Legal chronology 1917-1920

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The Emma Goldman Papers
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Sept. 16, 2010, 6:32 p.m. (view history)

Legal chronology 1917-1920

Immigration Act of February 5, 1917 (39 Statutes-At-Large 874)

This Act enormously increased the list of excludable classes from immigration.  In addition to anarchists, which had been excluded since 1903, any persons who advocated or taught the unlawful destruction of property were now barred entry.  This addition targeted the Industrial Workers of the World.  The time limit for deportation after entry was increased from three years to five, excepting prostitutes. Although several immigration bills had been introduced repeatedly since 1913 targeting the IWW (influenced by Western legislative and economic interests), several factors prevented their passage: successive Presidential vetoes against the literacy portion of these bills and lobbying by labor and pro-immigrant special interest groups; also several Congressmen and Wilson objected to the original wording of the bill as presented, worrying that it would prevent "legitimate" political asylum seekers from entrance into the country.  This was remedied by an added amendment that exempted those who committed, taught or advocated a purely political action.  This left ample room to attack the IWW, whose orthodoxy was viewed as economic, not political.  Within the Act itself, "advocacy" and "teaching" remained undefined and, therefore, open to wide interpretation. This Act gave anti-radical factions a remedy without the inconvenience and constraints of legal rights accorded an individual prosecuted criminally under local laws punishing destruction of property.

Selective Service Act of May 18, 1917* (40 Statutes-At-Large 76)

Passed a little over one month after the U.S. declared war on Germany, this Act gave the President the right to conscript men into military service during war.  In the first enactment, only men aged 21-30 were drafted to serve.  Several months later the Act was amended to allow for conscription of men aged 18-45 as the war dragged on.  Narrow provision was made for conscientious objectors.  Conscientious objector status was granted only to members of "well-recognized" religious groups whose canon forbade participation in war "in any form."  "Well-recognized" was not defined and although the Act's language specifically exempted any member of a religious group whose creed forbade its members participation in war in any form, the granting of objector status did not preclude noncombatant participation, in fact it was required.  All objectors therefore fell under military authority.  Objectors whose numbers came up in the draft were sent to the camps with the other draftees.  The general practice was to "influence" as many of these objectors as possible to actively serve. Influence often meant physical brutality; objectors had been subjected to beatings and imprisonment in solitary confinement among other things.  Reports coming from some of the camps motivated Secretary of War Baker to order that all conscientious objectors be segregated in camp and that camp commanders were to deal with the objectors with kindness and respect.

President Wilson did not issue an order denoting the forms noncombatant service would take until March of 1918, almost a full year after conscription began.  Farm and Red Cross furloughs without pay were given to enlisted objectors.

The original Act completely barred exemptory status of religious objectors of non-recognized churches and nonreligious objectors opposed to war on ethical, philosophical and political grounds.  Members of pacifist and anti-militarist organizations such as The American Union against Militarism (from which sprang the ACLU), as well as socialists and anarchists, were denied conscientious objector status. Those who registered and refused to serve were prosecuted under harsher military law; sentences were often 10 years or more.   Those who refused to register were prosecuted under federal law and the sentences imposed were less draconian.

President Wilson later issued an executive order recognizing objectors in two categories: (1) religious objectors not a member of a recognized sect, and certified by a draft board, and (2) nonreligious objectors with no certificates.  Men in both categories were assigned to noncombatant service.  Whether classified as a religious or nonreligious objector, once certified the conscientious objector was left under military jurisdiction and conscripted to a camp where, regardless of executive orders, brutality was still practiced by commissioned and non-commissioned officers as well as fellow enlisted men.

Emma Goldman and Alexander Berkman were indicted and brought to trial not for violation of the Selective Service Act but under federal criminal law for conspiring to violate the Act.  EG was charged because of an address delivered in the evening of May 18, the day the Act was signed into law by President Wilson, and for a Hunt's Point speech delivered June 4, the eve of registration day.  Both AB and EG were charged for the early June publication of articles protesting conscription, EG in Mother Earth and AB in The Blast.  The date set for national registration for the draft was June 5.  Their argument before the U.S. Supreme Court proved unsuccessful.  Consolidated with other draft law cases of similar dispute, known as the Selective Draft law Case (245 U.S. 366), the Court ruled that Congress had the right as a sovereign nation to enact laws of self-preservation (as they had done with anarchist John Turner's immigration case in 1904); therefore conscription was not unconstitutional.  It also ruled that compulsory military service was neither "repugnant" to nor conflicted with the Constitution's guarantee of individual liberties.  The Court went on to state that a call to arms to protect the state was the "highest" and necessary duty of citizenship.  In Goldman and Berkman's case, the Court also ruled that a criminal act included not only an overt action, but conspiracy to commit an act, whether or not the act was actually accomplished (245 U.S. 474).  EG and AB were sentenced to a year in federal prison.  By the time they were released in 1919, the 1918 Anti-Anarchist Immigration Act had been passed.  With all time constraints removed by this Act, their incarceration for conspiracy and the antiradical postwar furor, their deportation was only a matter of time rather than probability.

[*amended in 1918, expanded age of eligibility and requirement to register from 21-30 to 18-45 years of age]

State Military Censuses (1917)

In addition to the federal conscription in May, 1917, all state governors were directed by the Council of National Defense to take a military census of all persons (male and female) between the ages of 16 and 51.  This directive was first given in April soon after the United States' declaration of war on Germany, but was shelved until the federal draft registration took place.  The purpose of this census was to ascertain the scope of state resources.  This was the first time that American women had been ordered to register for a military census.  There were several ominous aspects of these state censuses.  In Connecticut, the governor was given virtually unlimited power during the national emergency.  In New York City, the police force did a door-to-door canvas. No one could refuse to be included.  Resisters could be arrested (on the spot), fined or imprisoned.

