Justice Oliver Wendell Holmes, Jr. wrote the Supreme Court’s short Debs v. United States opinion that upheld the conviction and ten-year prison sentence of Debs for two charges that Holmes described as follows:
This is an indictment under the Espionage Act of June 15, 1917… It has been cut down to two counts, originally the third and fourth. The former of these alleges that on or about June 16, 1918, at Canton, Ohio, the defendant caused and incited and attempted to cause and incite insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States and with intent so to do delivered, to an assembly of people, a public speech, set forth. The fourth count alleges that he obstructed and attempted to obstruct the recruiting and enlistment service of the United States and to that end and with that intent delivered the same speech, again set forth.In effect, Debs was incarcerated for exercising his right to free speech regarding two political matters — the US government choosing to participate in World War I and the US government using the draft to help fight that war. One may expect the justices to have reread the First Amendment to the US Constitution and promptly overturned Debs’ conviction. However, Holmes explains that a prior Supreme Court decision had already settled the inapplicability of Debs’ First Amendment defense.
The prior Supreme Court decision, announced just seven days earlier, was for the case Schenck v. United States. The Supreme Court’s Schenck opinion allowed Holmes in the Debs opinion to bypass offering ridiculous contortions of logic to justify throwing a prominent labor and political leader in prison for criticizing the heart of the US government’s war policy. Instead, Holmes could just summarily deem Debs’ conviction and sentence constitutional and legitimate based on precedent. Here is how Holmes, again writing for the Supreme Court, argued in the court’s Schenck opinion that a flier opposing the draft was not protected under the First Amendment:
We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. 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. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.So there you have it: the First Amendment protects your free speech so long as that speech cannot affect US government policy, or at least so long as your free speech cannot pose a serious threat to something the Supreme Court thinks it is very important to promote, such as the US government participating in World War I and forcing Americans to fight in that war.
Debs was an eloquent opponent of this war, and for that, coupled with his prominence in American labor and politics, he was imprisoned.
In addition to his labor union activities, Debs had run four times as the Socialist Party nominee for US president before his conviction, winning more votes each time. In his last pre-imprisonment run in 1912, Debs won over 900,000 votes — 6.0% nationwide.
In 1920, while serving his prison term, Debs again ran for president, winning a few thousand more votes than in 1912 and 3.4% nationwide.
Debs knew his June 16, 1918 Canton, Ohio speech — despite his care in presenting the speech such that it would comply with US government speech restrictions — could lead to his imprisonment. Indeed, in his speech, Debs talks of other individuals who had been imprisoned for the “crime” of exercising their right to free speech. Debs explains near the beginning of the speech why he spoke anyway:
I realize that, in speaking to you this afternoon, there are certain limitations placed upon the right of free speech. I must be exceedingly careful, prudent, as to what I say, and even more careful and prudent as to how I say it. I may not be able to say all I think; but I am not going to say anything that I do not think. I would rather a thousand times be a free soul in jail than to be a sycophant and coward in the streets.Debs’ complete speech may be read here.
Watch here actor Mark Ruffalo present a reading of some excerpts concerning war from the speech: