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Justice Holmes and the ‘Splendid Prisoner’

Library of Congress
Eugene Debs just after his release from the Atlanta penitentiary, December 25, 1921

Eugene Debs is a largely forgotten man today, an odd footnote in American history of the turn of the nineteenth and twentieth centuries. But this fascinating book about his climactic last years makes clear that he really mattered. In both political and legal ways he played a significant part in reducing intolerance of dissent in this country, and bringing to life the First Amendment’s guarantee of free speech.

Debs was a radical union and political leader who twice went to prison for his beliefs and twice was the subject of Supreme Court decisions. In 1895, in In re Debs, the Court upheld his contempt conviction for violating an injunction against the great Pullman strike of 1894, which paralyzed many railroad lines for days. In 1901 he helped to found the Socialist Party. Over the next twenty years he was five times the party’s candidate for president, running the last time in 1920 from the Atlanta federal penitentiary, where he was serving a ten-year sentence for a speech that Woodrow Wilson’s administration said encouraged resistance to the draft during World War I. The Supreme Court affirmed his conviction in 1919 in Debs v. United States.

Conflict between Eugene Debs and Woodrow Wilson is a running theme of Ernest Freeberg’s book. It shatters any illusion that Wilson was a liberal-minded president. On economic issues he was a reformer, but on civil liberties he was a disaster. He pushed through Congress in 1917 an Espionage Act that criminalized not only espionage but speech critical of the government. Wilson proposed to include, but Congress struck out, a provision for censorship of newspapers. In 1918 Congress passed an amendment, known as the Sedition Act, that made it a crime to use “disloyal” or “profane” language that might encourage contempt for the Constitution or the flag.

Postmaster General Albert Burleson, empowered by the Espionage Act to cancel the mailing privileges of journals he deemed unpatriotic, put many left-wing magazines out of business. Wilson did nothing to restrain Burleson. (Nor did he intervene when, earlier, his cabinet members imposed racial segregation on the Treasury and Navy Departments and the Post Office.)

When the United States entered World War I, much of the public—encouraged by Wilson—turned jingoistic. Thousands of people were prosecuted for such things as overstating the horrors of war. Vigilante groups harassed suspected opponents of the war. Debs was a particular target. When he was prosecuted in 1918, The Washington Post said, “Debs is a public menace, and the country will be better off with him behind bars.”

It is hard to understand, now, why Gene Debs aroused hatred. Unlike many of the socialists, anarchists, and other radical figures of the early twentieth century in this country, who were immigrants from Europe, he was utterly American. He lived in a Victorian house in Terre Haute, Indiana, a small city on the banks of the Wabash. He had great personal charm. The wardens of the two prisons where he served his time starting in 1919 came to admire and befriend him; so did the prisoners, among them murderers and others who were the roughest of men.

Debs’s persona was friendly, but his ideology was revolutionary, his rhetoric purple. He inveighed against bankers, judges, and other totemic conservatives for “crime against modern humanity.” He was a magnetic orator who actually made his living by public speeches: the Socialists charged admission to hear Debs, and the halls were packed. He believed in a Marxist revolution that would end capitalism. But the party’s platform stood for much milder reformist measures, like free kindergartens.

What led to Debs’s years in the penitentiary was a speech he made in Canton, Ohio, on June 16, 1918. It was given at an afternoon picnic. Vigilante volunteers from the area went through the crowd checking the draft cards of young men to ferret out “slackers.” Debs spoke, as usual, without a prepared text. But a federal agent, a stenographer, took notes; so did a journalist.

Reading what we have of the speech now, it is difficult to spot anything that would qualify as criminal even under the condign terms of the Espionage Act. Debs made no specific reference to the war in Europe or the draft law. The criticism in the speech was mainly directed at the prosecution and imprisonment of men and women for their words. His friend Kate O’Hare had been sentenced to five years in prison for an antiwar speech. “Just think of sending a woman to the penitentiary for talking,” Debs said.

Debs started out by saying that he had just visited three Socialists who were in a nearby jail for opposing the draft. Debs praised their courage and said, “If it had not been for the men and women who, in the past, have had the moral courage to go to jail, we would still be in the jungles.”

Speaking of war in history, not the one then raging, Debs said:

They have always taught you that it is your patriotic duty to go to war and to have yourselves slaughtered at command. But in all of the history of the world you, the people, never had a voice in declaring war…. The working class who fight the battles,…the working class who shed the blood, the working class who furnish the corpses, the working class have never yet had a voice in declaring war.

