The Pen and the Sword

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Those are the words of the First Amendment to the United States Constitution and the first of ten such basic principles enumerated in the Bill of Rights that Americans hold dear. Perhaps more than any other fundamental right of the citizen, the right of free speech is prized above all others. We like to think that it is a historically American principle…and it has been…except when free speech becomes the voice of dissent. During the 1960s the voice of dissent became the rumbling of a new American Revolution.

In our diverse nation it is expected that opinions will vary widely, and they do. Indeed everyone is "entitled to their opinion," or so we would like to think. The fact is, all too often a differing opinion is fine if one keeps it to themselves. When such opinions become manifested in the public arena, and especially that opinion become the voice of dissention, even in the United States the results can be damaging. Unlike opinions which are expected to be private and innocuous, dissention is often the unified voice of a group with an opinion at odds with either an official policy or a majority opinion.

It was in fact, the voice of dissention that led 13 American colonies to declare themselves free from British rule in 1776. One of the first high profile acts of dissention to manifest itself in civil disobedience was the so-called Boston Tea Party of December 16, 1773 . In reaction to such civil disobedience King George began instituting various acts to quell the rise of public activism by monitoring voices of opposition, suspending due process of law, and other activities that came to be known as the Intolerable Acts. While more than two centuries later and in light of putting a positive "spin" on the American Revolution we like to think of these Acts as the repressive edicts of a tyrant, from a more aesthetic position they could be seen as a leader's actions to quell rebellion and protect the public. While that certainly was NOT the case in 1776, it would become the excuse for American Presidents in the two centuries that followed to establish equally intolerable acts of infringement on freedom of speech in the name of security.

Never in history has our nation had a popular war, save perhaps the Spanish-American war of 1898 that was described as a "Splendid Little War" though it too, had its peace protesters. Few events in our history have evoked more dissention than those involving armed conflict, perhaps because it is at once both very personal and tragically deadly. The successful prosecution of any war demands a consensus of the American public, which is why the age old mantra is that "You don't just send and Army to war, you take a country to war."

The who voiced dissention against the American Revolution are conveniently remembered as "Loyalists" or "Tories." Their unfortunate lot must be remembered in context for, in 1776 the Loyalists, while comprising a minority of about 20% of the population in the 13 Colonies, were nevertheless American citizens in those colonies. The Patriots were, in fact, rebels. One such Loyalist, Samuel Seabury an Anglican clergyman of Connecticut explained the reason for his dissent by stating: "If I must be enslaved let it be by a King at least, and not by a parcel of upstart lawless Committeemen. If I must be devoured, let me be devoured by the jaws of a lion, and not gnawed to death by rats and vermin." Such was his personal opinion of the Founding Fathers.

Perhaps the only thing that marked the early revolutionaries as heroes rather than as upstart rebels was the fact that they won. Of course in those days of war the voice of dissention, out of a sheer sense of survival, learned to muffle itself within fiercely patriotic cities.

Theoretically the right of dissent and the freedom to unite in opposition to either the policy of government or prevailing popular opinion was made abundantly possible when the Bill of Rights was ratified in 1791. Within seven years however the principles of the First Amendment would be put to the test and…at least for a time, would become victim to the very Executive Branch that was sworn to uphold it.

The first major external crisis to face our young nation came in the late 1790s.  While Americans were struggling to establish and refine their definition of a democratic government, France and England were at war with each other.  By 1797 French privateers, reacting to their own fears that the United States leaned more towards England in the conflict, seized more than 300 American vessels on the high seas.  When American emissaries to France sought a treaty to end such actions France demanded a 10 million dollar loan, among other things.  As soon news of French aggression and extortion reached the American public, there was immediate outrage.

The illegal actions of the French and their insolent demands spurred not only fear in America but calls for immediate action by the President and the Congress.  The hysteria, subsequently called Francophobia, failed to persuade President John Adams to declare war, though in the two-year undeclared war that followed the U.S. Navy seized 84 French ships.  To sate the fears and outcry of the public over the French threat, President Adams and the Congress passed four new laws in the name of national security.

The Alien and Sedition Acts were four pieces of legislation designed to stop any dissent against the government.  The first three: The Naturalization Act, The Alien Friends Act, and the Alien Enemies Act, were designed to protect American interests from subversive actions by foreign (more specifically, but not identified, French) immigrants, living in the United States . Of course at that time virtually ALL voting American citizens in 1798 were immigrants, Native Americans (as well as other ethnic minorities) were not allowed to vote. The latter of the three acts gave the President the authority to arrest and deport, without cause, any citizen of a foreign country during time of war.

