is considered the first modern war because it involved the mobilization of entire populations. For the United States, it also represented a break with tradition because, for the first time, American armies were sent to fight on European soil. Believing the nation faced a crisis of unprecedented proportion, President Woodrow Wilson and Congress acted swiftly to extend the authority of the federal government after war was declared in April 1917. In May, the Selective Service Act instituted a wartime military draft. In June, the Wilson administration proposed the Lever Food Control Bill, which subjected fuel and food to federal regulation and which gave the president the power in an “extreme” emergency to dictate price schedules in any industry. Although congressional critics charged the measure gave the president dictatorial powers and violated the *Tenth Amendment, it became law in August 1917. In November 1918, the War Prohibition Act banned the making and sale of alcoholic beverages during the war. Other statutes empowered the president to compel preferential treatment for government war contracts, to seize and run plants needed for the war effort, to operate the water and rail transport systems, and to regulate exports.
Through a combination of executive orders and federal statutes, the government was able to curtail sharply freedom of *speech and the press. In April 1917, Wilson issued two executive orders, one creating the first large-scale government propaganda agency, the Committee on Public Information, the other giving the government (p. 1101) control of land and cable telegraph lines out of the country. In June 1917, the *Espionage Act made it a felony to cause insubordination, interfere with enlistments, and transmit false statements that obstructed the military (see subversion). It also established postal censorship and gave the postmaster general, Albert S. Burleson, power (which he often used capriciously) to ban material deemed seditious or treasonable from the mails (see postal power). In October, the Trading with the Enemy Act created a Censorship Board to coordinate and make recommendations about *censorship. It allowed censorship of mail or any other kind of communication with foreign countries. The Sedition Act of May 1918 (an amendment to the *Espionage Act) sought to repress anarchists, socialists, pacifists, and certain labor leaders. The law made it a felony to disrupt recruiting or enlistments, to encourage either support for Germany and its allies or disrespect for the American cause, or otherwise to bring the United States government, its leaders, or its symbols into disrepute.
Critics charged that virtually every right guaranteed to Americans under the Constitution was nullified or abridged during the war. The Supreme Court, however, was not asked to pass judgment on the constitutionality of many of these statutes. Those cases that did reach the Court did so, with a few exceptions, only after the war had ended.
Chief Justice Edward D. *White, a one-time Confederate soldier from Louisiana and the president of a sugar company, led the Court during the war years and after. Joining White on the bench were Justices Joseph *McKenna, a California lawyer appointed by President William McKinley; two Theodore Roosevelt appointees, William R. *Day and Oliver Wendell *Holmes; Willis *Van Devanter and Mahlon *Pitney, both appointees of William Howard *Taft and two of the Court’s most conservative members; and three Wilson appointees, Louis D. *Brandeis (whose Judaism and advocacy for social causes made him anathema to conservatives), John H. *Clarke, a progressive-minded railroad attorney, and James C. *McReynolds from Tennessee, who as Wilson’s first attorney general had vigorously prosecuted *antitrust cases. As a Supreme Court justice, McReynolds became a champion of *property rights against the expansion of government regulation and thus proved far less liberal than Wilson had hoped.
Enlargement of Federal Power
Despite his *Civil War record, White was strongly nationalistic on issues relating to states’ rights and the war. Under his leadership, the Court did little to challenge the expansion of federal power. It upheld the Selective Service Act in January 1918 in Arver v. United States, known as the *Selective Draft Law Cases. Writing for a unanimous Court, White said Congress had the power to “raise and support armies” and that the draft was not “involuntary servitude” as defined by the *Thirteenth Amendment (p. 367). A few months later, in Cox v. Wood (1918), the Court refused relief to a man who sought discharge from the armed forces on grounds that the draft could not be used to force military service abroad. In Ruthenberg v. United States (1918), the Court rejected a claim by socialists that their constitutional rights had been violated. (The socialists had argued that at their trial for not registering for the draft, the grand jury and trial jury had been made up entirely of people from other political parties.)
A similar pattern of approving the enlargement of federal power appeared in other cases. Although the War Prohibition Act was passed after the armistice, the Court sustained its validity in the War Prohibition Cases of late 1919. Brandeis accepted the measure’s legality under the federal war power and held that federal regulatory authority continued even after the armistice. The Court again upheld prohibition a few months later in Rupert v. Caffey (1920), rejecting the argument that the act encroached on the *police power of the states. In Northern Pacific Railway Co. v. North Dakota (1919), a unanimous Court endorsed a section of the Army Appropriation Act of August 1916 that empowered the president to take over and run railroads during wartime. White noted that “the complete and undivided character of the war power of the United States is not disputable” and said that the federal government could override state rate controls that would be binding during peacetime (p. 135). The Court also turned back challenges to the Trading with the Enemy Act (Rumely v. McCarthy, 1919; Central Union Trust Co. v. Carvin, 1921; Stoehr v. Wallace, 1921) to government takeover of telegraph and telephone lines (Dakota Central Telephone v. South Dakota, 1919), and to use by the federal government of cable property during the war (Commercial Cable v. Burleson, 1919). The Court invalidated a section of the Lever Act dealing with unfair charges for food in United States v. L. Cohen Grocery Co. (1921), but it did not deny the federal government’s right to fix prices during war. Rather, it contended that the Lever Act had not set clear standards for what constituted unreasonable prices.
