Books,
Constitutional Law
Dec. 2, 2008
Democracy's Prisoner
Stephen F. Rohde reviews Democracy's Prisoner by Ernest Freeberg.
Stephen F. Rohde
Email: rohdevictr@aol.com
Stephen is a retired civil liberties lawyer and contributor to the Los Angeles Review of Books, is author of American Words for Freedom and Freedom of Assembly.
By Ernest Freeberg
Harvard University Press, 380 Pages
$29.95, hardcover
In the summer of 1918, just before he was to address a crowd of more than a thousand supporters in Canton, Ohio, Eugene Debs, the most famous socialist in America, granted an interview to Clyde Miller, a young reporter covering the speech for the Cleveland Plain Dealer. Debs told Miller that "in a world that is fighting to make the world safe for democracy, one must be very careful of what one says if one wants to keep out of jail." He fatefully added that he supported the "main ideas" of the Socialist Party's antiwar platform adopted a year earlier at an emergency convention in St. Louis following Congress's declaration of war. What Debs said publicly and privately in Canton would launch one of the most celebrated free-speech cases in American history. In Democracy's Prisoner: Eugene V. Debs, The Great War, and the Right to Dissent, Ernest Freeberg ably recounts the circumstances surrounding Debs's speech, arrest, conviction, appeals, and the international campaign to win his release from prison, all set against an emerging national commitment to freedom of expression. At the core of Debs's speech was his condemnation of the war system. With his powerful oratorical skills, Debs declared, "They have always taught you that it is your patriotic duty to go to war, and to have yourselves slaughtered on command." He then reminded his audience that it is "the working class who fights the battles, the working class who make the sacrifices, the working class who shed the blood, the working class who furnish the corpses." After the speech, Miller placed two calls: one to his editor to file his story, and one to his friend Edwin Wertz, the federal prosecutor for northern Ohio. Wertz was well aware Debs was speaking and had sent a stenographer to record the speech. Debs was indicted under the Espionage Act and was tried on four counts of making public statements "calculated to promote insubordination" and "propagate obstruction of the draft." There was no question over what Debs had said, but the law required proof that he intended to obstruct military recruitment. To furnish that crucial link, the prosecution called young Miller to testify, who did his patriotic duty in recounting how Debs had expressed his support for the Socialist antiwar platform. Debs was convicted on three counts and sentenced to three concurrent ten-year sentences. The heart of Democracy's Prisoner is how the battle for Debs's freedom took two different paths--his legal appeals, and the grassroots campaign toconvince the American people and its leaders that even in time of war, freedom of expression deserves protection, not punishment. For Debs and his socialist supporters, the real fight for free speech "would be won not in a lawyer's brief, but on street corners, public squares, and factory floors," writes Freeberg. "This was ultimately a battle, not for individual liberties as defined by the courts, but for control of the entire democratic process, at the ballot box and in the workplace." In the courts, although Debs's conviction was affirmed, his lawyers helped plant the seeds that eventually bloomed into the more robust constitutional protection for free speech that we take for granted today. Debs's appeal was decided by the U.S. Supreme Court in March 1919 as part of a historic triumvirate of cases at a time when the Court was hardly a promising venue for radicals to defend their civil liberties. In the Debs, Schenck, and Frohwerk decisions a unanimous Court, led by Oliver Wendell Holmes Jr., who had fought valiantly and been wounded three times in the Civil War, held that 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 no Court could regard them as protected by any constitutional right." Holmes added his most famous metaphor, that "the most stringent protection for free speech would not protect a man from falsely shouting fire in a theater and causing a panic." Frequently misquoted at cocktail parties and in superficial op-ed pieces, Holmes's formulation actually only condemned false speech that actually caused tangible adverse consequen-ces, conditions not present in the Debs case. But later that year Holmes and his protégé Justice Louis Brandeis seriously reconsidered these views, and in the fall they filed a powerful dissent in the Abrams case, warning that "we should 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 interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." This more expansive First Amendment test became the majority position 50 years later in Brandenburg v. Ohio. The courts had failed Debs, so his supporters mounted a nationwide effort to secure a presidential pardon. Freeberg recounts this campaign and the competing players--both well known and obscure--in detail (sometimes too much detail). Fortunately, he includes the remarkable story of how Debs ran for president from his jail cell in Atlanta in 1920, eventually winning 913,664 votes, the most ever cast for a Socialist candidate. Freeberg also weaves throughout his biography a poignant portrait of Debs's personal life, including his dignity and leadership, his troubled marriage, and his love for another woman. But Freeberg's focus is Debs's struggle to sustain the socialist dream from behind bars, as factions within the Socialist Party and the fledging labor movement retarded that dream. On Christmas Day 1921 President Warren G. Harding commuted Debs's sentence. Debs promptly picked up right where he had left off two and a half years earlier, and he continued fighting for social and economic justice until his death in 1926 at age 70. Debs never persuaded the American people to embrace socialism, but Freeberg concludes that Debs's "unflinching stand for his principles, even in the face of government persecution, had an unintended consequence, provoking a national debate about the meaning of the First Amendment at a crucial time in the country's history." As for Clyde Miller, the young reporter who had sealed Debs's fate at his trial, he too went through a transformation and ended up a pacifist, which, ironically, made him a target of the House Un-American Activities Committee in the spring of 1945. Democracy's Prisoner describes the life of an important American figure in the struggle over important American ideals. "From the congressional debate over the Espionage Act to the final push for amnesty, radicals and civil libertarians engaged a national audience in ideas that they had been working out for decades--about the role of free speech in the fight for social justice, the value of dissent as an instrument of progress, and the danger to democracy when the wealthy and powerful control the channels of communications." Sound familiar? Stephen Rohde is a constitutional lawyer with the firm of Rohde & Victoroff in Los Angeles and is author of Freedom of Assembly (Facts on File, 2005) and the editor of Webster?s New World American Words of Freedom (Wiley, 2001).
Usman Baporia
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