It was a war like no other. “After the Civil War began,” write scholars Thomas Tedford and Dale Herbeck, “officials in both the Union and the Confederacy permitted a surprising degree of freedom of expression.” President Abraham Lincoln allowed his critics — including Northerners opposed to the war (“Copperheads”) — wide latitude in railing against his policies. Thus, the “Copperhead press” was routinely antagonistic and even vitriolic in its protests. Of course, sometimes Union soldiers and others sympathetic to Lincoln took matters into their own hands, as when Ambrose Kimball, editor of the Essex County Democrat, was tarred and feathered by a frenzied Massachusetts mob for printing anti-Union stories and editorials. Hence, Lincoln’s toleration co-existed with occasional flurries of intolerant mob rage.
There were, however, instances in which President Lincoln did find it necessary to abridge the five freedoms otherwise secured by the First Amendment. Of those instances Zechariah Chafee Jr., the noted free speech scholar, offered the following measured assessment:
“Undoubtedly [President Lincoln] permitted a very large number of arbitrary arrests … ‘Must I shoot a simple soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?’ [asked Lincoln]. But Lincoln’s policy, apart from all questions of its legality, was very different in nature from most of the [World War I era] Espionage Act prosecutions and sentences. He was proceeding against men who were so far within the test of direct and dangerous interference with the war that they were actually causing desertions, and even then he acted to prevent and not to punish.”
While some may disagree with that assessment, none can question the unique and daunting challenges facing Abraham Lincoln.
Suspending the Great Writ
On April 27, 1861, President Lincoln, fearful that Southern troops might overtake the capital, suspended the writ of habeas corpus and declared martial law in Maryland. Shortly afterward, Union soldiers captured John Merryman, a cavalryman who had burned bridges and destroyed telegraph lines. Merryman challenged his military detention. On May 26, 1861, Chief Justice Roger Taney, sitting circuit, ruled that Lincoln had acted unconstitutionally — only Congress could suspend the Great Writ. Lincoln ignored the order and continued to seize and hold adversaries without a hearing. He did likewise in other states, such as Missouri. However, once order had been established in a county, Lincoln was inclined to release most of the prisoners on the condition that they pledge loyalty to the Union. The New York Tribune, a newspaper hostile to Lincoln, rejoiced: “the reign of lawless despotism has ended.” Of course, the practice of suspending the writ occurred again in 1862 and 1863. Insofar as all constitutional rights were suspended in such instances, all First Amendment rights were likewise suspended.
The temperate president, his intemperate general
In September 1862, Lincoln issued his Emancipation Proclamation, which abolished slavery as of Jan. 1, 1863, and which drew considerable opposition from rebels and anti-war Copperheads. Sympathetic newspapers, like the New York World, lashed out against the president, tagging his proclamation “Bloody,” “barbarous,” and a declaration “adrift on a current of racial fanaticism.” In increasing numbers, newspapers sided against the president’s proclamation. Their editorial barbs often influenced state legislatures to issue resolutions condemning it. Likewise, such broadsides also stirred up anti-Lincoln sentiments, which sometimes struck a sensitive nerve, not so much in the president as in his subordinates. As Daniel Farber has noted, Lincoln “did go too far at times, although it was more often his subordinates who went too far.” This was particularly true of some of Lincoln’s generals.
In March 1863, Lincoln appointed Gen. Ambrose Burnside to be the Union commander overseeing Ohio. In executing his duties, Burnside assumed the power to define lawful dissent. By his measure, any criticism of the president was treasonous. As he put it: “newspapers were full of treasonous expression.” In his view it had to be stopped. He thus issued a general order (#38). That order warned that “declaring sympathies for the enemy” would be a punishable offense in the Military District of Ohio. With that order in place, Burnside went after anti-war protesters, most notably a former Ohio congressman, Clement L. Vallandigham.
Vallandigham was a diehard Copperhead and a vigorous defender of state rights. Though personally opposed slavery, he felt the national government could not constitutionally compel the states to end what was called the “peculiar institution.” On May 1, 1863, Vallandigham gave a speech in which he labeled the Union war as “wicked, cruel, and unnecessary.” This conflict, waged by “King Lincoln,” was a “war for the purpose of crushing out liberty and erecting a despotism.” He then called for Lincoln’s removal from office. Enraged by his words, Vallandigham’s supporters burned the offices of a Republican newspaper, the Dayton Journal. Burnside then had Vallandigham arrested and charged him with uttering “disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress unlawful rebellion.”
The former congressman was convicted by a military tribunal and was sentenced to “close confinement” until the end of the war. Lincoln, however, changed the punishment to banishment to the Confederate states.
Later, Gen. Burnside issued another order, # 84, which provided: “On account of the repeated expression of disloyal and incendiary sentiments, the publication of the newspaper known as the Chicago Times is hereby suppressed.” The Chicago Times had been highly critical of Lincoln and supportive of Vallandigham. Though a federal court had ordered the general to cease such action, Burnside ignored the order for three days. “Freedom of discussion and criticism,” he declared, “which is proper … in time of peace, becomes rank treason when it tends to weaken … confidence” in the government in wartime. Lincoln urged Burnside to be less aggressive, to try to find some middle ground. To that end, Lincoln ordered that the Chicago Times be allowed to resume publication. Even so, Lincoln’s moderation was of insufficient consequence as the controversy escalated.
