THE GOVERNMENT'S WAR AGAINST DISSENT:
THE MASSES AND THE FIRST AMENDMENT
ABSTRACT
In its short history (1911-1917), the New York-based
magazine, The Masses, regularly published harsh criticisms of the
government and powerful corporations, reminding its readers that
irreverance was as American as the Founding Fathers. In exchange,
the magazine was sued, censored, and finally put out of business by
the ignominious Espionage Act, which empowered the postmaster to
declare unmailable any periodical that interfered with the war
effort. The magazine is worth remembering for its articles and
cartoons, such as John Minor's "At Last a Perfect Soldier." But,
more importantly, a study of the magazine reminds us that if the
First Amendment protects only those who agree, it has no value. To
have value, Americans must constantly guard against any challenge
to their right of expression, whether by the government or any
other authority.
FREE SPEECH AT ALL COSTS:
A SHORT HISTORY OF THE MASSES
The American people were guaranteed the freedom of
expression in the First Amendment. However, it would do violence to
history to infer that the guarantee of free expression has always
been universally accepted. The government's most extensive effort
to restrict criticism came during World War I when more than 1,500
people were arrested and 900 jailed for violating the ignominious
Espionage Act, which empowered the postmaster general to declare
unmailable any periodicals that interfered with the war effort.[1]
The postmaster general directed the Espionage Act
primarily at the socialist press, which sympathized with Germany or
preached pacifism or noninterventionalism.[2] The socialist press,
which was at the height of its popularity, was obliterated. The 80
or so socialist publications interdicted by the Postal Department
during 1917 included Victor Berger's Milwaukee Leader, Eugene Debs'
Appeal to Reason, the New York Age, the American Socialist, and The
Masses, which has been called the most famous of the socialist
journals of the time.[3]
Rebecca Zurier wrote that The Masses' editors
sought to remind their readers that irreverance was part of our
popular culture, that distrust of the system was as American as the
Founding Fathers.[4] The magazine published some of the harshest
criticisms of war in the history of American journalism, such as
John Reed's article, "One Solid Month of Liberty," and cartoons
such as John Minor's "At Last a Perfect Soldier," which portrayed
an army medical examiner gleefully clasping his hands over a
hulking, headless soldier, and Boardman Robinson's "Europe 1916,"
which showed death tempting a jackal toward a cliff with a carrot
called "victory."
Juergens observed that in the early decades of the
twentieth century, the press had not yet learned to fear
governmental abuse of power and so the administration had its way
by targeting journals least able to defend themselves.[5] As the
foreign, socialist, and pacifist press were summarily put out of
business and their editors taken off to jail, the mainstream press
turned a blind eye, which compounded the pity, unaware that First
Amendment rights cannot be selectively defended, that when one
paper is suppressed, all others are threatened.[6]
An analysis of the short life of The Masses finds
that its editors reminded their readers that if the First Amendment
protected only safe speech, it was meaningless; for the First
Amendment to have any value, it must be continually tested in the
marketplace. The magazine also was not bound to advertisers. Free
from the constraints of the commercial press, the magazine
expressed itself freely and openly from its first issue to its
last.
In its short history (1911-1917), The Masses was
repeatedly faced with a number of lawsuits and sanctions. Whenever
their freedom of expression was challenged, whether by the federal
government, the Associated Press, or the New York Society for the
Prevention of Vice, the magazine's editors reacted indignantly. In
the end result, the magazine would go out of business and several
of its writers and artists would be indicted for violating the
Espionage Act. Spellman called the decision that banned The Masses
from the mail, "the nadir of the reactionary period" for the
press."[7]
The Masses was a cultural product indigenous to
the spirit of muckraking, socialism, and bohemian revolt prior to
World War I.[8] The popular impulse for reform, which appealed to
workers, intellectuals, farmers, professionals, ethnic minorities
and radicals of every stripe, provided the nutriment for the
spectacular growth of the Socialist Party of America.[9] Starting
with 10,000 members in 1901, the party grew to 118,000 by 1912 ---
a year when hundreds of socialists held office in the United
States, including one congressman, Victor Berger, and 79
mayors.[10] The strength of the Socialist Party can be gauged by
the number of socialist periodicals. In 1912, there were 323
avowedly socialist publications in the country.[11]
Socialist editors regarded their papers as
agencies that served a public need.[12] In The Brass Check, Upton
Sinclair recounted several examples of how the socialist press was
more open than capitalist publications, which were more likely to
suppress controversial articles.[13]
The magazine included indictments of religion,
sexism, racism, and militarism. They're as big as bedbugs."
