By Kevin C. Murphy, Copyright 2013. All Rights Reserved.
Chapter Six: Legacies of the Scare
Progressives, Civil Liberties, and Labor
II. Prisoners of Conscience
Taking the last first, now that the wartime and Red Scare fervor had subsided, the Senate had some hard questions for Wilson's overzealous Attorney General. The previous May, as Palmer's grand visions of a White House bid had begun unraveling thanks to a May Day without incident, twelve prominent lawyers - among them Felix Frankfurter, Zechariah Chafee, Frank Walsh, Francis Fisher Kane, Swinburne Hale, and Roscoe Pound - penned a prosecutorial brief entitled To The American People, Report Upon the Illegal Practices of the Department of Justice. "Under the guise of a campaign for the suppression of radical activities," it argued, "the office of the Attorney General…has committed continual illegal acts." Along with the misuse of propaganda and agents provocateurs, these illegal acts included violations of the Fourth ("arrests without warrant" and "unreasonable searches and seizures"), Fifth ("compelling persons to be witnesses against themselves") and Eighth ("cruel and unusual punishment") Amendments to the Constitution.2
"We make no argument in favor of any radical doctrine as such, whether Socialist, Communist, or Anarchist," argued these eminent lawyers. "Nor do we now raise any question as to the Constitutional protection of free speech and a free press." Instead the brief focused on "the utterly illegal acts by those charged with the highest duty of enforcing the laws - acts which have caused widespread suffering and unrest, have struck at the foundation of American free institutions, and have brought the name of our country into disrepute."3
Among those persuaded by this brief was Montana Senator and future Teapot Dome prosecutor Thomas Walsh, who had been mostly silent about civil liberties abuses in the past. While he continued to remain a good Democrat during the remainder of the doomed campaign season, Walsh called for an official Senate investigation into the Justice Department's behavior the month after Harding's election, on December 10, 1920. Harold Ickes, for one, found hope in the fact "that a Senator of Mr. Walsh's political faith should have had the courage and right feeling to initiate such action." Similarly, argued The New Republic, the story of Palmerism "must not be allowed to end with…[the] cowardly refusal by the Attorney-General to face the facts of his own wrongdoing." Naturally, the authors of the To the American People were similarly moved. "Unless the methods used by the Department of Justice are severely condemned by Congress and the American people," warned Zechariah Chafee in January 1921, "they will be repeated in future emergencies."4
Soon thereafter, the Senate Judiciary Committee formed a subcommittee to look into the matter. Chaired by Republican Thomas Sterling of South Dakota, the subcommittee also included Democrat William King of Utah, Walsh, and Borah. The star witness in the ensuing hearings, of course, was an unrepentant Palmer. Pounding on the table for effect, the Attorney General sidestepped the damning legal case against him, basically, by challenging the Senators' right to question the umbrella of protection he had provided. "I apologize for nothing that the Department of Justice has done in this matter," he exclaimed, "I glory in it. I point with pride and enthusiasm to the results of that work."5
As for the legal issues, Palmer argued, if "some of my agents out in the field…were a little rough and unkind, or short and curt, with these alien agitators, whom they observed seeking to destroy their homes, their religion, and their country, I think it might be well overlooked in the general good to the country which has come of it." Undeterred, Walsh wondered how Palmer could have possibly thought that warrants should only be obtained "if absolutely necessary." "It is difficult to conceive," Walsh said, echoing arguments Louis Post's lieutenants had made in the Department of Labor, "how one bred to the law could ever have promulgated such an order."6
Palmer's appeal to order went over like a lead balloon in the progressive press. "The Nation has no animus against Mr. Palmer personally," it argued after the Attorney General's appearance, "but the evil he did will live after him unless some action is taken to condemn the sinister and illegal methods that he injected in to the Department of Justice." But the Attorney General had a sympathetic ear across the aisle in Senator Sterling, who had authored his own, even more stringent Sedition Act in 1919. (Passed in the Senate and defeated in the House, the Sterling Act gave more powers to the Postmaster General to criminalize offending mail, and, on account of broad and vague wording, even made it illegal to advocate for a constitutional amendment.) The Subcommittee soon divided on whether to censure Palmer, with the Republican Sterling advocating no further action and the Democrat Walsh calling for a condemnation of Wilson's Attorney General. Both reports went to the full Judiciary Committee, where, a year later, Walsh's proposal failed 7-4, with the four votes coming from Walsh, Borah, George Norris, and Democrat Henry Ashurst of Arizona.7
