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On June 16, 1918, Eugene Debs stood up before an audience in Canton, Ohio. Debs, the famed tribune of socialism, had largely been absent from the speaking circuit for the previous year due to poor health. During his convalescence, many of Debs’s comrades in the Socialist Party had been jailed for their opposition to World War I. Speculation abounded about how he might navigate the new repressive atmosphere. When Debs took the podium in Canton, he denounced the “Junkers of Wall Street,” praised the Bolshevik Revolution, extolled the strength of the Socialist movement, and expressed his devotion to “the cause of labor.” It was his remarks on World War I, however, that drew the most attention. The perennial Socialist Party presidential candidate told the picnicking audience that “[t]he master class has always declared the wars; the subject class has always fought the battles.” Faced with yet another ruling-class war, Debs countered, “If war is right let it be declared by the people. You who have your lives to lose, you certainly above all others have the right to decide the momentous issue of war or peace.” Clyde Miller, a journalist with the Cleveland Plain Dealer, tipped off federal authorities about the content of Debs’s speech, and the socialist leader was charged under the Espionage Act, a statute used to criminalize opposition to the war and silence radical voices. Arguing that Debs’s antiwar speech was intended to incite insubordination within the military and obstruct the draft, the government tried, convicted, and sentenced Debs to ten years in prison. Today, Debs’s case is remembered as an important milestone in the cause of free speech. Last year, scholars, journalists, and activists gathered in Cleveland, Ohio to commemorate the centennial of his trial. (Full disclosure: I spoke at this gathering.) Debs was not the only opponent of World War I prosecuted under the Espionage Act — such prosecutions destroyed a number of vibrant radical movements — but he quickly became and remains a stand-in for an entire era of repression and the fight for civil liberties it inspired. As celebrated as Debs’s saga is, it enjoys a key distinction from many other free speech fights. Famed civil liberties battles like the right of students to wear black armbands and the right of unions to assemble in public parks were primarily legal struggles in which the Supreme Court ultimately affirmed free speech rights. In Debs’s case, the Supreme Court was on the other side: it unanimously upheld his conviction. This traditional free speech narrative usually assumes a dispassionate judiciary acting as guardians of liberty, directly counterposed to the aroused passions of the public. Democratic excesses pose the danger to liberty; elites who stand above the fray safeguard it. But for Debs and his fellow radicals, the Supreme Court was another set of elites who conspired to crush them. The executive branch demanded the tools to repress dissent, Congress obliged in giving them said tools, and the Supreme Court was happy to legitimate the entire process.

An Anti-Democratic Court Make no mistake about it: the Supreme Court of Debs’s era was certainly a counter-democratic institution. Over a decade before they condemned Debs to prison, the Supreme Court made one of its most infamous rulings in Lochner v. New York, striking down a law regulating the working conditions for bakers on the grounds that it violated the Due Process Clause’s guarantee of liberty of contract. Throughout this period — often called the Lochner era — the Supreme Court repeatedly struck down laws enacted to protect working people and limit corporate power. Yet when civil liberties were at stake, the courts could seldom find anything in the Constitution to protect them. In the late nineteenth century, a business-friendly Supreme Court went so far as to overturn Reconstruction-era civil rights legislation and gut the Fourteenth Amendment. Curbing the Supreme Court’s powers was a hallmark demand of progressives and radicals. During the speech that landed Debs in jail, he said, in a passage that’s worth quoting at length: Who appoints our federal judges? The people? In all the history of the country, the working class have never named a federal judge. There are 121 of these judges and every solitary one holds his position, his tenure, through the influence and power of corporate capital. The corporations and trusts dictate their appointment. And when they go to the bench, they go, not to serve the people, but to serve the interests that place them and keep them where they are. Why, the other day, by a vote of five to four — a kind of craps game — come seven, come ’leven — they declared the child labor law unconstitutional — a law secured after twenty years of education and agitation on the part of all kinds of people. And yet, by a majority of one, the Supreme Court a body of corporation lawyers, with just one exception, wiped that law from the statute books, and this in our so-called democracy, so that we may continue to grind the flesh and blood and bones of puny little children into profits for the Junkers of Wall Street. And this in a country that boasts of fighting to make the world safe for democracy! The history of this country is being written in the blood of the childhood the industrial lords have murdered. It should surprise no one, then, that a bastion of class rule, which saw its raison d’être as shredding protections for workers while crafting new privileges for the wealthy, would prove hostile to a radical socialist labor agitator. But Debs’s case was hardly a loss for free speech rights. In many ways, it helped usher in the modern era of free speech norms. Assailed by an unsympathetic judiciary, Debs’s defenders took to the streets, gathered petitions, and walked picket lines. As historian Ernest Freeberg has documented, a movement for “amnesty” for war resisters sprung up across the United States. This movement was “led by social activists, not lawyers and legal scholars, and their use of free speech arguments were more pragmatic than precise.” Nonetheless, these activists passionately debated the meaning of free speech. And ultimately, they helped redefine its meaning. For Freeberg, the amnesty movement helped birth civil liberties. Freeberg is hardly the only historian to note the radical origins of civil liberties. The American Civil Liberties Union (ACLU), which introduced the term “civil liberties” into the American lexicon, began as the Civil Liberties Bureau within the American Union Against Militarism. Opponents of war and militarism recognized that with the state cracking down on them, their very survival required a vigorous defense of free speech. But as historian Laura Weinrib has argued, early civil libertarians were motivated by another concern as well: workers’ rights. Viewing themselves as partisans of the class war, they fought for free speech because they abhorred the suppression of organized labor. And that included Debs. While Debs’s battle to fight against militarism is memorialized as a milestone for free speech, it was not Debs’s first legal battle. Before Debs was a socialist, he was president of the American Railway Union. In 1894, Debs’s union, the American Railway Union went on strike against the Pullman Company. While he had opposed the decision to strike, as president of the union Debs threw his full weight behind the strike. It was crushed by federal troops. The Pullman Company sought an injunction against the union decreeing their boycott of Pullman cars illegal. When Debs refused to comply with the order, he was held in contempt of court. The Supreme Court unanimously upheld Debs’s conviction and he went to jail. The Pullman Strike is remembered as a pivotal moment in labor history, but unlike Debs’s prosecution under the Espionage Act, it is less frequently remembered within the history of free speech. But as Weinrib points out, the right to engage in forms of “agitation” such as strikes or boycotts were not only viewed as free speech concerns for early civil libertarians, they were often the motivating factor in taking up the cause of civil liberties in the first place.