Civil War

How Well Did Free Speech Fare in Wisconsin?

One measure of the vitality or health of freedom of speech is the law, that is, the action or inaction of the three branches of government. How does the Wisconsin fare on this measure? Unlike authorities in many other states, Wisconsin officials did not suppress “copperhead” newspapers, even those of extremists like Deuster and Pomeroy.1 Unlike neighboring states such as Illinois, Iowa, Indiana, Ohio where there were some arrests and the border states of Kentucky and Missouri where there were widespread arrests,2 we have found only one clear-cut arrest in Wisconsin of an arrest for “bad” political speech, and that arrest was by the military, not the state government. In fact, the state government through the Wisconsin Supreme Court ruled the arrests illegal in In Re Kemp (1863) since all three judges found it very clear that Lincoln’s suspension of habeas corpus was unconstitutional and that the only law Kemp might have broken was a state anti-rioting law, and this required the action of state civilian law, not martial law.

The arrest came in the aftermath of the Port Washington draft riot of November 10, 1862. Wisconsin Governor Salomon ordered troops in to restore order and one hundred and fifty civilians were arrested by military troops. One hundred were quickly released, but fifty were brought to and detained in Camp Randall outside Madison, and the military refused to turn them over to civilian officials, citing Lincoln’s suspension of habeas corpus. One of the detainees, Nicholas Kemp, had his lawyer petition the Wisconsin Supreme Court for a writ of habeas corpus and W.D. McIndoe, special provost marshal headquartered in Madison, explained Kemp’s arrest in a letter to his commanding officer, Brigadier General W.L. Elliott, commander of the Department of the Northwest.

McIndoe:3 “I have the honor to inform you…that Nicholas Kemp, Joseph Hine, and Anthony Alheisen [Ablheisen]…were each arrested on my order in the village of Port Washington….The cause of the arrest of said Kemp and Hine was for viable resistance to the draft of the militia of this state….The cause of the arrest of Alheisen was the use by him in public…of violent language discouraging volunteer enlistments into the army of the United States, and language opposing and tending to induce others to oppose the draft.”

McIndoe indicates here that Kemp and Hine were arrested for draft evasion (which Kemp was absolved of in 1863 through In Re Kemp, argued by Edward G. Ryan) and thus that only Ablheisen was arrested for his speech.4 Even assuming some of the other arrests in Port Washington involved “bad” political speech, it appears that Wisconsin state officials fared quite well by this first (legal) standard despite the insinuations of Frank Klement to the contrary. Consider:

Klement:5 “Pomeroy’s irreverence and invective did not bring about his arrest. In theory, freedom of the press existed in LaCrosse during the Civil War.” “In practice, Pomeroy was abused by various LaCrosse residents and soldiers on furlough. There were threats to mob his printing plant. Subscribers quit taking his newspaper and some businesses ceased to advertise in [his paper].”

While we too might lament many of these actions against Pomeroy’s right to publish, we need to be more careful than Klement is here so we do not perpetuate or encourage common confusions about free speech. First, it is not a violation of a publisher’s right to free speech for a subscriber to cancel his or her subscription, nor does an advertiser violate a publisher’s free speech rights if he or she ceases to advertise. It is both legally and morally permissible to offer financial support to organizations you agree with and to withdraw financial support from organizations you disagree with. Legally speaking, free speech is a restriction on the powers of government, not private business or individuals. It is a violation of free speech only if the government unlawfully blocks publication or attempts to punish speech that is held by courts to be protected by the U.S. or Wisconsin constitutions. Since it was considered lawful in the 1800s for government to suppress speech with a bad tendency, state officials might have been morally wrong or unwise to prosecute a Wisconsin copperhead, but they would have done no legal wrong to prosecute a Deuster or Pomeroy for their published attacks on, for example, the draft.