Cartoons bitterly satirized, among other things, New York City vice
crusader Anthony Comstock as a sadistic pygmy. The magazine
advertised everything from pamphlets on birth control to the Karl
Marx five-cent cigar. When the magazine published articles in
defense of Margaret Sanger, it received thousands of letters from
women asking for information about birth control.[14]
The Masses' contributors included Max Eastman,
Walter Lippmann, Carl Sandburg, Upton Sinclair, Bill Haywood,
Sherwood Anderson, John Reed, Floyd Dell, Louis Untermeyer,
Bertrand Russell, Lincoln Steffens, Amy Lowell and George Creel,
who headed the wartime board of censorship. Artists who contributed
cartoons and drawings included Art Young, Robert Minor, John Sloan,
Boardman Robinson, George Bellows, and Pablo Picasso. Writers were
paid minimal rates. Artists were not paid at all.[15] The magazine
gave their contributors something not offered by the commercial
press: control over their work.[16]
The Masses was a cooperative. Its content was
decided at monthly editorial meetings where editors and visitors
voted on articles and drawings.[17] Voting and debating over what
would be in the next month's issue "took a lot of time and we had
a lot of arguments, but that was one reason why The Masses at its
best was a fine thing," said John Sloan, the magazine's art
editor.[18] This lack of policy would work to the advantage of its
editors in their trial with the government. The government could
not prove a conspiracy existed on the part of the magazine to
disrupt the war effort because of the haphazard nature of the
editorial meetings.[19]
The magazine was in jeopardy of going out of
business in 1912 -- a year after it began, when its backer, Rufus
Weeks, a socialist insurance executive, withdrew his subsidy and
the magazine temporarily ceased publication.[20] Art Young then
recruited Max Eastman, who had resigned his professorship at
Columbia University to promote socialism.[21] Eastman ingratiated
himself with eccentric millionaires, such as publisher E.W.
Scripps, suffragist O.H.P. Belmont, and socialist attorney Amos
Pinchot.[22] In addition to financial support, Pinchot and Gilbert
Roe, a former law partner of Senator Robert LaFollete, offered
legal advice.[23]
In January, 1913, The Masses included the
following manifesto::
A revolutionary and not a reform magazine; a
magazine with no dividends to pay; a free
magazine; frank,
arrogant, impertinent, searching for the true
causes; a magazine
directed against rigidity and dogma whenever it is
found;
printing what is too naked or true for a
moneymaking press; a
magazine whose final policy is to do as it pleases
and conciliate
nobody, not even its readers -- there is room for
this
publication in America.[24]
In February, 1913, the magazine included a letter
from the Columbia University library bookstore, saying: "Stop
sending us The Masses; we never ordered it, and we do not want
it."[25] The loss of sales outlets may have cost the magazine in
circulation but added to its notoriety.[26]
In June 13, 1913, Eastman wrote that an officer of
the military tribunal that had interfered in a bloody confrontation
between coal miners and the coal company in Katawa County, West
Virginia, was an employee of the Associated Press. He charged the
news agency with suppressing information about the coal miners'
strike.[27] Included with Eastman's article was a cartoon drawn by
Young picturing the news as a reservoir poisoned at the source by
a figure labeled the Associated Press, which was pouring lies into
the water.