Even as Palmer avoided legal consequence, many of those who had run afoul of the authorities during the war and its aftermath remained behind bars, and none were so esteemed as Prisoner 9653, the first federal convict to run for president in American history. "Christmas and New Years have gone by," the editors of The New Republic reminded their readers in their first issue of the new decade, "and Debs is still in jail":
His imprisonment serves no purpose, either good or bad. From the point of view of expediency, it will cast a shadow over the exit of this administration, and it will leave a bitter taste in the mouths of those who were generous enough to swallow its idealism whole. From the point of view of the law, we are in fact no longer at war, and to keep in jail a man whose acts would not have been punishable in peace times is legalism of the smallest caliber. From the point of view of common decency, of morality, there is this to be said of the imprisonment of Debs - that it is a crime, a falsehood, and an act of which no honorable government would be guilty."8In March of 1920, Republican Joseph France of Maryland had put forward a Senate resolution arguing that, especially since the war was over, "the further prosecution and imprisonment of the United States of…a body of political prisoners is contrary to the democratic idealism and traditions of freedom to which our country is committed," and thus "immediate pardon and amnesty" should be granted "to all prisoners whose religious, political, or economic beliefs only" had been cause for their incarceration. This too, the Sterling subcommittee took up after Harding's election, calling witnesses ranging from Senator France to A. Mitchell Palmer to Samuel Gompers to Marvin Gates Sperry, head of the Soldiers' and Sailors' Legion.9
"I feel that it was unwise," Senator France argued in his statement beginning the hearings, "for us to enter upon the policy of attempting to preserve our constitutional Government by flagrant violation of a constitutional principle." Samuel Gompers, after spending several minutes noting the patriotism of the American Federation of Labor for the record, decried the Espionage Act and argued it was time "to see this Republic of ours as soon as possible return to the normal relations of life and labor and relations and government," including giving an amnesty and pardon to political prisoners. Marvin Sperry took only a few moments of the subcommittee's time, declaring "[t]he United States is the most powerful country in the world, and we think they could extend an act of generosity and mercy to the political prisoners this Christmas."10
For his part, A. Mitchell Palmer testified that 580 convictions and 315 pending cases had been brought under the Espionage Act, and, of those, 199 had been pardoned or commuted by Wilson and approximately 130 of these convicted offenders were still serving time. Nonetheless, Palmer argued, a general amnesty or pardon wasn't required because the Department of Justice was working its way through all the cases anyway, and those deserving a pardon had already been, or would soon be, granted one. "Every case before us," he assured the Committee, "has been carefully considered by its own facts" In fact, Palmer argued, "the conviction of only 580 persons out of a hundred millions, in all the heat and worry of war times…always seemed to me a very striking evidence of the manner in which we have protected the rights of the people during the war, and with the small number now remaining in the penitentiary, there can hardly be said to be any political prisoner problem in America."11
When the Sterling subcommittee wrapped up its hearings, it once again took no action on the pending resolution. And so, even as Palmer promised that every case was receiving its due consideration, Debs and over a hundred others remained in federal prison. The incarceration of Debs, a beloved martyr figure to socialists and progressives alike, seemed a particular sin against the government, and inspired many to Christ metaphors. "I had never met Debs" before he arrived at the Atlanta Penitentiary, Secretary of the AFL's Amnesty Committee Lucy Robbins testified before the subcommittee, but the "fact is that ever since he came there he is considered a man that is actually a saint or a Jesus Christ,"
because when the night comes and the work is over, he goes into the yard where all the men, the criminals, come around him, and for each one he has a word to tell them. For each he has word to awaken in them a human spirit, the feeling that has been lost for years and years, of those murderers…I am sure that a man of that kind could never be accused in any way that he could be harmful to any country or to any man existing in the world. He surely could never propagate crime, he could not propagate violence. It is not in his nature. Even if he would attempt to say it, he could never say it. He can only say good things, and he can bring out the best that is in the worst kind of criminal.However much a beatific Christ figure to those he inspired, the incarcerated Debs was suffused with doubts and fighting a losing battle against despair. Cut off from both his family and his life work, he grappled with a sense of isolation that felt like "suffocation and being buried alive." Out in the world, meanwhile, newly christened Communists like William Z. Foster belittled Debs as a sellout, and part of "the petty-bourgeois united front." (To this, Debs replied, "you may be right in your criticism of my position and I may be wrong, as I have often been before. Having no Vatican in Moscow to guide me I must follow the light I have.") Watching the Socialist struggle degenerate into internecine feuds, he was haunted by dreams where "all about me were ashes…nothing left but ashes." "I suppose it is because I see the heights I must feel the depths," Debs wrote his brother Theodore, confessing there were times when his "heart is the very heart and center of all the sadness and sorrow, all the pain and misery, and all the suffering and agony in the world." The election results further embittered him. "The people can have anything they want," he wrote, "The trouble is they do not want anything. At least they vote that way on election day." Debs' paramour, Mabel Curry, wrote to Upton Sinclair that "Gene can't stand many more months." Making things even worse for the old socialist, when Debs lashed out at Wilson just before the end of his term, Wilson and Palmer enacted a punitive gag order prohibiting him from speaking in public.13
While it may not have seemed like it at the time, Election Day was actually the beginning of the end of Debs' trials. Whatever his faults, Warren Harding didn't share Wilson's penchant for nursing grievances, and within the first month of his administration, Debs was secretly shuttled to Washington to meet with Attorney General Harry Daugherty - who, like the First Lady and Secretary of Commerce Herbert Hoover, opposed clemency - and other members of the administration.14 (In his memoirs, Daugherty, a notorious red-baiter at any other time, remarked that "I had never met a man of more appealing personality than Eugene V. Debs.") When word leaked of this meeting, the American Legion was livid. Any clemency "would do more to license a wholesale disregard of law and order than any one act the President might take," Legion commander John Emery warned Harding. If he took this action, it would "draw the fire of ex-service men" and "set off a fight to the finish." Such talk forced Harding to back down on his original plan to release Debs on Independence Day.15
His hopes dashed, Debs began to fall back into despair and started cutting himself off even further from the outside world. In the meantime, progressives and socialists pushed back. The newly re-formed American Civil Liberties Union, under Roger Baldwin, petitioned for his release. Warren Harding was called upon twice by his old paperboy from Marion, Ohio, Norman Thomas, imploring the president to release Debs. "I am asking you to break the hate, and the war psychology," Lincoln Steffens wrote Harding, "do the free, uncalled for, magnificent Thing." Notable progressives like Robert La Follette, Basil Manly, and Alice Paul wrote editorials urging readers to support the amnesty campaign "if you feel that free speech is worth preserving in America." And even rising film star Mae West petitioned the White House to encourage Debs' release.16
At one point over the summer, Oswald Villard, Father John Ryan, and William Allen White led another delegation of progressives to meet with the President. When Harding said he was considering the matter, one of the guests, a social worker, yelled, "Mr. President, that's no way to answer us. We demand a yes-or-no answer now!" Replied Harding: "My dear woman, you may demand anything you please out of Warren Harding. He will not resent it. But the President of the United States has the right to keep his own counsel, and the office I occupy forbids me to reply to you as I should like to do if I were elsewhere!" To a Socialist delegation expecting a tense meeting, however, Harding seemed surprisingly sympathetic to their cause, and urged them to keep up the outside pressure. In November 1921, the White House was picketed by Debs supporters carrying a petition signed by 300,000 and endorsed by 700 organizations, and waving banners reading "Allied Nations, We Congratulate You for Releasing Political Prisoners. The United States Alone Keeps Them in Prison."17
If Harding seemed to suggest he was inclined to free Debs, his Attorney General did not follow suit. "In this country there is now being disseminated an extensive propaganda to dignify the crimes committed by many persons who are now in prison for disloyal conduct," Daugherty told the American Bar Association in August, 1921. This propaganda, he argued, had now infected "very well-meaning people, among whom are ministers of the gospel, teachers, editors, and college professors, to say nothing of that vast number of sentimentalists who always stand ready to make heroes out of criminals whenever the opportunity offers." These "well-meaning persons seem to have acquired the idea from the phrases 'political offenses' and 'political prisoners' that all the really dangerous radical believers" in prison "are heroes for conscience's sake and somehow akin to the martyrs of old…[S]uch is not the case."18
