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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am your host Nico Perrino. Today we’re going to look at the free speech records of the 21st century American Presidents Woodrow Wilson and Franklin Delano Roosevelt. And we’re going to ask this question: Which one was worse for free speech?

In August, FIREposted a viral X thread arguing that Woodrow Wilson may be America’s worst ever president for free speech. The thread cited Wilson’s crackdowns on anti-war activism, labor organizers, and those advocating for women’s right to vote. I think the thread went viral because there is a small but growing contingent of Wilson critics out there who reject the high esteem in which Wilson was held during the 20th century. Indeed at the start of the 21st century, historians rated Wilson as the sixth greatest president in American history. By 2021, his rank fell to 13th. And in 2020, Princeton University decided to remove Wilson’s name from its famous Wilson School of Public and International Affairs.

But despite the growing recognition of Wilson’s penchant for censorship, there were some in the comments on X who argued that other presidents were possibly worse for free speech than Wilson, including one professor who wrote a recent book on FDR’s free speech record and argued that FDR was worse. So, we thought let’s have it out on So to Speak.

Representing the Wilson side in our discussion today is Christopher Cox, a recurring guest on this show. Previously on the show to discuss Section 230, Cox is a former member of the House of Representatives where he served for 17 years. He was also chairman of the US Securities and Exchange Commission and a senior associate counsel to President Ronald Reagan. He is currently a senior scholar in residence at the University of California Irvine. And he has a new book out today about Woodrow Wilson, and that book is titled “Woodrow Wilson, the Light Withdrawn.” Rep. Cox, welcome back onto the show.

Chris Cox: Thank you, happy to join you.

Nico Perrino: And also joining us to represent the FDR side is Prof. David T. Beito. Prof. Beito is a research fellow at the Independent Institute and a professor emeritus at the University of Alabama. He is the author of a number of books, but the one most relevant to us today is his latest, “The New Deal’s War on the Bill of Rights, the Untold Story of FDR’s Concentration Camps, Censorship, and Mass Surveillance.” Prof. Beito, welcome on to the show.

David T. Beito: Thank you for inviting me.

Nico Perrino: So, because the impetus for this conversation started with an X thread about Woodrow Wilson, I think we should perhaps start with Wilson. So, Rep. Cox, who was Woodrow Wilson and what do you make generally of his free speech record?

Chris Cox: Wilson was of course the 28th president of the United States. He served two terms, the second of which encompassed World War I. I don’t think there’s much question that Wilson’s reputation among historians and certainly among civil libertarians as hostile to free speech is chiefly built around his actions and policies during World War I. But beginning in 1917 when the United States entered the war we had the Espionage Act that criminalized speech the government believed could interfere with the draft or could discourage men from enlisting in the armed services. If you think about it, given that definition, opposing US entry into the war was a criminal act, at least if you did so publicly.

The Espionage Act doubled down on this by criminalizing any publication or writing that was deemed disloyal to the military or to the government. The Espionage Act was an act of Congress, of course, but not only did Wilson sign it, he had asked for more sweeping authority to punish disloyalty than Congress had given him in this law. In fact, Wilson had been lobbying Congress for explicit censorship powers over the nation’s media well before the war. These were powers he wanted to use even in peace time. He addressed a joint session of Congress in 1915 and called for – 1915, when we were neutral and when his policy was strict neutrality, we were going to stay out of the war to the end. And he asked for legislation giving him control over any public expression that tended to bring the authority and good name of our government into contempt.

That is just remarkably broad. It was too broad for Congress, so they didn’t give him exactly what he wanted at that time. So, there’s no question where Wilson wanted to go and that he wanted to go even further than the wartime restrictions that were imposed by the Espionage Act. And of course, the Espionage Act was expanded with the Sedition Act the following year in 1918 so that now US criminal law extended to punishing dissenting speech that was deemed abusive of the military or the Constitution. That was especially ironic because Wilson had made his academic reputation by attacking the separation of powers in the Constitution. Since these enactments by Congress didn’t go as far as Wilson wanted, he also acted unilaterally.

In April 1917 he issued an EO, an executive order, that created a vast new propaganda agency which he called the Committee on Public Information. It’s been aptly described as the nation’s first and only ministry of propaganda. And he grew it into an enormous bureaucracy with more than 150,000 men and some women, ex journalists, press agents, they had Hollywood film makers, stump speakers in cities across the nation. The purposes were pretty straight forward. George Creel, who was the man Wilson appointed to run the CPI stated that his objective was to turn the people of the United States into one white hot mass behind their leader who Creel promoted as Wilson, the hope of the world. And the CPI pressured newspapers and magazines to censor any and all criticism of Wilson who was, after all, the commander in chief and this was wartime.

