Civil War

Carl Schurz Defends Free Speech

Some Wisconsin Republicans, such as Carl Schurz, supported free speech during the war. Schurz was born March 2, 1829 in a chateau near Cologne, Germany. He was an excellent student and attended the University of Bonn before fleeing his homeland in 1849 because of his support for greater freedoms for the German people.1 Schurz took up journalism in Paris and London before immigrating to the United States and Philadelphia in 1852. He moved to Watertown, Wisconsin in 1855 and quickly took up with the Republican Party.2 Schurz was a gifted and popular speaker, and gave a series of very popular speeches around the country in 1860 promoting the Republican Party. Two of his speeches in Boston stand out for their attention to freedom of speech. The first, delivered April 18, 1860 in historic Faneuil Hall, argues that our rights mean little without freedom of speech.3 He repeated several familiar refrains, namely, that in a free and open debate truth will emerge victorious over falsehood (p. 59), and that free speech is required by the sanctity of individual conscience (p. 62) as well as by the need to uphold fundamental constitutional principles (pp. 64-5) and natural rights (p. 67). However, Schurz also appealed to two new ideas: the “identity of interests” and toleration.

Schurz begins: “I wish the words of the Declaration of Independence ‘that all men are created free and equal, and are endowed with certain inalienable rights,’ were inscribed upon every gate-post within the limits of this Republic. From this principle the Revolutionary Fathers derived their claim to independence; upon this they founded the institutions of this country, and the whole structure was to be the living incarnation of this idea. This principle contains the programme of our political existence….From the equality of rights springs the identity of our higher interests; you cannot subvert your neighbor’s rights without striking a dangerous blow at your own. And when the rights of one cannot be infringed without finding a ready defense in all others who defend their own rights in defending his, then, and only then, are the rights of all safe against the usurpations of governmental authority. This general identity of interests is the only thing that can guarantee the stability of democratic institutions.” (pp. 58-59)

Schurz continues: “Shall I point out to you the consequences of a deviation from this principle? Look to the slave states. There is a class of men who are deprived of their natural rights. But this is not the only deplorable feature of that peculiar organization of society. Equally deplorable is it, that there is another class of men who keep the former in subjection. That there are slaves is bad; but almost worse is it, that there are masters. Are not the masters free men? No, sir! Where is their liberty of press? Where is their liberty of speech? Where is the man among them who dares to advocate openly principles not in strict accordance with the ruling system? They speak of a republican form of government—they speak of democracy, but…they do not dare to be free, lest the spirit of liberty become contagious. The system of slavery has enslaved them all, master as well as slave.” (pp. 59-60)

Schurz continues: “Against fanaticism genuine democracy wields an irresistible weapon—it is Toleration. Toleration will not strike down the fanatic, but it will quietly and gently disarm him. But fight fanaticism with fanaticism, and you will restore it to its own congenial element…Whoever reads the history of this country calmly and thoroughly, cannot but discover that religious liberty is slowly but steadily rooting out the elements of superstition, and even of prejudice. It has dissolved the war of sects, of which persecution was characteristic, into a contest of abstract opinions, which creates convictions without oppressing men. By recognizing perfect freedom of inquiry, it will engender among men of different belief that mutual respect of true convictions which makes inquiry earnest and discussion fair.” (p. 62)

Schurz continues: “ Europe has witnessed many an attempt for the establishment of democratic institutions; some of them were at first successful, and the people were free, but the abuses and inconveniences connected with liberty became at once apparent. Then the ruling classes of society, in order to get rid of the abuses, restricted liberty; they did, indeed, get rid of the abuses, but they got rid of liberty at the same time. You heard liberal governments there speak of protecting and regulating the liberty of the press; and in order to prevent that liberty from being abused, they adopted measures apparently harmless at first, which ultimately resulted in an absolute censorship.” (p. 64)

Schurz concludes: “I am an anti-slavery man, and I have a right to my opinion in South Carolina just as well as in Massachusetts. My neighbor is a pro-slavery man; I may be sorry for it, but solemnly acknowledge his right to his opinion in Massachusetts as well as South Carolina.” (p. 67)

Schurz was in Boston later that year to give a speech at Tremont Hall on December 11, 1860, and used that occasion to rebut the common arguments of the day in support of suppressing speech.4 Some amongst the 3,000 in attendance were leading businessmen whose fortunes rested in part on business with southerners who had been involved in or supported the break-up of an abolitionist meeting just days earlier. Schurz sought to change hearts and minds.

