Letter and Petition to Gov. Schweitzer
| March 27, 2006 The Hon. Brian Schweitzer Governor of Montana State Capitol Helena, Montana Dear Gov. Schweitzer: In 1918 and 1919, 40 men and one woman were convicted and incarcerated at the Montana State Penitentiary in Deer Lodge for terms of up to 20 years because they criticized the government during wartime. Another 36 persons were convicted but did not go to prison. WE, THE UNDERSIGNED, urge you to grant these men and women posthumous pardons under your Article VI authority generally and under your Article VI, section 12 authority specifically. We respectfully urge you to do this for two basic reasons: (1) to affirm Montana’s commitment to free expression; and (2) to bring a measure of justice and redemption to these people and their living descendants. The state law under which these people were convicted, signed by then Governor Sam Stewart on Feb. 23, 1918, was patterned after the federal Sedition Act of 1798 but was even harsher in its terms. Anyone who in wartime uttered or published any “disloyal, profane, violent, scurrilous, contemptuous, slurring or abusive language about the form of government of the United States” could be convictedof sedition, sent to prison for up to 20 years, and fined up to $20,000. Beginning in March 1918 and continuing for about a year, even after the Armistice had been signed, county prosecutors charged some 150 people in the state with sedition; about half were convicted. As the formal petition record makes clear, the trials took place in an atmosphere of suspicion and fear, at a time when any dissent was rooted out and punished. These convictions were obtained in Montana courts at a time when almost all courts in our nation viewed free speech rights as dispensable—and at a time when the First Amendment had not yet been held binding on the states. One of the nation’s true judicial heroes of this era, federal District Court Judge George Bourquin of Montana, observed at the time that the prosecution of such individuals betrayed both “the genius of democracy and spirit of our people.” Judge Bourquin’s views later became the law of the United States. The crabbed conception of free speech reflected in the Montana state court decisions has long since been rejected in Montana and throughout the nation. It has been replaced, to draw from Justice William Brennan’s opinion for the Supreme Court in New York Times v. Sullivan (1964), with “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Montana’s own right to participate in government, and to criticize it in the most severe terms is preserved in the Montana Constitution. Should you exercise your authority to pardon those punished for exercising what we now acknowledge to have been their constitutional right to question their own government, you would be acting in accord with a tradition dating back at least as far as 1840, when President Martin Van Buren posthumously pardoned Vermont newspaperman Matthew Lyon. The former Revolutionary War hero, later a Congressman, had been convicted under the Sedition Act of 1798 for speaking out against President Adams’ “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” In June 1927 California Governor Clement C. Young pardoned Charlotte Anita Whitney after the U.S. Supreme Court upheld her state conviction for criminal syndicalism. In 1921, President Warren Harding pardoned Socialist leader Eugene Debs, who had been convicted of violating the federal sedition act during World War I. Four years later, New York Gov. Al Smith pardoned another socialist leader, Benjamin Gitlow, who had been convicted of violating a New York law by publishing “The Left Wing Manifesto.” In much the same spirit, President Franklin D. Roosevelt in 1933 restored voting rights and other civil liberties to approximately 1,500 men and women who had been convicted of seditious utterances under federal law during World War I. More recently, in 2003, New York Gov. George Pataki posthumously pardoned pioneer stand-up comedian Lenny Bruce for a 40-year-old obscenity conviction based on biting comedic political commentary. Granting the posthumous pardon petitions herein requested would ease the hearts of the living descendants of those convicted and would provide justice and a measure of redemption. We understand that more than two dozen descendants await your decision, and hope to be able to travel to Montana from across the United States to put closure to a terrible chapter in their family history. By pardoning the men and women convicted of sedition in Montana during a time when fear and hysteria gripped the nation, you affirm our state and national commitment to free speech in America. You thereby affirm freedom. In that American spirit, we respectfully urge you to grant the posthumous petitions herein requested. Respectfully, Jeffrey Renz Clemens P. Work |
| Titles and affiliations are for identification purposes only | ||
| David M. Kennedy Donald J. McLachlan Professor of History Department of History Stanford University | Ronald K.L. Collins First Amendment Scholar and Author The Freedom Forum | Geoffrey Stone Harry Kalven, Jr. Distinguished Service Professor of Law University of Chicago School of Law |
| David Skover Dean’s Distinguished Research Scholar & Professor of Federal Constitutional Law Seattle University School of Law | Lucy A. Dalglish Executive Director The Reporters Committee for Freedom of the Press | Richard White Margaret Byrne Professor of American History Stanford University |
| Eugene Volokh Professor of Law UCLA School of Law | Norman Dorsen Counselor to the President of New York University Stokes Professor of Law NYU School of Law | Marjorie Heins Fellow, Brennan Center for Justice & Founder, Free Expression Policy Project |
