World War I

The Persecution of Victor Berger

Victor Berger was born in Austria in 1860 and immigrated to the U.S. in 1878. He was one of the founders of the Socialist Party in the United States, edited the Milwaukee Leader (a newspaper with a circulation of about 15,000) and was the first Socialist in the whole country elected to Congress, serving in the House of Representatives 1911-1913.1 Like many other Americans, Berger was strongly opposed to U.S. entry into World War I, but his high profile made him a target for the pro-war government of the day and he endured a criminal prosecution for his speech as well as an attempt to suppress his newspaper.

The Espionage Act was made law on June 15, 1917 with the express intention to silence opponents of the war. This power was put to quick use in Wisconsin against prominent anti-war speakers. On September 22, 1917, the Third Postmaster General (an official located in Wisconsin) held a hearing revoking the second-class mailing rate granted to Berger in 1911 on the grounds that articles in the paper opposing the war made it “nonmailable.” Berger appealed the decision, but the U.S. Postmaster General approved the revocation in October, 1917. Henceforth, Berger could not mail his newspaper with the cheap second-class rates. Now, you may well wonder, what exactly did Berger say that made his newspaper nonmailable—not just past issues, but future, unwritten issues as well?

Here is my abbreviated version indicating the basic tenor of Victor Berger’s anti-war statements: U.S. involvement in World War I is unjustifiable and dishonorable. From the start this has been a rich man’s war forced on the people to serve selfish ends. Since our government has become a financial and political autocracy, we should praise those arrested for criticizing it. The draft law sending our young men to die in the trenches of Europe is unconstitutional, arbitrary and oppressive. War is justified only when we are invaded. Soldiers in France are becoming insane in such numbers that long trains of closed cars are being used to convey them away from the battlefront.2 The Food Control Act passed to ration food to extract additional profits is unconstitutional.3 The Constitution was purposely made difficult to amend in order to avoid creating a real democracy and President Wilson is a dictator whose decrees are rubber-stamped by Congress. This is a war of conquest, of commercial supremacy, of world domination because soldiers cannot be legally sent outside the country and Germany seeks an honorable peace. The war will end only when the financial kings decide that further fighting might endanger their loans to the Allies.4

In the opinion of U.S. Postmaster General Burleson, these editorial statements violated the Espionage Act, which provided severe punishment to anyone during time of war who “shall willfully make or convey false reports or false statements with intent to interfere with the operation and success of the military or naval forces of the country, or with the intent to promote the success of its enemies, or who shall cause, or attempt to cause, insubordination, disloyalty, mutiny or refusal of duty in such forces, or who shall willfully obstruct the recruiting and enlistment service of the United States.” Therefore, he decided that he could not allow Berger’s paper to be conveyed in the mails or delivered from any post office or by any letter carrier and revoked Berger’s second-class mailing privileges.

Berger filed a law suit against the Postmaster General to regain the second-class mail rate (which was 8-15 times cheaper than third–class rates) and fought the case all the way to the United States Supreme Court.

Here is my abbreviated version of the decision of the U.S. Supreme Court, written for the majority by Justice Clarke: Mr. Berger, you lose. Free speech restrictions by the Espionage Act have been found constitutional in four earlier cases, Schenck v. United States 249 U.S. 47, 39 S.Ct. 247; Frohwerk v. United States 249 U.S. 204, 39 S.Ct. 249; Debs v. United States 249 U.S. 211, 39 S.Ct. 252; and Abrams v. United States 250 U.S. 616, 619, 40 S.Ct. 17. For forty years the U.S. Postmaster has been authorized to determine whether if a publication contains non-mailable matter and meets other legal requirements and to revoke permits when publications have been found to violate the law. Smith v. Hancock 226 U.S. 53, 57, 33 S.Ct. 6; Houghton v. Payne 194 U.S. 88, 94, 24 S.Ct. 590; Bates & Guild Co. v. Payne 194 U.S. 106, 24 S.Ct. 595. Since your words do in fact violate the espionage act and the postmaster acted within his authority, we find for defendant, Postmaster Burleson.

However, two Supreme court justices disagreed with the opinion of the majority, namely, Justice Louis Brandeis, a newcomer to the court, and Justice Oliver Wendell Holmes, Jr., who had already served on the court many years. These two justices formed an alliance that led to expanded protection of free speech by the Supreme Court in the 1930s under the leadership of Chief Justice Charles Evan Hughes5 and helped created modern free speech doctrine. It is quite unlikely that the Supreme Court today would uphold an order like the Postmaster’s today. Fortunately for Berger, Mr. Hays, who was Burleson’s successor as U.S. Postmaster General, reinstated his second-class rates.

Why? What was the argument Brandeis and Holmes made for allowing Berger to express his opinions in opposition to the government?

Justice Brandeis begins: In theory, the majority opinion sounds good, but in practice, it confers on the Postmaster an unconstitutional power. The postal power is subject to the Bill of Rights and this decision violates three basic civil rights. First, it abridges freedom of the press by allowing the government to ban from the mail publications before they are even issued. This is called prior restraint, and it is a practice unacceptable in a free country, especially as the Espionage Act only applies during time of war and the Postmaster’s revocation was applied during time of peace. Second, it violates the Fifth Amendment’s guarantee of due process, because it allows the postmaster to ban or charge much higher rates due solely to political opinions expressed in publications without any hearings or process of appeal allowing the accused to defend the publication. And third, it violates the Sixth’s Amendment’s guarantee of trial by jury for infamous crimes since it allows the Postmaster, and not fellow citizens, to try, convict and punish a publisher for opinions expressed.