A jury convicted Debs on two counts of violating the Espionage Act. The Supreme Court upheld the verdict on one count, “obstructing and attempting to obstruct the recruiting service of the United States.” The Court’s decision was unanimous, and the opinion was by Oliver Wendell Holmes Jr., who more than any other justice was admired by progressives in the country. Holmes was admired for his powerful dissents when the Court struck down progressive legislation that, for example, forbade child labor and set maximum working hours for bakers. Legislatures must be given broad discretion to take actions that we may not like, he said in those cases; now he took a similarly laissez-faire approach to the Espionage Act limiting speech.

Holmes’s opinion, announced on March 10, 1919, was brief, as was his style: six paragraphs, devoted mostly to discussing the facts of what Debs had said in Canton. Holmes said the “main theme” of the speech “was socialism, its growth, and a prophecy of its ultimate success.” He summarized what Debs said about war and quoted his statement that “you need to know that you are fit for something better than slavery and cannon fodder.” The opinion concluded that the jury was warranted in finding that

one purpose of the speech, whether incidental or not does not matter, was to oppose not only war in general but this war, and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting.

He added that the jury had been

carefully instructed that they could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, etc., and unless the defendant had the specific intent to do so in his mind.

Debs’s lawyers had argued that his conviction under the Espionage Act was unconstitutional: a violation of the First Amendment’s provision that Congress “make no law…abridging the freedom of speech.” Holmes disposed of that argument in a sentence, saying that it had been rejected in a case decided by the Court one week earlier, Schenck v. United States.

The opinion in the Schenck case, also by Holmes, used for the first time the phrase “clear and present danger.” Schenck, who was the secretary of the Socialist Party, had been convicted under the Espionage Act for mailing to 15,000 men eligible for the draft a pamphlet urging opposition to the draft. In time of war, Holmes said things that might be said in peacetime “will not be endured so long as men fight.” He phrased the legal formula in words that were analyzed and debated for decades after:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has a right to prevent.

It was easy enough to fit the facts of the Schenck case into that formula: the anti-draft pamphlets did raise a danger of obstruction of the draft. But it was not—is not—easy to find in Debs’s meandering speech an immediate danger of the “substantive evil” at issue, obstruction of recruitment. The Holmes opinion in the Debs case soon came under criticism on that ground from the liberal intellectuals who had so praised Holmes. Moreover, Debs was a national figure, respected by many as he was disliked by others. He was sixty-three years old, and a ten-year prison sentence aroused considerable sympathy.

A leading Holmes biographer, G. Edward White, writes that Holmes was aware of the criticism of the Debs opinion and responded to it “with a certain defensiveness.”*

Holmes wrote his friend Sir Frederick Pollock that there was no doubt about Debs’s conviction, but “now I hope the President will pardon him.” He expressed the same hope to Harold Laski, the young English socialist who was another regular correspondent, adding that “to let Debs serve his sentence would be both cruel and blind.”

The criticism that seems to have struck deepest in Holmes was an article in The New Republic by Professor Ernst Freund of the University of Chicago Law School. Freund said that Holmes had allowed the jury “to find a tendency and an intent to obstruct recruiting” when there was “nothing to show actual obstruction or an attempt to interfere with any of the [recruitment] processes.” Freund said:

To be permitted to agitate at your own peril, subject to a jury’s guessing at motive, tendency and possible effect, makes the right of free speech a precarious gift.

Holmes was sufficiently bothered by the Freund article that he wrote a letter to Herbert Croly, the editor of The New Republic, defending the decision but saying that “I hated to have to write the Debs ” opinion.

He added that he “could not see the wisdom” of the government in pressing the Espionage Act cases,

especially when the fighting was over and I think it quite possible that if I had been on the jury I should have been for acquittal but I cannot doubt that there was evidence warranting a conviction on the disputed issues of fact.

Holmes decided not to mail that remarkable letter. But he sent a copy to Harold Laski, who knew Croly well and may have shown it to him.

All this might be regarded as an interesting but marginal sidelight on Justice Holmes, but what happened next in the law makes it much more than that. Just eight months after the Debs opinion, on November 10, 1919, the Supreme Court decided another Espionage Act case, Abrams v. United States. And this time Holmes, joined by Justice Louis D. Brandeis, dissented from the Court’s affirmance of the convictions. The rhetoric of Holmes’s dissenting opinion forever changed the struggle over freedom of speech in the United States.

  1. *

    I have taken my description of the criticism and Holmes’s response from White’s biography, Justice Oliver Wendell Holmes: Law and the Inner Self (Oxford University Press, 1993), pp. 418–430.

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