A conflict between the Allies (Great Britain, France, Russia, Italy, and the United States) and the Central Powers (Germany, Austria-Hungary, and the Ottoman Empire).
The United States entered World War I in April of 1917, generating the need to create a mass army comparable to the armies of the great European powers; to train, equip, and transport that army to Europe; to supply and maintain it for the duration of hostilities; and to control the economic, political, and social impact on the American population as a whole. The crisis was managed in part by statutes and executive orders, most notably the Selective Service Act (1917), the Lever Food and Fuel Control Bill (1917), the Espionage Act (1917), the Trading with the Enemy Act (1917), the Sedition Act (1918), the Federal Control Act (1918), and the War Prohibition Act (1918).
In an emotional situation that encouraged fear of spies, foreign agitation, and sabotage, these measures tended to contain harsh and overdrawn provisions. The Sedition Act banned “any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the flag of the United States, or the uniform of the Army or Navy.” The Trading with the Enemy Act made the publication of foreign-language newspapers almost impossible by requiring that before publication, editors submit to the postmaster general English translations of any pieces discussing the conduct of the war or mentioning any of the governments then at war. Moreover, bureaucrats often enforced these laws in an extreme and unreasonable way, making legal challenges to them inevitable. Many of these challenges eventually required action by the Supreme Court.
The most basic power of the federal government to be contested was the power to conscript
The Espionage Act of 1917
Only after the war was over did the Supreme Court have occasion to rule on any of these convictions. In March of 1919, decisions were handed down in three cases, Schenck v. United States,
Writing for the Court in the Schenck case, Justice Oliver Wendell Holmes went beyond the bad tendency test to enunciate a new standard for measuring freedom of speech. “The question in every case,” he wrote, “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger
The Court’s support of the federal government’s prosecutions in free speech and freedom of the press cases had a chilling effect on civil liberties and added fuel to postwar attacks on the civil rights of socialists, labor leaders, and foreigners. Following the trend, President Woodrow Wilson in 1919 called for the adoption of a peacetime sedition act to replace the wartime legislation that would expire in 1921. By the late 1920’s, however, the persistent efforts of Holmes and Brandeis had clarified and strengthened the clear and present danger test, and it was increasingly being used with great effect in defending the civil rights of dissenters.
Supreme Court decisions in cases arising from World War I also had the effect of strengthening the hand of the federal government in regulating business, particularly utilities.
Challenges to the federal government’s control of telephone, telegraph, and cable facilities were disposed of in Dakota Central Telephone v. South Dakota
Utilities and firms linked to belligerent powers were not the only businesses to experience government regulation. By 1917, temperance advocates had already persuaded nineteen states to adopt prohibition of alcoholic beverages. When they persuaded the government to place national restrictions on the sale and use of alcoholic beverages, including banning liquor sales in the vicinity of military camps and barring uniformed service personnel from buying drinks, the liquor industry brought challenges. In the War Prohibition Cases
At the end of World War I, the powers of the federal government over the economy were far greater than they had been before the war. Never before had the United States had to organize a national effort so huge in so short a time. It was carried out so effectively not only because of public enthusiasm for the task but also because of the unprecedented extension of the power of the presidency and of the federal bureaucracy by a willing and eager Congress and the rejection of challenges to those powers by the Court. Though the wartime powers and controls lapsed at the end of the war according to provisions in most of the legislation establishing them, the precedents had been set for the federal government’s economic leadership and control in crisis situations. The legal and conceptual foundations for the even greater federal efforts in the New Deal and World War II had been firmly laid.
Though it devotes very little space to specifically legal questions, David M. Kennedy’s Over Here: The First World War and American Society (New York: Oxford University Press, 1980) is a thorough, engaging, and comprehensive account that provides invaluable context for understanding the problems and issues embedded in the wartime statutes and the challenges to them. David P. Currie’s “The Constitution and the Supreme Court: 1910-1921,” Duke Law Journal (December, 1985), is a lengthy survey that touches on many of the decisions mentioned in this article. Questions of freedom of speech and of the press in World War I have attracted the attention of a great number of historians. No book on the subject excels Paul L. Murphy’s World War I and the Origins of Civil Liberties in the United States (New York: W. W. Norton, 1979). Murphy’s The Constitution in Crisis Times, 1918-1969 (New York: Harper & Row, 1972) also gives fine and insightful coverage of the World War I era. Richard Polenberg’s Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (1987. Reprint. Ithaca, N.Y.: Cornell University Press, 1999) is an extremely thorough analysis of the case in which Oliver Wendell Holmes first applied his version of the clear and present danger test. Fred D. Ragan’s “Justice Oliver Wendell Holmes, Jr., Zechariah Chaffee, Jr., and the Clear and Present Danger Test for Free Speech: The First Year, 1919,” Journal of American History (June, 1971), does much to clarify the role that critical friends played in Holmes’s thinking. Although a great number of good biographies of Holmes exist, those that shed the greatest light on his role in the World War I freedom of speech cases are H. L. Pohlman’s Justice Oliver Wendell Holmes: Free Speech and the Living Constitution (New York: New York University Press, 1991) and G. Edward White’s Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993).
Abrams v. United States
Clear and present danger test
First Amendment speech tests
Holmes, Oliver Wendell
Schenck v. United States
Speech and press, freedom of
War and civil liberties