The Associate Press charged the magazine with
criminal libel, and Eastman and Young with personally libeling its
president.[28] Roe agreed to defend Eastman and Young without
charge.[29] In an editorial, the magazine asked readers to
contribute financially to the legal defense of Eastman and
Young.[30] At a rally held on behalf of Young and Eastman in New
York City's Cooper Union, 2,500 people turned out in support.[31]
Pinchot, Lincoln Steffens, and Morris Hilquit all spoke on behalf
of Young, Eastman and the freedom of the press.[32] The suit was
dropped for fear of what might come out during the trial.[33]
After the suit was dropped, The Masses published two cartoons by
Young that satirized the A.P. The issue did much to establish the
magazine's reputation while also demonstrating the lengths to which
the editors were prepared to defend their constitutional
rights.[34]
When The Masses published a cartoon in January
1916 that satirized the press' relationship with capitalism and a
poem that compared the Virgin Mary with an unwed mother, the
magazine was ousted from the New York City subway newsstands by the
Ward and Gow Company, which operated the newsstands.[35] When a
legislative investigation inquired into the business practices of
Ward and Gow later that year, Eastman was permitted to question the
company's president because the investigation was deemed a matter
of public concern.[36]
John Dewey, Amos Pinchot, Walter Lippmann, Herbert
Croly, editor of The New Republic, Mrs. O.H.P. Belmont, and
publisher Charles Scribner all testified that The Masses was
neither indecent nor blasphemous.[37] But the decision was not
reversed and buyers were forced to look in more obscure
outlets.[38] Unlike the other forms of retaliation against The
Masses, this reduced the magazine's circulation.[39]
In addition to Columbia University, the magazine
also would be rejected by the Magazine Distributing Company in
Boston, the United News Company of Philadelphia, stopped at the
border by Canada and swept out of colleges and reading rooms from
Harvard to San Diego. A natural enemy of The Masses was Anthony
Comstock, head of the New York City Society for the Suppression of
Vice. In one cartoon, Comstock was drawn as a sadistic pygmy. In
another, he was shown dragging a bewildered woman into court
because she had given birth to a "naked baby. Shortly after
Comstock's death, his successor arrested Merrill Rogers, The
Masses' business manager, because the magazine had advertised
August Forel's book, The Sexual Question.[40]
The entry of the United States into an unpopular
war would unleash the most repressive punishment against dissenters
in American history. In 1917, Congress passed the Espionage Act
giving Postmaster General Albert Burleson the power to declare
unmailable any periodical that interfered with the war effort.[41]
He declared that he would not bar socialist publications from the
mails -- unless they contained treasonable or seditious matter.
But, he added, "the trouble is that most Socialist papers do
contain such matter."[42] Assaults on the socialist press and
leadership multiplied in number and severity as the war progressed,
blows from which the American socialist movement never fully
recovered.[43] Most of the Socialist Party's leaders were
indicted, including Emma Goldman, Bill Haywood, Victor Berger, and
Eugene Debs.[44]
Behind the selling of the war was George Creel's
Committee on Public Information, a board of censorship created by
President Wilson shortly after the U.S. entered the war in April
1917.[45] For most of the American press, the coming of the war
meant patriotism replaced originality.[46] The Masses, however,
became more political. For instance, it hired cartoonist Robert
Minor, who had been fired from the New York Evening World for
refusing to draw cartoons in support of the war.[47]
The Masses' view of warfare was Marxist: Modern
war was rooted in an imperialistic competitive system from which
only capitalism benefitted.[48] In April 1917, John Reed pointed
out the connection between wartime profits and the rising cost of
food:
I know what war means. I have been with the
armies of all the belligerents except one, and I
have seen men
die, and go mad, and lie in hospitals suffering
hell; but there
is a worse thing than that. War means an ugly
mob-madness,
crucifying the truth-tellers, choking the artists,
revolutions,
and the working of social forces . . . . The press
is howling for
war. The church is howling for war. Lawyers,
politicians,
stockbrokers, social leaders are all howling for
war.[49]
In June 1917, Max Eastman wrote: "This is not a
war for democracy. It did not originate in a dispute about
democracy, and it is unlikely to terminate in a democratic
settlement."[50] M.A. Kempf's drawing "Come On In, America, The
Blood Is Fine!" showed a skeleton carrying the statue of liberty
into a sea of blood. In Art Young's "Having Their Fling," which
would later be admitted as evidence in his espionage trial, an
editor, capitalist, politician, and minister were drawn in a
war-inspired dance while an orchestra led by the devil played a
deadly fugue on war implements. The magazine also reminded its
readers how George Creel had once written an indictment of John D.
