When Criticizing the U.S. Government Put You in Prison

Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

Ninety-eight years ago today, Congress passed the Sedition Act of 1918, which made it an imprisonable offense to criticize the federal government or U.S. military involvement in World War I. The legislation, which expanded the Espionage Act of 1917, came at the height of wartime fear and anger:

W. A. Rogers / Library of Congress

Violence on the part of local groups of citizens, sometimes mobs or vigilantes, persuaded some lawmakers that the [original] law was inadequate. In their view the country was witnessing instances of public disorder that represented the public’s own attempt to punish unpopular speech in light of the government’s inability to do so. Amendments to enhance the government’s authority under the Espionage Act would prevent mobs from doing what the government could not.

It was in this political climate that James Harvey Robinson, in the December 1917 issue of The Atlantic, addressed “The Threatened Eclipse of Free Speech”—a foreshadowing of the Sedition Act. Robinson argued that in times of national hardship, dissent is not only natural but necessary:

When we see khaki uniforms all about us … when coal runs low in the cellar and sugar in the kitchen; when we … are consciously grateful for a boiled potato; when we note the lowering of the exemption limit of the income tax, and are suspected of being a scoundrel if we do not invest in government bonds, the mind is quickened as never before. We would seem to have a right to suspect that many things must have been fundamentally wrong in the old and revered notions of the State, of national honor, even of patriotism, since they seem at least partially responsible for bringing the world to the pass in which it now finds itself.

Robinson (who took care to assure his readers that he, too, supported the war effort) sought to calm people on both sides of the free-speech debate: those worried about the dangers posed by dissenters and the dangers posed by suppression of speech.

But some parts of his argument are more unsettling. In this passage, he considers why free expression can be so incendiary and concludes it’s because the beliefs we express—and those we react to—are not rational:

Strangely enough most of us most of the time are really quite indifferent to truth, and are using language in the old, primitive way as a signal of agreement or disagreement. We become partisans before we realize it. We get pledged to beliefs we know not how, and they become dear to us by reason of their familiarity and associations. When they are questioned, we are outraged, and rush to their defense in the name of truth. Our hypocrisy is too deep and impulsive for us to detect.

It’s a frightening idea—but fortunately, this problem of free speech contains its own solution. In 1919, two years after Robinson’s article, the U.S. Supreme Court upheld the convictions of four men who had been prosecuted under the Sedition Act for publishing pamphlets critical of the war effort. Justice Oliver Wendell Holmes veered from the 7-2 majority and issued “the most powerful dissent in American history,” in the words of The Atlantic’s Andrew Cohen. Here’s Holmes:

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, and that truth is the only ground upon which their wishes safely can be carried out.

That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.

All life is an experiment. Tentative though Holmes’s argument sounds, it’s a powerful case for American democracy—and a powerful case for the value of dissent itself. In acknowledging the fragility and shortcomings of our beliefs, ourselves, and our nation, we can prove and preserve their strength.