Freedom of Conscience in War Time: World War I and the Limits of Civil Liberties

• Publication year: 2016

Freedom of Conscience in War Time: World War I and the Limits of Civil Liberties

Laura M. Weinrib

FREEDOM OF CONSCIENCE IN WAR TIME: WORLD WAR I AND THE LIMITS OF CIVIL LIBERTIES^†

Laura M. Weinrib^*

This Article examines the relationship between expressive freedom and freedom of conscience as the modern First Amendment took shape. It focuses on efforts by the American Union Against Militarism and National Civil Liberties Bureau—the organizational precursors to the ACLU—to secure exemptions from military service for conscientious objectors whose opposition to American involvement in the First World War stemmed from socialist or radical labor convictions rather than religious scruples. Although such men asserted secular, ethical objections to war, advocates strained to expand the First Amendment's Free Exercise Clause to encompass them. Concurrently, they sought to import a generalized theory of freedom of conscience into constitutional constructions of freedom of speech and press, within and outside the courts. The conception of liberty of conscience that they advanced, which they linked to an "Anglo-Saxon tradition" of individual rights, clashed with progressive understandings of democratic citizenship and failed to gain broad-based traction.

Civil liberties advocates consequently reframed their defense of political objectors in terms that emphasized democratic dissent rather than individual autonomy. Sympathetic academics and a few judges embraced this progressive theory of free speech, which celebrated discursive openness as a prerequisite for democratic legitimacy and justified, rather than cabined, the exercise of state power. Even in the interwar period, however, the proponents of this vision remained deeply ambivalent about the courts and generally suspicious of individual rights. Although some accepted a limited role for judicial enforcement of the First Amendment's Free Speech Clause, most declined to

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endorse a court-centered and constitutional right to exemption from generally applicable laws.

Introduction

In his seminal account of the First Amendment and the First World War, Freedom of Speech in War Time, Zechariah Chafee, Jr., described an "unprecedented extension of the business of war over the whole nation."¹ On Chafee's telling, the sweeping scope of the wartime propaganda campaign had transformed the United States into a "theater of war."² Public officials and mainstream Americans lost sight of the tradeoff between order and freedom and denounced all criticism of the country's cause as a threat to public safety. Hundreds of prosecutions ensued, and the cessation of hostilities in Europe failed to check the demand for censorship at home.³ The new speech-restrictive climate, in Chafee's assessment, made it "increasingly important to determine the true limits of freedom of expression," as a matter of national policy as well as the First Amendment.⁴

Almost a century after Chafee published his influential tract, scholars continue to trace the emergence of the "modern First Amendment" to the enforced conformity of the war.⁵ When the wartime hysteria receded, they explain, prominent officials and intellectuals recognized the high toll of repression and awoke to the value of countermajoritarian constitutionalism in the domain of free speech.⁶ Although it would take another decade for a

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Supreme Court majority to overturn a conviction on First Amendment grounds, the path forward purportedly was clear: the courts would prevent overzealous legislators and administrators from abridging expressive freedom.

Of course, the modern First Amendment contains other provisions than the one that prohibits Congress from abridging freedom of speech, and it reflects other values than open democratic debate. During the First World War, self-described civil libertarians endorsed these wider commitments. The very same advocates who litigated speech claims under the Espionage Act also invoked the Free Exercise Clause of the First Amendment to defend an asserted right of conscientious objectors to refuse military service. And yet, though the scholarship on wartime civil liberties advocacy has thoroughly canvassed contestation over dissenting speech,⁷ it rarely dwells on the consequences of patriotic repression for freedom of conscience,⁸ either as a species of religious freedom or as a secular concept justifying civil

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disobedience or counseling legislative restraint.⁹ Nor does the expansive literature on demands for exemptions from generally applicable laws—an issue that has recently assumed increased significance¹⁰ —devote much attention to the failure of such claims during these formative years of the modern First Amendment.¹¹