Schurz begins: “You tell me that there are certain social and political problems, the free discussion of which would endanger certain interests, and make certain men very angry.” (p. 226-7) You say irresponsible speech will cause public disorder. But, “Do you not see a limitation on the freedom of speech will create much greater dangers than those arising from indiscreet use of it?” (p. 227) “Where the freedom of speech and the press are most scrupulously respected, there is the least danger of trouble and disorder in the State.” (p. 227-8) When a man is suppressed, the ‘inner life is pent up in his breast; it longs for air which is forbidden it; it is pent up like the steam in an overcharged boiler, which, the more it is compressed, the more it approaches a violent and destructive explosion; and at last he cries out: ‘Let me speak, or I will fight!’ Thus the peaceful devotee of an idea has become a rebel against the existing order.” (p. 229) “Bring demagogism to the test of free discussion, and it will soon unmask itself…when in the open light of day argument struggles with argument.” (p. 230)

Schurz concludes: “But you say that fanaticism and demagogism, if armed with the power of speech, may pervert the popular mind, and in appealing to the passions or the imagination of the multitude mislead their reason.” (p. 230) But I say, “[w]here speech is not free, there people are most apt to swallow the unjustly forbidden fruit unexamined.” (pp. 231-2) “History is full of examples which show the highest oratory cannot move the popular mind from the ground of strong moral conviction.” (p. 232) “Why not by free speech counteract the mischief that free speech threatened to accomplish? Why not call a meeting on their side…? (p. 235) “This nation has undertaken to be the great guiding star of mankind, and to show the people of earth how man can be free if left to himself….If liberty fall here, where can we expect to see it maintained?” (p. 237)

In these speeches, Schurz makes three bold proposals. First, he is arguing that freedom of speech and press be considered a national right, not a state right, that free speech be no different in Massachusetts than it is in South Carolina. For Schurz, this is Democracy 101: democracy cannot exist without freedom of speech, so if some states are allowed to deny their citizens freedom of speech, it means in effect that our democratic nation is under attack from within. Much of Schurz’s vehemence for slavery is derived from this logic. Slavery cannot survive in a free atmosphere, it must ban speech attacking slavery not just within the south, but also around the whole country.5 But by definition, when opposing points of view are banned, you have a form of dictatorship, not democracy. The only remedy for this evil is to establish free speech as a national right that states may not violate.

Second, Schurz is rejecting the “bad tendency” test, the legal test of his day used to distinguish legitimate speech from speech that “goes too far.” The bad tendency test held that speech that had a tendency to “subvert or imperil” the government could be legally punished,6 and what words had a “bad tendency” often was interpreted by judges and juries very loosely. For example, a newspaper that in a judge or jury’s mind tended to cause people to reject the draft could be prosecuted under this standard. Schurz rejects this notion: fight “bad speech” with “good speech” instead of trying to ban or punish it. In an open contest, good speech (“the truth”) will eventually win since it will expose the errors and fallacies and corruptions of bad speech (“false speech”). Free speech does not mean much, if anything, if it allows the government censor speech it does not like. What protection does “good speech” popular with the majority need? It is “bad speech,” unpopular speech that needs protecting. After all, it sometimes happens on important issues that the “bad speech” of yesterday is the “good speech” of today. For example, in 1855 criticism of slavery was considered “bad speech” by the majority of Americans—today criticism of slavery is “good speech.” In 1855, racist speech was considered “good speech” by the majority of Americans—today racist speech is considered “bad speech.” Without freedom of speech, how would the critics of slavery and racism have changed American hearts and minds?

Third, and finally, Schurz is defending the right of the speaker to speak against the right of the mob or heckler to disrupt the speaker. Some speech will offend others and may cause public disorder. Critics of slavery angered many northerners, not just southerners, and often were shouted down or worse.7 In such cases, legal authorities typically did not protect the speaker, rather, they ignored the situation or used the so-called “police power” to arrest the speaker for causing a public disturbance.8 Schurz is saying this has things backwards. Police should stop the mob from attacking the speaker, a heckler should not be able to veto a speech he or she does not approve of. This practice will turn the “peaceful devotee of an idea” into a “rebel against the existing order.” Her beliefs pent up inside, will eventually explode in violence.

