Though freedom of the press is one of our most cherished liberties, fully enjoying it has not always been possible. This is especially true during times of stress for the nation and government.
One of the most dramatic examples of this may be during World War I when the Federal Government passed the Espionage Act. Over 2,000 arrests and 1,000 convictions resulted from the passage of the act and its later amendment, commonly called the Sedition Act.
Cited selections of the journal The Masses from Judge Learned Hand’s opinion in the court case The Masses v. T. G. Patten illustrate the fragility of this freedom during a stressful time:
The socialist magazine The Masses was dedicated to “radical art and freedom of expression” and “spirited expressions of every kind – in fiction, satire, poetry and essay.” For the August 1917 issue of The Masses, the editors, artists, and writers crafted pieces that showed disapproval for the war.
Draft resisters were praised in an editorial for their “self-reliance and sacrifice.” An article and a poem praised the recently arrested Alexander Berkman and Emma Goldman. These anarchists, recently jailed for speaking out against the draft, were praised as “friends of American freedom.” In an introduction to a series of letters from jailed British conscientious objectors, the writer asserted that people could be a conscientious objector without a religious cause.
The reason these words were dangerous was due to the recent passing of the Espionage Act in June 1917. This law made it illegal to make any statements that would interfere with the military operations, promote the success of the enemy, cause insubordination by soldiers, or obstruct the draft. The maximum sentence was 20 years in jail. The act also gave the Post Office the power to seize any controversial periodical that went through the mail as “non-mailable.”
When The Masses sent out its August issue, it was seized by the New York City’s Postmaster T. G. Patten because the “whole tone and tenor” violated the Espionage Act. After being sued by the publishers to mail the magazine, the Postmaster cited the articles and cartoons as violating the Espionage Act.
In the only court case that supported freedom of the press during World War I, Judge Learned Hand agreed with The Masses and said the journal could be mailed. He supported their right to publish by saying nothing within the journal directly advocated resistance to the law.
Unfortunately, the Government appealed and eventually indicted seven members of The Masses staff for espionage. After two hung juries and with the war already over, the Government decided to stop prosecution in the case. Others were not as lucky, as you can see in the cases of Eugene Debs, William Haywood, Mojick Fieron, and Anthony Stopa, among others.
To understand how the Espionage Act of 1917 limited freedom of the press speech, ask your students to carefully analyze the language of the Espionage Act, specifically Title I, Section 3 and 4. Then, direct students to read the selections from The Masses provided in the appendix of the opinion in Masses Publishing Company v. T. G. Patten (shown above, pages 10 and 11 on DocsTeach). To explore the political cartoons cited in the opinion, explore pages 4, 7, 26-27, and 33 of The Masses August 1917 issue (available from the Tamiment Library and Robert Wagner Labor Archives at New York University).
Also, direct student attention to selections from earlier editions of The Masses from the June and July 1917 issues. These selections (published before the Espionage Act’s passage) were cited by the Postmaster as helping provide the full context of this later issue.
Lead a class discussion based on these selections. Specifically, discuss:
- Do you think the earlier selections from the June and July 1917 issues (written and published prior to the Espionage Act) should be included as evidence of espionage? Why or why not?
- Did the The Masses violate the Espionage Act? If yes, which selections are in violation?
- Does the Government have the right to restrict freedom of the press during wartime? Why or why not?
- Do you think the Espionage Act of 1917 was constitutional? Why or why not?
This is one of several posts about the the Bill of Rights. The opinion in Masses Publishing Company v. T. G. Patten is featured in the eBook Putting the Bill of Rights to the Test: A Primary Source-Based Workbook, that includes historical documents and other sources to help students explore some of the core concepts, or protections, found in the Bill of Rights, and how they’ve been tested throughout American history.