in Terre Haute, Indiana, a town west of Indianapolis and near the Illinois border, the son of immigrants from the French region of Alsace. Far from steeping the young Gene Debs in left-wing radicalism, his parents owned a small grocery store and led a quiet life devoted to their many children. But Debs was curious, compelled toward literature, debate, and the world of ideas. From humble beginnings, he would go on to become, in the words of Max Eastman, “the spiritual chief and hero of American Socialism,” but he is important to the libertarian tradition, too, as a symbol of free speech. His trial in 1919 represents a travesty of justice, an egregious affront to the individual’s inviolable right to speak his mind. It also speaks to the fragility of mere words on a page, confronted with the power of a growing modern state in the hands of Progressives. Woodrow Wilson’s administration embraced centralized government power enthusiastically, seeing in it an expression of the true social organism.

Passed the year that the United States entered the fray in the Great War, the Espionage Act of 1917 was one of several successive attacks on liberty and the constitutional order during Wilson’s presidential tenure. Lest the title of the law cause confusion, it addressed itself both in theory and practice to a range of activities that few would readily associate with spying. Together with the Sedition Act, an addendum passed the following year, it gave the federal government broad discretion to prosecute virtually any speech critical of the government or the war. Under the statute’s vague, overbroad language, even the faintest criticism of U.S. participation in the war could be considered an attempt to aid the country’s enemies or otherwise hinder the war effort.

It was to this draconian law that Debs, outspoken in his anti-war convictions, eventually fell victim. Intellectually and morally abased by the hysteria of war, the American political and media establishment could conceive of no way one could be so unreservedly critical of the war without also being “an agent of a foreign power.” Distrust of foreigners in general reached new heights. The war rendered the nation amenable to the most extreme public-policy expressions of nativism and anti-immigration sentiments, already, in the words of Thomas C. Leonard, “a chronic, debilitating illness” in American public life. German-Americans, widely treated as a presumptively suspect other, were now the subjects of sweeping registration requirements, with thousands interned at camps across the country.

The immigration and naturalization laws, too, were weaponized against free speech in the years prior to the war, wielded against war dissenters and those (such as anarchists and the Wobblies) whose political opinions tended to the radical. At this juncture, it is important to note that Debs was decidedly not among the more militant elements of the American Left. Though he had helped found the Industrial Workers of the World, he parted company with the organization because of the methods it had begun to adopt. He regarded the tactics of violence and on-the-job sabotage as “reactionary, not revolutionary,” not only immoral but strategically inexpedient, likely to turn the public against worthy reform movements. Always insistent that his fight was with the capitalist social system, not with particular individuals, he denounced political assassinations and in particular that of William McKinley, murdered by the anarchist Leon Czolgosz. The prosecution of Debs — who had always favored nonviolence and respect for the democratic process — for his political statements thus stands out as particularly outrageous.

Schenck, Debs, and Abrams

The Canton, Ohio, speech for which Debs was indicted damned “Prussian militarism” and argued that socialists had everywhere and always fought it. Much of the speech was not even concerned with the war itself, but addressed to the listeners a heartfelt plea for the socialist cause. Here was a citizen, idealistic and motivated by a deep desire to change society, speaking freely to his fellow Americans, appealing to the conscience of each member of his audience. Whether or not one agreed with his message, certainly Debs was just the kind of incendiary for whom the First Amendment was adopted. Upon his conviction in September 1918 — less than two months before the armistice that ended fighting on the Western Front — Debs called the statute under which he was convicted “a despotic enactment in flagrant conflict with democratic principles and with the spirit of free institutions.”

His economically retrograde socialism notwithstanding, Debs had the spirit of a libertarian, an unshakable commitment to free speech and expression and a well-founded lack of trust in leaders and rulers.

The Debs case is remarkable both for the briefness of the Court’s opinion and for its lack of a dissent. Satisfied that Debs’s First Amendment theories were effectively “disposed of in Schenck,” Justice Oliver Wendell Holmes spent much of his opinion merely repeating Debs’s words, as if their incantation alone should suffice to damn Debs. Its language stilted in a self-conscious search for a way to condemn Debs, the Court mocked the freedoms guaranteed by the Amendment atop the Bill of Rights. The jury, the Court’s majority held, was warranted “in finding that one purpose of the speech, whether incidental or not does not matter, was to oppose not only war but this war, and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting” (emphasis added). Never mind the question of Debs’s intent, the importance of which the Court suggests earlier in its opinion, or the pesky fact that the First Amendment allows an individual to express his disapproval of even a specific war effort.