So, this pressure for self-censorship was backed up by the enormous penalties in the Espionage Act. This was essentially the words in the law, any speech made with the intent to interfere with the operation or success of the armed forces of the United States was punishable by death or imprisonment for not more than 30 years. So, you’ve got the CPI backed up by this really powerful statute that scared the hell out of everyone. Beyond this, because now people are self-censoring, the CPI flooded the information channels with government created news. They published an official government newspaper, which Wilson had long wanted. This was his idea. George Creel actually pushed against it, but they did it.

It was called the Official Bulletin. It had about 6,000 newspaper columns every week that they distributed to all of the nation’s newspapers hoping that they would republish it. Compliant publishers did just that because they reaped cost savings. They didn’t have to enterprise the news now, they could just reprint what was provided by the government. The government even provided headlines for them. They, at the same time, gave them wide berth to their legal liability.

I think he should be remembered most, because I’ve focused on this in my book, for the jailing of peaceful protestors who were urging him to support the Susan B. Anthony amendment at the same time he’s making speeches about democracy. These women were illegally arrested and jailed for trumped up charges of sidewalk obstruction when their only offense was silently displaying signs and banners that literally quoted Wilson’s own speech in favor of democracy. Their sentences were outrageously long for the supposed misdemeanor offense of sidewalk obstruction. Alice Paul got seven months, Lucy Burns got six months.

While they were in prison they were beaten up, some unconscious. Just unbelievable that this could happen for nothing more than pure speech. We can get into this more perhaps during the discussion, but Wilson had direct control over the jails, the police, and the prosecutors in the District of Columbia at that time because they didn’t have home rule. They were not elected leaders. Wilson ran it through a three-member commission. His appointees were journalist friends of his for many years. One of them had hired and trained Wilson’s brother Joe. So, we’ve got uniformed Navy men right outside the White House attacking suffragettes, ripping their banners, in many cases injuring the suffragettes, beating them up, dragging them through the streets and so on.

This is happening right in front of the White House. Wilson did nothing to stop it. In fact, he and his chief of staff, that was called the White House secretary in those days, authorized the arrest not of the mobs that attacked women, but of the women themselves who were silently holding these banners as, of course, they were legally entitled to do. The courts got around to sorting this out later, way too late, after all the punishment was inflicted, and after the government’s objective of stopping the speech was accomplished.

So, fast forward to the Paris Peace Conference. The suffrage protestors, after the war, are trying to travel over there to lobby for suffrage in the Versailles Peace Treaty. The Wilson administration denies them passports to leave the country, even though they had valid passports and visas. They took away their passports right at the port of debarkation as they’re trying to board their ships because the government, this is what the State Department said, did not want them in Paris where they might embarrass the president. Black applicants for passports were routinely denied. They were suspected as a class as being radicals under regulations adopted by the Wilson administration that stretched even the broad wartime powers that he’d been given to restrict dangerous people from traveling.

And at the end of Wilson’s presidency came the Palmer Raids, the Red Scare. All and all, these were dark days for free speech in the United States.

Nico Perrino: The first 140 years, the Supreme Court never struck down a government speech restriction on First Amendment grounds. But was there any concern surrounding the First Amendment or free speech by Woodrow Wilson or his administration? Or did they feel as though they had carte blanche to do whatever they wanted to here to tamp down on dissent?

Chris Cox: Wilson got it between the eyes. There’s no question there was pushback. He had a very close friend who would become his friend in 1911, I think, Dudley Field Malone, who became a very close campaign advisor during Wilson’s early years. The two of them would appear jointly and they would speak together. Malone got a very important post in the Wilson administration. He resigned his job very publicly, with front-page headlines all across the United States when he quit over the issue of the Wilson’s administration’s abuse of the suffrages protestors. He then signed up to be their lawyer and represent them in court and eventually won.

Charles Lindbergh, we all remember him, famous aviator, had a father who was in Congress. He was a progressive. He retired from Congress and wrote a book. His book included women suffrage in it. He happened to be in Washington and observed all of these suffrages protestors getting beaten up. And he wrote a very descriptive letter to Woodrow Wilson explaining what he had witnessed and saying only the president can stop this. Wilson privately said let’s keep this under wraps. I’m not going to do anything about it. You can decide whether you think this needs any action.

