A Socialist Newspaper, the First Amendment, and the Espionage Act
President Woodrow Wilson’s signature on the Espionage Act set in motion a course of events that resulted in the modern interpretation of the First Amendment. The dissents of Justices Oliver Wendell Holmes and Louis Brandeis reshaped the nation’s conception of the value and role of citizens’ expressive rights. Cases like Schenck v. United States and Abrams v. United States rank among the most essential decisions in molding the contemporary character of the nation, and it remains difficult to overstate the importance of the 1919 Espionage Act decisions.
Two years later, the Supreme Court decided another Espionage Act case that has received much less fanfare or scholarly attention but proved significant in determining the breadth of the Espionage Act, the inherent rights of the First Amendment, and the United States Post Office’s ability to oversee the content of the mail. The case involved the Milwaukee Leader, an influential Socialist newspaper, and Postmaster General Albert Burleson. At Burleson’s behest, the United States Post Office (USPS) had revoked the Leader’s second-class mailing privileges, a federal subsidy intended to expand and expedite the flow of information throughout the country. Second-class mailing privileges were a financial necessity in the competitive turn-of-the-century news industry. Burleson justified his removal of mailing rights, claiming the newspaper was in violation of Title XII of the Espionage Act, a provision explicitly tying the new law with use of the mail. The USPS charged the newspaper had regularly published false reports with the intent of interfering with military operations, obstructing military recruitment and promoting the success of its enemies.
As with many of the other significant First Amendment decisions of the period, Justice Holmes and Brandeis’s dissents proved important in Milwaukee Social Democratic Publishing Company v. Burleson. While the country was enthralled by the war efforts, Holmes and Brandeis questioned federal authority and emphasized the benefits of discourse, promoting a more pragmatic, long-term view of expressive rights.
The Most Successful Labor Daily
The Milwaukee Leader published its first issue on Dec. 7, 1911. It was a major socialist newspaper and considered “the most successful of all labor dailies” at the height of socialism’s early 20th-century popularity. The location of the Leader was no accident, as Milwaukee was a hotbed for socialist sentiment, electing Socialist mayors for 38 years between 1910 and 1960 and routinely stocking the city’s Common Council with party representatives.
The newspaper’s founder and long-time editor was Victor Berger, a Socialist stalwart and Congressman representing Wisconsin’s 5th District for four terms. Berger was no revolutionary, though; he sought change at the ballot box. He disdained anarchists and radical leftists and was often criticized by opponents as a reformer not committed to real change. The launch of the Leader fit Berger’s belief in lawful transition through education. He believed socialism was the only viable political path forward, and without a public voice the working class would never prosper. From the outset, the paper was beset with financial problems, but Berger never viewed the Leader as a conventional business. Though he accepted advertising from department stores and high-end haberdasheries, he was also supported by unions and Socialist individuals and causes.
“A Willful Attempt to Cause Disloyalty”
Despite his opponents’ denigration, Berger’s Leader was full-throated in its criticism of capitalism and was bombastic in its resistance to war. At issue in the case were more than fifty editorials published during the first months of U.S. involvement in World War I. Burleson was especially aggrieved with the Leader’s depiction of the war as “unjustifiable and dishonorable…a capitalist war, which had been forced upon the people by a class, to serve its selfish ends. It was declared that we were fighting for commercial supremacy and world domination only and that when the ‘financial kings’ concluded that further fighting might endanger their loans to the Allies.”
The Supreme Court’s majority opinion, written by Justice John Hessin Clarke, agreed that the articles contained false reports, false statements and in general sought to promote success of the United States’ enemies. Taken together, “they constituted a willful attempt to cause disloyalty.” Justice Clarke cited Schenck, Frohwerk, and Debs in demonstrating these were clear violations of the Espionage Act, in line with the recent decisions. The majority opinion also highlighted a lack of constructive intent in the opinion pieces: “These publications were not designed to secure amendment or repeal of laws denounced in them as arbitrary and oppressive, but to create hostility to, and to encourage violation of, them.” Freedom of the press only extended to agitation aimed at modification or repeal. It did not provide shelter for those encouraging violation of the law, Justice Clarke concluded.
Further, revocation of second-class mailing privileges did not prohibit use of the mail system and did not represent a permanent censure. If the Leader were to “mend its ways, to publish a paper conforming with the law,” it could reapply for second-class privileges.
