Imagine picking up a steak knife in a café, then — for that act alone — being convicted of hijacking an airliner.
In a way, that’s what happened to people who used sharp words against the government in World War I. They were convicted of sedition because lawmakers, juries, judges, prosecutors — and, indeed, most citizens — believed that critical or derogatory words alone would significantly harm the United States during a time of world war. It didn’t matter how illogical or remote the danger, because the law criminalized virtually any utterance. In the case of Montana’s law, that meant any “disloyal, profane, violent, scurrilous, contemptuous, slurring or abusive” words regarding the government of the United States, or its constitution, flag or men in uniform.
Implicit in all sedition laws is a “with us or against us” philosophy, one which targets as disloyal all expression not supportive of the administration’s aims. Sedition laws and their cousins (criminal syndicalism, anarchy and red flag laws) were — and still are in many countries — used for political and social control, to root out perceived disloyalty and to enforce uniformity of thought. In the words of First Amendment scholar Harry Kalven, sedition laws are “the hallmark of an unfree society.”
On May 3, Montana Gov. Brian Schweitzer pardoned 78 men and women convicted of sedition in 1918-19. By doing so, he helped put closure to an ugly time in the state’s and nation’s history.
“Across this country, it was a time in which we had lost our minds,” he said. “So today in Montana, we will attempt to make it right. In Montana, we will say to an entire generation of people, we are sorry. And we challenge the rest of the country to do the same.”
The governor was acting on a petition submitted by law and journalism students at the University of Montana, under the guidance of law professor Jeff Renz and myself. The Montana Sedition Project researched novel legal issues and searched intensely for more background and subsequent history of the sedition convicts. We have made contact with 20 families; in many cases, they did not know of this black mark, or it was a dark secret whispered from one generation to the next.
The shame continues to affect descendants — families blown apart when the breadwinner was imprisoned, descendants still searching for answers. One granddaughter told me she felt almost a physical pain at the prospect of talking to a reporter because her mother had admonished her to never tell, but after the pardon ceremony, “it seemed like a big load lifted off my chest.”
Although our main work is over, and justice has been done for those convicted, it is plain to see that questions about the bounds of political dissent in this country continue to produce both heated debate and the chill of fear. When bloggers and pundits on the right suggest dusting off sedition laws and imprisoning reporters under the 1917 Espionage Act for disseminating news about this nation’s wartime conduct, we know that the fear factor is rising. When our allies in Iraq — Australia and Great Britain — toughen their sedition laws to combat terrorism, and in so doing gag the political debate that is so critical in times of national stress, we know that fear is getting the best of us.
When we fear, we forget reason. When we think irrationally, we act blindly. When we cannot see, we are afraid. Justice Louis Brandeis recognized this so well in his famous 1927 concurrence in Whitney v. California, when he wrote that “those who won our independence … believed … courage to be the secret of liberty.”
I believe our Founding Fathers had citizens like Herman Bausch in mind. A German-born, self-educated farmer near Billings, Bausch steadfastly refused to buy Liberty Bonds because he did not believe in war. He faced down a mob that threatened to hang him from his own apple tree, but the words he used in his defense were turned against him. He was convicted of sedition and imprisoned in the Montana state penitentiary for 28 months.
Some time after he was released, Bausch penned these words: “I do not regret that I refused to voluntarily aid in the starvation of children and the rape of nations. I have lost much, but I still have my self-respect. My hopes are modified but not diminished. … Perhaps I have been the gainer. I have not lost faith in the good, the holy and the true.”
In that spirit of optimism, I hope that Gov. Schweitzer’s challenge will be picked up — by righting past wrongs, by challenging present ones, or by warding off future threats to our freedom of expression.
Clemens P. Work teaches at the University of Montana School of Journalism. He is the author of “Darkest Before Dawn: Sedition and Free Speech in the American West,” which led to the Montana Sedition Project.