These three Alien Acts were seen as necessary to national security by the Federalist-controlled Congress, but were decried by the anti-Federalists.  Despite the outcry and opposition of civil libertarians, including Thomas Jefferson who had penned the Declaration of Independence, in 1798 the Alien Acts were followed by the Sedition Act.  Where the first three limited the rights of aliens during this time of crisis, the Sedition Act made possible a gross violation of the American citizens’ Constitutional rights to freedom of speech and freedom of the press.

 Through the Sedition Act an American citizen could be fined or imprisoned for obstructing the implementation of federal law or for publishing malicious or false writings against Congress, the president or the government.  Among the editors and writers arrested through this Act was Benjamin Franklin Bache, grandson of Benjamin Franklin.  Congressman Matthew Lyon was arrested for publishing a letter to the editor of his Vermont paper, the Fair Haven Gazette.  That letter attacked President Adams by saying he had a “continued grasp for power….an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”   These remarks garnered him a sentence of four months in jail and a fine of one thousand dollars.  Editor Anthony Haswell was arrested for printing an advertisement to raise money for Lyon ’s fine.  He was charged with “abetting a criminal.”  Lyon was jailed in October yet was reelected to the House in December.  He was freed in February after receiving enough money to pay his fine. So much for the 7-year-old First Amendment and the right of free speech.

Ultimately, no immigrants were charged under the Alien Acts.  The Sedition Act, on the other hand, led to the imprisonment of some two-dozen American citizens.  All American citizens who were arrested were members of the press whose only crime had been to criticize the abridgment of civil liberty under the acts or the unprecedented authority over the citizenry exercised by President Adams.  Thomas Jefferson and James Madison believed that “the powers claimed under these acts by President Adams resembled those of a monarch.” Madison criticized it as an affront to the “right of freely examining public characters and measures, and of free communication among the people."  Madison ’s Virginia Resolution and Jefferson ’s Kentucky Resolution, written in opposition to these acts, pitted two states against the Federal Government.

The issues of the right of free speech and freedom of the press were never addressed by the Supreme Court in light of the Alien and Sedition Acts; such actions would not be undertaken by the judiciary for nearly two centuries.  Rather, the debate over the issue of abridgments of these rights in the name of security was settled in the election of 1800 when Thomas Jefferson defeated John Adams.  In his inaugural address, the new president confirmed the right of American citizens “to think freely and to speak and write what they think."  Jefferson also subsequently pardoned all those who had been previously charged under the Sedition Act and their fines were repaid by Congress. 

Sixty years later Abraham Lincoln was elected during a time when the country was faced with divided loyalties, “fluid military and political boundaries and easy opportunities for espionage and sabotage,” as well as violent protests.  President Lincoln had to somehow find a way to bring about law and order in the face of potential chaos, and to unify the nation.

To make matters worse, after the attack on Fort Sumter on April 14, 1861 , while the Sixth Massachusetts Volunteers marched toward the Capitol through Baltimore , they were attacked by insurgent Confederate soldiers.  President Lincoln realized he had to take immediate action to prevent additional Confederate troops from entering the city.  The mayor of Baltimore ordered the destruction of all railroad bridges that connected Baltimore to the North, thus preventing access to the city by Confederate soldiers.

In the Spring of 1861, President Lincoln responded to the threat of safety against his citizens, in particular the people living in Maryland .  Lincoln decided that drastic measures were needed to deal with the crisis at hand.  He believed that as the chief executive he must exercise carte blanche when it came to arresting espionage suspects and others who were believed to be a threat to national security.  In Lincoln ’s mind one of the easiest ways to do this was to suspend the writ of habeas corpus. Right or wrong, it was an action that mirrored one of the Intolerable Acts of King George that had lead to revolution nearly a century earlier.

A court-ordered writ of habeas corpus demands a court hearing in order to determine if a person held in custody is being lawfully detained. It is a fundamental right of all free people--the right to due process under law.  By suspending the writ of habeas corpus Lincoln was able to arrest people whom he perceived to be a threat to national security, without having to have enough evidence to prove to a court that they were in fact a threat warranting arrest and imprisonment. 

