Civil War

Republicans Defend Censorship

Republicans had included freedom of speech in their party platform in the1856 and 1860 presidential elections to support their speeches against slavery.1 Many of them thought the copperhead appeals to freedom of speech during the war were hypocritical since prior to the war Democrats had directly or indirectly supported suppression of abolitionist speech by ignoring or even supporting southern state bans on criticisms of slavery and mob action against abolitionists in northern states.2 In fact, most Democrats insisted on the validity of southern laws against abolitionist speech under the so-called “states rights” doctrine. Since the First Amendment says only that CONGRESS (the federal legislature) cannot abridge free speech or press, they believed it did not apply to state government. So individual states had the “right” to set laws as they saw fit.

The pre-war Republican arguments for free speech do not sit well with the fact that less than a year later many Republicans supported the suppression of war critics. Was the flip-flop just a change in party politics—for free speech when you’re the underdog but against free speech when you’re the top dog? Was it merely an intense feeling of loyalty brought on by the war? Or was there a legal or moral justification supporting their calls for censorship?

Many supporters of censorship believed that the rules for free speech changed during war.3 In peace, criticisms of government have few, if any, foreseeable perilous consequences. However, during the Civil War there were draft riots, thousands of draft dodgers, and thousands of border state citizens actively supporting the southern rebels. In this climate—said the supporters of censorship—calls to resist the draft, to stop the war, and so on, presented a clear and imminent danger that could cause the north to lose the war. Wisconsin Republicans and the “War Democrats” maintained that the copperheads contributed to both draft riots and draft evasion that severely undermined the war effort.4 Since the legal standard for speech in the 1860s was the “bad tendency test,” meaning any speech having a “bad tendency” (that is, having the potential to cause public disturbance or undermine patriotic duty) could be suppressed, they felt justified in silencing, for example, critics of the draft.

A Wisconsin Assembly committee report offers two more arguments supporting censorship. In 1863, Major Gustavus Heinrichs, Provost Marshal of the Southeast Missouri military district, banned Peter Deuster’s MilwaukeeSee-Bote. Soldiers would no longer be allowed to read that newspaper because it was—in the Major’s opinion—unfit for their perusal. Since Peter Deuster was at that time an elected member of the Wisconsin Assembly, the Assembly directed its Committee on Federal Relations to make a recommendation on a resolution supporting the Marshal’s ban of the See-Bote.5 Basically, the question was this: Should the Assembly support the Provost Marshal and rebuke their fellow Assemblyman or should they support their fellow Assemblyman and rebuke the Provost Marshal? The Republican majority on the Committee supported the resolution and Carl Pope, chair of the committee, gave the following reasons in his report:6

Pope: The criticisms of the See-Bote are not true, and thus do not deserve protection. As the state constitution says in Article I §3, personal attacks are protected if true, but not protected if false, and we know Deuster’s claims about Lincoln and the war are false. If they were true, thousands of young men would not volunteer to fight in the war and thousands of patriots would not support the war. “Who would support a government so tyrannical as the government as administered by Mr. Lincoln, is said to be by the See Bote? What American freeman would willingly risk his life in defense of a despotism? Not one.”

Pope continues: Second, the See Bote is treasonous since its claims are disloyal and cross the line from criticism to counseling disobedience to law. “We leave it to the candid world to judge whether the influence of the See Bote would not have the effect of discouraging enlistments, and does it not thereby, indirectly though it may be, give aid and comfort to the enemy?” “[W]e are of the opinion that all such newspapers should be suppressed both in and out of army lines. Each and every assailant of the government and constitution should be met with that vigor which is so strong a characteristic of a nation of freemen, and silenced until their influence shall be harmless.”

Pope concludes: There is a difference between criticizing policies of the administration and counseling disobedience to law and failure of the war effort. The former is a “liberty we would fight for till the last to maintain,” but the latter is a seditious abuse of liberty. The See Bote, since it counsels disobedience to law and opposes the war, does not deserve free speech protection. “In times like these there is no neutral ground. We are either for the government or against it—either patriots or traitors. We cannot be loyal to the government and disloyal to the administration. The destiny of the government is…completely interwoven with the destiny of the administration…” “We, therefore, regard the sentiments promulgated by the See Bote…as of the most dangerous character; and that Major Heinrich was fully warranted in prohibiting its circulation in the army under his command.”

The Committee on Federal Relations minority filed a separate report defending Deuster as “the uncompromising friend of the people, firmly attached to the principles of liberty, an unwavering advocate of the restoration of the United States into the same fraternal relations that existed before sectional parties menaced their disruption.”7 However, the Republican dominated Assembly passed the resolution supporting Major Heinrichs ban of the See Bote.

Notes

1 For example, the 1856 presidential slogan was, “Free Speech, Free Press, Free Men, Free Labor, Free Territory, and Frémont.” Curtis, p. 281.

2 Curtis, pp. 332-334.

3 This is the so-called “Necessity Defense.” See, e.g., Curtis, 334-341.

4 See, e.g., Klement (1972), pp. 212-216, 224-226, 240 and Rasmussen, pp. 31-39.

5 Resolution No. 37, A: “Resolved, That the following order of Gustavus Heinrichs, Provost Marshall of S.E. Missouri, meets with the hearty approval of the Assembly: Camp Chase, Van Buren, Missouri, Jan. 12—The Milwaukee See Bote, a newspaper printed in the German language, and published in the city of Milwaukee, Wis., ridiculing military authorities of the United States, discouraging enlistments, and thereby rendering aid and comfort to the enemy, is hereby prohibited from circulating in this army, and will be suppressed. All commanders will see this order enforced. A public journal using mean and disgraceful language as this paper is injurious to military discipline, and is not the literature to be tolerated in an army. [SIGNED] GUSTAVUS HEINRICHS Major and Provost Marshal Gen’l of South-East Missouri. See Journal of the Assembly of the State of Wisconsin 1863 ( Madison, 1863), p. 106. The resolution was introduced January 28, 1863, and passed with an amendment to refer to the Federal Relations Committee for report on Janury 30. The Committee reports were delivered on March 31, 1863.

6 Carl Pope, Chairman, “Majority Report,” Journal of the Assembly of the State of Wisconsin 1863 ( Madison, 1863), Appendix, pp. 956-7. Heinrichs gave the order on January 12, 1863. Pope appends excerpts from six months of the See Bote to support his accusations about its disloyalty.

7 Journal, 958-959. The minority report was written by Alden S. Sanborn.