Brandeis, Holmes Dissents: Too Much Power
Similar to the Schenck and Abrams cases, the majority opinion of Milwaukee Publishing Company has been remembered with ignominy, while the dissents of Justice Holmes and Justice Brandeis continue to be cited. Justice Holmes wrote concisely, suggesting he agreed in substance with Justice Brandeis. He observed that revocation of the second-class rate to a newspaper was tantamount to ending its circulation. He also thought the postmaster general had far exceeded his powers in unilaterally making content-based determinations.
Justice Brandeis’s dissent also found fault with the scope of the postmaster general’s power. He called the notion of second-class mail as a privilege to be granted or withheld according to the whims of government grossly inappropriate. Before calculating the costs of revocation, he deemed Burleson’s order “clearly punitive.” Justice Brandeis also identified the on-going restriction as prior restraint, calling the right to limit future distribution due to past infractions “unreasonable and arbitrary.” First Amendment rights may have limitations, and war imposes restraints, but freedom of speech and press should remain steadfast whenever possible, he argued. Justice Brandeis also found the mincing discussion of first-, second-, and third-class mail unsuitable for First Amendment limitation: “Constitutional rights should not be frittered away by arguments so technical and unsubstantial.”
Justice Brandeis found Burleson’s revocation was “unprecedented in American legal history.” He concluded by observing that if administrative officers of Burleson’s position were given such sweeping authority, “there is little substance in our Bill of Rights and in every extension of governmental functions lurks a new danger to civil liberty.”
Obscenity through the Mail
The case lives on primarily in determining obscenity and the USPS’s responsibility in censoring and mailing potentially obscene materials. In 1945, the D.C. Circuit Court decided a case regarding the postmaster general finding Esquire magazine not obscene, but “traffick[ing] in the obscure and treacherous borderland zone.” The majority opinion cited Holmes and Brandeis’s dissents from Milwaukee Publishing Company, scoffing at the postmaster general’s overreach: “It is inconceivable that Congress intended to delegate such power to an administrative official or that the exercise of such power, if delegated, could be held constitutional.”
In a more consequential decision, the Supreme Court heard Manual Enterprises v. Day, with MANual representing a trio of magazines featuring male nudes. Day, the postmaster general, had declared the nude magazines obscene and unmailable, confiscating all copies. Coming shortly after landmark obscenity case Roth v. United States, the decision exposed a particularly divided Court. In finding that nude males were mailable and not obscene, the opinions in the decision cited Holmes and Brandeis’s dissents liberally. While proposing different outcomes, the justices agreed that an administrative official lacked the authority to curtail a constitutional right.
The obscenity cases mark an accurate and fitting legacy to the Milwaukee Publishing Company decision. Both Esquire and Manual found in favor of limiting the post office’s right to make content-based determinations on what is mailable, and both found the First Amendment too substantial to be circumscribed by the tastes of one man. And again with the clarity of time, it has become evident that Holmes and Brandeis were beacons during the fog of war-time, elucidating the gravity of the First Amendment while much of the country, including many of the justices, were swept up in the fervor. Milwaukee Publishing Company is a minor opinion of the era, but it represents another facet in understanding how freedom of speech and the press can be attacked and, in the language of the dissents, how those attacks can be combated.
About the author: A.Jay Wagner is an assistant professor of journalism and media studies in Marquette University’s Diederich College of Communication. His scholarship focuses on media law, with a primary interest in access to government information, and news history.
Featured image: A 1932 photo of the Milwaukee Leader offices with a delivery truck parked out front. Photo courtesy of the Milwaukee Journal Sentinel and the Milwaukee Public Library.
 249 U.S. 47 (1919).
 250 U.S. 616 (1919).
 Espionage Act, Pub. L. No. 65-24, 40 Stat. 217 (1917).
 255 U.S. 407, 412 (1921).
 Elmer A. Beck, Autopsy of a Labor Daily: The Milwaukee Leader, 16 Journalism Monographs August 1970, v (1970).
 James Kates, Editor, Publisher, Citizen, Socialist: Victor L. Berger and His Milwaukee Leader, 44 Journalism History 79 (2018).
 Milwaukee Publishing Company, 255 U.S. at 413.
 Id. at 413-14.
 Id. at 415.
 Id. at 414.
 Id. at 416.
 Id. at 438.
 Id. at 437.
 Id. at 433.
 Id. at 431.
 Id. at 435.
 Id. at 436.
 Esquire v. Walker, Postmaster General, 151 F.2d 49 (D.C. Cir. 1945).
 Id. at 50.
 370 U.S. 478 (1962).
 354 U.S. 476 (1957).