| Paul Hoffman former Chairman Amnesty International | Erwin Chemerinsky Alston & Bird Professor of Law and Political Science Duke University | Jonathan Hafetz Associate Counsel Liberty & National Security Project Brennan Center for Justice NYU School of Law |
| Jane E. Kirtley Silha Professor of Media Ethics and Law, School of Journalism and Mass Communication, University of Minnesota | Robert O’Neil Professor of Law University of Virginia | Aziz Huq Associate Counsel Brennan Center for Justice NYU School of Law |
| Charles N. Davis Executive Director National Freedom of Information Coalition University of Missouri School of Journalism | Paul K. McMasters First Amendment Ombudsman, First Amendment Center | Peter Michael Meloy Meloy& Trieweiler Helena, Montana |
| Mary Murphy Michael P. Malone Professor Department of History & Philosophy Montana State University | Gordon Morris Bakken Department of History California State University, Fullerton | Dee Garceau-Hagen Associate Professor of History Rhodes College |
| Michael Ober Library Director Flathead Valley Community College Library | Pat Williams Senior Fellow Center for the Rocky Mountain West, University of Montana | Robert B. Campbell Assistant Professor of History Dept. of History and Philosophy Montana State University |
| Diane Smith Author and Historian Livingston, Montana | Richard Drake Professor of History The University of Montana | David M. Emmons Professor of History The University of Montana |
| Carrie Johnson Independent Historian Butte, Mont. and Arlington, Va. | Harry W. Fritz Professor of History The University of Montana | Sherry L. Smith Professor of History Southern Methoodist University |
| Joan E. Bertin, Esq. Executive Director National Coalition Against Censorship | William E. Farr Associate Director Center for the Rocky Mountain West, University of Montana | Thompson R. Smith Charlo, Montana |
| Joan M. Jensen Professor Emerita New Mexico State University | Robert Corn-Revere Davis Wright Tremaine Washington, D.C. | J. Morgan Kousser Professor of History and Social Science California Institute of Technology |
| John Enyeart Assistant Professor Department of History Bucknell University | Colleen O’Neill Associate Professor of History Utah State University | |
| Letters from relatives of sedition prisoners to the governor | ||
| Alvina Erickson | Bradley Gratz | Clinton B. Byron |
| Craig & Sharon Keyes | Farida Bausch Briner | Gene Dalton |
| Henry Rodewald | Joy Schutter | Phyllis Rolf |
| Sharon Timar | Sherry L. Larson | |
The legal petition
April 13, 2006
The Honorable Brian Schweitzer
Governor, State of Montana
P.O. Box 200801
Helena, Montana 59620-0801
Dear Governor Schweitzer:
Pursuant to Article VI, Section 4(1) and Section 12 of the Montana Constitution of 1972, Jeffrey T. Renz and Clemens P. Work respectfully request that you issue an order posthumously pardoning the 78 men and women who were convicted of the felony offense of sedition as defined by § 1, Ch. 11, Ex. L. 1918,[1] between 1918 and 1919. Many of these people lacked the means to appeal, no right to an appointed lawyer on appeal being available in 1918 and no right to a free transcript being accorded to them. Without question if these men and women were charged today with the words they were accused of uttering, the Montana Sedition Act would be declared unconstitutional with respect to their cases.
These 78 men and women constitute only about half of those charged.[2] Our review of the cases of those who were charged and acquitted or whose charges were dismissed reveals that there is no difference in the quality of the words uttered by those deemed innocent and those deemed guilty. We have learned that in many cases, charges were brought falsely or were brought as a result of the xenophobia of an accuser, or the religious bias of someone’s neighbors, or as an act of revenge, or because one neighbor coveted the property of another.
All 78 appear to have led productive and uneventful lives after they paid their fines or served their term of confinement. None is known to have committed any crime after release from confinement or satisfaction of his or her fine.
INTRODUCTION
On January 25, 1991, the Montana Senate absolved and exonerated Judge Charles Crum “from the wrongful conviction of impeachment on March 22, 1918.” 1991 Mont. Laws 3437. In its resolution, the Montana Senate, by unanimous vote, concluded, among other things, that,
the emotional fervor surrounding the United States’ entry into World War I led to public hysteria, constituting one of the darkest periods of Montana’s political history. . .
misguided patriotism led to the formation of self-appointed local groups to establish standards of Americanism and to identify and intimidate those found lacking in patriotic fervor. . .
the Senate found Judge Crum guilty of high crimes, misdemeanors, and malfeasance in office, while in fact he was innocent of any official wrongdoing save, perhaps being politically recalcitrant or adhering to unpopular policies. . .
the impeachment of Judge Crum banished him to political oblivion, devastated his life, and exposed him to continued calumny; and . . .
the people of Montana in a reavowal of the principles of free speech and responsive democratic government, desire to right a historical wrong.
1991 Laws of Montana 3437-3438.
Judge Crum was impeached and convicted because of, among other things, words he uttered, words that would later, when uttered by others, serve as the basis for accusation and conviction of violations of the Montana sedition act. The Montana Senate has pardoned Judge Crum. The 78 men and women who were convicted of sedition remain unredeemed.
This Petition seeks their redemption.
WHY NOW?
America Has Always Striven to Correct its Violations of the
United States Constitution That Occurred During Times of War and Hysteria.