Rockefeller, which the magazine had published after it had been
refused by several of the most radical magazines in the
country.[51]
On July 5, the editors received notice that the
magazine was "unmailable" though no reason was given.[52] When the
editors inquired to Solicitor General William Lamar about which
passages were offensive, they were told, "If I told you what we
objected to, you'd manage to get around the law some way."[53]
Clarence Darrow, Frank Walsh, Morris Hillquit and Seymour Stedman,
representing the magazine, called on Postmaster General Burleson
and requested a more reasonable policy.[54] But Burleson dismissed
them coldly, refusing to explain his censorship policy.[55] Unlike
most socialist publications, The Masses had the resources to
challenge the government in court.
The objectionable articles included: "A Question,"
an editorial by Max Eastman; "A Tribute," a poem by Josephine Bell;
a paragraph in an article on "Conscientious Objectors"; and an
editorial, "Friends of American Freedom." The objectionable
drawings included two by Henry Glintenkamp: "Liberty Bell," which
showed a cracked liberty bell, and "Conscription, which showed
dead, naked corpses handcuffed to a cannon; "Making the World Safe
for Capitalism" by Boardman Robinson; and "Congress and Big
Business," by Young.[56]. In "Congress and Big Business," a
congressman walked into a war room and asked: "Excuse me,
gentlemen, where do I come in?" He's then told by Big Business:
"Run along now -- We got through with you when you declared war for
us!"
Roe argued that while the works in question
criticized the government, none threatened to obstruct or overthrow
it.[57] In Masses Publishing Co. v. Patten, Judge Learned Hand
agreed:
"To {equate} agitation, legitimate as such, with
direct incitement to violent resistance, is to
disregard the
tolerance of all methods of political agitation
which in normal
times is a safeguard of free government."[58] The
victory was
short-lived, however; the same day it was
released, it was stayed
by a U.S. Circuit Court until the issue could be
re-examined in
Federal Circuit Court.[59]
In its September issue, John Reed wrote "One Solid
Month of Liberty," which included this harsh critique of society:
In America the month just past has been the
blackest month for free men our generation has
known. With a sort
of hideous apathy the country has acquiesced in a
regime of
judicial tyranny, bureaucratic suppression and
industrial
barbarism, which followed inevitably the first
fine careless
rapture of militarism.[60]
When the September issues was submitted for
mailing, the editors were told because the August issue had not
gone through the mails, the magazine no longer qualifed as a
monthly periodical and therefore did not qualify for second-class
mailing privileges.[61] In November, a circuit court upheld the
constitionality of the Espionage Act, overruling Judge Hand's
pro-Masses decision.[62] Closed to the mails, the magazine's
editors found dealers now unwilling to circulate the magazine for
fear they, too, could be implicated.[63]
The Masses went out of business in December 1917.
Its editors were then tried personally for violating the Espionage
Act. Eastman, Young, Rogers, Dell, Reed, Glintenkamp and Bell were
indicted for violating the Espionage Act by unlawfully and
willfully obstructing the recuitment and enlistment of the United
States.[64] Only Eastman, Young, Dell, Rogers and Bell were
present when the trial began in April 1918 in front of Judge
Augustus Hand, Learned Hand's cousin.[65] Reed was in Russia and
Glintenkamp jumped bail and went to Mexico.[66]
Exhibits introduced by Assistant District Attorney
Earl Barnes included articles by Eastman and Dell praising
conscientious objectors; a poem by Bell dedicated to Emma Goldman
and Alexander Berkman; Young's "Having Their Fling"; a drawing by
Glintenkamp of a skeleton measuring a army recruit; and an article
by Reed that cited the great frequency of mental disease among
soldiers in the war.[67] This had been published by the New York
Tribune but no one on that paper was indicted.[68]
The Masses' editors were represented by two of the
Socialist Party's leading politicians, Dudley Field Malone and
Morris Hillquit.[69] Having these two attorneys was a luxury
afforded by few of the hundreds indicted under the Espionage Act.