These arguments are important to consider because all three have become our law today through U.S. Supreme Court decisions. Schurz’s advocacy for free speech as a national right and rejection of the bad tendency test were finally given constitutional authority in three U.S. Supreme Court decisions in the 1930’s and 40’s: Near v. Minnesota 283 U.S. 697 (1931) (first time a state law regulating political speech ruled unconstitutional), Herndon v. Lowry 301 U.S. 242 (1937) (rejected “dangerous tendency” test in favor of stricter “clear and present danger” test), DeJonge v. Oregon 299 U.S. 353 (1937) (speech must be an “incitement,” not just have a tendency), and Chaplinsky v. New Hampshire 315 U.S. 568 (1942) (added fighting words restriction). And his protection of the speaker over the mob or heckler was incorporated into our law in the U.S. Supreme Court case Brandenburg v. Ohio 395 U.S. 444 (1969).9

In reward for his service to the Lincoln election campaign, Schurz was appointed the U.S. Ambassador to Spain, but he longed to participate in the military struggle against secession and slavery and arranged a commission in the Union Army as soon as possible. As a military officer, he was not in a position to speak too boldly against Lincoln administration policies, but consider the following remarks he made in a speech at the Cooper Institute in New York on March 6, 1863, the height of the war and the free speech debate:

Schurz: Outside of this Republic, and, I have no doubt, inside of it also, it was remarked with some surprise that the writ of habeas corpus, the liberty of the press, the authority of the civil courts of justice, were in some cases rather cavalierly dealt with. How easily it is forgotten that you cannot permit another rights to be infringed without paving the way for a violation of your own!…In my opinion, the manner of treating its enemies is the true test of the tendency of a government.10

In direct personal correspondence with Lincoln, following the Democratic gains of the 1862 election during a low point in the war, Shurz questioned Lincoln’s military and political tactics, concerned that the President had not done enough to correct abuses committed by Republicans and had lost the forest for the trees.

Schurz: That some of our newspapers “disparaged and vilified the Administration” may be true—although in our leading journals I have seen little else than a moderate and well-measured criticism. I know of none that had even impeached your good faith or questioned your motives. If there were no real and great abuses, the attacks on your Administration were certainly unjustifiable. But if there were, then, I think, the misfortune was not that the abuses were criticized, but that the responsible individuals were not promptly and severely held to account. It is my opinion…that a party…can disarm the criticism of its opponents by justly criticizing and promptly correcting itself.11 I entreat you, do not attribute to small incidents, as the enlisting of Republican voters in the army and the attacks of the press, what is a great historical event. It is best that you…should see the fact in its true light and appreciate its significance: The result of the elections was a most serious and severe reproof administered to the Administration. Do not refuse to listen to the voice of the people.12

So perhaps Schurz is our best example of a Wisconsin public figure committed to free speech, since he defended it both when it was in his partisan political interest and when it was not. It is worth noting that Schurz took principled stands on other issues as well and had a well-earned reputation as a “clean” politician.13 One of his biographers notes that Schurz was, “the earliest important practitioner of non-partisanship and independence in American politics. He saw no virtue whatever in blind attachment to party….[and] justified his attitude by saying he set country ahead of party”14 and that “in an age when corruption in infinite variety was rife even in the highest offices, he presented the pleasing spectacle of a leader with an untarnished record.”15 He voted for and served under both Democratic and Republican presidents and was the leading reformer of our civil service, transforming it from a system of political patronage system into a system of qualification and merit. Here too he was blind to party: “When a friend of his went wrong on the civil service, Carl Schurz reproached him. When one of his political foes helped the cause, Schurz sent him a word of commendation.”16

Notes

1 Hans L. Trefousse, Carl Schurz: A Biography (Fordham University Press, New York, 1998).

2 Schurz ran for Lieutenant-governor in 1857, was Chairman of the Wisconsin delegation to the Republican national convention in 1860 and wrote several planks of the party’s state platform.

3 Carl Schurz, Speeches, Correspondence and Political Papers of Carl Schurz, Vol. 1, ed. Frederic Bancroft, (New York: Putnam, 1913), pp. 48-72.

4 Carl Schurz, Speeches, Correspondence and Political Papers of Carl Schurz, Vol. 1, ed. Frederic Bancroft, (New York: Putnam, 1913), pp. 222-239. Schurz had planned to speak on “American Civilization,” but when he learned that an excited crowd led by prominent businessmen had broken up a meeting of abolitionists a few days earlier, he seized the opportunity to address a favorite topic, renaming it, “Freedom of Speech.”