Article I, Section 9 of the U.S. Constitution says, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”  During the Civil War Chief Justice Roger B. Taney ruled that only Congress had the authority to suspend habeas corpus, but President Lincoln adamantly claimed that he was the one who had the authority to do so.  Since Congress would not be in session until June, several months distant, Lincoln immediately suspended the writ of habeas corpus without their consent and then declared marital law in Maryland on April 27. 

At first, Lincoln ’s suspension of the writ of habeas corpus only applied to Maryland .  Because this executive action set a precedent that the President did indeed have the authority to do this, on September 24, 1862 , Lincoln moved one step further and suspended the writ of habeas corpus everywhere in the United States .  He used this expansion to not only arrest those suspected of espionage, but to also arrest, imprison, and silence anyone who resisted the draft, or who was “guilty of any disloyal practice.”  It was under this ambiguous charge that newspaper editors in the North, opposing political leaders, and virtually anyone else who spoke against the Union or the war effort could be arrested.  So much for Freedom of the Press! Once these people were arrested, Lincoln claimed that they were subject to martial law, allowing them to be tried and punished by military courts.  This action removed the accused from the protection of the Constitution. So much for Due Process of Law!

Lincoln ’s order to suspend habeas corpus was historic in light of the U.S. Constitution, and set a precedent that enabled further actions by himself, as well as any future president.  It resulted in an Act passed by Congress in March 1863 which affirmed once and for all that the President did indeed have the power to suspend habeas corpus if and when national security required such action. 

Not all Northerners agreed with Lincoln ’s 1863 Emancipation Proclamation and/or other policies related to slavery, the war, the draft, or the general operation of his war-time administration.  These northern dissenters became known as copperheads, referring to the poisonous copperhead snake.  Clement Vallandigham, a Congressman and leader of the Democrats in Congress, called constantly for a negotiated end to the Civil war and reunion with the South.  Despite losing his Congressional seat in the election of 1862, he continued to speak as a former legislator and high-profile political leader.  His speeches railed against Lincoln ’s policies during the present crisis and war. 

General Ambrose Burnside, the commander of the military district that included Ohio , decided to deal with the copperheads once and for all.  He issued General Order No. 38 which stated, “The habit of declaring sympathies for the enemy will no longer be tolerated in this department.  Persons committing such offenses will be at once arrested.”  General Burnside based his authority to issue this order on Lincoln ’s proclamation of suspending the writ of habeas corpus.

Former Congressman Clement Vallandigham spoke at an Ohio Democratic Party rally on May 1, 1863 .  Even though he was aware that General Burnside’s men were in the audience, Vallandigham spoke against the General and against President Lincoln’s handling of the current crisis, the war between the states.  Former Congressman Vallandigham challenged Burnside’s General Order No. 38 by saying that his right to speak was based on “General Order, No. 1, the Constitution of the United States ."  Vallandigham challenged Lincoln ’s authority by speaking against the war and against the draft. 

In the wee hours of a morning shortly thereafter, while everyone in the Vallandigham family slept, soldiers broke down the door to the house, rushed upstairs, and broke two bedroom doors in their search for the rebellious leader.  Under a cloak of absolute secrecy and the dark of night they arrested him and transported him aboard a special train to another city.  The authorities there locked Vallandigham up in a military barracks.  The arrested former Congressman was not allowed to see a judge nor was he even formally charged with a crime.  Vallandigham did subsequently learn what the charges against him were. His crime was:

“publicly expressing in violation of General Order, No. 38….sympathies for those in arms against the Government of the United States, declaring disloyal sentiments and opinions with the object and purpose of weakening the power of the Government in its effort to suppress the unlawful rebellion."

            Even after his arrest, Vallandigham continued to argue that the government was violating the Constitution and had no legal right to imprison or try him.  General Burnside disagreed and found him guilty.  He wanted to have the former congressman put in prison for the rest of the war.  Lincoln , trying to make a bad situation go away, ordered that Vallandigham be banished to the Confederacy.  The president then tried to mend fences with Democratic Party leaders by explaining that regular civilian courts were not adequate to deal with such problems during a rebellion.  He said that anyone opposing the government’s cause endangered “the public safety,” therefore the solution was to suspend the writ and lock up the troublemakers until the end of the war.