The idea of "political offenses," Daugherty continued, was a product of the Old World, but it had no place in a democracy like the United States, where agitators can find redress through the political process. "Changes are to be wrought through the constitutional organs of government, and by the orderly processes of law…If any citizen dislikes the law under which he is living, his relief is through the legislative department of Government." In short, the Attorney General argued, if "laws are obnoxious to the people, it is their province to repeal them. Until they are repealed they must be observed and enforced without fear or favor. The Government will endure on the rock of law enforcement, or perish in the quicksands of lawlessness."19
In private, Daugherty - who, of course, would have his own struggle with the quicksands of lawlessness a few years hence - was also troubled by Debs' refusal to ask for a pardon or admit he was in the wrong. In the final reckoning, though, the Attorney General, arguing Debs had probably suffered enough, agreed with Harding that he should let the old man go. And so on December 23, 1921 -- so that "he could eat Christmas dinner with his wife" - the president commuted Debs' sentence, and that of 24 other political prisoners. This "spirit of clemency," Harding told a stunned friend, was part of what he was "trying to do here in Washington."20
As Debs walked out of the Atlanta Penitentiary, over 2300 of his fellow inmates -- released from their cell block by the warden for the occasion -- roared out their affection for their fellow prisoner. A tearful Debs embraced them back, then got in a car that would take him to the train station and an eventual meeting with the president. Before boarding the train for Washington, Debs pulled out the standard-issue five dollar bill given him by the prison upon release, and sent it off to the committee to release Nicola Sacco and Bartolomeo Vanzetti. Upon arriving at the White House, the aged Socialist was warmly greeted by the Old Guard President. "I have heard so damned much about you, Mr. Debs," said Harding, "that now I am very glad to meet you personally." After a private meeting between the two, Debs, just before departing to his home in Terra Haute, Indiana, told the press that "Mr. Harding appears to me to be a kind gentleman. We understand each other perfectly."21
The freeing of Debs removed the most visible and potent symbol of the political prisoner issue. And it forced a strategic shift on the part of the ACLU and other progressives -- from pushing for general amnesty for the 76 remaining political prisoners in Leavenworth prison, as they had done in the past, to calling for individual pardons. But many progressives thought amnesty was the ground that should be fought on, since a pardon presumed guilt, and thus did not uphold a constitutional principle of free speech. Oswald Villard, for one, was not happy with this shift. "Something very definite and important will have been lost by the American people if they persist in regarding amnesty as a matter of mercy or at best a grudging recognition that to release a few prisoners may silence an annoying clamor," he wrote. Since "all progress begins in a protest against generally accepted opinion," it would be "socially disastrous to punish it by legal penalties."22
William Borah agreed. To an American Legion officer who wrote the Senator to decry Debs' release, Borah say the he "would not myself have granted the pardon of Debs upon the principle and for the reasons given out by the pardoning power…I was in favor at the close of the war, and am now in favor, of a general amnesty of all political prisoners." Borah contended that "no government, no class of men, and no views are so sacred that they ought not to be subject to criticism." "There isn't anything more shameless in the history of free speech," he told one St. Louis editor, "than the treatment of the United States of these men who are now in penitentiary in violation of the most fundamental rights known to the free citizen." Noting that among the people who could be convicted under the Espionage Act were not only Daniel Webster and Abraham Lincoln, for publicly condemning the Mexican War, but "some of the most prominent members of the government" six months before America joined the Great War, Borah continued to advocate for a general amnesty. "[I]nstead of persecuting men with ideas to express," he said, "we should hire halls for them."23
The ACLU continued to work on Harding to release the remaining prisoners, even though many of those still held were fundamentally committed to amnesty and railed against the new pardon strategy. In October of 1922, the president said he would release any prisoner who promised "to be law-abiding…and not encourage, advocate, or be willfully connected with lawlessness in any form." Few took the deal. Nonetheless, on August 2nd, 1923, only weeks before his death along the Voyage of Understanding, Harding released sixteen more federal prisoners, leaving thirty-six behind bars.24
At the state level, the fight for amnesty won a considerable blow when Al Smith won back the Governor's mansion in New York in November 1922. Smith, it will be remembered, had vetoed some of the more stringent anti-sedition laws - the "Lusk laws" coming out of the state legislature in his previous term - before losing the 1920 election to Republican Nathan Miller. Taking office on January 1st, 1923, Governor Smith planned to continue where he left off.
