The First Amendment: The Finished Mystery Case and World War I

Our most personal liberties—freedom of religion, freedom of expression, freedom of the press, the right to peaceful assembly, and the right to petition the Government—are protected by the First Amendment. The First Amendment is the first ratified addition to the Constitution and the first of the amendments to be made binding upon the States by the due process clause of the 14th Amendment. It also enjoys a primacy belonging to no other amendment. Indeed, Justice Wiley Rutledge in Thomas v. Collies, 323 U.S. 516 (1945), conferred on the First Amendment a "preferred position" in the hierarchy of rights. Yet, as favored as the First Amendment is and as absolute as its language is, there are limits to the freedoms guaranteed therein. The rights of the individual are balanced against the common good.

Particularly in wartime, conflict has arisen between individual liberties and the general welfare. Usually when conflict occurs, national interest is accorded precedence over individual conscience. Neither free exercise of religion nor free expression has ever been perceived as absolute. Time after time, during periods of national emergency, the threshold for what constitutes seditious language has been lowered. See "Abington v Schempp—The Establishment Clause, 1962" in volume 1 of Teaching with Documents.

During World War I, Federal espionage and sedition acts were adopted that resulted in nearly 1,000 convictions. The Espionage Act of June 15, 1917, accorded the Government broad powers to censor or confiscate materials that were considered unpatriotic, critical, or treasonous and provided for the imprisonment of persons distributing seditious materials. Many publications were scrutinized, including those published by religious groups.

Shortly before his death in 1916, Pastor Charles T Russell, the founder of the Jehovah’s Witnesses, requested posthumous publication of The Finished Mystery, the final volume in his religious textbook series called Studies in the Scriptures: Helping Hands to Bible Study. Its purpose, like that of the society’s periodicals, Kingdom News and The Watch Tower, was "to preach the Gospel of Jesus Christ by the oral message and by the printed page." The volume was published in mid July 1917 and the society’s International Bible Students Association (IBSA) sold 30,000 copies the first week it was available.

Later that year, according to contemporary reports in Kingdom News, the Censor Committee of the Intelligence Section of the War Department suggested the removal of six pages; the society complied with the request. The Government later denied that any such request had been made; however, in early spring 1918, The Finished Mystery was named a proscribed book on the grounds that it was antiwar propaganda in violation of section 3, title I, of the Espionage Act. John Lord O’Brian, special assistant to the Attorney General for war work, asserted that the book "treated participation in war as irreligious, un-Christian, a violation of the word of God and an adherence to the purposes and designs of Satan." On March 14, 1918, the Attorney General telegraphed Hooper Alexander, the U.S. Attorney for Atlanta, GA, to enforce the bookban. The featured document is the reply Alexander made the next day. It is located in the General Records of the Department of Justice, Record Group 60, Central Files Classified, Subject Correspondence.

The April 15, 1918, edition of Kingdom News protested the Government’s censorship, arguing, "The Society has never published anything with a view to hindering the progress of the war at all, for the reason that they recognize it as of Divine permission, and could not oppose its progress without opposing the very foundation of their belief." They suggested that rival Protestant clergy had labeled their publications as "Hun Propaganda" to unleash Government persecution.

O’Brian clarified his opposition to the piece in a May 15 letter to Alexander saying that there was no problem with distribution of the book to regular recognized members of the society and IBSA. Rather, it was distribution of the materials to outsiders that constituted "anti-war propaganda." Shortly after, J.F Rutherford and seven other members of the IBSA were arrested for distributing the proscribed materials. They were convicted on the charges of conspiracy to cause insubordination and disloyalty in the military and naval forces of the United States and obstruction of recruitment and enlistment (for organizing exemption claims on religious grounds). They were confined in the Atlanta Penitentiary, and their convictions were sustained upon appeal. In spite of a letter-writing campaign and request by Representative Riley J. Wilson, they received no clemency.

Following the war, six cases came before the Supreme Court challenging the constitutionality of the wartime measures restraining free expression. In each instance the Supreme Court sustained the Federal acts. The first case to be decided, Schenck v United States (1919), provided justice Oliver Wendell Holmes the opportunity to enunciate the "clear and present danger" doctrine:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

These decisions are the standing precedent for the Supreme Court, since they have never been overruled.

TEACHING ACTIVITIES

Duplicate and distribute copies of the document to the students, then ask them the following questions:

a. What type of document is this?

b. Are there any unique physical qualities of the document such as letterhead, seals, or other markings?

c. What is the date of the document?

d. Who created the document? What was his or her title?

e. For what audience was the document written?

f. Why was this document written? What evidence in the document helped you to know why it was written?

g. Write a question to Mr. Alexander that is left unanswered by the document.

2. Display the language of the First Amendment in the room on a bulletin board, chalkboard, or overhead projector: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

a. Ask students to identify synonyms for establishment, abridging, petition, redress, and grievances, then instruct them to paraphrase the First Amendment in their own words.

b. Share with your students background information about The Finished Mystery incident. Then ask students to identify each section of the First Amendment that was engaged in the episode and to explain how. Studentsare likely to identify interference with free press and will probably cite free speech and free exercise of religion. However, they may not observe that the Jehovah’s Witnesses perceived the incident as motivated by Government preference for other religious sects (establishment), that the IBSA students were arrested while peaceably assembled, or that a number of people exercised their right to petition the Government on their behalf.

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3. On the chalkboard or overhead projector, write the heading "National Security." Ask students to identify reasons why the Government might have perceived The Finished Mystery as a threat to the wartime effort. Then ask students to reread the First Amendment. Discuss as a class whether the Government’s action in The Finished Mystery case was a threat to personal liberties.

4. James Madison was concerned that adding a bill of rights as amendments made the rights it guaranteed more vulnerable than they would have been if they were embedded in the Constitution. Time has proved that, indeed, amendments to the Constitution can be voided: the 21st Amendment, for example, repealed the 18th. Inclusion of the writ of habeas corpus in the Constitution, however, did not prevent its suspension during the Civil War. For more information about this, see "Ex parte Milligan Letter, 1865" in volume 1 of Teaching with Documents. Ask students to write a position paper with supporting reasons either approving or opposing Madison’s idea to embed change in the Constitution.