5 For example, North Carolina passed a law in 1830 banning anything with a tendency to stir up opposition to slavery. In Alabama, such speech was punishable by death. Virginia passed a law in 1836 banning discussion of the legitimacy of slavery and providing for the imprisonment of any abolitionist speaking in the state. They extended their laws to Northern publications brought into the state, so, for example, the governor of Alabama requested the extradition of the New York publisher of The Emancipator.

6 “[Freedom of speech] does not protect publications or teachings which tend to subvert or imperil the government.” Gitlow v. New York 268 U.S. 662 (1925) at 667. Or “utterances inimical to the public welfare, tending to incite crime, disturb the peace, or endanger the foundations of organized government by unlawful means,” Whitney v. California 274 U.S. 357 (1927).

7 In 1835 abolitionists conducted a mailing campaign to flood the country, including the south, with anti-slavery literature. In response, almost every Northern community of size held an anti-abolitionist mass meeting by the fall of 1835 and the Postmaster sought to ban abolitionist literature from the mails, eventually settling for the Post Office Act of 1836 banning postmasters from delivering abolitionist mail that offended state laws. Abolitionists in Oneida County, New York were banned form public meeting and chased by a mob from a church. Similar incidents occurred in places such as Boston, Cincinnati, and Philadelphia. Hilton Helper’s book, The Impending Crisis (arguing that slavery was causing an economic disaster in the South) was banned in the South and the Reverend Daniel Worth served a year in jail for circulating the book in North Carolina. Abolitionists were tarred and feathered in some Northern communities, and Elijah Lovejoy, an Ohio abolitionist, was murdered while defending his fourth newspaper press against the attack of a mob (the previous three presses having also been destroyed by unrestrained mobs). Many Northern politicians openly supported mob action against abolitionists as justified responses to the “evil” of abolition.

8 At least two interesting exceptions to this pattern occurred in Wisconsin. When the Third Minnesota Regiment was passing through La Crosse on their way to the warfront, they decided to “clean out” Brick Pomeroy’s office but were prevented form doing so by the quick intervention of the Mayor Pettibone of LaCrosse. See Klement (1951), p. 113. In Racine, a well-known barkeeper would have been lynched by a mob for expressing his happiness upon hearing of Lincoln’s assassination but for the intervention of former Mayor Tom Halvey, Sheriff Frank Schneider, and 1 or 2 other “cool-headed” men. Eugene Walter Leach, Racine County Militant (Racine, WI: by author, 1915), p. 111.

9 Earlier cases where public order was seriously threatened but speech was found protected include Cox v. Louisiana, 379 U.S. 536 (1951), Edwards v. South Carolina, 372 U.S. 229 (1963). Other 1969 cases include Watts v. United States, 394 U.S. 705 (1969), Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969), and Gregory v. City of Chicago, 394 U.S. 111(1969).

10 From “Reconciliation by Emancipation,” Schurz, Speeches, p. 248. Also, In a letter to his friend Theodore Petrasch of Cologne, Germany, Schurz comments that “[t]he government has unquestionably committed great errors; the individuals who direct the affairs of the country are undoubtedly not ideal statesmen….The main thing is that the policy of the government moves in the right direction.” Schurz, Letter to Theodore Petrasch, October 12, 1864, p. 3, Schurz, Papers, Box 2. In speeches during the 1864 Presidential campaign, Schurz generally glossed over the Lincoln administration’s excesses to extol the President’s virtues. See, e.g., “Peace, Liberty and Empire,” a speech at Concert Hall in Philadelphia on September 16, 1864; “The Treason of Slavery,” a speech at the Academy of Music in Brooklyn, New York on October 6, 1864; and “Appeal to Common Sense,” a speech at the Academy of Music in Milwaukee on October 28, 1864. All printed in Schurz, Speeches.

11 Schurz, Letter to President Lincoln, Nov. 20, 1862, reprinted in Harlan Hoyt Horner, “Lincoln Scolds a General,” Wisconsin Magazine of History (Winter 1952-53), Vol. 36, No. 2, p. 96.

12 Horner, p. 144.

13 As early as November 18, 1858, in a speech at Albany Hall in Milwaukee, Schurz condemned corruption in public officials whether they be Republicans or Democrats, going so far as to say they should be run out of the party. “Political Morals,” Schurz, Speeches, p. 48.

14 Claude Moore Fuess, Carl Schurz: Reformer (Port Washington, N.Y: Kennikat Press, 1932), p. 390.

15 Fuess, p. 391.

16 Fuess, p. 392.