Hillquit got the indictment against Josephine Bell dismissed at the
trial's outset after telling Judge Hand that she had never seen any
of the defendants until she met them in the courtroom, making her
part in a conspiracy impossible.[70]
To prove the lawfulness of their intent, Rogers
testified he had met with Creel, who said he held The Masses'
editors in "very high regard," read the magazine regularly, and
once contributed an article.[71]. Creel's testimony was later
stressed by Young, who said, "considering the vilification turned
against anyone on trial for anti-war activities, such testimony was
thankfully received, especially coming from the chief bugle-blower
for war propaganda and the new militarism."[72]
Article by article, cartoon by cartoon, the
prosecuting attorney, Earl Barnes, called on the writers and
artists to defend their work.[73] When Barnes asked Young why he
drew the devil leading the band in his cartoon, the artist
responded by saying: "Since General Sherman described war as hell,
it seemed to me appropriate that the Devil should lead the
band."[74] The following exchange is indicative of how the writers
and artists on The Masses were convinced that they had done nothing
wrong:
Barnes: What did you mean by the picture,
"Having Their Fling?"
Young: Meant? What do you mean, meant? You
have the picture in front of you.
Barnes: What did you intened to do when you
drew this picture?
Young: Intend to do? I intended to draw a
picture.
Barnes: For what purpose?
Young: Why, to make people think -- to make
them laugh -- to express my feelings.
It isn't fair to ask an artist to go
into the metaphysics of the art.
Barnes: Had you intened to obstruct recruiting
and enlistment by such pictures?
Young: There isn't anything in there about
recruiting and enlistment, is there? I
don't believe in war, that's all, and I
said so.[75]
In summation, Hillquit said Constitutional rights
were not a gift, they were a conquest. "They can never be taken
away, and if taken away, and if given back (later)," he said, "they
will never again have the same potent vivifying force as expressing
the democratic soul of a nation. They will be a gift to be given,
to be taken . . ."[76] He also summarized the editors' philosophy
on the importance of the First Amendment:
We accept this war as a fact, but we will not
surrender our Constitutional rights of opinion and
the freedom to
express that opinion. Not for one day, not for one
hour, will we
surrender these Constitutional rights. No, not
even in times of
war, for the Government is founded upon the very
principles of
freedom of speech.[77]
The trial ended in a hung jury.[78] A second
trial in October 1918 also ended in a hung jury, and the case was
dropped.[79] In the first trial, Young wrote, he and the other
editors were fortunate because their judge was Augustus Hand, who
"had not been stampeded by the war mania, and he consistently tried
to be fair in his rulings."[80] In the second trial, their judge
was Martin Manton, who also was sensitive toward free speech.
