Dining World War I, the Unitarian minister John Haynes Holmes later recalled, “there suddenly came to the fore in our nation’s life the new issue of civil liberties.” The arrest of antiwar dissenters under the Espionage and Sedition Acts inspired the formation in 1917 of the Civil Liberties Bureau, which in 1920 became the American Civil Liberties Union (ACLU). For the rest of the century, the ACLU would take part in most of the landmark cases that helped to bring about a “rights revolution.” Its efforts helped to give meaning to traditional civil liberties like freedom of speech and invented new ones, like the right to privacy. When it began, however, the ACLU was a small, beleaguered organization. A coalition of pacifists, Progressives shocked by wartime repression, and lawyers outraged at what they considered violations of Americans’ legal rights, it saw its own pamphlets defending free speech barred from the mails by postal inspectors.
Prior to World War I, the Supreme Court had done almost nothing to protect the rights of unpopular minorities. Now, it was forced to address the question of the permissible limits on political and economic dissent. In its initial decisions, it dealt the concept of civil liberties a series of devastating blows. In 1919, the Court upheld the constitutionality of the Espionage Act and the conviction of Charles T. Schenck, a socialist who had distributed antidraft leaflets through the mails. Speaking for the Court, Justice Oliver Wendell Holmes declared that the First Amendment did not prevent Congress from prohibiting speech that presented a “clear and present danger” of inspiring illegal actions. Free speech, he observed, “would not protect a man in falsely shouting fire in a theater and causing a panic.”
For the next half-century, Holmes’s doctrine would remain the basic test in First Amendment cases. Since the Court usually allowed public officials to decide what speech was in fact “dangerous,” it hardly provided a stable basis for the defense of free expression in times of crisis. A week after Schenck v. United States, the Court unanimously upheld the conviction of Eugene V. Debs for a speech condemning the war. It also affirmed the wartime jailing of the editor of a German-language newspaper whose editorials had questioned the draft’s constitutionality.