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The First Amendment and the Ideal of Civic Courage- The Brandeis

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The First Amendment and the Ideal of Civic Courage- The Brandeis

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 forniaVincent BlasiFollow this and additional works at: https://scholarship.lawwm.edu/wmlrPart of the Constitutional Law Commons, and the Supreme Cour

t 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

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 broug

The First Amendment and the Ideal of Civic Courage- The Brandeis

ht to you by the William & Mary Law School Scholarship Repository.https://scholarship.law.wm.edu/wmlrWilliam and Mary Law ReviewVolume 29Summer 1988Nu

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 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 th

ese 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

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 emb

The First Amendment and the Ideal of Civic Courage- The Brandeis

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 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 in

tellectual 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

o have been aided in the revision of these remarks by the detailed critiques of Robert Amdur, Mark Barenberg, Kent Greenawalt, Yale Kamisar, James Lie

The First Amendment and the Ideal of Civic Courage- The Brandeis

bman, Henry Monaghan, and Robert Scott. Finally, and most important, I have benefited from the work of two research assistants, Eileen Finan and Eve G

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 , 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

th the American business community and the moderate labor union movement.3The advent of World War I exacerbated the class conflicts on which the Wobbl

The First Amendment and the Ideal of Civic Courage- The Brandeis

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 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

eaction these antiwar activities engendered:As a result of these rabid assertions and “slow-down” tactics, the Wobblies were suspected of every type o

The First Amendment and the Ideal of Civic Courage- The Brandeis

f crime. It was claimed that they drove spikes into logs, set buildings on fire, blew up munitions factories, destroyed grain, poisoned cattle, and sm

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 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

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 Hayw

The First Amendment and the Ideal of Civic Courage- The Brandeis

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 c

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 nti-war sentiments." Weinstein, The I.w.w. and American Socialism, 1 Socialist Revolution 3, 27 (1970). This gesture did not prevent the Justice Depar

tment 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

ted the organization. After numerous convictions and stiff sentences, many Wobbly leaders languished in Leavenworth prison. A few others, Haywood incl

The First Amendment and the Ideal of Civic Courage- The Brandeis

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 separate

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 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

ere their headquarters and meeting halls raided, but some members were seized, loaded into cattle cars, and shipped hundreds of miles without food or

The First Amendment and the Ideal of Civic Courage- The Brandeis

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 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 notab

ly 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

or precept advocating . . . the commission of crime, sabotage ... or unlawful acts of force and violence ... as a means of accomplishing a change in i

The First Amendment and the Ideal of Civic Courage- The Brandeis

ndustrial ownership or control, or effecting any political change.”7 Criminal liability, punishable by up to fourteen years in prison, was attached no

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 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 charge

d with its The First Amendment and the Ideal of Civic Courage- The Brandeis

William & Mary Law ReviewVolume 29 (1987-1988)Issue 432264The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney V. Calif

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