The First Amendment and the Ideal of Civic Courage- The Brandeis_2
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The First Amendment and the Ideal of Civic Courage- The Brandeis_2
William & Mary Law ReviewVolume 29 (1987-1988)Issue 432264The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney V. Calif The First Amendment and the Ideal of Civic Courage- The Brandeis_2 forniaVincent BlasiFollow this and additional works at: https://scholarship.lawwm.edu/wmlrPart of the Constitutional Law Commons, and the Supreme Court of the United States CommonsRepository CitationVincent Blasi, The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney V. The First Amendment and the Ideal of Civic Courage- The Brandeis_2 California. 29 Wm. & Mary L. Rev. 653 (1988), https://scholarship.law.wm.edu/wmlr/ VOI29/ÍSS4/2Copyright c 1988 by the authors. This article is brougThe First Amendment and the Ideal of Civic Courage- The Brandeis_2
ht to you by the William & Mary Law School Scholarship Repository.https://scholarship.law.wm.edu/wmlrWilliam and Mary Law ReviewVolume 29Summer 1988NuWilliam & Mary Law ReviewVolume 29 (1987-1988)Issue 432264The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney V. Calif The First Amendment and the Ideal of Civic Courage- The Brandeis_2 oying class have nothing in common. . . J’1 So began the Preamble to the Constitution of the I.W.W., the Industrial Workers of the World. ‘‘Between these two classes a struggle must go on until the workers of the World organize as a class, take possession of the earth, and the machinery of productio The First Amendment and the Ideal of Civic Courage- The Brandeis_2 n and abolish the wage system.”2 Nicknamed the Wob-blies, this group advocated a form of militant unionism built around the ideal of One Big Union embThe First Amendment and the Ideal of Civic Courage- The Brandeis_2
racing all industries. The I.w.w. enjoyed its strongest appeal among the miners, loggers, agricultural laborers, and construction workers of the West William & Mary Law ReviewVolume 29 (1987-1988)Issue 432264The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney V. Calif The First Amendment and the Ideal of Civic Courage- The Brandeis_2 Article is a revised version of the Cutler Lecture, delivered April 8, 1987, at the Marshall-Wythe School of Law, College of William and Mary. The intellectual stimulation and hospitality offered to me on that occasion by the William and Mary tew faculty made the lecture a special experience. I als The First Amendment and the Ideal of Civic Courage- The Brandeis_2 o have been aided in the revision of these remarks by the detailed critiques of Robert Amdur, Mark Barenberg, Kent Greenawalt, Yale Kamisar, James LieThe First Amendment and the Ideal of Civic Courage- The Brandeis_2
bman, Henry Monaghan, and Robert Scott. Finally, and most important, I have benefited from the work of two research assistants, Eileen Finan and Eve GWilliam & Mary Law ReviewVolume 29 (1987-1988)Issue 432264The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney V. Calif The First Amendment and the Ideal of Civic Courage- The Brandeis_2 , 383 (1927) (quoting the Preamble of the I.W.W.).2.Id.653654WILLIAM AND MARY LAW REVIEW[Vol. 29:653the years preceding World War I. Because of their revolutionary rhetoric and frequent involvement in strikes that led to violence, the Wobblies came to occupy a special place in the demonologies of bo The First Amendment and the Ideal of Civic Courage- The Brandeis_2 th the American business community and the moderate labor union movement.3The advent of World War I exacerbated the class conflicts on which the WobblThe First Amendment and the Ideal of Civic Courage- The Brandeis_2
ies thrived. Like some other segments of the populace, the Wobblies viewed the nation’s entry into the war with suspicion, considering it a sacrifice William & Mary Law ReviewVolume 29 (1987-1988)Issue 432264The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney V. Calif The First Amendment and the Ideal of Civic Courage- The Brandeis_2 ogan, “Don’t Be a Soldier, Be a Man.” When the government embarked on a campaign to increase wartime industrial production, some Wobblies distributed posters that read: “Slow down. The hours are long, the pay is small, so take your time and buck them all.”4The historian Robert Murray describes the r The First Amendment and the Ideal of Civic Courage- The Brandeis_2 eaction these antiwar activities engendered:As a result of these rabid assertions and “slow-down” tactics, the Wobblies were suspected of every type oThe First Amendment and the Ideal of Civic Courage- The Brandeis_2