Decided just one week before Debs, Schenck v. United States had presented the Court with similar facts, the socialist defendants distributing print literature expressing opposition to the war. Unlike Debs, though, Schenck’s leaflets urged opposition specifically to military conscription, described in the pamphlet as a violation of “the most sacred right of personal liberty” and as “belong[ing] to a bygone age.” In terms similar to those of Debs’s Ohio speech and under the headline “LONG LIVE THE CONSTITUTION OF THE UNITED STATES,” Schenck’s pamphlet decried the war as a conspiracy against the working man, undergirded by the lies of “a mercenary capitalist press.”

It was in Schenck that the Court articulated (which is to say, invented) its well-known “clear and present danger” standard. Writing for a unanimous Court — as he would again in Debs — Justice Holmes concluded that the words at issue in the case created such a danger, threatening to encourage a crime that the Constitution empowers Congress to prevent. The opinion admits that the leaflet, in its encouragements against conscription, “confined itself to peaceful measures” such as protest and petition. Even on the Court’s own terms, then, the exhortations of Schenck’s leaflet were innocuous and thus should have been deemed protected speech. But the Court, in cases such as Schenck and Debs, was engaged in the rather unabashedly political (as opposed, perhaps, to legal) project of damning radicals and purging the public conversation of critical thinking and rigorous debate about the merits of the war. That is to say that the Court had willingly abandoned its post as the constitutionally assigned source of independent judicial review, had instead taken up a position as a concocter of cynical rationalizations for a fundamentally illiberal regime.

The 1919 Supreme Court case Abrams v. United States similarly reflects the government’s flagrant contempt for individual rights, freedom of speech in particular, during the World War I era. The socialist-anarchist defendants in the Abrams case had disseminated radical missives, signed “revolutionists,” deprecating “the coward of the White House” and calling on the workers of the world to acknowledge their true enemy, capitalism, and to go on a general strike.

Yet just as Debs had in his fateful speech, the Abrams defendants offered, together with their impassioned pleas for worker revolution, a kind of disclaimer. “It is absurd,” they said, “to call us pro-German,” assuring the reader of their hatred of “German militarism,” a principled hatred unmatched by that of America’s “hypocritical tyrants.” Though Abrams also resulted in convictions (in a 7-2 vote), it has become famous for its dissent, which arguably represents a remarkable change of course for its author, Justice Holmes. While Holmes was careful to distinguish the facts in the Abrams case from those in the speech cases for which he had been on the side of the majority, it is nevertheless plausible to read his dissent in this later case as an attempt at redemption. The attempted distinctions are, after all, rather thin. Had Schenck and Debs really demonstrated any more intent to obstruct the prosecution of the war than Abrams and his friends? As we have noted, even Holmes’s opinions in those cases bespeak some doubt.

What is clear, in any case, is that by the time of the Abrams decision, almost exactly a year after the Allies had won the war, the U.S. political climate had changed considerably. The war having reached its conclusion, prosecuting Americans for the expression of their political opinions became less tenable. In a letter he wrote in May 1919 to Herbert Croly, one of the founders of The New Republic, Holmes all but admits that he betrayed his own conscience in Debs and Schenck. “I hated to have to write the Debs case,” Holmes reflects, “and still more those of the other poor devils before us the same day and the week before.” Holmes even suggests that if he had been a member on the jury in these cases, he “should have been for acquittal,” condescendingly adding that he was philosophically inclined to favor the ventilation of “all effervescing convictions” — if only to “[let] them get flat.”

Of course, this private letter was no consolation to Schenck, Debs, or others convicted under the anti-speech espionage and sedition laws.

Debs’s conviction did not mark the end of his activism. Indeed, in the election of 1920, almost a million voters cast their ballots in favor of Debs, who sat imprisoned in Atlanta, allowed, according to historian J. Robert Constantine, to issue one campaign statement per week from his cell. As Constantine writes in a biographical sketch of Debs in his collection Letters of Eugene V. Debs, Debs’s presidential campaign, though it predictably failed to make him president, galvanized a movement for his release and that of “hundreds of other men and women found guilty of violating one of the federal or state espionage, sedition, or syndicalist laws.” Constantine notes that the American Legion and similar groups met the groundswell of support for Debs with a “well-financed ‘Keep Debs in Jail’ program.”

But Debs’s optimism and idealism were beyond the reach of the carceral state. Even behind bars, he retained his famously good-natured disposition, winning the affection even of his jailers. Warren G. Harding and his running mate, Calvin Coolidge, won the White House handily that November, propelled by Harding’s humble calls for “healing” and “normalcy.” To his credit, President Harding commuted Debs’s sentence, though by then Debs had already served several years’ time.

These cases and their repressive results supply much of the most important political-speech precedent that came in the latter half of the twentieth century. It is important to recall those dark days of First Amendment jurisprudence to remind us that, absent the widespread belief in the importance of individual liberty, no constitution can protect us. The freedom of speech does not originate in government; government is more likely to violate that freedom than to protect it.

This article was originally published in the August 2017 edition of Future of Freedom.