Brandeis concludes: In Ex parte Jackson, this court stated that “ Liberty of circulating is as essential to [freedom of speech] as liberty of publishing; indeed, without the circulation, the publication would be of little value.” The court leaves open…the option to mail by third class, but this order is clearly punitive for with a circulation of 9,000 its actual effect is to impose a fine of more than $150 a day since the third class rate is 8 to 15 times higher than the second class rate. This punishment is not only unusual in character, it is unprecedented in American legal history since to admits to no limit or end. Constitutional rights should not be frittered away on technicalities. It “deals with substance, not shadows. Its inhibition was leveled at the thing, not the name.” Cummings v. State of Missouri 4 Wall. 277, 325 (18 L.Ed. 356).

Justice Oliver Wendell Holmes, Jr.: The Postmaster cannot determine in advance that a certain newspaper is going to contain illegal material and on that ground deny to it the rate of postage that the law says it shall be charged. By statute, the only power conferred on the postmaster is to refrain from forwarding [illegal] papers when received and return them to the senders. The United States may give up the Post Office when it sees fit, but while it carries on, the use of the mails is almost as much a part of free speech as the right to use our tongues and it would take very strong language to convince me that Congress ever intended to give such a…despotic power to any one man. When I consider the ease with which the power claimed by the postmaster could be used to interfere with very sacred rights, I am of the opinion that this power is a serious attack upon [our] liberties.

Soon after the government’s attack on his newspaper in the fall of 1917, Berger faced an even more dangerous criminal prosecution for the same editorials opposing the war. He was brought to trial in Chicago in February 1918 with four other Socialists for conspiracy under the Espionage Act. His alleged crime was to publish five editorials in the Milwaukee Leader expressing opinions that the U.S. Postmaster General determined rendered the paper nonmailable, specifically: 1) we are in the war for purely capitalistic reasons, (2) there are many men driven insane at the war front, (3) young men do not talk as if they consider it an honor to be drafted, (4) only big businessmen and their satellites are enthusiastic about the war, and (5) the Bible contains many passages which are opposed to war and must therefore be considered treasonable.6

Despite the charges pending against him, Berger was elected to Congress by Wisconsin’s fifth district in November, 1918.7 In December, 1918 he went on trial in Chicago before Judge Kenesaw Mountain Landis, was convicted, and sentenced to the maximum twenty years in jail. Berger appealed and was released on bail. However, when he appeared in the spring on 1919 to be sworn into his Congressional office, a special House of Representatives committee ruled he was ineligible and would not be sworn into office (although he met all the official qualifications of office) since the committee considered his views “disloyal.”8

The Democratic candidate who ran against Berger then made a bid to be sworn into office in Berger’s place, but failed. Thus, the Governor of Wisconsin ordered a special election to determine who should get the seat. In hopes of winning the special election and getting Berger out of the picture, the Republicans and Democrats in the Fifth District united to run just one candidate against Berger in the December 19, 1919 special election, but Berger received an even higher vote than he had in the original election!9

Yet the U.S. Congress still refused to seat him in January 1920, although six Representatives supported him now on the ground that as he was legally elected and represented the opinion of his constituents, his opinions should be met in debate, not silenced. In another odd twist of events, the seat Berger won but would not be sworn into was then left entirely vacant since the Governor of Wisconsin thought another election would be too costly.

Berger, denied his elected position because the House disapproved of his political opinions, was left to fight his conspiracy conviction all the way the U.S. Supreme Court. In a final odd twist, the case was dismissed not because of any free speech issues, but because of Judge Landis’ prejudicial conduct during the original criminal trial.10

Thus, after four years of expensive and exhaustive litigation, Berger emerged a free man with his second-class mailing privileges returned, but much maligned and poorer for it.

Notes

1 Zechariah Chafee, Jr., Free Speech in the United States (Atheneum Press, 1969 reprint of 1941 Harvard University Press original). p. 247

2 Dr. Thomas Salmon reported in the American Legion Weekly, January 28, 1921, over 7000 insane veterans in the United States. Chafee, p. 303.

3 Four years later the U.S. Supreme Court said it was unconstitutional too, see United States v. Cohen Grocery Co., 255 U.S. 81 (1921).

4 Paraphrases from editorials published in the Milwaukee Leader from April 14 to September 13, 1917 provided in U.S. ex rel. Milwaukee Social Democrat, 255 U.S. 407 (1921).

5 Cite the three cases from the 1930s in Rabban book

6 Chafee, p. 249-250.

7 Berger received 17,920 votes, versus 12,540 for the Democrat and 10,678 for the Republican candidates. Chafee, p. 250.

8 Chafee convincingly argues that Congress acted against precedent and unwisely in denying Berger office, see Chafee, pp. 252-265

9 25,802 voted for Berger, 19,800 voted for his opponent.

10 Berger v. United States, 255 U.S. 22 (1921).