Wilson knew exactly what was happening. He had personally authorized the forced feeding of Alice Paul. She was put in the insane asylum, as they called it at the time, when she was perfectly sane. The boarded up her windows, put her in a straitjacket, and all these sorts of things. He was unwilling to do anything to stop this, and he was personally authorizing it. So, yes, people thought about the First Amendment, thought you should have the right to petition your government at the time. He was a very, very stern authoritarian when it came to these things.

Nico Perrino: Prof. Beito, on X, you argued that FDR was far worse than Woodrow Wilson on free speech. You wrote, “One way to sum it up is that Woodrow Wilson sometimes tried to restrain anti free speech subordinates, but FDR consistently pushed them to crack down harder.” Why don’t you give us a brief overview of who FDR was and why you believe FDR was “far worse” than Woodrow Wilson.

David T. Beito: Certainly far worse on civil liberties, the Japanese internment, the roundup, the numbers of people round up was far more than anybody Woodrow Wilson arrested. However, I’m going to make an argument about free speech as well. Let me go and look a little bit at FDR’s background. FDR is very much influenced by two people, one is Woodrow Wilson. The other one is his distant cousin Theodore Roosevelt, who he referred to as Uncle Ted. In fact, Uncle Ted gave away the bride at the wedding because Eleanor was Uncle Ted’s niece. So, they were very close, he was very close to both people.

FDR becomes assistant secretary of the Navy in 1913 under Wilson. His boss at the Navy department is a notorious racist named Josephus Daniels, who basically led the charge to segregate, under Wilson’s supervision and support, segregate the federal government, including the Navy Department. Roosevelt certainly carried those things out. Now, Roosevelt was very supportive of Wilson’s civil liberty policies during World War I, including his policies towards free speech. There are certain strains of progressivism. One would be, as Rep. Cox pointed out, someone like Dudley Field Malone. They placed a high value on civil liberties.

There’s another strain, though, that emphasizes the important thing is to achieve the goal, equality or social justice or whatever, and we’re not going to worry so much about the means to achieve that goal. That is where FDR is from. During the Wilson administration, FDR, again, was very supportive of what Wilson wanted. In fact, FDR went to the federal district attorney in Atlanta and wanted him to prosecute a kind of an anarchist civil libertarian who had criticized – actually kind of sly implied criticism of FDR for the fact that he was not, like Uncle Ted, he did not volunteer. He was a civilian throughout the war. FDR was so resentful of this that he called for the district attorney to – he supported prosecution under the Espionage Act. And the district attorney wrote back and said, “Well, we really don’t have a case against this guy.”

So, that gives you a little bit of an idea of his attitudes towards civil liberties. So, he is very much a Wilsonian in his views on civil liberties. Now, let’s go forward a little bit on FDR’s free speech record. This would be a record involving privacy as well. There was a Congressional committee during the 1930s called the Black Committee that went and did a mass subpoena, they called it a subpoena. They got copies of all private telegrams sent in and out of Washington from every member of Congress. And in the end, the Black Committee looked at something like 3 million private telegrams. That would be similar to looking at, I don’t know, 3 million text messages today without a subpoena, 3 million email messages, because that’s about 50% of long distant communication.

He targets the Black Committee, again, FDR is working with the Black Committee. Although FDR has deniability. He’s very careful to be in the background, but he’s quite supportive of the committee. They target anti-new deal organizations. And Dudley Field Malone comes out sort of retirement as a civil libertarian and is very critical of what FDR is doing. There are critics across the political spectrum. So, they go after opponents of his policies. During the 1930s FDR uses his power over the FCC and other means, including what you would call job owning, behind the scenes. He uses these methods to basically force off the network radio every anti-New Deal commentator. By 1938, there isn’t a single one left on network radio. The local stations tend to have more criticism.

So, let’s go to the war itself. Now, I think there’s a big difference here between Wilson and FDR, but it’s mainly a difference of context. There was pushback in World War I, but I think there was far more pushback in World War II. Once Pearl Harbor happens, everybody, just about everybody comes out in support of the war. So, that’s different from 1917 where there were a lot of opponents of the war still out there. So, it’s universal support. And FDR wants to do mass sedition trials. And his attorney general says, “Gee, these people, they are supporting the war.” And FDR keeps pressing him over and over again. He wanted to go after the publisher of the Chicago Tribune, one of the largest newspapers in the country, the publisher of the Washington Times Herald, the publisher of the New York Daily News. He wanted them brought up on charges.