A felony conviction is a serious matter. It deprives, and in some states deprives for life, many civil rights that we take for granted. A felony conviction that is based upon a suggestion of disloyalty carries a unique stain. The relatives of those convicted of sedition in Montana often were not told that their fathers, grandfathers, or great-grandfathers had been convicted. Some remember their grandfather being embittered by something that had happened to him in the past. Others remember that their great-grandfather had gone to jail for “refusing to kiss the flag.” Describing their offense in that way is a way of avoiding the shame of a felony conviction and reveals the family’s sense of disgrace. Granting this Petition will remove that sense of disgrace forever.
More than 2000 people were convicted of sedition and other violations of the federal Espionage Act between 1918 and 1920. Several hundred were pardoned by Presidents Harding and Coolidge during the 1920s. In 1933, President Franklin Delano Roosevelt pardoned every remaining person who was convicted of sedition under the federal sedition law.[3]
On January 25, 1991, the Montana Legislature formally reversed its impeachment conviction of Judge Charles Crum. Judge Crum’s impeachment and conviction arose out of the same war-time hysteria that led to prosecutions and convictions for violations of the Sedition Act. Judge Crum, like those who were to follow, was accused, tried, and convicted for uttering seditious words. His greatest offense, for which he was not charged, may have been testifying as a character witness in the federal criminal trial of Ves Hall. Hall had been indicted for violating the federal Espionage Act by uttering remarks alleged to interfere with the United States’ armed forces. United States District Judge George Bourquin directed a not guilty verdict in Hall’s case.
Pardons for sedition began very early in our Nation’s history. One of President Thomas Jefferson’s first acts, in 1801, was to pardon every person convicted of violating the Sedition Act of 1798.
In 1840, Congress approved a bill introduced by John Calhoun and refunded the fine levied against Matthew Lyon, who was found guilty of violating the Sedition Act of 1798.[4] Act of July 4, 1840, c. 45, 6 Stat. 802, 26th Cong., 1st Sess. (1840).[5]
In 1988, the United States Congress formally apologized for the relocation and internment of thousands of Japanese-Americans and granted reparations to them or their descendants.[6] Congress recognized that the internments “were motivated largely by racial prejudice, wartime hysteria, and a failure of political leadership” and that they amounted to a “grave injustice.”
We have pardoned others who were prosecuted for the mere exercise of their rights. Preston King was convicted of draft evasion in the 1950s after he appeared before his Draft Board. The board addressed white inductees as “Mister” and had addressed King as “Mister King,” until they saw his black skin. From that point they addressed him as “Preston.” King told the board that he was willing and ready to perform his military service but asked that they address him as Mr. King. They refused and so he refused induction. King was convicted of avoiding the draft by an all-white jury and sentenced to 18 months confinement. President William Clinton pardoned King in 2000.
In 1968, Cleveland Sellers organized a demonstration at South Carolina State University to protest a segregated bowling alley. Police opened fire on the demonstration, killing three and wounding 27. Sellers was charged with inciting a riot, convicted, and sentenced to one year in prison. In 1993, the Governor of South Carolina pardoned him.
More recently, in 2003, Governor George Pataki of New York posthumously pardoned stand-up comedian Lenny Bruce, who had been convicted of obscenity forty years earlier for his biting comedic political commentary.
Bruce had performed a stand-up comedy routine at the Café Au Go Go in 1963. He was, according to the artists who supported his pardon, “rude, profane, and to many, no doubt offensive.” Bruce had been unsuccessfully prosecuted three times in three different states before New York succeeded in convicting him of “obscene, indecent, immoral, and impure entertainment.” Notwithstanding a conviction of obscenity, Governor Pataki, a Republican, pardoned Bruce, saying,
The posthumous pardon of Lenny Bruce is a declaration of New York’s commitment to upholding the First Amendment. Freedom of speech is one of the greatest American liberties and I hope this pardon serves as a reminder of the precious freedoms we are fighting to preserve as we continue to wage the war on terror.
Bruce was an entertainer. His words were no less direct and no less base than those of the 78 men and women convicted in Montana’s courts in 1918 and 1919. Like Bruce, these 78 men and women were engaging in political speech, which lies at the core of our freedom to speak and our freedom of expression.
Pardoning These 78 Men and Women Is the Right Thing to Do.
California’s former Governor Pete Wilson said it well, when he pardoned deceased inmate Jack Ryan. “[A] just society may not always achieve justice, but it must always strive for justice.”[7] All of the 78 people who were convicted of sedition have passed away. They are no longer here to benefit from a pardon. Nevertheless a posthumous pardon serves several beneficial purposes:
It corrects the institutional record by publicly expunging the guilt that resulted from actions of the state that we now recognize to be unconstitutional and unlawful.
It provides a precedent by which the State of Montana assures its citizens and others that these actions will not take place in the future.
It cleanses the reputation of the person who has been convicted of doing no more than criticizing his or her government, but who is seen, by reason of a felony conviction as having been a disloyal citizen and perhaps even a traitor for doing so.
It serves as a public apology by the State of Montana. We tell others that we regret the actions taken in our name in 1918-1919 and that we recognize that others should not have suffered at our hands as they did.
It provides solace to the relatives of the deceased. They will no longer have to carry the shame that is attached to the actions of their ancestor. The stain that was once associated with their family name will be removed.
