Crime and Punishment in American History - Lawrence M. Friedman [233]
Abrams v. United States (1919)35 was an appeal brought by Jacob Abrams and some associates who had been arrested for distributing leaflets (in English and Yiddish) that attacked President Wilson as a hypocrite and argued that “allied capitalism” wanted to “crush” the Russian Revolution. The Supreme Court affirmed their conviction. Only Holmes and Brandeis dissented; Holmes, in his opinion, reminded the majority that “time has upset many fighting faiths” and that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” But Abrams and his friends went to prison because of their “fighting faiths.”36
Paranoia swept the country during the war; dissent was simply not tolerated. In 1918, John Fontana, a Lutheran minister in Salem, North Dakota, was indicted under the Espionage Act. He stood accused of interfering with the military and naval forces of the country, causing mutiny, and obstructing the draft. All this in darkest North Dakota. Fontana, it seems, was pro-German; he thought the sinking of the Lusitania was justified, prayed for the success of the German armies, and told people not to buy Liberty Bonds. Or so it was alleged. Moreover, in his church, people said, “Old Glory” was “not to be seen nor ... the Star Spangled Banner heard.” A federal district court jury found Fontana guilty. The judge thundered at him that Fontana had “cherished foreign ideals.... That is the basic wrong of these thousands of little islands of foreigners that have been formed through our whole limits.... They have striven ... to make foreignness perpetual. That is disloyalty.” Fontana got three years in the federal prison at Leavenworth.37
After the war, the struggle against radicals continued, but with a somewhat different excuse. Bolshevism replaced Kaiser Wilhelm as the main target. This was the period of the infamous “red scare” and the so-called Palmer raids. On January 2 and 6, 1920, agents of the Department of Justice, under orders from Attorney General A. Mitchell Palmer, arrested thousands of members of the Communist and Communist Labor parties in raids across the country.38 There was hardly a shred of justification for these raids, and nothing about the raids even remotely resembled due process. But millions of Americans seemed to support the plan to get rid of filthy, bomb-throwing, dangerous, alien reds.
It was an age of ultra-Americanism, not to say jingoism; an age of flag-waving. The flag, of course, had to be the American flag; in fact, any other flag was legally suspect. Only the Stars and Stripes, and flags of the state, could be carried in a parade or “publicly displayed,” according to an Arizona law of 1919. It was, in fact, a crime to display other, offensive flags, or parade around with them; specifically verboten was any “red or black flag, or banner, with or without any letters, inscription or design thereon.”39 Arizona was not alone; twenty-four states passed red-flag laws in 1919, and another flock of eight followed suit in 1920.40
But flag laws were small potatoes. Many states passed more stringent and far-reaching laws against radicals, Bolsheviks, and the like. Idaho began a trend in 1917 when it enacted a law against “criminal syndicalism.” This, according to the statute, was the “doctrine which advocates crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” Anyone who advocated such things, “by word of mouth or writing,” or justified such acts, or organized “any society, group or assemblage of persons formed to teach or advocate ... criminal syndicalism,” was guilty of a felony. The punishment could be as much as ten years in prison.41 Within a year, six states passed similar legislation. And in 1919, California, egged on by the rabid propaganda of Harrison Gray Otis of the Los Angeles Times—and even more so by the fallout