Papers like The Iowa City Press and the Dubuque Herald and the Detroit Free Press lashed out against the president, calling his general’s actions “a great mistake” and “tyrannical.” Burnside’s temperament notwithstanding, such criticisms often went unpunished. By May 1863, many Copperheads in Northern cities were denouncing the general’s tactics. Meetings held in Albany, N.Y., and elsewhere issued resolves at denouncing the general’s efforts to “destroy free institutions.” On May 16, 1863, and in the spirit of the First Amendment, the New York Evening Post editorialized: “[N]o governments and no authorities are to be held as above criticism, or even denunciation. We know of no other way of correcting their faults, or restraining their tyrannies, than by open and bold discussion.”
Many such protests were allowed to continue without punishment. But when Albert Boileau, editor and publisher of the Philadelphia Evening Journal,printed an editorial comparing President Lincoln to Jefferson Davis, Gen. Robert C. Schenck had him arrested at his home. The publisher was later released after he issued a formal apology.
Lincoln loses patience: Papers closed, editors arrested
By mid-May 1864, Lincoln’s patience with the oppositional Copperhead press had begun to fray. What triggered Lincoln’s wrath was a bogus item that appeared in two Copperhead newspapers out of New York — the Journal of Commerce and the World. The papers ran a fake story that reported a presidential proclamation to the effect that the Lincoln administration was about to draft 400,000 men. According to Tedford and Herbeck, “Lincoln ordered the two newspapers closed and their owners arrested and imprisoned. The Independent Telegraph System, which had transmitted the story, was seized by the military and its transmissions stopped.”
Additionally, and as my colleague David L. Hudson Jr. has noted: Sometimes “people were arrested for wearing Confederate buttons and for singing Confederate songs. Editors were arrested, papers closed and correspondents were banned from the fields of battle. A military governor, with the approval of Secretary of War Edwin Stanton, destroyed the office of the Washington, D.C., newspaper, the Sunday Chronicle.”
Lincoln’s governing principle — that a nation must be able to protect itself in wartime against expression that causes insubordination or actually obstructs the raising of armies — was “absolutely opposed,” said Chafee, to the continuation of such practices once “the emergency had passed.” However problematic the actions of the president and his subordinates, at least Lincoln had the good sense to cease censorship once the underlying danger had abated.
While President Lincoln’s wartime First Amendment record is certainly controversial, it is nonetheless remarkable how much restraint he exercised in the face of truly nation-threatening challenges. Admittedly, there were sporadic instances when the president, or more often his subordinates, censored anti-administration criticism. But far more often, Lincoln’s critics were allowed to publicly express calumnious sentiments and hurl epithets such as “despot,” “tyrant,” “butcher,” “fiend,” “monster,” “liar,” “pirate,” “swindler” and “ignoramus.”
“Surely, Lincoln did not enjoy such criticism,” Professor Geoffrey Stone has written, “but he kept it in perspective and did not [always] overreact.”
— Zechariah Chafee Jr., Free Speech in the United States (Harvard University Press, 1948)
— Michael Curtis, “Lincoln, Vallandigham, and Anti-War Speech in the Civil War,” 7 William & Mary Bill of Rights Journal 105 (1998)
— Daniel A. Farber, Lincoln’s Constitution (University of Chicago Press, 2004)
— Stephen Feldman, Free Expression and Democracy in America (University of Chicago Press, 2008)
— Robert S. Harper, Lincoln and the Press (McGraw-Hill, 1951)
— Harry J. Maihafer, War of Words: Abraham Lincoln and the Civil War Press (Brassey’s, Inc., 2001)
— David L. Hudson Jr., “The First Amendment: A Wartime Casualty?” (2-15-02)
— Jeffrey Manber & Neil Dahlstron, Lincoln’s Wrath: Fierce Mobs, Brilliant Scoundrels and a President’s Mission to Destroy the Press (Sourcebooks Inc., 2005)
— Mark E. Neeley Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (Oxford University Press, 1991)
— Harold L. Nelson, editor, Freedom of the Press from Hamilton to the Warren Court (Bobbs-Merrill, 1967)
— J.G. Randall, Constitutional Problems under Lincoln (University of Illinois Press, 1951)
— Jeffrey Smith, War and Press Freedom: The Problem of Prerogative Power (Oxford University Press, 1999)
— Geoffrey Stone, Perilous Times: Free Speech in Wartime (W.W. Norton & Co., 2004)
— Thomas Tedford & Dale Herbeck, Freedom of Speech in the United States (Strata Publishing Inc., 5th ed., 2005)
— John Vile, David L. Hudson Jr., & David Schultz, Encyclopedia of the First Amendment, Vol. II (CQ Press, 2008)