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Articles on Wisconsin legal history
Victor Berger: A reluctant martyr for free speech
Written by Joseph A. Ranney, Attorney at Law
Phone: (608) 283-5612
From 1910 to 1940 the Social Democratic party, led by Victor Berger, controlled Milwaukee's city government and was an important presence in the Legislature. In 1910, Berger became the first socialist elected to the U.S. Congress. Less well known is the fact that Berger and his newspaper, the Milwaukee Leader, were heavily attacked during World War I for failing to support the American war effort. As a result, Berger became a reluctant but real martyr for the cause of free speech.
After the outbreak of war in 1917, Milwaukee's German community came under suspicion of disloyalty (largely unjustified) from other Wisconsinites. Berger, himself born in Austria, published a series of editorials criticizing the recently enacted military draft and arguing that the war was simply a fight between capitalists. He proclaimed:
No one should let the draft registration figures cause him to believe that the war is becoming popular ... They registered because the law makes it a crime not to register. ... Why should we permit our boys to be killed and maimed by the hundreds of thousands to protect the British commercial interest or because English profiteers make money out of this war?
In late 1917, U.S. postmaster general Albert Burleson revoked the Leader's mailing privileges without giving Berger a fair chance to defend himself. This destroyed the Leader's ability to reach readers outside Milwaukee, and the paper survived only because Milwaukeeans staunchly continued their support.
Berger appealed Burleson's decision to the U.S. Supreme Court. Regrettably, the Court put the burden of proof on Berger to show he was loyal rather than forcing the government to prove there was good reason to suspend the Leader. Justices Oliver Wendell Holmes and Louis Brandeis disagreed and criticized the court for limiting free speech, but their votes were not enough. One scholar has called Berger's case the low point of freedom of the press in American history and "utterly foreign to the tradition of English-speaking freedom."
Not content with suppressing the Leader, federal authorities in Chicago indicted Berger in 1918 for conduct detrimental to the war effort. Despite (or perhaps in response to) the prosecution, Milwaukeeans re-elected Berger to Congress later that year. In early 1919, Berger was found guilty and sentenced to 20 years in prison. The jury largely ignored Berger's arguments in defense of his right to free speech and concluded his conduct was "traitorous." In 1921 the U.S. Supreme Court overturned the conviction -- not on the basis of Berger's free speech rights, but on a technicality.
In the meantime, Congress refused to seat Berger after the 1918 election. It concluded Berger was "one of the most dangerous men in the United States" and was "the head of an organized conspiracy to prevent this Government from winning the war." In the final vote 311 congressmen voted against Berger. Only one, Rep. Edward Voigt of Sheboygan, publicly supported him. Said Voigt:
"The greatest single blessing enjoyed by the people of these United States is the right of conscience -- the right to think, and to say and write what one thinks. I admit of no limitation of that right."
Voigt's courage was soon matched by the voters of Milwaukee, who re-elected Berger in late 1919. Congress again refused to seat him, but this time a few more members joined Voigt in dissent. One of them commented acidly: "We must all concede that were Lincoln on earth today with such an utterance [as Berger's] he would be serving a sentence in the penitentiary."
Berger finally triumphed. He was re-elected in 1922. By that time the U.S. Supreme Court had overturned his conviction, and Congress now allowed him to take his seat. He continued to serve in Congress until 1928, shortly before his death.
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.