The most intuitive explanations for the divergence in emphasis will not hold up to scrutiny. One might assume, for example, that the literature has discounted wartime claims for exemption because they were unsuccessful in the courts.¹² On the whole, however, claims for free speech were just as unavailing.¹³ Similarly, one might emphasize that the Free Exercise Clause was not formally incorporated into the Fourteenth Amendment, and thus made applicable to the states, for over two decades after the Armistice.¹⁴ But the

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Selective Service Act (like the Espionage Act) was federal legislation.¹⁵ And if incorporation matters because it enhanced or reflected the perceived importance of religious liberty, it bears emphasis that the Free Speech Clause was not incorporated until 1925 (and even then only in dicta)¹⁶ —two years after the Court counted the freedom "to worship God according to the dictates of [one's] own conscience" among the rights undoubtedly denoted by the term liberty in the Due Process Clause of the Fourteenth Amendment.¹⁷

It is tempting, but insufficient, to attribute the disproportionate focus on expressive freedom to the supposed aberration of wartime speech and press restrictions, which so troubled Chafee.¹⁸ Certainly the scale of official investment in homogenizing public opinion during World War I produced new challenges for minorities and dissenters.¹⁹ At the same time, there was ample precedent for suppression of free speech as well as freedom of conscience. Although both were consistently touted as central features of American democracy throughout the nineteenth and twentieth centuries, both faced significant limitations in practice.²⁰ State constitutions often included protective provisions, but enforcement was left to local discretion, and public officials routinely policed perceived threats to state security, religious customs, or social norms. In the domain of religious practice, exemptions were permitted and occasionally required, but only for influential religious sects and only under state law.²¹ Lawyers sometimes defended both radical expression

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and incursions on conscience by reference to the U.S. Constitution, in terms that resembled, anachronistically, the understanding of civil liberties that emerged after the war.²² Such efforts, however, rarely succeeded in the courts.²³ Indeed, the continuity of oppression was a theme of a 1918 conference on American Liberties in War Time.²⁴ "Summarize the outrages showing that this suppression of liberty is no new affair in American life," a conference circular advised.²⁵

In retrospect, of course, the Espionage Act prosecutions, which singled out speakers for their disfavored viewpoints, present core violations of the First Amendment's Free Speech Clause. By contrast, the political objectors who challenged the draft demanded exemption from a generally applicable law on the basis of ethical disagreement with its objectives—a peripheral free exercise claim at best. Still, that both sets of claims were doctrinally implausible when they were raised and both anticipated future advocacy and analysis suggests that something more than hindsight bias is at work.

In the end, the puzzle may stem primarily from the sources upon which the modern First Amendment is presumed to rest: the agonized debates among Progressive theorists and a few esteemed judges over the legitimacy of majoritarian oppression and the role of the courts. The justification for constitutional insulation of expressive freedom that emerged after World War I among liberal academics and some judges imagined free speech as a prerequisite for democratic legitimacy, essential to robust public debate and to the informed formulation of government policy.²⁶ It emphasized pluralism in place of individual autonomy and endorsed free speech to buttress rather than undermine state power.²⁷ The proponents of this vision remained deeply ambivalent about the courts and generally hostile to individual rights, though some accepted a limited role for judicial enforcement of the First Amendment's Speech Clause.²⁸ I argue elsewhere that these post-Progressive

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advocates of expressive freedom were only one component of an interwar civil liberties coalition that also included conservative defenders of individual liberty and labor radicals hostile to all manifestations of state power. It was the Progressives, however, who most cogently articulated their views and who have therefore dominated subsequent analysis. And those Progressives declined to endorse a constitutional defense of exemption from generally applicable laws.

This Article interrogates the relationship between expressive and religious freedom by shifting our lens to the advocates who resisted wartime repression on the ground and, occasionally, in the courts. It demonstrates the extent to which the modern understanding of free speech was bound up, at its inception, with claims by conscientious objectors for exemption from military service. At the same time, it argues that these two components of the First Amendment were understood in starkly different terms, even if they served similar ends. It focuses on efforts by the American Union Against Militarism (AUAM) and...