On New Year's Day, Governor Smith immediately called for the repeal of the Lusk laws Miller had passed during the interregnum. "I am firm in my belief," he told the legislature, "that the law passed at the last session…which requires the teachers of our public schools to submit to a loyalty test is a direct violation of the letter and spirit of the laws of our State…It is wrong in principle. It is a violation of the spirit of our constitution, and it is an unwarranted interference with freedom of opinion - one of the foundation stones of democratic government." Smith was aided in this veto call by the fact that the architect of the Lusk Laws had lost his luster since 1920, for in 1921, Clayton Lusk came under suspicion of accepting bribes. "The savior of society has been caught with the goods," editorialized the New Republic with a squeal of schadenfreude. "[T]he inquisitor is in the sweatbox. But more than this, the complete turning of public opinion is a sign of the recovery of public health."25
Seventeen days after the returning Governor's veto call, and arguing that "political progress results from the clash of conflicting opinions," Smith released James L. "Big Jim" Larkin, one of the most notable political prisoners in the state. "I pardon Larkin," the Governor said, "not because of agreement with his views, but despite my disagreement with them…the safety of the state is affirmatively impaired by the imposition of such a sentence for such a case." "We are still listening," said Collier's Weekly, "for President Harding to say about the political prisoners in Leavenworth words as bold and ringing as those that Governor Al Smith of New York spoke in pardoning Big Jim Larkin."27
By August of that year, Harding would speak no more. And the ascension of Calvin Coolidge to the presidency -- who had made his name standing for public order after the Boston police strike -- awoke trepidation among civil liberties advocates. In fact, Coolidge was ready to just get rid of the problem. After an appointed three-member committee gave him the needed political clearance, he released all of the remaining federal political prisoners on December 15th, 1923. Even though the language was framed as a pardon instead of an amnesty, Senator Borah thought the president "had performed a most distinct service to the most fundamental principle of free government." The release, Borah told the press, was a "vindication of the right of free speech and free press, and of that spirit which moved the fathers to incorporate that sublime principle in the Constitution."27
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2. Geoffrey Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (New York: W.W. Norton, 2004), 225. J. Leonard Bates, Senator Thomas J. Walsh of Montana: Law and Public Affairs, from TR to FDR. (Chicago: University of Illinois Press, 1999), 190. Kennedy, Over Here, 288. R.G. Brown et al, To The American People, Report Upon the Illegal Practices of the Department of Justice (Washington DC: National Popular Government League, 1920), 3-7.
3. Ibid, 3-4.
4. Bates, 190-191. "Palmer Pleads Guilty," The New Republic, January 19, 1921 (Vol. XXV, No. 320), 217.David Williams, "The Bureau of Investigation and Its Critics, 1919-1921: The Origins of Federal Political Surveillance," The Journal of American History, Dec. 1981 (Vol. 68, No. 3), 560.
5. Bates, 191. Kennedy, 290. "Turn the Light on Palmer!" The Nation, February 2, 1921 (Vol. 112, No. 2900), 164.
6. Bates, 191. Kennedy, 290.
7. "Turn the Light on Palmer," The Nation, 164. "Sterling on Sedition," The Searchlight on Congress, December 31, 1919 (Vol. IV, No. 8), 7. Bates, 192.
8. The New Republic, January 5, 1921 (Vol. XXV, No. 318), 153-154.
9. "Amnesty and Pardon for Political Prisoners: Hearings Before a Subcommittee of the Senate Judiciary Committee on S.J. Res 171, United States Senate," (Washington: Government Printing Office, 1921), 5. "The Soldiers and Sailors Legion" was distinct from the American Legion, Sperry testified, because "[w]e are strictly privates. We do not take any officers in our organization that held a commission." Ibid, 46.
