World War I

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 conscriptConscription persons for military service. In Arver et al. v. United States[case]Arver et al. v. United States[Arver et al. v. United States] (1918), the Court rejected the contention that the military draft was a form of slavery violating the provisions of the Thirteenth Amendment and in Cox v. Wood[case]Cox v. Wood[Cox v. Wood] (1918), it ruled that draftees could be required to perform their military service outside the United States.

Freedom of Speech and the Press

The Espionage Act of 1917 Espionage acts not only was directed at acts of espionage but also made it a crime during wartime to make false statements to aid the United States’ enemies or to impede military operations, to foment disobedience in the armed forces, or to interfere with military recruiting. Its extension, the Sedition Act of 1918, contained impossibly broad and vague language that made almost any kind of debate about the war potentially illegal. Of more than two thousand people prosecuted under these statutes, about half were convicted.

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,[case]Schenck v. United States[Schenck v. United States] Frohwerk v. United States, and Debs v. United States. Applying the time-honored bad tendency test,Bad tendency test which limited freedom of speech when it had a tendency to provoke illegal action, the Court unanimously upheld the conviction of Charles Schenck for distributing antidraft pamphlets, Jacob Frohwerk for publishing antidraft articles, and Eugene V. DebsDebs, Eugene for making a speech praising persons convicted of interfering with military recruitment.

Clear and Present Danger

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 dangerClear and present danger test that they will bring about the substantive evils that Congress has a right to prevent.” He was severely criticized by liberal friends for his vote in these decisions. In November, 1919, when the Court voted seven to two in Abrams v. United States[case]Abrams v. United States[Abrams v. United States] to uphold the conviction of Jacob Abrams and four others for publishing pamphlets encouraging resistance to the war, Holmes clarified his clear and present danger doctrine by dissenting. Downplaying the importance of the appellants, whom he termed “these poor and puny anonymities,” he held that “nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man…would present any danger.” The following year, he and Brandeis both dissented in Schaefer v. United States[case]Schaefer v. United States[Schaefer v. United States] (1920), when the Court upheld the conviction of a German-language newspaper editor who published pro-German articles and in Pierce v. United States[case]Pierce v. United States[Pierce v. United States] (1920), which denied the appeal of three socialists convicted of publishing an antiwar pamphlet.

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.

Government v. Business

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.Federalism Railroads were vital to the war effort and were severely burdened by the increasing volume of passengers and freight. The federal government assumed direction of the railroads, raised the wages of railway workers, undertook repairs and improvements, and increased shipping rates to meet the cost. Owners were distressed at their loss of control, which would continue nearly two years after the end of the war; shippers and the general public were dismayed at rate hikes; and opponents of the extension of federal power were enraged at the government’s highhandedness. However, the Court upheld federal power to use, set rates for, and otherwise control railways in Northern Pacific Railway Co. v. North Dakota[case]Northern Pacific Railway Co. v. North Dakota[Northern Pacific Railway Co. v. North Dakota] (1919).

Challenges to the federal government’s control of telephone, telegraph, and cable facilities were disposed of in Dakota Central Telephone v. South Dakota[case]Dakota Central Telephone v. South Dakota[Dakota Central Telephone v. South Dakota] (1919) and Commercial Cable v. Burleson[case]Commercial Cable v. Burleson[Commercial Cable v. Burleson] (1919). Under the Trading with the Enemy Act, the president was given broad powers to deal with any business or financial linkages between the United States and the Central Powers with which it was at war. This resulted in the U.S. government confiscating millions of dollars of German and Austrian investments and holding money from the sale of enemy assets to use in settling claims for U.S. property seized in Europe. It penalized U.S. firms that bought, sold, or exchanged goods or transferred money to or from any firms anywhere in the world that were owned or controlled by persons or groups in enemy countries. A week before the end of hostilities, amendments to this act permitted the alien property custodian to sell patents held by firms in enemy countries. Some U.S. industries and businesses benefited; however, a great many found their commercial and financial relationships disrupted. Various challenges to the operations of this act were turned back by the Court in Rumely v. McCarthy[case]Rumely v. McCarthy[Rumely v. McCarthy] (1919), Central Union Trust Co. v. Carvin[case]Central Union Trust Co. v. Carvin[Central Union Trust Co. v. Carvin] (1921), and Stoehr v. Wallace[case]Stoehr v. Wallace[Stoehr v. Wallace] (1921).

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[case]War Prohibition Cases[War Prohibition Cases] (1919), Hamilton v. Kentucky Distilleries and Warehouse Co.[case]Hamilton v. Kentucky Distilleries and Warehouse Co.[Hamilton v. Kentucky Distilleries and Warehouse Co.] (1919), and Rupert v. Caffey[case]Rupert v. Caffey[Rupert v. Caffey] (1920), the Court upheld such wartime restrictions, clearing a bit more ground for the adoption in 1919 of the Eighteenth AmendmentEighteenth Amendment prohibiting the production, distribution, and sale of alcoholic beverages nationwide.Prohibition

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.

Further Reading

  • 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

Eighteenth Amendment

Espionage acts

First Amendment speech tests

Holmes, Oliver Wendell

National security

Schenck v. United States

Speech and press, freedom of

War and civil liberties

War powers