It corrects the effects of every other wrong that led to these convictions–the confusion of the jurors, the perjury of an accusing witness, the making of a false accusation to settle a score, the apparent bias or fear of the presiding judges, and the ethnic or religious bigotry that motivated many reports of sedition.
A posthumous pardon reinforces Montana’s right to free speech and expression, and the right to participate in government that is enshrined in the 1972 Constitution. It assures Montanans that they will not be subject to criminal or civil charges for criticizing the State or the United States. It ensures that speech, especially political speech, is free of the chill that comes when one looks over their shoulder to see if the authorities, or their spies, or our neighbor who doesn’t like our dog, is listening.
Today, when we are engaged in battle in two countries, when the government seeks new powers over its citizens in the name of keeping us safe, when a person calls another’s patriotism into question, these pardons will communicate to all that criticism of the government is a fundamental right and, when exercised, a right to be respected by officials of the government. Robust debate about local and national policies does not damage our national goals. Rather, it ensures that a national consensus may be reached about those goals. Robust debate and robust criticism force all of us to think about and to reconsider our opinions when we state them and defend them in the marketplace of ideas. We can do this only when the government assures us that we have plenty of latitude in what we say and how we say it.
In this country we have, as Justice William Brennan pointed out in New York Times v. Sullivan in 1964,[8] a “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”[9] A core function of political speech in a democracy is to ignite discussion and dispute. As Justice William O. Douglas noted in Terminiello v. Chicago, “free speech . . . may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”[10]
The grant of posthumous pardons in this case will assure us that we have the breathing space to question public policy and public servants without fear of punishment.
FACTUAL BACKGROUND
The United States entered World War I in April 1917. The Sedition Act, quoted above, was approved on February 23, 1918 and went into effect immediately. One month later, the Montana Senate found Judge Charles Crum guilty of high crimes and misdemeanors and barred him from office. The Montana inquisition, “one of the darkest periods of Montana’s political history,” was in full swing.
Crum had participated as a defense witness in the trial of Ves Hall. Hall’s verdict of acquittal, directed by United States District Judge George Bourquin, was the event that triggered the special legislative session at which the sedition act and others[11] were adopted.
Beginning in March1918, and ending in February 1919, more than 145 people were charged and 78 were convicted of sedition. All, save three, were convicted for doing nothing more than speaking words, sometimes in a foreign language. Two men were convicted of sedition for publishing an editorial questioning the authority of the Montana Council of Defense. One man was convicted of sedition for distributing an I.W.W. pamphlet. (All three of these convictions were reversed by the state supreme court, although not on free speech grounds.) Many of those who were convicted were drunk at the time they spoke their seditious words. Many were foreign-born and therefore immediately suspect. Many were provoked into speaking recklessly by an unruly mob.
Some were framed to settle a score. Some were framed out of mischief. Some were framed because others coveted what they had.
Prosecution and Conviction Was Capricious
Almost as a matter of caprice, the penalties of the sedition act fell upon some but not upon others. A spreadsheet of the words spoken by those who were charged and convicted, charged but acquitted, or charged but whose charges were dismissed is attached as Appendix 1. We include some examples. In the examples that follow, some were convicted, some were acquitted, and some were dismissed:
COMMENTS ABOUT CLASS
(a) “This is a rich man’s war and we have no business in it;” that “this is a rich man’s war and a poor man’s fight;” that “the rich men rule the country. . . .”
(b) “This is a rich man’s war and we have no business in it; they talk about Hooverism–it’s a joke. Nobody pays any attention to it. It don’t amount to anything; The Lusitania was warned not to sail. They were carrying munitions and wheat over to the Allies. The poor man has no show in this war. The soldiers are fighting the battles of the rich.”
(c) if he had $10,000 he would not buy a Liberty Bond because the Liberty Bonds were nothing but a damn graft, and further that no matter what happened he would not eat corn bread. Witness also testified B said it was a rich man’s war and let the rich men buy bonds. Not a paying proposition; they wouldn’t pay over 40 cents on the dollar for them. Said he wouldn’t drink coffee w/o 2-3 spoonfuls of sugar–I was telling him about being only allowed one spoonful.
(d) “This war is a rich man’s war. The working men were given the worst of it,” that “capitalists got us into this war, that capitalists sent working men from this country 4 or 5,000 miles to kill the workingmen there” and “I would rather kill the capitalists over here than kill one man in the trenches.”[12]
COMMENTS ABOUT THE FLAG
“I don’t know that we have a flag; I don’t know the American flag; it don’t mean anything to me. The flag to me does not appear to be any more than a box of candy in a show case.”
“What is this thing anyway? Nothing but a piece of cotton with a little paint on it, and some other marks in the corner there. I will not kiss that thing. It might be covered with microbes.”[13]
COMMENTS ABOUT THE KAISER
(a) “I hope to God the Kaiser will win the war.”
(b) “I would rather live under the government of the Kaiser than under the government of the U.S. and I would rather see the Kaiser of Germany win the war than the U.S. because he is a better man than Wilson and it looks like he was going to win the war.”
(c) “I do not see why we should be fighting the Kaiser, and I don’t see why people should go crazy over patriotism. The Kaiser and his government is better than the U.S.A. I would go over to Germany if I could.”
(d) “If the President was half as good as the Kaiser, there would be nothing to it [the war.]”