Charging the jury, he said that Americans still had a right to
criticize the government so long as they did not intend to hinder
recruiting or cause disobedience in the armed forces.[81]
While some viewed the outcome as a victory for
free speech and a defeat for government repression, John Reed, for
one, did not agree. Eugene Debs, after all, had been convicted and
sentenced to 10 years. And just after The Masses' editors had
escaped punishment, a group of young Russian-Americans were given
stiff sedition sentences in the same courtroom where Eastman, Reed,
Dell, Young, and Glintenkamp had been freed.[82] The different
results for a similar offense was explained by a member of the
district attorney's staff: "You are Americans. You looked like
Americans. You can't convict an American for sedition before a New
York judge."[83]
In three decisions in 1919, including Debs v. the
U.S., the Supreme Court, with Justice Oliver Wendell Holmes writing
the opinion, would unanimously uphold the constitutionality of the
Espionage Act.[84] In Schenck v. the U.S., Justice Holmes would
create the "clear and present danger" standard to decide when the
government could limit free speech.[85] Holmes would then echo
Justice Hand's philosophy two years later in a dissenting opinion
in Abrams v. United States:
But when men have realized that time has upset
many fighting faiths, they may come to believe
even more than
they believe the very foundations of their own
conduct that the
ultimate good desired is better reached by free
trade in ideas --
that the best test of truth is the power of the
thought to get
itself accepted in the competition of the market
. . . That at
any rate is the theory of our Constitution. While
that experiment
is part of our system I think that we should be be
eternally
vigilant against attempts to check the expression
of opinions
that we loathe and believe to be fraught with
death, unless they
so imminently threaten immediate interferences
with the lawful
and pressure purposes of the law that an immediate
check is
required to save the country.[86]
This was the philosophical beginnings of greater
protection for civil liberties in this country. The press cannot
rely on the courts to safeguard their freedoms. The press must be
vigilant to challenge any attempt to restrict its freedom.
Restrictions on unpopular speech threaten all speech. Unfortunately
the press has too often acquiesced when expression is threatened,
whether during the McCarthyism of the 50s or during the so-called
political correctness of the 90s, or has merely abandoned its duty
to scrutinize the government's workings.
By taking away those rights of free expression
guaranteed by the First Amendment during the First World War, the
government rendered the First Amendment meaningless. If the First
Amendment protects only those who agree, it protects nothing. It is
most valuable in times of crisis, yet it becomes most expendable
during times of crises. The First Amendment means nothing to the
magazine or newspaper that cannot afford to publish. It also means
little to the newspaper or magazine that does not scrutinize the
activities of its public officials. In the final analysis, the
First Amendment belongs only to those who fight for it. The Masses'
writers and artists understood this. They are worth remembering.
ENDNOTES
[1] The Espionage Act. 30 Stat. 217 (1917). TITLE XII
of the Espionage Act forbade mailing any matter violating the Act,
or advocating treason, insurrection, or forcible resistance to any
law of the United States.
[2] Lauren Kessler, The Dissident Press (Sage
Publications: Beverly Hills, CA, 1984), 100.
[3] George Juergens, News From the White House
(Chicago: The University of Chicago Press, 1981), 196, and Kessler,
The Dissident Press, 129.
[4] Rebecca Zurier, Art for The Masses (1911-1917): A
Radical Magazine and its Graphics (Yale University Art Gallery: New
Haven, Connecticut, 1985), 106.
[5] Juergens, 203.
[6] Ibid.
[7] Robert L. Spellman, "Pricking the Mighty: The Law
and Editorial Cartooning," Communications and the Law (December
1988), 51.
[8] Joseph Conlin, The Radical Press in America, I
(Greenwood Press: Westport, Connecticut, 1974) p. 538.
[9] Ibid.
[10] James Weinstein, The Decline of Socialism in
America, 1912-1925 (Monthly Review Press: New York, 1967) p. 27,
and Kessler, 129.
[11] Weinstein, 85.
[12] Conlin, 9.
[13] Upton Sinclair, The Brass Check (Long Beach:
Privately published by the author, 1928).
[14] Flyd Dell, Homecoming (New York: Farrar and
Rhinehart, 1933), 252.
[15] William O'Neill, Echoes of Revolt: The Masses,
1911-1917, (Quadrangle Books: Chicago, 1966), 19, and Zurier, 22.
Artist John Sloan said, "The strange thing was that if I had a good
idea I gave it to The Masses. If I got a second-rate one, I might
sell it to Harper's, but I could never get the same feeling when I
was working for pay." See Zurier, 30.
[16] Zurier, 18.
[17] Zurier, 29-33. For an account of The Masses'
editorial meetings, see O'Neill, 18; Fitzgerald, Art and Politics,
(Greenwood Press: Westport, Connecticut, 1973), 13, 15-16; Conlin,
532; and Art Young, His Life and Times, p. 271.