But his attorney general pushed back, Francis Biddle. And the courts pushed back. And there would have been an outcry had FDR tried to do that. But he wanted to do that. Finally, Biddle gives him a sedition trial, the largest in American history, I believe, at least in Washington. Thirty-two defendants scooped up from all over the country. And these were real right-wingers. And these were kind of marginal types. They were accused of being part of a worldwide Nazi conspiracy. They didn’t even know each other to a great extent, and most of them had supported the war effort after Pearl Harbor. But this was the best Biddle could give FDR and the best the courts would allow.

The trial was universally condemned by the end. Compared to the Moscow Purge trials, it finally collapsed when the judge collapsed. He dropped dead. So, I would say it’s a little bit like a fisherman. Woodrow Wilson has a lot of fish to catch in the sea. A lot of people he can charge. Again, he pushes the margins. But FDR doesn’t have as many fish. So, the people he goes after really are people that are kind of very marginal types, but he also does go after a passive publication called the Boise Valley Harald because it’s one of the few places that’s critical of the war. And they are brought up under trumped up charges under the Espionage Act. One of the charges, for example, is that they have been overly supportive of Japanese neighbors who lived in the Boise area. That was one of the charges.

The Socialist Workers Party, they were not trying to obstruct the war effort, but they were sort of, in theory, against all capitalist wars. They were prosecuted under the Espionage Act. But again, there aren’t many people left. FDR always is pushing, pushing, pushing. He’s pushing people to do more than they wanted to do, like his own attorney general, like his own FBI director. He’s pushing them. Wilson, by contrast, you can come across examples such as the prosecution involving the Nation magazine where he goes, I believe it was to the postmaster general, I’m not sure if it was postmaster general or attorney general, and says, “Well, gee, do you really have to do this? No, these are supporters of mine.” And he was told, “Well, yes I do, Mr. President.” Wilson would defer to them.

I have yet to see one example of where FDR actually was pushing a subordinate to do something – well let’s put it this way, that a subordinate was more aggressive than what FDR wanted. He’s always pushing them to go further. So, I think it depends on the context. And the context of World War II is very different.

Nico Perrino: You have this helpful comparison in your chapter in your book, “A Good War for Free Speech,” in which you highlight an ACLU press release that stated by the end of August 1943, the federal government had initiated only 25 legal actions for utterances or publications alleged to obstruct the conduct of the war, in that case World War II. Compared to an estimated 100,000 such cases in World War I involving over 1,500 people. But you say that you couldn’t find an instance in which a subordinate was pushing FDR further along the censorship route than FDR was willing to go himself. Was that the same with the internment of somewhere around 120, 160 Japanese Americans?

David T. Beito: Yeah. There was massive pushback. That’s a part of the story that isn’t told. Again, FDR’s own attorney general is against internment. His FBI director, no great civil libertarian, J. Edgar Hoover is against internment. His secretary of the interior, Harold Ickes, a lot of his top military advisors. Many, many people are against it. What’s often forgotten is that it occurs about two months after Pearl Harbor. The initial response from the press and from other people is look, these are Japanese citizens – I mean, they’re American citizens like we are. They should have the same rights. There was even an early poll that was done by the government which found satisfaction with existing government policy post-Pearl Harbor, which is basically just monitor them, keep an eye on them, that kind of thing, not put them in concentration camps.

So, FDR was not pushed into it. It is often blamed on the hysteria of the moment. That is not true. Again, there was a lot more opposition to it than is often made out. And he was very much involved in the process as well. A lot of people will say, “Well, he was distracted.” Of course, he had a lot of things to be distracted by. But he was hands-on, involved in the process. Having said that, FDR always had deniability. He always had people out front arguing like Sen. Black earlier. He had people like Gen. DeWitt in internment. He kept in the background. But if you look at his private conversations, what he said – To give you an idea of how bad FDR was on this, by 1943 we’d won great battlefield victories against the Japanese. They were on the run. And the Japanese were serving in the military to much acclaim.