(e) “The kaiser is as good as President Wilson. President Wilson is a no good son of a bitch.”
(f) “I would just as soon see the Kaiser come over and rule this country, as anyone else. I would just as soon pay the Kaiser as any one else.”[14]
DISPARAGING THE AMERICAN SOLDIER
“U.S. soldiers weren’t worth a damn; that it was good enough for us to be licked because we had no business butting in; that U.S. didn’t have any soldiers or guns and was short of ammunition; that U.S. would never be able to land any horses over there because the Germans would kill them in the boats before they ever landed on the other side; that we weren’t fighting with our men but were just starving them on the other side; that Germany can’t help but lick the world because the U.S. had nothing to fight with.”
“the sons of bitches (meaning the soldiers of the United States) are no good, we do not need any soldiers.” “The soldiers (meaning the soldiers of the United States) are no good and are a bunch of thieves and bums.”[15]
DRUNKEN WORDS
he would not fight for U.S. and that he would fight for the Kaiser; that he would go to jail before he would fight for the U.S. A witness said another man hit him with a spittoon. The defendant said he was drunk at Hobo Jim’s (Holler & Osborne’s) saloon in Miles City.
“To Hell with the United States government; shit on them; I don’t give a damn for them, I’m a wobbly.”
“To hell with you, Swanson, and to all of you Americans, too” and “Come up and have a drink, you patriotic Scissor Bills” and “To hell with the government; we have no government” and “Come up and have a drink on the Kaiser.”
“F– the bloody country. F– the war. I am an IWW and proud of it. F– the flag.”[16]
These cases illustrate the capriciousness of the application of the sedition act. You were safer disparaging American soldiers than boasting that you were a Wobbly. This outcome is typical when laws are so vaguely worded that they give discretion to the police and to the jury to define what is criminal and what is not.
The federal sedition act differed from the Montana act by no more than three words.[17] Even so, no one was convicted in the federal courts in Montana for a violation of the federal statute. The lack of federal convictions under the Espionage Act, either before or after the sedition amendment in 1918, is largely due to the staunch opposition of United States District Judge George Bourquin and United States District Attorney Burton K. Wheeler. Both men opposed prosecutions based merely on opinions or casual conversations and insisted on evidence of a real intent to hinder the prosecution of the war. Espionage Act charges against six men in Montana were dismissed in 1918.[18] Three other men were acquitted. Judge Bourquin directed the jury to find the defendant not guilty in at least one case, that of Ves Hall, the rancher whose case became the rallying cause of the special session of the Montana legislature that enacted the state sedition law.
Many who were convicted in the federal courts in other federal districts where judges interpreted the federal act more loosely were pardoned by Presidents Harding, Coolidge, and Roosevelt.
It is not right to say that the 78 men and women convicted in Montana’s courts said the wrong thing. They did, however, say it to the wrong people, at the wrong place, or at the wrong time. Even then, the hand of the law fell capriciously. Some were convicted, some, having uttered nearly identical words, were not.
Prosecution Was Often Initiated Because of Xenophobia
Religious Bias, Score-settling, and Other Improper Motives
We see some common patterns among these prosecutions. Minnie Harris was a black woman who homesteaded in Two Dot, near Harlowton. She was prosecuted and convicted of sedition in Wheatland County.[19] After her conviction, according to local legend, the prosecutor bought her property so that she had funds to pay her $200 fine and avoid jail. (In those days, you worked your fine off in jail at the rate of $2 per day.)
[2008 correction: We discovered that Minnie Harris was part of a visiting black minstrel troupe and was arrested during the group’s performance. She therefore had no property in Wheatland County. CPW]
E.V. Starr, in Rosebud County, and Louis R. Fowler, in Madison County, appear to have had water rights that were senior to their neighbors. Their neighbors claimed that they made seditious statements. Fowler’s crew had quit the day before Fowler encountered his neighbors and told them that they would not have enough water to irrigate the wheat that they were planting. Fowler told them that without a crew, he could not raise wheat and that the Americans would have to eat hay.
Starr’s neighbor claimed that he had said some unpatriotic things about the war, before the United States became involved. As a result, a local “citizen’s committee,” that would be best described as unruly, marched to a store in Big Horn, Montana, where Starr was doing some business. They questioned his patriotism, criticized him for not having purchased Liberty Bonds. According to one of the participants, “There was quite a little argument there and Mr. Brown, who is here, had a flag with him, and he says, “Well, Starr, here is a flag. If you are loyal surely you will kiss it.’ ” Starr then allegedly said, “What is this thing anyway? Nothing but a piece of cotton with a little paint on it, and some other marks in the corner there. I will not kiss that thing. It might be covered with microbes.” United States District Judge George Bourquin said about Starr’s conviction, “Too often such mobs have been the last resort of the slacker, military and civil, the profiteer, and the enemy sympathizer, masquerading as super patriots to divert attention from their real character.” “As to the horrifying sentence [imposed upon Starr]”, said Bourquin (quoting George Bernard Shaw), “in the United States knowing nothing of the war but censored news, the courts were stark raving mad.”