Second, the idea that government should protect an unpopular speaker from angry mobs or hecklers was not made clear and determinate part of the First Amendment until Terminiello v. Chicago in 1949.6 Until then, the courts repeatedly held that the need for public order outweighed the speech rights of unpopular speakers. Thus, rather than arrest the mob or heckler, it was typical for police to ignore mob reactions to a speaker or even to arrest the speaker under the “police powers” doctrine. Thus, if Ryan had been in circumstances where his speech might have caused unrest amongst some members of the audience, state officials might have been morally wrong or unwise to arrest him, but they would have done no legal wrong to arrest him. In fact, in contravention of current law, it has happened as recently as 1993 in Wisconsin that police have arrested a lawful speaker when faced with a hostile audience rather than dispersing the mob or protecting the speaker.7

This works the other way around too. For example, threats against the president were not made illegal until the Threats Against the President Act in 1917. Thus, while people might morally condemn Pomeroy’s threats against the President, his words did not violate any legal statute (though, of course, any actions he or anyone else might take against the life of the President, or anyone else, would violate conspiracy laws).

Thus, based on our findings so far, if we judge the behavior of Wisconsin political officials by the legal standards of their day, they compare favorably to other Northern state governments. No political officials or editors were arrested for criticizing Lincoln or the war. No newspapers were shut down for publishing copperhead sentiments.

Of course, public “moral” reaction to unpopular speech, in contrast to official government legal actions) is a second measure of the vitality or health of freedom of speech, and it is the standard Klement uses when lamenting the public reaction to Pomeroy’s articles. By this standard it is fair to say (at least if we use today’s moral standards) that Wisconsin did not fare very well, though still perhaps better than many of its sister states.8 Republicans in Wisconsin and their War Democrat supporters did what they could to harass and suppress opponents of the war and did not limit themselves to mere words of lawful actions.

Some examples from Racine County will illustrate the point.9 A well-known farmer who indulged in “offensive, unpatriotic” language in Caledonia one morning was ridden out of town on a rail. Another man guilty of “disloyal” talk was chased around Racine on pain of a beating until he found a hiding place and waited out the night. A prominent lawyer who “defamed” Lincoln was called out onto his porch one evening by a crowd of soldiers and citizens, and “taught” to give a hearty “three cheers” for the president. Just before the Twenty-second Regiment left for the warfront, a group of the new enlistees got drunk and went to confront one of the best-known “copperheads” of Union Grove. He denied their accusations, and, as demanded, gave them five dollars for the benefit of soldiers. They left to look for trouble elsewhere.

Notes

1 Klement discusses free speech arrests and newspaper suppression in other states in “President Lincoln, the Civil War, and the Bill of Rights,” Lincoln Herald (1992), Vol. 94, No. 1, pp. 10-23.

2 Klement (1972), pp. 18-20. One might wonder why Wisconsin was less prosecutorial than other states. We speculate that a number of factors were involved, e.g., Republicans in Wisconsin were able to maintain their political power through appeals to a “Union Party,” formation of Union leagues and the soldier vote. Wisconsin was also remote from the warfront and still a frontier state with significant economic and local issues, even fears of Indian rebellions, to address.

3 In Re Kemp, 1863 Wisc. LEXIS 9, at 5.

4 Ablheisen was arrested November 15, 1862 and released on parole December 12, 1862.

5 Klement (1992), pp. 20 and 23.

6 337 U.S. 1 (1949). Arthur Terminiello, an active anti-Semitic, quasi-fascist organizer and suspended Catholic priest, delivered a racist speech to a large audience in a Chicago meetinghouse. About one thousand angry protestors milled about outside objecting to his speech, and when Terminiello denounced them, they threw rocks through the windows of the building. Police then entered the building and arrested Terminiello for his “fighting words.” The Supreme Court threw out the conviction, holding that that “a function of free speech is to invite dispute. It may indeed best serve its highest purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger…[and is protected] unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello at 4.

7 See, for example, Koser v. County of Price 834 F. Supp 305 (1993).

8 See, for example, Klement (1972), pp. 220-223.

9 Reported in Leach, pp. 111-113.