One-hundred years ago, World War I (WWI), originating from a complex web of interactions, aspirations and illusions, commenced as a struggle that would lead to the deaths of tens of millions of people. As documented in my latest book World War I Law and Lawyers - Issues, Cases, and Characters, not only would the war lead to unexpected events such as the downfall of longstanding empires and far-reaching pandemics like the “Spanish” flu, it would also bring unexpected changes in the law of the countries involved in the war. These ranged from the legal control of narcotics in the UK—arising out of sales of such to servicemen—to Prohibition in the U.S.—arising out of military restrictions on alcohol served to troops— and women’s suffrage in America and elsewhere.
The freedom of expression debate in the U.S. included the Espionage Act and the well-known cases of Schenck and Abrams. Security technologies were factors in the treason trials of alleged spy Mata Hari and former Prime Minister of France Joseph Caillaux, the intercepted Zimmermann telegram—one of the many prongs leading the U.S. into the war, as well as the codes developed to protect privacy of communications, including trench cryptographic codes and the Choctaw code talkers in the U.S. military. Privacy was a focus under the Defence of the Realm Acts and the Official Secrets Act in the UK, which allowed the searching of the mail and prosecution for violations of the privacy of information affecting national security. The Espionage Act in the U.S. had similar reach.
The interplay of the right of freedom of expression versus the right of privacy, defined or found in the amendments to the U.S. Constitution—and later in the European Convention on Human Rights—arose in several cases during and after the war. In Schenck v. United States, decided by the U.S. Supreme Court in March 1919, Justice Holmes, writing for a unanimous court and articulating the “clear and present danger” test, upheld the conviction of the general secretary of the Socialist Party for publications attempting to subvert the Selective Service Act, in violation of the Espionage Act of 1917. In Abrams v. United States, decided in November 1919, Justice Holmes had modified his position, in this case involving five Russian-born defendants. No longer was the court unanimous in affirming convictions under the Espionage Act—as modified by the Sedition Act of 1918, with Justices Holmes and Brandeis dissenting.
What had an impact on Holmes’ reasoning in Abrams were the publications by and communications with Harvard University Prof. Zechariah Chafee. In June 1919, Chafee published a law review article titled “Freedom of Speech in War Time,” where he posited that the real issue in freedom of speech is whether the government can punish all words that have a tendency “to bring about acts in violation of the law, or only words which directly incite to acts in violation of law.” He found that it would be “a disastrous mistake to limit criticism to those who favor the war,” as the social interest of freedom of expression in obtaining the truth and being guided by it was being ignored.
Chafee believed that judges were making their interpretations of the Espionage Act based solely on balancing the social interest in public safety against the individual interests of freedom of expression, not the social interest in finding the truth. He took dead aim at Justice Holmes’ decision in Schenck. Holmes’ subsequent dissenting opinion in Abrams said that “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion” and “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
A leading privacy case after the war, Olmstead v. United States concerned Prohibition and wiretapping. This Supreme Court case included Justice Brandeis’ seminal dissent that “Subtler and more far-reaching means of invading privacy have become available to the government.” As part of the justification for its holding that violations of the Fourth Amendment required “an official search and seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house or curtilage" and as such, wiretapping did not violate this amendment, the court cited the WWI case Gouled v. United States.
The Gouled case had arisen from the procurement activities of the war in early 1918, when the U.S. Army Intelligence Department had begun to investigate contractor Felix Gouled, U.S. Army Capt. Aubrey W. Vaughan and attorney David L. Podell for fraud. The three were indicted under the federal criminal code for defrauding the army and for using the postal mail system to carry out this fraud in regards to certain contracts for clothing and equipment such as raincoats. Army intelligence had sent Private Cohen, an acquaintance of Gouled, to visit him, during which Cohen had come away with several papers, one of which was introduced into evidence against and helped convict Gouled. Attorney Podell was found innocent, and Capt. Vaughan had pleaded guilty and testified against Gouled.
The Supreme Court’s opinion answered several questions put to it by the Court of Appeals. These addressed the evidence that had been secretly taken away and also evidence found during later searches pursuant to valid search warrants. The court ruled that the papers of a private citizen that were not fruits or instrumentalities of a crime or contraband could not be seized by the government under the Fourth Amendment and so could also not be introduced as evidence against him under the Fifth Amendment. This applied both to the papers taken secretly during the friendly visit and also those that were seized during the searches under search warrant, if the only purpose of the search was merely to gather evidence to be used against the defendant.
This “mere evidence” rule was to be controlling in federal court cases for nearly half a century.