[18] Ibid, p. 33.
[19] Robert Rosenstone, Romantic Revolutionary (Alfred
A. Knopf: New York, 1975), 110. While testifying at the second
Masses trial, John Reed told about one editorial meeting: "I
brought this poem. I did not tell who wrote the poem. I gave it to
somebody to read, and they read the poem out loud, and the meeting
voted it down, whereupon I proclaimed my identity and insisted it
should go in, even if everybody, all the editors and readers
disliked it. I insisted it go in, and it did go in."
[20] Zurier, 15.
[21] "Wilson wrote to Eastman," New York Times, April
19, 1918, p. 11. Art Young wrote that Eastman had been fired from
Columbia for his outspoken opinions on the social conflict of the
times. See Young, 275.
[22] See Max Eastman, Enjoyment of Living (Harper and
Brothers: New York, 1948), pp. 455-463; Fitzgerald, 14; and Zurier,
34.
[23] Eastman, 456,461.
[24] The Masses, January, 1913, 2.
[25] "The Latest," The Masses, May 1916, 23.
[26] Zurier, 27.
[27] Max Eastman, "The Worst Monopoly," The Masses,
July 1913, 6.
[28] For an account of The Masses's lawsuits with the
Associated Press, see Floyd Dell, "Indicted for Criminal Libel,"
The Masses, January 1914, 3; Young, 295-301; Eastman, 467-473; and
Dell, 250.
[29] Eastman, 467.
[30] Dell, "Indicted for Criminal Libel," 6.
[31] For an account of the Cooper Union rally, see,
"Hard Words for the Newspapers," The New York Times, March 6, 1914,
1; Young, 297-298; and Eastman, 469-470.
[32] Ibid.
[33] Ibid, 473; Young, 299; and Zurier, 28.
[34] O'Neill, 33.
[35] "The Masses v. Ward and Gow," The Masses,
September 1916, 8, and "Are We Indecent?" The Masses, September
1916, 21. Also, see Eastman, 474-475.
[36] "Are We Indecent?" The Masses, September 1916,
21.
[37] Eastman, 474.
[38] Zurier, 28.
[39] O'Neill, 39, and Zurier, 28.
[40] "Sumner v. Forel," The Masses, November 1916, 17.
[41] Espionage Act 30 Stat. 217 (1917).
[42] O.A. Hilton, "Freedom of the Press in Wartime,
1917-1919," Southeastern Social Science Quarterly 28 (1948),
348-349.
[43] Paul L. Murphy, World War I and the Origin of
Civil Liberties in the United States (W.W. Norton: New York, 1979),
144.
[44] O'Neill, 246.
[45] For a discussion of George Creel and the
Committee on Public Information, see Stephen L. Vaughn, Holding
Fast the Inner Lines (Chappel Hill, North Carolina: The University
of North Carolina Press, 1980).
[46] Sephen Hess and Milton Kaplan, The Ungentlemanly
Art (New York: Macmillan Company, 1968), 140.
[47] Fitzgerald, 82, and Zurier, 40. Lofton wrote
that apart from German-American and socialist papers, the Hearst
papers were the ones most often accused of disloyalty. Having
bitterly opposed the United States entry into the war, the Hearst
papers continued to be critical of the allies but in general
supported the American war effort. Their equivocal attitude,
however, caused them to be widely attacked. The New York Tribune
ran a cartoon showing a snake coiled in the flag, with the snake's
body spelling the legend, "Hears-ss-ss-st. Former President
Roosevelt asked why the mailing privileges of the Hearst papers
were not suspended, and some Republicans said Hearst escaped
because he was a Democrat, Unlike Hearst -- who suffered no
long-term consequences, though his papers did temporarily lose
circulation because of their carping attitude -- Oswald Garrison
Villard was forced to sell his New York Post after his expression
of pacifist and civil libertarian views brought a serious decline
in its fortunes. See, Frank Luther Mott, American Journalism: A
History of Newspapers in the United States Through 250 Years --
1690-1940 (New York: Macmillan Co., 1940), 627; W.A. Swanberg,
Citizen Hearst (New York: Charles Scribner's Sons, 1961), 312; and
Edwin Emery and Henry Ladd Smith, The Press and America, (New York:
Prentice-Hall, 1954), 594-595.