10. Ibid, 6, 9-15, 46-47.
11. Ibid, 83.
12. Ibid, 25-26. Senator Sterling was unmoved by Robbin's testimony. Debs, Sterling argued, has said he was "[p]roud of those who have been convicted of aiding and abetting another who had evaded the draft. Proud of them!" Ibid, 29.
13. Salvatore, 316-325. Weinstein, 322. Ernest Freeberg, Democracy's Prisoner: Eugene V. Debs, the Great War, and the Right to Dissent (Cambridge: Harvard, 2008), 281.
14. On the pro-amnesty side in the Harding administration were Charles Evans Hughes and Will Hays. Freeberg, 292.
15. Salvatore, 326-327. Harry Daugherty, The Inside Story of the Warren Harding Tragedy (New York: Churchill Company, 1932), 120. Russell, 462. At this March meeting, Debs was met at Union Station by Daugherty's right-hand man, Jess Smith, who took him to and from the White House. On the way back to the train, Smith asked Debs if he needed anything. When Debs said he wished he could get toothpicks in the penitentiary, Smith made a stop to procure them. Russell.
16. Murphy, Meaning of Freedom of Speech, 134-135. Salvatore, 326-327. Freeberg, 286, 292. Palmer, 57.
17. Russell, 462-463. Freeberg, 286-287, 291.
18. Freeberg, 287. Harry Daugherty, "Address to the American Bar Association," August 31, 1921. Congressional Record, September 21, 1921. 68785-21849, 10.
19. Ibid, 11-14.
20. Freeberg, 291-294.
21. Salvatore, 327-328. Russell, 486-487. One of the harshest critics of Debs release was the New York Times, who in an editorial lashed out at the decision and the "well-meaning people," to use Harry Daugherty's earlier phrase, who had called for it. "If he had been a mere ordinary murderer," the NYT ranted, "the radicals and the swarm of sentimentalists wouldn't have lifted a finger for him. His crime was far worse and more dangerous. He sought to murder the state. At once the loose lips of the sentimental squad overflowed with words. The Rev. Cream Cheeses, the weekly organs of nursery revolution, the miscellaneous small fry of weak heads and leaky lachrymal ducts, and the whole Socialist Party worked their hardest to deliver from the jail that he was sanctifying this martyr of 'free speech.'" Quoted in The Survey, January 7, 1922, 556.
22. Murphy, Meaning of Freedom of Speech, 135. The New Republic, on the other hand, argued that amnesty was a matter of preserving the public order. Because of the continued incarcerations, it argued, "the disposition to regard political methods as futile, to conceive force as the only remedy for wrong, is growing among people of radical mind. To them the continued imprisonment of these men for offences touching the rights of free speech, press, or assembly, through which alone can peaceful reformation be achieved, is a proof of the impotence of political methods, a challenge, and an outrage." "The Case for Amnesty," The New Republic, July 20, 1921, 203.
23. Ibid. Borah to Dan L. Lindsley, January 17, 1922, WJB Box 105: Amnesty for Political Prisoners. Ashby, 29. Borah to Casper Yost, April 28, 1923. WJB, Box 140: Newspapers. Borah to Des Moines Capital, March 23, 1923, WJB Box 110: Newspapers. William Borah, "Political Prisoners," March 11, 1923, WJB Box 166: Speeches 1923-1924.
24. Murphy, Meaning of Freedom of Speech, 136. Progressives were not alone in calling for action from Harding. Senator George Wharton Pepper, a Philadelphia lawyer and Old Guard conservative, conducted his own study of the political prisoner cases and argued many should not be held at all. William Borah, "Political Prisoners," March 11, 1923
25. Murphy, Meaning of Freedom of Speech, 136-137. "One Hundred Per Cent," The Survey, February 15, 1923, 619. The New Republic, August 10, 1921 (Vol. XXVII, No. 349), 282.
27. Ibid. Noggle, Into the Twenties, 114. William Borah, "For the Press, Dec. 15, 1923," WJB.
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