And a lot of FDR’s advisors, even more than before, universal, were saying, “Isn’t it time to release the Japanese?” “Guess what?” FDR said, he said to them, “Well, we’ve got an election coming up.” So, in other words, he kept Japanese Americans in concentration camps through the 1944 election even though he had just – And the Japanese were getting good PR at that point. He could have easily said, “Look, these are men who are serving our country in Europe.” And he could have made that argument, but no, he didn’t. But he kept them there. And I think that is one of the cruelest, I’m getting over the top here, but the most cold and cruel actions that FDR was involved in. But he did it without apparently any sort of second thought. Well, we’ve got an election coming up.

Nico Perrino: Did Woodrow Wilson also sort of hang out in the background where the censorship actions were concerned? Did he try and create a sense of plausible deniability?

Chris Cox: Oh yes. Woodrow Wilson did such a good job that generations of biographers have been able to say, well, his cabinet appointees did this. Someone else in the administration did this. He, Woodrow Wilson, would not have gone for it. But as Prof. Beito has explained with respect to FDR, these presidents, it was even more true in Wilson’s time, were hands on. The federal government was much smaller then. The thing that impressed me over 14 years of research writing my book was the extent to which the president himself was doing things that by the time I worked in the White House in the 1980s would all be staff duties. All the way down to writing his own speeches, Woodrow Wilson was personally responsible.

And he was even more responsible than he needed to be because he never trusted anyone else to understand his own thoughts. He literally told one of his advisors that’s why he ultimately went to Paris to negotiate the peace treaty because he didn’t trust anyone else to know his mind. He was directly involved in all of the major decisions concerning civil liberties and free speech that we’ve been talking about here.

Nico Perrino: Did he get worse as his presidency went on? Because the stuff that we’re discussing here surrounding World War I and the suffragists and if you look at the Palmer Raids, which are probably worth talking about as well, it seemed to happen in his second term.

Chris Cox: Yes. And it is, in a sense, coincident with the war. While it’s true that it’s not an excuse that there’s hysteria or what have you, in fact in Wilson’s case, a lot of that hysteria was whipped up by the CPI and by his own administration. It’s also true, and I think this explains, perhaps, FDR’s thinking in being so callous about internment, is that when the nation is at war, we set aside our normal sensibilities. We say, “Well, everything is different now and all the rules are out the window.” Wilson certainly had that view. I think it helps a president rationalize what they’re doing when they can say it’s all because of war.

The second thing that happened during the later stages of Wilson’s presidency is, of course, that he finally ended up having a serious stroke. That so affected him, it affected his personality. And all the people around him said he had changed and hardened. He was already known as a stubborn man, all the way back to his Princeton days when he got such serious battles with his board of trustees that they were trying to get rid of him at the time he jumped into elected politics. But now that stubborn streak expressed itself even more significantly.

Finally, because he left the country for six months to go over to France to personally negotiate the treaty, as no president had ever done before nor has one ever done so since, he was not paying attention. And so, the combination of his being medically out of it at the very end, his being gone from the country and out of communication with the country for many months prior to that meant that somebody like Palmer could go off and do his thing with minimum supervision.

Nico Perrino: Oh, so the Palmer Raids happened when Woodrow Wilson was out of the country?

Chris Cox: Yeah, the Palmer Raids were sort of the last acts. Palmer moved into the administration towards the end.

Nico Perrino: And Palmer was his attorney general, correct?

Chris Cox: And became attorney general, yes. He had been a member of Congress prior to that.

Nico Perrino: Can you just describe to our listeners what the Palmer Raids were? It was this concern, this broader concern that law enforcement had around people whose loyalty might lie with a foreign country, right?

Chris Cox: Yes, and we have to remember that this is the time of the Russian civil war, the Bolshevik Revolution. There was bolshevism had expressed itself as worldwide revolution early on. There was Bolshevist activity in Germany, in England, and those countries were worried about it. And so too were people in the United States. It was a brand-new phenomenon. To an extent, the government and people at the time can be forgiven for taking this novel threat with high degree of seriousness. But the response, just as with internment, was way over the top.

So, we have Palmer coming to the Congress and testifying about how they are investigating and arresting people that are suspected radicals, and literally saying that Black people in America fall squarely in this category because they’re so susceptible to all of the Bolshevist propaganda and so on that they were special targets.

Nico Perrino: This was quite an incredible period during American history if you think about it. So, the Palmer Raids resulted in somewhere around 6,000 people being arrested across over 30 cities. You had over 500 people who were deported. There was this broader concern about the Bolshevik revolution, this is what’s popularly termed the first Red Scare, at the same time that you had World War I, at the same time when you had the movement for women’s right to vote, and the same time you had a burgeoning civil rights movement and riots across the country. He was dealing with, if you put yourself in his shoes, quite the confluence of emergencies happening across the country.