f crime. It was claimed that they drove spikes into logs, set buildings on fire, blew up munitions factories, destroyed grain, poisoned cattle, and smWilliam & Mary Law ReviewVolume 29 (1987-1988)Issue 432264The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney V. Calif The First Amendment and the Ideal of Civic Courage- The Brandeis_2 ns if they refused to cooperate in harassing the war program.3.See M. Dubofsky, We Shall Be All: a History of the Industrial Workers of the World 291-397 (1969); R. Murray, Red Scare: a Study in National Hysteria 26-32 (1955); w. Preston, Aliens and Dissenters: Federal Suppression of Radicals, 1903- The First Amendment and the Ideal of Civic Courage- The Brandeis_2 1933, at 35-62 (1963).4.R. Murray, supra note 3, at 29. These protests apparently did not have the endorsement of the I.w.w. leadership. Big Bill HaywThe First Amendment and the Ideal of Civic Courage- The Brandeis_2
ood, General Secretary of the I.W.W., decided not to oppose the war because he considered the war issue a diversion from the central concerns of the cWilliam & Mary Law ReviewVolume 29 (1987-1988)Issue 432264The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney V. Calif The First Amendment and the Ideal of Civic Courage- The Brandeis_2 nti-war sentiments." Weinstein, The I.w.w. and American Socialism, 1 Socialist Revolution 3, 27 (1970). This gesture did not prevent the Justice Department from prosecuting Haywood and virtually the entire Wobbly leadership for dubious violations of the Espionage Act, a move that severely incapacita The First Amendment and the Ideal of Civic Courage- The Brandeis_2 ted the organization. After numerous convictions and stiff sentences, many Wobbly leaders languished in Leavenworth prison. A few others, Haywood inclThe First Amendment and the Ideal of Civic Courage- The Brandeis_2
uded, jumped bail and fled to Russia. See M. Dubofsky, supra note 3, at 353-60, 434-37, 457-62.1988]IDEAL OF CIVIC COURAGE655Not bothering to separateWilliam & Mary Law ReviewVolume 29 (1987-1988)Issue 432264The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney V. Calif The First Amendment and the Ideal of Civic Courage- The Brandeis_2 that German gold was financing their program. The newspapers labeled the organization “America’s canker sore” and characterized the Wobbly as “a sort of half wild animal. . .Infuriated by the Wobblies’ lack of patriotism, the population countenanced almost any type of action against them. Not only w The First Amendment and the Ideal of Civic Courage- The Brandeis_2 ere their headquarters and meeting halls raided, but some members were seized, loaded into cattle cars, and shipped hundreds of miles without food orThe First Amendment and the Ideal of Civic Courage- The Brandeis_2
water. Others were whipped and tarred and feathered, or were hunted down like fair game thereby giving sport to whole communities. A few, like I.w.w. William & Mary Law ReviewVolume 29 (1987-1988)Issue 432264The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney V. Calif The First Amendment and the Ideal of Civic Courage- The Brandeis_2 to the Wobblies seem tame. Prompted by an Australian statute that outlawed the I.w.w. by name, between 1917 and 1919 twenty-three states adopted notably similar statutes creating the new crime of criminal syndicalism.® The California law was typical. It defined criminal syndicalism as “any doctrine The First Amendment and the Ideal of Civic Courage- The Brandeis_2 or precept advocating . . . the commission of crime, sabotage ... or unlawful acts of force and violence ... as a means of accomplishing a change in iThe First Amendment and the Ideal of Civic Courage- The Brandeis_2
ndustrial ownership or control, or effecting any political change.”7 Criminal liability, punishable by up to fourteen years in prison, was attached noWilliam & Mary Law ReviewVolume 29 (1987-1988)Issue 432264The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney V. Calif The First Amendment and the Ideal of Civic Courage- The Brandeis_2 d abet criminal syndicalism.8 9The California statute took effect on April 30,1919.® By the end of that year, 108 persons had been arrested and charged with its The First Amendment and the Ideal of Civic Courage- The Brandeis_2 William & Mary Law ReviewVolume 29 (1987-1988)Issue 432264The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney V. CalifGọi ngay
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