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In 1917, a Philly police officer who’d infiltrated a Socialist Party meeting set off a string of events that would bring about a landmark civil liberties decision.
The famous metaphor about the potential danger posed by shouting “fire” in a crowded theater came from a case stemming from those events, in the opinion written by Justice Oliver Wendell Holmes — who eventually became an unlikely champion of free speech.
Here’s the thread explaining how it all went down.
104 years ago, Philadelphia was ground zero in the battle to define free speech in America.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
And for this week’s “Headline of Yore” thread we’re exploring that topic with a headline from today’s Inquirer in 1917:
“Police Arrest 49 Socialists”
Let’s thread… pic.twitter.com/FTIrpKKaZ0
This headline is about a rather astonishing incident where a South Philly police officer drew a gun on a room of socialists at 7th and Dickinson, ultimately arresting all of them.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
But before we discuss in detail, let’s explain what was happening in Philly during this critical summer.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
Much of my background draws from an article by Bill Lynskey in the Pennsylvania Magazine of History and Biography (cc @historicalpa)https://t.co/UczKaG2cfU
In April 1917, the U.S. entered World War I and the government began a campaign to crush dissent at home.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
That included the passage of the Espionage Act, which made it a crime to “cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty in the military.” pic.twitter.com/Eqb8HfIaYO
At the time, there were rampant fears of foreign subversion.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
Shortly after the U.S. declared war, several explosions shredded a munitions plant just outside Philly in Eddystone…killing 139 people.
(It’s unclear if this was a plot…or merely an accident) pic.twitter.com/BACkS7RYlp
Either way, with the war effort ramping up and the Eddystone explosion still ringing in the background, this was a tense summer in Philadelphia.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
And authorities quickly began testing the new powers granted them by Congress.
One target was Philadelphia’s Socialist Party, a regular purveyor of anti-war and anti-conscription materials.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
In early July, socialists passed out anti-war literature in West Philly…leading to a confrontation with residents that ended with police arresting 13 socialists pic.twitter.com/bffsp2I0GE
Then on July 7…the day before our headline… a police officer named Joseph Miller infiltrated a Socialist meeting at 1535 S. 7th St.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
During the meeting, Miller reportedly stood up and yelled.
“Silence. You are under arrest.”
Then he drew his revolver and waited for backup
An interesting note…the meeting was apparently conducted in Yiddish, which Miller spoke fluently.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
He claimed the socialists were talking about overthrowing the American government and opposing the newly instituted draft. pic.twitter.com/2vUyuXYpMH
49 people were arrested that night. Their names, ages AND *addresses* were all printed in the Inquirer article.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
But officials decided not to prosecute, according to Lynskey, instead warning the Socialists that the government was “prepared to take definitive and drastic action.”
The socialists were preparing for a showdown, too.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
In the article about the 49 arrests, the Party’s attorney, Henry John Nelson, said they were waiting for a case to challenge the govt’s suppression efforts.
“We want to find out just where we stand, and the sooner the better.” pic.twitter.com/NfA7vD0hW6
Neither side would have to wait long…
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
Tension continued to build over the summer. A mob attacked another group of Socialists distributing literature in West Philly on August 7.
And then on August 13…the legal fuse was finally lit…
At a meeting, the Party’s executive committee approved the printing of anti-draft literature that would be sent *to* local conscripts.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
Two weeks later, federal agents arrested the party’s general secretary, Charles Schenck, and Elizabeth Baer, another high-ranking member pic.twitter.com/4w1HRlUN2p
That September, Schenck and Baer went on trial in federal court for violating the Espionage Act by attempting to cause insubordination and impede conscription.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
The case would eventually rise all the way to the U.S. Supreme Court.
In 1919, SCOTUS issued a landmark, 9-0 decision…ruling *against* Schenck and determining that the Espionage Act did not violate the 1st amendment
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
It’s a key case in the evolution of free-speech law…https://t.co/htb4zhLA1D
In his opinion, Oliver Wendell Holmes established the idea that gov’t may restrain speech when it presents a “clear and present danger.”
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
(This is also where Holmes famously used the metaphor of shouting “fire” in a theater.)https://t.co/qNdKQ2BaSr
Obviously I’m not a lawyer and it would take way more than a twitter thread to dissect Schenck in full.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
But this was a critical period where the idea of free speech was being tested and reworked.
Free speech rights — as we understand them today — were just emerging.
Holmes himself was evolving on the issue.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
Later that same year, he wrote a famous dissent in a case called Abrams that made him an unlikely free-speech champion. There’s a GREAT book about it:https://t.co/tsdVuIichy
So while Schenck lost, the opinion was part of an evolution that ultimately gave SCOTUS new guardrails to *protect* a lot of political speech.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
And if SCOTUS today were to apply the clear-and-present danger test to Schenck’s case, he’d almost certainly win.
What happened here in 1917 — the escalating battle between the city’s Socialist Party and local authorities — was central to this story.
— Avi Wolfman-Arent (@Avi_WA) July 8, 2021
104 years ago, Philadelphians were testing what freedom of speech meant in America…in ways that still shape our society.
End thread!