Chris Cox: Yes, although some of those emergencies were of his own making, specifically the race riots. The overt racist policies of the Wilson administration, which simmered for a long time, and then came to a boil, came to a boil when he was missing in action. A lot of people did not want him to leave the country and go over to France. We can have that conversation. But there was a poll of newspaper editors, for example, across the country, and overwhelmingly they did not want him to go. Everyone was worried that domestic issues would be completely neglected, and that’s what happened. So, that was a choice that Woodrow Wilson made. It did not turn out to be a smart tactical move to appoint himself as negotiator. He would have had more power if he had stayed stateside. The United States was the major predator to all of the nations that were at the Paris Peace Conference and had a lot of clout and we didn’t exercise it very well.

Nico Perrino: I want to make a counterintuitive point here, which is to say perhaps you can look at Woodrow Wilson and the era of his presidency as the best era for free speech in American history. The actions that Woodrow Wilson took surrounding the war, the actions his administration took surrounding the Palmer Raids led to, I think, the first kind of real free speech movement in America. Now, you had the Free Speech League, you had the Civil Liberties Bureau, but you didn’t get the American Civil Liberties Union until 1920. The history suggests it grew as an outgrowth of the Palmer Raids and everything that happened during World War I.

You might be able to argue that were it not for everything Woodrow Wilson does, you don’t get the American Civil Liberties Union, and you don’t get the 20th century free speech movement that was largely led by the American Civil Liberties Union and that led to all the radical changes that you get at the Supreme Court over the coming decades, and that led to all the future presidents like Franklin Delano Roosevelt were going to get during their administrations when they might have had the same instincts as Woodrow Wilson. Rep. Cox, do you think I’m totally off base there?

Chris Cox: Well, you’re right chronologically. You’re certainly right that we got a strong reaction to all of the free speech activity in the formation of these organizations. We might say the same when it comes to race. We got the NAACP at the same time. But how unfortunate that these organizations were born in the cauldron of such great injuries to their rights as Americans. It’s a little bit like saying the great San Francisco fire was really wonderful because we got a really nice fire station afterwards.

Nico Perrino: But Prof. Beito, that’s part of your argument, if I’m understanding your argument for why FDR was worse, is that he would have been worse had he had the same playing field that Woodrow Wilson operated under, which is to say he didn’t have the strong and organized civil libertarian contingent there to push back against him. One thing I do want to flag also, that’s kind of curious for me, is that the person who led his efforts to investigate lobbying, which is to say his political opponents, lobbying encompasses all sorts of petitioning the government for redress of grievances, was a future Supreme Court justice in Hugo Black, who would describe himself more or less as a First Amendment absolutist. He said famously that when he reads the Constitution and it says, “make no law,” he means it to mean make no law.

Now, he actually did have some exceptions where he ran contrary to what we would probably perceive today as an expansion of First Amendment rights, particularly as it pertained to school aged children, for example. But Prof. Beito, is that an accurate description of the environment that FDR was operating in? The secondary question there is why is Hugo Black leading this? This must confuse free speech advocates.

David T. Beito: Yeah. Well, I think that World War I was extremely important, beneficial I think for free speech attitudes. One of the leading textbooks read in law school is by Zechariah Chafee, which was very pro civil liberties, very pro free speech. Chafee remained that way during World War II. So, this is what lawyers, young lawyers, young New Deal lawyers, and this is what’s interesting to me, is a lot of the greatest civil libertarians of the time were on the left. The AOC of the time, the Bernie Sanders of the time, all wrapped up in one was Norman Thomas, the head of the Socialist Party. Thomas was a zealous civil libertarian. He would defend civil liberties for everybody, and he was always on the watch.

A lot of his allies were on the right, were conservatives who agreed with him on that. He was well regarded on the right, even though he was very much a socialist. Then you have people like Dudley Field Malone. You have others. So, you have what you were talking about, a free speech coalition. It was a genuine left-right coalition. We have something to learn from these people. You have people like the publisher of the Chicago Tribune, very conservative, funding pro free speech lawsuits by the ACLU. You have people like Norman Thomas working shoulder to shoulder with Alf Landon, the Republican candidate in 1936, against FDR’s anti free speech actions. So, I think World War I was tremendously influential in that attitude.