Espionage Act of June 15, 1917 (39 Statutes-At-Large 217) (amended May 16, 1918 as The Sedition Act)

Ostensibly enacted to prosecute war "spies," this Act was used more as a tool for quashing domestic antiwar speech. Several cases were prosecuted under this Act=s nonmailability provision, including the Masses case.  Because of the Courts decision in U.S. v. Hall (248 F.150), Congress amended Section 3 of the Act so that the amended version, now called the Sedition Act, penalized any language or actions considered disloyal or unpatriotic, including statements about the government, the military, the flag, and involvement in the War.

After a coordinated and simultaneous national raid on September 5, 1917, the IWW was charged with conspiracy under both the Espionage Act and the Selective Draft Law.  Charges against the IWW were on two basic planks: obstruction of the war effort by its strike activities and alleged conspiracy to induce or prevent men from draft registration.   Like EG and AB, they would be found guilty of criminal conspiracy constituting an overt act, rather than evidence of a concretous action.  Many of the charges against the IWW were based largely on newspaper articles, personal expression and unofficial policy statements of IWW members against the war.  Most of this evidence predated the actual outbreak of the War and the Acts themselves.  Officially, when the War began, the IWW's executive committee issued a statement against the War (as a war of the master class), but not against service in the War.

The Sabotage Act of April 20, 1918 (40 Statutes-At-Large 533)

This act deemed arms, armament, ammunition, livestock, clothing, food, and fuel as "war material;" buildings, mines, or other places where war material was produced as "war premises;" and any means of transportation as "war utilities." It declared that when the United States was at war it was illegal to injure or destroy any war material, war premises, or war utilities. The maximum penalty for the offense was a $10,000 fine or thirty years of imprisonment.

Sedition Act of May 16, 1918 (40 Statutes-At-Large 553)

Actually an amendment to Section 3 of the Espionage Act of 1917 that passed at the urging of the Department of Justice,  The Sedition Act prohibited speech, activity or publication of anything "disloyal" to or about the government, including anti-conscription or strike activities.  The term "disloyal" was not defined and therefore allowed broad application at the discretion of the prosecuting authorities. Not only were Bolsheviks, communists, and other "radical" groups targeted, but also pacifist groups opposed to participation in the War.  Under this Act, the government outright censored any criticism of the government or its war effort. 

Trading with the Enemy Act of October 6, 1918 (40 Statutes-At-Large 411)

This act made it illegal to trade or ally with any nation that the United States is at war with. Section 19 of the law made it illegal to print, publish, or circulate, in any foreign language, text that referred to the United States government, any nation engaged in war, or the state or conduct of the war unless they file English translations with the postmaster. At the head of foreign language publications it had to have printed "True translation filed with the postmaster at [] on [] naming the post office where the translation was filed, and the date of filing thereof) as required by the Act of October 6, 1918."Foreign language anarchist newspapers such as Cronaca Sovversiva had to abide by this law.

Immigration Act of October 16, 1918 (40 Statutes-At-Large 559)

This new Act abandoned any protection for alien radicals and allowed for deportation any time after entry of any alien who advocated or taught the unlawful destruction of property (known as the IWW clause), preached or advocated anarchy, or taught or advocated the overthrow of the government by force.  EG and AB, once out of prison for their anti-conscription sentence, were prosecuted and deported under this Act.

Criminal Syndicalism Laws - States

These laws were passed in an effort to repress the Industrial Workers of the World.  Attempts to quash the IWW through naturalization and deportation laws had been used with limited success.  The Espionage and Sedition Act were utilized against the I.W.W. during World War I but as these Acts were specific to "war crimes," they could not be used in times of peace.  States such as Washington, California, Montana, etc. where I.W.W. activity was particularly heavy (free speech fights, strikes) and special interests' influence on legislators particularly great, (timber, mining) began to enact laws against criminal syndicalism.

[FOOTNOTE: A group of Northern Idaho lumber and mining interests were responsible for the introduction and passage of the Idaho bill; the Associated Employers of Indianapolis sponsored Indiana's law; Michigan's law was introduced by a Congressman associated with the Michigan Manufacturers' Association; Minnesota's bill was introduced by the Congressman from International Falls where there had been recent I.W.W. strike activity; California's Governor (William D. Stephens) was the former president of the Los Angeles Chamber of Commerce; Arizona's bill was introduced by a Senator who was the former attorney for two mining companies.  See Dowell, Eldridge Foster, A History of Criminal Syndicalism Legislation in the United States, pp. 50-63]

Most of these laws were passed at moments of antiradical fervor against "reds."  Criminal syndicalism laws were also supported by so-called patriotic groups: Daughters of the American Revolution, the American Legion, and Sons of the American Revolution.  Some of the more egregious vigilante attacks against radical groups were instigated and led by the Legionnaires.

Many of the bills went further than prohibition of radical group activity, constituting a menace to any labor organization or individual who pushed for reform of working conditions or the preservation of civil liberties of the average citizen.  The American Federation of Labor, the United Mine Workers and Socialists all regarded these laws as directives against their organizations.

The first laws were enacted in 1917 and 1918 as a direct result of I.W.W.:  Washington, California, Idaho, Minnesota, South Dakota, Montana and Arizona.  After the War, criminal syndicalism laws were enacted in states where no previous "threat" existed but as a result of antilabor feeling after the War.  Any labor unrest was seen as associative with radical agitation rather than economic or social conditions.