2.5.3. The Mid-Atlantic States (1900-1925): Coming to Terms With Diversity


English-only laws

Laws against flag desecration

Anti-sedition laws

Eugenics laws

New York





Repealed 1920

New Jersey





Repealed 1920






Anti-sedition laws

People v. Most – New York, 1902 (64 N.E. 175); State v. Tachin – New Jersey, 1919 (108 A. 318); People v. Gitlow – New York, 1922 (136 N.E. 317), affirmed, 268 U.S. 652 (1925); Commonwealth v. Widovich – Pennsylvania, 1929 (145 A. 295)

  • How broad is freedom of speech in America?  The modern debate over this question began in New York City during the 1880s, when increasing labor tension in New York and elsewhere (particularly the 1886 Haymarket riots and related bombings in Chicago) led many unionists and members of the nascent Socialist movement to criticize American institutions, often in incendiary terms.  The debate flared up again during World War I, when the federal government and many states enacted anti-sedition laws in order to limit criticism of the war effort.
  • American judges disagreed on what test should be applied to determine whether speech was legal:
    • The “effects test” advocated by U.S. Supreme Court Justice Oliver Wendell Holmes, which says that government may restrict any speech that may lead to violent or disruptive conduct, prevailed over the
    • Content test” advocated by New York federal judge Learned Hand, who argued that it was dangerous to predict the effects of speech in advance and that only direct advocacy of violence against the government should be prohibited.
  • In Most, New York’s highest court anticipated Holmes’s effects test, holding that a speaker who said he would have “gone after” authorities who prosecuted the Haymarket bombers and predicted that the day of revolution was not far off was criminally liable.  In Gitlow, New York’s Court of Appeals applied the same test, upholding the conviction of Communists who advocated revolution and mass strikes; in Pennsylvania, Widovich presented a similar situation that led to a similar result.  The New York court concluded defendants’ speech was not a “mere academic and harmless discussion”; it brushed aside the fact that there had been no mention of violence, reasoning that “some things are so commonly incident to others that they do not need to be mentioned.”  In Tachin, New Jersey’s highest court upheld the conviction of a speaker who criticized the federal government for entering World War I and urged the audience to arm itself for protection against the government.

New York Socialist Congressman Meyer London addressing striking workers in Brooklyn (1916) - courtesy Wikimedia Commons

“[A breach of the peace] may be committed … even by spoken words, provided they tend to provoke immediate violence. … The punishment of those who publish articles which tend to corrupt morals, induce crime, or destroy organized society is essential to the security of freedom and the stability of the state.” – Justice Irving Vann, in Most

“I find nothing in our statute which makes it a crime to teach such revolutionary doctrines and advocate …. A change in our form of government, except as such teaching amounts to a breach of the peace … Although the defendant may be the worst of men, although Left Wing socialism is a menace to organized government, the rights of the best of men are secure only as the rights of the vilest and most abhorrent are protected.” – Justice Cuthbert Pound (dissenting), in Gitlow

“[New Jersey’s anti-sedition law] extends its corroding insidious influence into the public mind and conscience, which today complaisantly applies its provisions to these unsophisticated Russians at the bar, and tomorrow … drags from the tribune a Patrick Henry, a John Brown, or a Wendell Phillips to emphasize the absolute destruction of a constitutional ideal.” – Justice James Minturn (dissenting), in Tachin