In 1919, the Supreme Court erroneously ruled the Espionage Act of 1917 and the Sedition Act of 1918 were constitutional under Schenck v. United States.1 This was a false premise and those convicted under these acts, including Eugene Debs, were tried under an unconstitutional law. The unconstitutional nature of the law aside, the Supreme Court failed to properly interpret the Sedition Act under which he was convicted.
The Sedition Act of 19182 consisted of several provisions to restrict speech during wartime, including “willfully obstruct[ing] the recruitment or enlistment service of the United States.” Eugene Debs was convicted for violating this provision during his Canton, OH speech in June 19183. In Debs v. United States,4 the courts inferred certain statements made by Debs demonstrated intent to obstruct recruitment efforts. The Court also concluded these inferences posed a “clear and present danger” to the country under a precedent established months before in Schenck v. United States.
The precedent from the related Schenck v. United States trial has essentially been overturned by the Supreme Court in later decisions, and although many aspects of the Sedition Act were later repealed and are now considered unconstitutional, I will focus my arguments on why I believe the Supreme Court wrongly affirmed the judgment against Debs under this act at the time the ruling was given. I will assess statements made by Debs with the Sedition Act and explain why he did not violate the “obstruction of recruitment” provision for which he was convicted. In addition, I will examine three related Supreme Court cases on sedition during WWI: Schenck v. United States, Debs v. United States, and Abrams v. United States5 to demonstrate that Judge Oliver Wendell Holmes, who wrote on each case, contradicts the legal reasoning of his Schenck decision in his Abrams dissent.
Schenck v. United States and Debs v. United States were both argued before the Supreme Court in January 1919. Schenck was convicted of manufacturing and distributing pamphlets that encouraged people to oppose the draft. In Schenck v. United States, the Supreme Court held that during times of war, restrictions on speech were permissible because “many things that might be said in time of peace are such a hindrance to its efforts…that no Court could regard them as protected by any constitutional right.” Holmes further established a “clear and present danger” test to evaluate speech during times of war. He writes, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”
The Schenck decision was used to dismiss Debs’ legitimate First Amendment claim. The court concluded the facts and circumstances in the Debs case were similar to the Schenck case and...