American Anarchy: The Epic Battle Between Radical Immigrants and the US Government at the Beginning of the 20th Centuryby Michael Willrich, Basic Books, 480 pages, $35
Late 19th- and early 20th-century American lawmakers and police forces believed that anarchist agitators did not deserve the protection of the Constitution. After immigrating to the United States from Tsarist Russia in 1885, Emma Goldman became a dynamic and extremely popular traveling lecturer on anarchism and other rebellious causes such as conscientious objection and contraception. As a result, she was frequently arrested—and in 1919, she was deported to what is now Bolshevik Russia along with hundreds of other defendants. (Goldman’s version of anarchism was not free-market; she wanted to abolish private property as well as the state.)
Many anarchists saw a positive side to these legal battles: they offered an opportunity to voice their views in court, where the press often amplified their message. The anarchists sentenced to death in the notorious Chicago Haymarket bombing case of 1886 spent three days in court explaining their views; in one of their own trials, Goldman and her sometime partner and lifelong comrade Alexander Berkman were content to give their anarchist opinions for five hours.
Berkman not only lectured against the state and capitalism; in 1892 he decided to kill the murderous strikebreaker Henry Frick, the Carnegie Steel factory manager. (He shot and stabbed Frick, but failed to kill him.) This did not help public opinion of their cause. Nor did it help the fact that Leon Czolgosz, who assassinated President William McKinley in 1901, was a self-proclaimed anarchist who claimed that Goldman’s rhetoric had “set him on fire.”
In American AnarchyBrandeis historian Michael Willrich argues that these legal battles over anarchism in America gave rise to two distinct and opposing elements of modern American policing and law enforcement.
On the one hand, the enemies of the anarchists, from the New York Police Department to military intelligence to the Departments of Labor and Justice, built a more extensive and intrusive system of political surveillance and repression to suppress and expel the anarchists. The methods of these systems—which often relied on unreliable, nativist, and paranoid snoopers and informers—may seem old-fashioned in the post-Edward Snowden era. They also seem particularly brutal when you consider that police officers of the era had a habit of administering “the third degree” (that is, terrible beatings) to seditious radicals and people the police officers merely assumed were seditious radicals. Many prosecutions hinged on the accuracy (or inaccuracy) of a police officer’s written notes showing what a suspect had allegedly said in public.
This apparatus of repression, Willrich writes, was “cobbled together by placing public power in the hands of private civilians, using local police for national purposes, and employing surveillance technologies developed both in the U.S.-ruled Philippines and in the immigrant colonies of upstate New York.” The result was “an inefficient and incredibly violent operation that thwarted few actual plans, brought thousands of people to justice for speaking out against capitalism or the war… and demonstrated an almost total disregard for constitutional liberties.”
And that was the basis for the second major effect of these struggles: ironically, they ultimately led to First Amendment doctrine becoming more respectful of free speech. After the crackdown on anarchists had subsided and the Cold War repression under the Smith Act was over, it became increasingly difficult to imagine anyone going to prison in America. only for uttering or writing a political heresy. Even when people are targeted for their speech, decency requires that a more serious charge be added. (The modern heir to the mantle of “enemy for whom constitutional protections can be ignored” is the drug seller and user, although various constitutional amendments are involved.)
Three indictments during the crackdown on political dissidents under the Espionage Act during World War I ended up before the Supreme Court. Each time, free speech was lost. But in Abrams v. United StatesBased on a 1918 expansion of the Espionage Act known as the Sedition Act, a dissenting opinion signed by two justices established a stance toward the reach of the First Amendment that became the default throughout the 20th century.
In August 1918, the Army Corps of Intelligence Police had arrested a group of Russian immigrants in New York for allegedly distributing seditious pamphlets. The defendants insisted that the literature – many copies of which were thrown out of windows to passersby on the street – was not intended to hinder the ongoing U.S. war effort against Germany, which was the basis of many of the charges. Rather, the literature was directed against U.S. interference in revolutionary Russia, with whom we were not in a constitutionally declared war.
The Abrams The defendants were represented by Goldman’s lawyer, Harry Weinberger. His role in Willrich’s narrative is as central as hers and Berkman’s. (Willrich argues that the war on anarchists essentially created the modern figure of the civil rights lawyer.) The Supreme Court upheld the convictions by a vote of 7 to 2. But a dissenting opinion written by Justice Oliver Wendell Holmes (who had written the earlier, poor decisions in the Espionage Act cases) laid out a vision of the First Amendment that more tightly limits when the government can constitutionally punish speech: only when that speech poses a “present danger of imminent evil or an intent to bring it about.”
A later founder of the American Civil Liberties Union wrote to Weinberger after reading the dissenting opinion: “We will certainly use it for some purpose.” Civil rights activists inside and outside the judiciary have done so ever since, expanding Americans’ freedom of expression in the process.
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Predictably, things got worse for civil rights and for anarchists as the war went on. The Immigration Act of 1918, Willrich summarizes, “authorized the Secretary of Labor to deport any person identified as a noncitizen and anarchist.” Even personal beliefs could be disregarded, for “membership in an organization that espoused ‘anarchist’ ideas was now sufficient grounds for deportation.” Having spent decades building a productive life here and having a family was not enough to protect one from being caught and deported if a government official thought one did not believe the state should exist. (In 1903, during the wave of anti-anarchist action after Czolgosz, Congress passed an immigration law that banned entry for anarchists, but enforcement was difficult and in the first seven years only ten anarchists were caught among the millions of immigrants entering the country.)
The story of the anarchist crackdown is often, and for good reason, cited as a prime historical example of the anti-freedom madness that can engulf even the supposed land of the free. This wave of anarchist repression was indeed devastating for many people and organizations—the Industrial Workers of the World, for example, was nearly wiped out by mass raids and arrests.
But the consequences of these authoritarian outbursts suggest that we should at least give the Constitution a half-hearted applause. The rights it enshrined were severely violated, but at least they could be demanded at some point.
After World War I ended, President Woodrow Wilson commuted the sentences of more than 125 prisoners who had suffered under the Espionage Act to shorter terms. An assistant secretary of labor—Louis Post, who actually respected the Constitution—overturned 1,140 deportation orders, nearly three-quarters of the cases he was able to review during his short tenure. In the infamous Palmer Raids of 1919 and 1920, 500 accused radicals were sent to Ellis Island for deportation, but as public opinion and court chicanery turned against the madness, only 23 of them were actually deported. And in 1933, President Franklin Roosevelt granted a general amnesty to the remaining World War I-era political prisoners.
In contrast, in Russia many anarchists were deported. The Bolshevik state murdered many of them, including two of the Abrams Accused.
Willrich’s detailed study is particularly relevant today because Willrich’s expansive interpretation of First Amendment rights is based on Holmes’ Abrams Dissenters are once again under fire from legal scholars who see the amendment as an obstacle to progressive change, from young Americans who believe that certain potentially hurtful things should not be legally said, and from a culture in general that is increasingly and furiously eager to silence opponents. This valuable book shows one important reason why a comprehensive interpretation of the First Amendment matters: Without it, people were beaten by police and driven from their homes simply for saying or writing things the authorities didn’t like.
Goldman, for example, thought America was better than that. She once told a huge crowd in New York City that when people like her condemned war and conscription, they weren’t doing so because “we’re foreigners and we don’t care.” They came here “because they saw America as the promised land,” and they confronted the country’s faults “precisely because we love America.”
