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World War I and the assault on free speech in Wisconsin

Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612

When World War I began in Europe in 1914, few Americans had a strong attachment to either side. But public sentiment tilted increasingly against Germany, and after the United States entered the war in 1917 anti-German feeling rose to near hysteria. The next few years were stressful ones for Wisconsin Germans.

In 1917 Congress passed the Espionage Act which forbade any speech that might be interpreted to support insurrection or resistance to the war effort. Federal authorities in Wisconsin and elsewhere tried to use the law to suppress any criticism of the war. German-Americans were particular targets.

Because Wisconsin was so heavily German it was suspect in the eyes of many Americans. But to their credit, state officials resisted efforts to persecute Germans. In 1918 the Legislature passed a law similar to the Espionage Act but Governor Emanuel Philipp made it clear the law must be "strictly construed" and he would not "in any measure interfere with the free discussion of the affairs of this government, whether they relate to the war or otherwise."

Wisconsin district attorneys prosecuted few cases under the state law, but federal authorities tried much harder to suppress antiwar speech. Most of the prosecutions were in the western part of the state. Authorities in the Milwaukee area, perhaps because it was so heavily German, were not sympathetic to the law.

Several prominent Wisconsinites were prosecuted under federal law. In 1917 John Becker, a circuit judge in Monroe, described the war as "a rich man's war" and warned farmers to "beware of war taxes." Because of those comments he was sentenced to a year in prison. In 1920 a federal appeals court reversed Becker's conviction, but his career was ruined. At the other end of the spectrum, in 1918 the Oneida County judge led a crowd which burned an effigy of Kaiser Wilhelm of Germany in the Rhinelander courthouse square.

Another famous case was that of Louis Nagler of Madison. Nagler refused to contribute to the YMCA's war relief campaign in 1917 because, he said, "the YMCA and the Red Cross are a bunch of grafters; not over 10 or 15 percent of the money collected goes to the soldiers. The war is being run by a bunch of capitalists composed of the steel trust and munition makers." These remarks were considered a threat to the war effort. Two of Madison's most prominent attorneys, Burr Jones and Charles Crownhart -- both of whom later sat on the Wisconsin Supreme Court -- defended Nagler.

Jones and Crownhart argued that the YMCA was hardly part of the war effort, but federal judge Evan Evans of Baraboo interpreted the Espionage Law very broadly and said that it was. He sentenced Nagler to 2-1/2 years in prison. Nagler appealed and in 1920 the government dropped the lawsuit, but Nagler's life was ruined for remarks which today would be considered harmless.

It is hard to understand today why courts in 1917 and 1918 tolerated, indeed encouraged such obvious attempts to suppress free speech. One answer is that the courts had very few occasions before 1917 to consider and interpret the First Amendment, which protected free speech. Most judges in 1917 felt that speech, even mild speech, could be suppressed if it created a "clear and present danger." Influenced by war hysteria, they took a very broad view of what might create a risk of such danger. After the war, they gradually relaxed this view.

Anti-German hysteria and efforts to suppress free speech died quickly after the war, but they remain one of the more shameful episodes of American legal history. Wisconsinites can at least take pride in the fact that our state made some efforts to resist this hysteria.

Note: The views expressed in this article are the author's alone. Distributed as a public service by the Wisconsin Supreme Court in honor of the state's sesquicentennial.

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