Richard L. Wyman was a Republican official in Sidney, Montana. He had not only been engaged in private litigation with the local district judge, but as the County Clerk and Recorder, he had made trouble for the Commissioners who were profiting personally from county warrants. He also served on the draft board. His secretary asked him to grant an exemption to her brother and he declined. When she filed a false affidavit in support of an exemption, Wyman was compelled to fire her. She left his office, walked to the local prosecutor’s office, and made the allegations that sent him to prison.
Joe and John Milch were businessmen and tavern-owners in Helena. The local Council of Defense, that “last resort of the slacker,” had contrived with the Anaconda Copper Mining Company to hire provocateurs to rid Montana of unsavory people, like union members. The uncorroborated testimony of one such spy, who was the sole prosecution witness, about a conversation he had with the Milches in which they allegedly uttered seditious words resulted in their convictions. The conversation took place in German in John Milch’s saloon. The records in these cases all hint of a frame-up, encouraged by the Company. The man who led the Company’s spy to the Milches and others committed suicide in jail before his own sedition trial. While the Milches’ cases were on appeal, the sole witness left Montana. Joe Milch’s great-grandson is now a lawyer in Billings. One of his partners is the great-grandson of the lawyer who prosecuted his great-uncle and great-grandfather.
In Billings, a Liberty Bond committee consisting of four men drove to Herman Bausch’s farm west of town. They were upset because Bausch, who was relatively well off, had not purchased any bonds. When he refused the Committee’s demands that he buy the bonds, they “got a little warm, we did.” Trial Tr. 12. The Committee returned to Billings and, that evening, with the assistance of about 25 men, kidnaped Bausch, his wife, and baby and brought them to a local service club for questioning by a mob of 50-75 men and women. Trial Tr. 10-11, 20-21, 65-66. They gave the Bausch family no time to eat their dinner. They put Mrs. Bausch and her baby up in the Midland Hotel.
Bausch’s trial transcript makes it clear that he spoke as a pacifist, opposed to all war. In the words of the chief prosecuting witness, Bausch said, “every man’s conscience should determine as to his attitude on this war.” Trial Tr. 49. The events that followed should sicken us all. J. Collins West was one of Bausch’s chief interrogators that night. According to West,
I was anxious to get the straight of that and I called up Harry Wilson who is my personal attorney, at the house and asked him if he would not come down and listen to what this man had to say, and then if in his opinion he considered this man was violating the laws of Sedition. . . I would be in favor of turning him over to the Sheriff. Mr Wilson stood there for a long time and I asked him several times. . . I said, “Harry do you believe there is anything this man [Bausch] has said under which you can convict him under the Sedition Act?” He says, “No, I don’t.” He says, “He is too evasive in his answers.” Finally I said, won’t you please go and question him, I don’t want to work a hardship on anybody. If this man is wrong I don’t want him to get away. So Mr. Wilson went over and sat on the arm of the chair in which Mr. Bausch was sitting and he told him, he says, “I am going to ask you a few questions. I have listened to what you have had to say,” and he says, “you have evaded us all the way through, if you don’t tell me the truth I am going to hit you right square between the eyes.” Mr. Wilson got just about as far as the rest of us did. We didn’t get any information. So then several of them, he was made to stand up, and several of them shook their fists in his face and tried by fair means or foul to get him to admit, to break away from the testimony he still quoted for his defense, break away from the testimony he gave regarding his feelings on the subject. We were absolutely unable to break him down. I called him all the names I could think of which would not bear repetition here, insulted him in every way I knew how, both out at the ranch and at the building. He still clung to the same idea, which I confess is still over, above, and beyond me. I didn’t understand it. Finally Mr. Wilson came back and I said, “What do you think of it by this time?” He says, “I think he has said enough for us to obtain a conviction.” Then I told him to telephone for [Sheriff] Matlock and Matlock came over and got him.
Trial Tr. 74-75.
Bausch’s family reports that, in the course of this mob justice, Bausch’s questioners attempted to hang him from a local tree. For exercising his right of conscience, Herman Bausch was sentenced to 4-8 years in prison.
Bausch was not alone. The Rev. J.S. Geiser, pastor of the Church of the Brethren, a pacifist congregation in Froid, Montana, was charged and convicted of sedition. He had given a Sunday sermon in which he urged his fellow church members not to buy Liberty Bonds. The proceeds, he pointed out, would be used to kill their fellow man. He was fined $200. Shortly afterwards he filed bankruptcy.
Many of those charged had emigrated from the Austro-Hungarian Empire or from Germany. They were typically prosecuted after their loyalty was called into question, when the mob called upon them to denounce their relatives or their former honorable military service.
Some were suspect and some were charged because they were Roman Catholic. Josef Hocevar, who was pardoned by Governor Joseph Dixon, was clearly framed by a couple of drunks who thought they would teach the Catholic Austrian a lesson.
Even when xenophobia and other prejudices were at work, the sword of the law fell capriciously. In Butte, for example, there was no shortage of Irishmen who were ready to cheer on the enemies of the British, following the brutal suppression of the 1916 Easter Rebellion. Not one Irishman was prosecuted. Not one Irishman was tried.