Limits on Dissent
Not since the Alien and *Sedition Act of 1798 had the national government limited dissent so severely as during World War I. The government prosecuted nearly twenty-two hundred people under the Espionage and *Sedition Acts, and more than a thousand were convicted. No cases involving the constitutionality of these statutes came before the Supreme Court (p. 1102) during the war, although *lower federal courts upheld and interpreted the measures in several instances.
Several cases involving civil liberties came before the Supreme Court after the war. The Court upheld government security legislation, relying on the *bad tendency test, which held that the prosecution did not have to establish a cause-and-effect relationship between an utterance and an illegal act. The mere intent of the speaker or writer was sufficient to establish guilt. *Schenck v. United States (1919) involved a prosecution under the Espionage Act for distributing antidraft leaflets to American military personnel. The appellant, Schenck, argued that the Espionage Act violated the *First Amendment, but the Court unanimously upheld the constitutionality of the law. Justice Holmes, who wrote the opinion, argued that free speech was not an absolute right (it would not, for example, “protect a man in falsely shouting fire in a theatre, and causing a panic,” he said) and that during war the government could limit some utterances that might be acceptable during times of peace (p. 52). Holmes set forth the *clear and present danger test to determine whether the words used in a given situation “caused” someone to violate the law. Although the phrase “clear and present danger” would later be used to shield some types of dissent, in Schenk Holmes employed it in a way that was consistent with the bad tendency doctrine. He believed that Schenck had intended to interfere with the draft in publishing the leaflets.
The Court sustained convictions under the Espionage Act in two other cases: in Frohwerk v. United States (1919), the editor of a German-language newspaper was convicted for publishing articles that criticized the war and questioned the legality of the draft; in Debs v. United States (1919), the socialist leader Eugene V. Debs was prosecuted for a speech in which he had praised people convicted for hindering enlistments. The Court sustained the conviction on grounds that Debs had intended to hinder recruiting. In writing the opinions in Frohwerk and Debs, Holmes made no mention of the clear and present danger principle. Before the year ended, however, he changed his position, thanks in part to the influence of Zechariah *Chafee, Jr. When he dissented in subsequent cases, he interpreted clear and present danger in a way that broadened protection for dissent.
In *Abrams v. United States (1919), the Court upheld the Sedition Act of 1918. Abrams and others were charged with publishing leaflets condemning the American expeditionary force in Russia and called for a general strike. Justice Clarke, writing for the majority, contended that the pamphlets sought to “excite, at the supreme crisis of the war, disaffection, sedition, riots, and … revolution” and were not protected by the First Amendment (p. 623). Holmes, joined by Brandeis, argued in dissent that the prosecution failed to demonstrate that the leaflets had any impact on the war effort. Publishing a “silly leaflet by an unknown man” was unlikely to present “any immediate danger” of obstructing, or even have a tendency to interfere with, the success of the government’s armed forces. Holmes relied on the notion of a “marketplace of ideas” to justify his stand (p. 628).
Four months later Clarke joined Holmes and Brandeis in dissenting from the Court’s majority in Schaefer v. United States (1920). The case involved a German-language paper in Philadelphia that had published articles favorable to the German war effort that were generally unpatriotic in tone. Brandeis, in writing for the minority, thought the publications in question were relatively harmless and that their suppression imperiled free press as well as freedom of thought not only during the war but also in peacetime.
Pierce v. United States (1920) grew out of the government’s wartime security legislation. Three socialists had been prosecuted for distributing an antiwar pamphlet. Justice Pitney, speaking for the majority, attacked one of the publication’s arguments—that the war had economic roots—and contended that such material could only hurt the war effort. Once again, Holmes and Brandeis dissented, arguing that if statements of judgment and opinion could be prosecuted, then freedom of expression was imperiled, especially during national emergencies. In United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson (1921), the Court upheld the postmaster general’s decision to exclude a socialist newspaper, the Milwaukee Leader, from the mails. In Gilbert v. Minnesota (1920), the Court upheld a Minnesota statute similar to the Espionage Act. While Holmes concurred with the majority in this case, White dissented, arguing that only Congress had power to legislate in this area. Brandeis also dissented, but on the grounds that the state law invaded civil liberties.
World War I accelerated the growth of nationalism in the United States, enhancing the authority of the federal government at the expense of the states and the power of the president relative to Congress. Through its decisions the Supreme Court endorsed these developments. One legacy from this period was the example that expanded federal authority provided for later national emergencies. Americans were more willing during the Great Depression and World War II to accept the idea that the national government and the president could deal with problems more effectively than could the individual states and Congress. World War I also initiated controversies about (p. 1103) the meaning of the First Amendment. While the Court upheld the government’s security legislation, the idea of clear and present danger, as applied in the Abrams case, opened the door—if only slightly—to stronger safeguards for dissent.
See also presidential emergency powers; war.
David P. Currie, “The Constitution and the Supreme Court: 1910–1921,” Duke Law Journal (Dec. 1985): 1111–1162. Paul L. Murphy, The Constitution in Crisis Times, 1918–1969 (1972). Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (1987). Fred D. Ragan, “Justice Oliver Wendell Holmes, Jr., Zechariah Chafee, Jr., and the Clear and Present Danger Test for Free Speech: The First Year, 1919,” Journal of American History 58 (1971): 24–45.