Vallandigham’s friends, believing that the Judiciary branch would overturn and rectify the unconstitutional actions of the President, went to the U.S. Supreme Court asking the justices to hear the case.  To their dismay the Supreme Court ruled on February 15, 1864 , that it would not hear the case because it did not have the authority to review any proceedings of a martial law court. After the Civil War, in 1866, the Supreme Court finally stepped up to the plate and restored habeas corpus.  They further ruled that it was illegal for military trials to be held in areas where civil courts were capable of ruling on the matter at hand.

The first major international conflict involving America was World War I.  In 1917, as in 1798, foreign immigrants living in America were looked upon with fear and suspicion.  This placed a lot of Americans at risk of losing their Constitutionally-guaranteed civil liberties since approximately one third of all Americans were first or second-generation immigrants.  Because the United States was at war with the nation of Germany , German immigrants and Americans with German sounding names were automatically suspected of being disloyal. 

To fight that war, when at last war was declared on April 6, 1917 , the Selective Service Act was passed on May 8.  The Act dealt with the problem posed by low voluntary enlistment of males in the U.S. military.  At first only men between the ages of 21 and 31 were ordered to military duty, but the Act was eventually expanded to include all male citizens between the ages of 18 through 45. 

To deal with potential threats at home once the United States declared war on Germany , the Espionage Act was passed by Congress in 1918, effectively repressing American civil liberties to a greater degree than any previous Act in history.  Under this Act individuals (American citizens included) could be fined “up to $10,000 and imprisoned for 20 years for…interfering with the draft, encouraging disloyalty or even using….abusive language about the (American) form of government."  The Act further outlawed any publication which urged “treason, insurrection, or forcible resistance to any law” from being mailed.

One of President Wilson’s purposes under this Act was to permanently silence German newspapers. Ultimately this prohibition spilled over to control the content of American newspapers as well.  As had happened in 1798 and during the Civil War, once again freedom of the press was effectively outlawed in the United States of America .  Forty-four U.S. newspapers lost their mailing privileges while 30 others escaped that fate only by agreeing not to write anything about the war.

Under the Espionage Act all males older than 14 who were still “natives, citizens, denizens, or subjects” of the German Empire were deemed alien enemies.  Soon this term was expanded to apply to any foreign resident who dared to speak against the government, the war, or the draft; such violators were deemed undesirable by the government.   The suspicion of German-Americans, who had immigrated, grown up as Americans, and raised American families, was so intense that many of them chose to change their names.  People with the last name of Mueller became Miller; American citizens with the surname of Schmidt became Smith.  German-named American cities and towns followed suit; Berlin , Iowa , became Lincoln , Iowa .  Performances by Schubert and Bach were banned in America during this time.  The trend even extended to popular food dishes; sauerkraut became known as “liberty cabbage.”

On July 2, 1918 , Congress voted to repeal the charter of the National German-American Alliance.  This organization, created in 1900, included representatives from ten states and sought to promote unity with the German people and to introduce Americans to the German culture.  The only “crime” the organization and its two to three million members had committed was to call for American neutrality in the war. 

Former Congressman Victor Berger, reformer Kate O’Hare, and anarchist Emma Goldman were among the more than 2,000 people who were jailed for hindering the draft.  Eugene Debs was sentenced to ten years for verbally attacking the Espionage Act and for defending Kate O’Hare in a speech he gave in Ohio .  Jacob Schwartz was a member of a group of Jewish anarchists who was arrested for publishing articles against American intervention in Russia after the Bolshevik government signed the Brest-Litovsk Treaty.  Police beat Schwartz so badly that he died soon after his arrest.  His right to freedom of speech had been taken away forever.

Courts had no sympathy for immigrants or American citizens prosecuted under the Espionage Act.  One judge addressed a jury in one of these prosecutions saying that quoting rights guaranteed by the First Amendment is no defense “where the honor and safety of the Nation is involved." John Dewey, a John Hopkins graduate and philosopher, responded, “What shall it profit us to defeat the Prussians if we prussianize our own selves?"  The editor of a banned newspaper, Masses, said, “They give you 90 days for quoting the Declaration of Independence, six months for quoting the Bible, and pretty soon somebody is going to get a life sentence for quoting Woodrow Wilson in the wrong context."