To be prosecuted, it was best to be an immigrant, or, in Minnie Harris’s case, an African American or, in Ben Kahn’s case, a Jew. It helped to brag that you were a Wobbly, for that ensured your prosecution. It helped to be unpopular in your small county.
Whatever the motives for prosecution, and they were typically base, in the most meritorious case no one who was convicted of sedition in Montana had actually done anything more than speak their mind.
The jurors who convicted these men and women often felt terrible about the outcome. Verdicts frequently contained recommendations for leniency, recommendations that were routinely ignored by the sentencing judge who had to face re-election or (as in Judge Crum’s case) worse. Members of Richard Wyman’s jury wrote to Governor Stewart. They said, “the [sedition] law was new to the people and not fully understood. . .the facts in the matter were not properly and fully brought before the jury in order that they should know the truth of the matter as I have since been able to learn.” Juror confusion was typical in these cases and reflected the vagueness of the statute.
THE CONVICTIONS OF THESE DEFENDANTS VIOLATE
FUNDAMENTAL CONSTITUTIONAL PRINCIPLES
Their Words Would Be Protected Today
by the First Amendment.
When these defendants spoke their words, the United States Supreme Court was just beginning, with the Espionage Act cases, to interpret the First Amendment for the first time as to dissident political speech. The standard that was applied to protect political speech, was very low. Speech was not free if it had a tendency to incite another to disturb the peace.[20] The law recognized a right of the state to defend itself from those who would imperil its government.[21] This was not surprising, as the source of the “bad tendency” test was developed by Lord Blackstone, at a time when his Commentaries sought to preserve the aristocracy’s 18th Century status quo against a growing middle class.[22]
The United States Supreme Court had also not yet held that the First Amendment applied to actions by state officials. This would not happen until 1925.[23] It was too late for Montana’s victims of the sedition act.
In 1969, in Brandenburg v. Ohio,[24] the U.S. Supreme Court made it clear that speech could not be punished unless it incited others to imminent lawless action. Brandenburg overruled Whitney v. California, 274 U.S. 357 (1927), which had tested California’s syndicalism law. Whitney had given a speech in support of the IWW. After the Supreme Court upheld her conviction, Charlotte Whitney was pardoned by Governor Clement Young.
The Brandenburg rule had been maturing for decades, ever since Justice Brandeis’s concurring opinion in Whitney. In Herndon v. Lowry,[25] for example, the Court held that statements about the principles of the Communist Party did not arise to the level of a clear and present danger and concluded that the defendant could not be convicted of incitement to insurrection. Julian Bond was denied his seat in the Georgia legislature for criticizing the Vietnam War and advocating alternatives to complying with the draft law. Advocacy of principles, as opposed to incitement to action, could not be punished.[26] Bond was restored to his seat. Words that appeared to advocate violence, but which fell into expression of opinion, had also been recognized as protected by the First Amendment. Thus, Robert Watts could not be prosecuted or convicted for saying, “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”[27]
Today we recognize that the words spoken by 78 men and women in 1918 fall well within the zone of protected speech. We can call the President a dirty, rotten SOB, even in time of war.
We can freely exercise our opinions about the Administration’s motives for going to war, about the government’s conduct of a war and about the financing of a war without fear of legal retaliation. We can severely castigate politicians and other public servants. We can picket, rally, march, demonstrate and petition, all in the strongest terms, under the full protection of the First Amendment.
Yet this comes too late for the men and women convicted of sedition in Montana. Like those who were convicted under the federal sedition law, we ought to clear their reputations, recognize the importance of their dissent, and pardon them unconditionally.
MONTANA’S COUNTY ATTORNEYS SUPPORT CLEMENCY
The President of the Montana County Attorneys Association has asked the County Attorneys of the counties in which the 78 were convicted for their views regarding pardons. So far, of those County Attorneys responding, all favor granting pardons. As the Powell County Attorney said, “These cases would be laughable were it not for the serious penalties imposed upon the defendants. The cases are also a caution to us in the present day that, even in a democracy, the government can suppress free speech and thought by inciting fear in the population and equating dissent with disloyalty.”[28]
FIRST AMENDMENT SCHOLARS AND HISTORIANS SUPPORT CLEMENCY
First Amendment scholars, lawyers and historians who have reviewed this petition have agreed to support it because, especially by today’s standards, the speech of those who were convicted of sedition in Montana was constitutionally sacred: Their letter of support says, in part, “These convictions were obtained in Montana courts at a time when almost all courts in our nation viewed free speech rights as dispensable–and at a time when the First Amendment had not yet been held binding on the states. One of the nation’s true judicial heroes of this era, United States District Court Judge George Bourquin of Montana, observed at the time that the prosecution of such individuals betrayed both ‘the genius of democracy and spirit of our people. . . .’ By pardoning the men and women convicted of sedition in Montana during a time when fear and hysteria gripped the nation, you affirm our state and national commitment to free speech in America. You thereby affirm freedom.”
CONCLUSION
When President John Adams’ successor, Thomas Jefferson, eliminated the abuses of the Alien and Sedition Acts of 1798, he said: “[The essential principles of our Government] form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation. [S]hould we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety.”
We ask that you retrace the steps of the past and reassure all Montanans and all Americans that the road that leads to liberty and to peace is safe for those who speak out.
