6 Seditious Libel and Incitement to Illegal Action

The 19th Century and the Civil War

Punishments for speech would continue at the state level throughout the 19^th century. Voicing unpopular opinions—particularly opinions unsupported by at least one of the two major political parties—was seen as a threat to unity rather than a legitimate part of political debate. Before the Civil War, one of the most frequent targets of such convictions were abolitionists, who were viewed as dangerous radicals in both the South (for threatening slavery) and the North (for threatening the union). Aside from being subject to mob violence (often with the tacit or explicit support of local law enforcement), abolitionists faced legal punishment for their advocacy at the state level and censorship of their materials in the U.S. mail (generally by local and state nullification rather than national decree).

With the start of the Civil War, free speech again became a salient issue for the national government. With the stakes considerably higher than those faced in the Mexican War, Congress and the Lincoln administration acted to punish critics of the war effort, claiming their speech injured troop morale and encouraged disunion. “Copperheads,” or northern Democrats who opposed the war, supported slavery, and wished to let the South secede, were particular targets of Lincoln’s generals. For example, General Burnside, commander of troops in three midwestern states, issued General Order Number 38, which prohibited “declaring sympathy” for the enemy. In practice, this meant it was illegal to criticize the war effort or advocate for policies that would end the war. Clement Vallandigham, an intemperate Congressional critic of Lincoln, the war, and Lincoln’s generals, found himself before a military tribunal after violating the order. After his conviction and denial of appeal, Vallandigham fled to Canada.

Lincoln would sometimes act to moderate the actions of his most censorious subordinates, though more it seems from practical concerns over political backlash than from any principled defense of free speech. Lincoln explicitly tied his views on why anti-war advocacy should be punished to his concerns over troop morale and where the moral responsibility lay for desertion. In particular, Lincoln decried those who urged Union soldiers to desert the armed forces (at the time a crime punishable by death):

Must I shoot a simpleminded solider boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? … I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy.

While not rising to the level of a political or legal theory, Lincoln’s position seemed to be that general anti-war speech and criticism of his administration were protected speech, while more specific attempts to discourage the draft or encourage desertion should be criminalized. As General Order Number 38 shows, however, this distinction—even if workable as a pseudo-legal test—was not always honored in practice. Nevertheless, even this half-hearted attempt to separate protected speech from illegal incitement is worth noting as part of our constitutional development.