[48] O'Neil, 245.
[49] John Reed, "Whose War?" The Masses, April 1917,
11.
[50] Max Eastman, "Advertising Democracy," The Masses,
June 1917, 5.
[51] "The Censor," The Masses, June 1917, 23. See,
George Creel, "Rockefeller's Law," The Masses, July 1915, 5.
[52] Young, 319.
[53] John Reed, "One Solid Month of Liberty," The
Masses, September 1917, 5.
[54] Donald Johnson, The Challenge to American Freedom
(Lexington, Kentucky: University of Kentucky Press, 1963), 71.
[55] Juergens, News from the White House, 198.
[56] Masses Publishing Co. v. Patten, 244 Federal
Reporter 538 (1917).
[57] Ibid.
[58] Ibid. Legal scholar Zechariah Chafee preferred
the "direct incitement" test of Hand's to the "clear and present
danger" test fashioned by Oliver Wendall Holmes' two years later in
Schenck v. U.S. because it was more speech protective. See, Donald
L. Smith, "Zechariah Chafee Jr. and the Positive View of Press
Freedom," Journalism History, 5:3 (Autumn 1978), 87. Also, see
Schenck v. U.S. 249 U.S. 47 (1919). For a discussion of Masses v.
Patten, 244 Federal Reporter 538. See, Hershel Shanks, The Art and
Craft of Judging (New York: Macmillan and Company, 1968), 84-97,
and Gerald Gunther, "Learned Hand and the Origins of Modern First
Amendment Doctrine: Some Fragments of History," 27 Stanford Law
Review, 719.
[59] 246 Federal Reporter 24 (2d Cir. 1917).
[60] Reed, "One Solid Month of Liberty," The Masses,
September 1917, 5.
[61] Ibid.
[62] 246 Federal Reporter 24 (2d Cir. 1917).
[63] "Newsdealers Won't Sell The Masses," The New York
Times, November 7, 1917, 20.
[64] "Indicts The Masses and 7 of its Staff," The New
York Times, November 20, 1917, 4.
[65] Young, His Life and Times, 332. For a discussion
of The Masses' espionage trials, see, Young, 328-339; Eastman,
83-99; Dell, 310-319; Rosenstone, 319-337; and The New York Times,
April 15-29, 1918; October 1-6, 1918.
[66] Eastman, 85.
[67] "Indicts The Masses and 7 of its Staff," New York
Times, November 20, 1917. Also, see "Staff of Masses on Trial
Today," New York Times, April 15, 1918.
[68] Young, 332-333.
[69] Eastman, 83, and Zurier, 43.
[70] Eastman, 92.
[71] "Creel Denies He Ok'd Masses Pledge," New York
Times, April 25, 1918, p. 13.
[72] Young, 337.
[73] Zurier, 43.
[74] Young, 336.
[75] Eastman, 95.
[76] Eastman, 96.
[77] "Fate of Eastman in the Jury's Hand," The New
York Times, April 26, 1918, 20.
[78] "Judge Dismisses The Masses Jury," The New York
Times, April 28, 1918, 5.
[79] "Masses Jury Disagrees," The New York Times,
October 6, 1918, 9.
[80] Ibid, 334.
[81] Rosenstone, 333.
[82] John Reed, "About the Second Masses Trial," The
Liberator, December 1918, 36-38. Also, see Rosenstone, 333.
[83] Rosenstone, 333.
[84] See Schenck v. U.S., 249 U.S. 47 (1919); Frohwerk
v. U.S. (1919); and Debs v. U.S., 249 U.S. 211 (1919).
[85] Schenck v. U.S.., 249 U.S. 47 (1919).
[86] Abrams v. United States, 250 U.S. 616, 624
(1919).
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