Sincerely,
Jeffrey T. Renz Clemens P. Work
Assistant Professor Professor
[1] Whenever the United States shall be engaged in war, any person or persons who shall utter, print, write or publish any disloyal, profane, violent, scurrilous, contemptuous, slurring or abusive language about the form of government of the United States or the constitution of the United States, or the soldiers or sailors of the United States, or the flag of the United States, or the uniform of the army or navy of the United States, or any language calculated to bring the form of government of the United States, or the constitution of the United States, or the soldiers or sailors of the United States, or the flag of the United States, or the uniform of the army or navy of the United States into contempt, scorn, contumely or disrepute, or shall utter, print, write or publish any language calculated to incite or inflame resistance to any duly constituted Federal or State authority in connection with the prosecution of the War, or who shall display the flag of any foreign enemy; or who shall by utterance, writing, printing, publication or language spoken, urge, incite or advocate any curtailment of production in this country of any thing or things, product or products necessary or essential to the prosecution of the war in which the United States may be engaged, with intent by such curtailment to cripple or hinder the United States in the prosecution of the War; or in time of war in which the United States shall be engaged shall wilfully make or convey false reports or statements with intent to interfere with the operation or success of the military or naval forces of the United States, or promote the success of its enemy or enemies; or whoever in time of war in which the United States shall be engaged shall wilfully cause, or attempt to cause, disaffection in the military or naval forces of the United States, or who shall by uttering, printing, writing, publication, language spoken, or by any act or acts, interfere with, obstruct, or attempt to obstruct, the operation of the national selective draft law or the recruiting or enlistment service of the United States to the injury of the military or naval service thereof shall be guilty of the crime of sedition. 1918 Mont. Laws 28.
[2] Seventy-eight were convicted. Governor Joseph Dixon pardoned Josef Hocevar in 1921.
[3] http://www.presidency.ucsb.edu/ws/index.php?pid=14588&st=&st1=# (accessed March 6, 2006). Presidents Harding and Coolidge had pardoned several hundred before FDR’s proclamation.
[4] Like Montana’s sedition act, the Sedition Act of 1798 made it unlawful to “. . .write, print, utter or publish. . . any false, scandalous and malicious writing or writings against the government of the United States. . .with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States. . . .”
[5] Lyon was convicted of having said, about President Adams, “every consideration of the public welfare was swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” He also suggested that Adams be committed to an asylum.
[6] Civil Liberties Act of 1988, Pub.L. 100-383, Title I, Aug. 10, 1988, 102 Stat. 904.
[7] http://bancroft.berkeley.edu/events/bancroftiana/124/heinrich.html (accessed March 6, 2006).
[8] 376 U.S. 254 (1964).
[9] Sullivan, 376 U.S. at 270-271.
[10] Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
[11] So strong was the fervor in that special session, that the Montana legislature passed a law requiring all Montanans to immediately register their firearms. Ch. 2, 1918 Mont. Laws 6. The Legislature also passed a criminal syndicalism bill that has since been repealed.
[12] Comments About Class: The results, in order, were, (a) acquittal, (b) 7_ to 20 years’ confinement, (c) 1 to 2 years’ confinement, and (d) dismissed.
[13] Comments About the Flag: In the first case the defendant was acquitted. In the second, the defendant was convicted and sentenced to 10 to 20 years’ confinement.
[14] Comments about the Kaiser and President Wilson: The results were (a) dismissed, (b) dismissed, (c) 2 to 4 years’ confinement, (d) fined $200, (e) fined, and (f) fined.
[15] Comments Disparaging the American Soldier. The first case resulted in acquittal. The second charge was dismissed.
[16] Drunken Words. All four defendants were convicted. Two were fined. The two who boasted that they belonged to the IWW were sentenced to 1_ to 3 and 5 to 10 years, respectively.
[17] See Work, Clemens P., Darkest Before Dawn: Sedition and Free Speech in the American West, pp. 260-261 (Albuquerque: Univ. of New Mexico Press, 2005).
[18] U.S. District Court, Butte, Mont. records, National Archives and Records Administration, Seattle, Washington.
[19] She is alleged to have said, “I wish to God someone will rule this Country besides the dirty Americans.”
[20] Gitlow, 268 U.S. at 667; Abrams v. U.S., 250 U.S. 616 (1919); Debs v. U.S., 249 U.S. 211 (1919); Frohwerk v. U.S., 249 U.S. 204 (1919); Schenck v. U.S., 249 U.S. 47 (1919).
[21] Gitlow, 268 U.S. at 667.
[22] Cf., Craig E. Klafter, Reason over Precedents 33 (1993).
[23] Gitlow v. New York, 268 U.S. 652 (1925). The Supreme Court held that the New York syndicalism statute did not violate the First Amendment. Several years later Governor Al Smith pardoned Benjamin Gitlow.
[24] Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam).
[25] 301 U.S. 242 (1937).
[26] Bond v. Floyd, 385 U.S. 116 (1966).
[27] Watts v. United States, 394 U.S. 705, 706 (1969) (per curiam).
[28] Letter, Christopher Miller to Jeff Renz (Feb. 26, 2006).
Montana Sedition Project 