Title: Freedom of Conscience in War Time: World War I and the Civil Liberties Path Not Taken
Abstract: INTRODUCTIONIn his seminal account of the First 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 public safety. Hundreds of prosecutions ensued, and the cessation of hostilities in Europe failed check the demand for censorship at home.3 The new speech-restrictive climate, in Chafee's assessment, made it increasingly important determine the true limits of freedom of expression, as a matter of national policy as well as the First Amendment.4Almost a century after Chafee published his influential tract, scholars continue trace the emergence of the First Amendment 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 the value of countermajoritarian constitutionalism in the domain of free speech.6 Although it would take another decade for a Supreme Court majority overturn a conviction on First grounds, the path forward purportedly was clear: the courts would prevent overzealous legislators and administrators from abridging expressive freedom.Of course, the modern First 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 defend an asserted right of conscientious objectors 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 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 the failure of such claims during these formative years of the modern First Amendment.11The most intuitive explanations for the divergence in emphasis will not hold up 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 the states, for over two decades after the Armistice.14 But the 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 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.17It is tempting, but insufficient, attribute the disproportionate focus on expressive freedom 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. …
Publication Year: 2015
Publication Date: 2015-01-01
Language: en
Type: article
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Cited By Count: 1
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