Civil War

Edward G. Ryan Defends Free Speech

The most visible response in Wisconsin to the suppression of critics of the war came from the prominent lawyer, politician and future Chief Justice of the Wisconsin Supreme Court, Edward G. Ryan, who was labeled by one biographer the “Father of Copperheadism in Wisconsin.”1 Ryan was an Irish immigrant who came to Wisconsin via Chicago in 1842, and became popular during development of the state constitution. Although Ryan was a lifelong Democrat, he supported the war at its outbreak and only came to oppose Lincoln and the war when he felt the administration threatened, “the Constitution as it is” and “ Union as it was.” He came to believe that Lincoln was a weak, inefficient, unfortunate man unfit to hold the office of President since he was a puppet in the hands of radical abolitionists and rich New England business owners. He criticized Lincoln for suspending habeas corpus, suppressing newspapers, and conducting military trials for civilians.Ryan

Ryan even argued and won a suit in the Wisconsin Supreme Court establishing that Lincoln’s suspension of habeas corpus violated the constitution.2 He called the President an “irresponsible despot” who had created a “reign of terror” by vesting almost the whole of criminal jurisprudence into military tribunals and whose only defense was his “utter imbecility…and moral incapacity.” Ryan declared that his attachment was always to the Constitution and he wished not to survive its ruin for even one day. In his keynote speech to the Democratic Convention of 1862, Ryan stated the party platform in a speech that was printed by newspapers around the state and quickly labeled “The Bible of Copperheadism” by his political opponents.3 Amongst his other comments outlining the Democratic platform for the 1862 elections, he defended freedom of speech.

Ryan begins: Those who support censorship claim the rules of free speech change during war, but they are mistaken. Why? “Our state constitution, asserting the inviolable right of liberty of political discussion, adopts an American maxim as old as American independence, when it declares that ‘the blessings of free government can only be maintained by frequent recurrence to fundamental principles.’ And whosoever, in whatever position, asserts that there has come a time in American history, when freedom of speech should be suppressed, when the safeguard of political opposition should be abandoned, and the voice of all parties but one, should be silenced, when the administration of the government should pass uncensored and unquestioned, when loyalty to institutions of our country should give way to passive submission to our rulers, has little sympathy with the spirit of the liberty won by the valor of our fathers, or of the free institutions established by their wisdom. In a free country, the freedom of the people abides in peace and in war, in domestic tranquility and civil discord…State necessity as an excuse for invading popular liberty, has been in all history the tyrant’s plea. When popular liberty succumbs to the cry of state necessity, it has already ceased to be free.”

Ryan continues: Those who support censorship claim that the administration and government are one and the same—to attack Lincoln is to attack the Constitution—but they are mistaken. “We claim the right as free and loyal American citizens, to discuss the conduct of the administration, and to censure it when we deem it worthy of censure. Our fathers won and established this right, and we will not surrender it. We utterly deny to the Executive of the United States the power assumed by Congress in the sedition act of 1798 to suppress opposition to the Administration, or restrict the full freedom of political discussion in the loyal states. This would be to assume a power above the Constitution. The administration has no more power to suspend the Constitution, than have the people. The administration is the child of the Constitution, and the servant of the people...”

Ryan concludes: Supporters of censorship also claim that copperhead speech can be suppressed because it had a tendency to cause harm, but no prior restraint of speech or press is allowable. “We deny the power of the executive to trammel the freedom of press by the suppression of newspapers. The press is juridicially responsible for abuses; but the freedom of the press, subject to judicial remedies, is essential to the freedom of the people. And we protest against the manifest partiality with which this new and dangerous power is exercised.”

Ryan offers four powerful arguments here. First, whereas Lincoln and his supporters said greater restrictions on free speech were necessary to the war effort, Ryan maintains that this is the “tyrant’s excuse.” His point, put into context, is that the suspension of free speech and habeas corpus that are appropriate to a war zone are not appropriate to a loyal state with a functioning legal and judicial system. To extend the authority of the military into civilian areas is to act as a military dictator, not as a President within a democratic system of checks and balances. In effect, Ryan is saying that because the authority of the President as commander-in-chief of the military is magnified in times of war, we need to watch what he does even more closely, not less closely, since it is exactly during these times that homegrown tyrants seize power. The example of Napoleon in France was fresh on every Democrat’s mind.

Second, Ryan maintains a distinction between the U.S. Constitution and the policies of the Lincoln Administration. Criticisms of Lincoln are not criticisms of the Constitution. Disloyalty to Lincoln is not disloyalty to the United States. Moreover, treason is defined in the Constitution, Article III, Section 3: Treason against the United States, shall consist only of levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt act, or on confession in open court.” The definition itself singles out only overt acts, not words, as treasonous.4

Third, Ryan is arguing that given our constitutional doctrine of the separation of powers, only an act of the state legislature can restrict freedom of speech, and even then it must not violate our state constitution’s guarantee of free speech and press. Since the First Amendment declares that, “Congress shall make no law abridging freedom of speech or press,” and only the legislative branch of government can create or destroy law, Lincoln has no constitutional authority to restrict speech.

Fourth, and finally, Ryan appeals to the prohibition on prior restraint of the press, adopted by patriots during colonial days, taught to legal authorities through the work of the great English legal scholar William Blackstone,5 and affirmed in the wake of the Alien and Sedition Act of 1798.6 Prior restraint is when the government either bans speech before it is published or requires publications be approved by the government before they are published. This is a serious issue because the government used prior restraint to silence critics, but that means the end of democracy. A government that allows only its own point of view to be published is totalitarian, not democratic. Ryan grants—as the state constitution explicitly provides—that an abuse of free speech can be punished later, as happens, for example, in a case of libel or slander. However, what many government officials supporting Lincoln around the country were doing was exercising previous restraint by shutting down newspapers opposed to the war.7

Notes

1 Beitzinger, Alfons J. “The Father of Copperheadism in Wisconsin,” Wisconsin Magazine of History XLIX (Autumn 1955), pp. 17-25.

2 In Re Kemp 16 Wis. 282 (1863). The Lincoln administration decided not to appeal the case to the U.S. Supreme Court at the time, fearing they would lose because of that court’s ruling in Ex Parte Merryman (1861) but the legal principle in Kemp was upheld several years later by the United States Supreme Court in Ex Parte Milligan 4 Wall 2 (1866), See Beitzinger, p. 188.

3 Reprinted, e.g., in the Madison Daily Patriot, September 6, 1862.

4 Consider a serious example: the “first four presidents overlooked the fact that a top-ranking general supplied the Spanish with information in exchange for gold and played a key role in the Burr conspiracy.” Jeffrey Smith, “Prior Restraint: Original Intentions and Modern Interpretations,” 28 William & Mary Law Review 439 (Spring 1987).

5 William Blackstone, Commentaries on the Laws of England (1765-1769): The liberty of the press is essential to the nature of a free state; but this consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.”

6 In 1798, just seven years after the Bill of Rights took force, the Federalist Party, holding a majority in Congress, enacted a law punishing virtually any writing against the government (i.e., the Federalist Administration). In the next two years they used this law to force most of their critics, i.e., Jeffersonian Republican newspapers, out of business. The American public denounced this, and in response voted Jefferson into the Presidency in 1800. Jefferson granted full pardons to all convicted under the Sedition Act when he took office in 1801.

7 As examples, Klement (1992) discusses arrests and deportations of newspaper editors as well as mailing bans and suspensions of newspapers.