Immediately prior to the events at Pearl Harbor that forced our nation into a world war the American public viewed the conflict in Europe and human rights violations perpetrated by the Japanese in Asia with a strongly isolationistic anti-war mood. In 1939, nine of every ten Americans opposed United States involvement and of the 10% who believed we should take sides in the war, many believed we should unite with Germany . It was not so much a pro-Nazi attitude as it was an act of self-preservation… Germany looked invincible and American's were frightened.

During the period the anti-war voice of dissent became united in a powerful and influential manner never before seen in America . Among the leading anti-war organizations was the America First Committee. The group believed exactly what their name indicates, that America came FIRST and staying out of the brewing world war was in America 's best interests. This voice of opposition numbered nearly 1 million members with some 650 chapters.

The most high-profile leader of America First was the dashing hero of The Spirit of St. Louis, Charles Lindbergh. Other prominent members and supporters however included World War I Ace of Aces Eddie Rickenbacker, Henry Ford, novelist Sinclair Lewis (whose only son was subsequently killed in World War II), Walt Disney, and even two U.S. Senators: Burton K. Wheeler, Senator Gerald P. Nye. Together they stood in opposition to President Franklin's official stance that moved us ever closer to war. As the organization's spokesman Charles Lindbergh perhaps paid the highest price for his dissent; President Roosevelt even tried to revoke his Medal of Honor. His name and reputation remains tarnished to this day by the slanted and often outright lies used by the Administration to discredit him.

The pre-war, anti-war movement became moot on December 7, 1941 . Such men as Lindbergh and Rickenbacker immediately volunteered for military service, realizing that once America had been attacked they had an obligation to defend their country. In retribution for his earlier anti-war stance, FDR essentially "black-balled" Lindbergh, though three years into the war in one of those little known facts of history, the Lone Eagle actually flew combat as a civilian advisor in the Pacific and shot down one Japanese Zero.

The dastardly nature of the Japanese attack on Pearl Harbor demanded an immediate and forceful response. In the wake of that tragedy Americans united to rally around the war effort. In contrast however to what is commonly believed, as the war stretched into its first year and then a second, and with Gold Stars denoting a killed son or daughter appearing in the living room windows of more and more homes across America , many people began to rethink the war itself. By 1943 many at home had wearied with the war in the Pacific and though privately that it would be best to sue for peace with Japan , giving up to them control of faraway Asia and distant Pacific Islands . But such dissent remained largely, and fortunately quiet.

When American Marines  conducted their first major assault (after Guadalcanal ) against 4,800 Japanese, well-entrenched at Tarawa , it posed potential for a real backlash against the war.  It was an incredible victory at a VERY HIGH COST:  3,300 American casualties including 900 dead in just three days.  Military war planners back home feared photos of the heavy casualties sustained by the Marines would extinguish the fire in the belly of the American public and force an outcry against further such assaults in the Pacific.  News reports of the battle might suddenly bring the reality of war home to a public that could mentally swap the horror of Pearl Harbor for this new understanding that victory, no matter how glorious, is not earned without great sacrifice and bloodshed. Unlike the reporters of another war just a few years later, news men covering the battle at Tarawa voluntarily reported in only vague terms the heavy American losses, and refrained from publishing inflammatory photographs. The Greatest Generation held together, in no small part thanks to a pliable and cooperative media and emotionally-charged Hollywood movies, and saved our world.

Perhaps in our nation's history, never have the rights to free speech, peaceable assembly, and public (or even private) dissent become more tenuous that in the 1950s. The McCarthy hearings that were held as we entered a Cold War against Communism and Socialist ideology smothered free speech for all but the most daring or most indiscreet Americans in opposition to the majority belief…and fear. It pitted neighbor against neighbor and was satirized in a line of a popular ditty of the time, "If your mommie is a Commie then you've gotta turn her in." Only ten years later a rebellious new generation came of age, youth who were indeed either daring or indiscreet…or perhaps both. The American right of dissent would be forever changed. Opinions vary as to whether or not this was a good thing.

The purpose of this section is NOT to argue the merit or fallacy, rightness or wrongness of either the Vietnam War or the anti-war protest. What is important to realize from the period is how in an unprecedented way, the voice of dissent and the collective unity of a large segment of American society in opposition to the official policy, impacted the political process by American citizens exercising the right of free speech and freedom of assembly. It erupted into a civil war, not for a specific cause as was the earlier American Civil War, but for the right to be heard and heeded.

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