So, if you look at polls on the eve of World War II, they show very strong rhetorical support, at least, for the public for free speech. So, it’s not only just people in the Justice Department, the middle echelon lawyers, the top lawyers, etc. that are pushing back, it is public opinion to a great extent is pushing back. Now but there are abuses.

Now Hugo Black is an interesting story. Black was no civil libertarian during the 1930s. He was kind of a Huey Long type, a populist, a rabblerouser. You listen to some of his speeches, they’re table pounding, demagogic. He is just, oh man, this guy is a scary dude. When he gets on the court, of course he does do the notorious opinion on Japanese internment, but he does end up getting a good civil liberties record. Basically, his biographer said that Justice Black would only have contempt for Sen. Black’s violations of civil liberties. So, he really became much more – and this was noticed, he became involved in that civil liberties factions, and even expressed, kind of sort of, some regrets for his actions as senator. But in court rulings, would rule against the things that Sen. Black had tried to do.

Nico Perrino: If Woodrow Wilson’s great tool to go after antiwar dissent or political dissent of any sort was the Espionage and Sedition Acts, one thing we haven’t talked about with regard to FDR is the Smith Act. Now, this is a piece of legislation that forbade any attempts to advocate, abet, advise, or teach the violent destruction of the United States government. And Prof. Beito, this was the leading piece of legislation that was used during the early years of the Red Scare, the second Red Scare I should say, was it not?

David T. Beito: Yeah, there’s interesting ironies here. Now, again, there was a portion of that, a sedition portion I guess you could say, it had a lot of provisions involving aliens and so forth, so it might be actually quite timely. But this portion was used for the mass sedition trial during World War II. These people, like I said, were scooped up from all over the country, over 30 defendants brought to Washington, and they were accused of promoting insubordination and overthrow of the federal government. Insubordination in the military and promoting overthrow of the federal government. And there was no evidence. It was a totally bogus case and came to be regarded as such.

However, who applauded this case? A lot of New Dealers did, certainly. A lot of the Communist party was all for it. A lot of people that came to be regarded as civil libertarians by the 1950s were for it. Guess what? Right really as the war ended, just after the war ended, that same Smith Act is used to prosecute people in the Communist party or supporters of the Communist party. Guess what? A lot of these leftist who had applauded the previous sedition trial suddenly became civil libertarians.

Of course, there’s a double irony here because some of the right wingers who were prosecutors had supported passage of the Smith Act because they were anti-Communists. During the Red Scare of the ‘50s, supported using it against Communists. So, it’s an incredibly pristine example of hypocrisy on both the left and the right. And it’s a lesson for today, frankly, because we’re seeing sedition prosecutions now come back. I’m very disappointed that there’s been no push back including from – Well, there’s been very little, certainly from the left, but there hasn’t been much from conservatives either. Sedition laws? I thought we were over that.

Now they’re putting people in jail under open-ended sedition laws. Those are about the worst laws ever in that you can have any charge pretty much. It’s a matter of interpretation. And that’s what’s happened with J6 defendants because a lot of people don’t like them for good reason. But there are other ways to go after them rather than open-ended sedition laws. But I’ve been disappointed that more civil libertarians have not spoken out such as Radley Balko, for example, really spoken out against these abuses.

Nico Perrino: I want to ask now whether any of these presidents had regrets? So, one of the seminal First Amendment cases to arise out of World War I was the Schenck v. United States case in early 1919. This is a case involving Charles Schenck and Elizabeth Baer. They were two socialists in the city of Philadelphia handing out anti-conscription leaflets. They were charged under the Espionage Act. And the case made its way up to the Supreme Court which ratified or approved of the charges. This is where you get the famous line from Justice Oliver Wendell Holmes that says freedom of speech would not protect someone falsely shouting fire in a crowded theater and causing a panic.

Now, that’s in early 1919. Fast forward to the fall, you have another famous First Amendment case. This is Abrams v. United States. It’s involving socialists in New York City, I believe, who oppose America’s support for Tsarist Russia during the war. They’re also handing out leaflets. But in this case Justice Oliver Wendell Holmes dissents. Very similar facts, but this time he dissents, and he writes one of the most flowery soaring dissents in defense of free speech that has ever been written. The speculation is that something happened over the summer to change Justice Oliver Wendell Holmes’ mind. Holmes confided in his friend Harold Laski, who is this left-wing guy. He thought that federal judges got, “Hysterical about the war,” and that he speculated the president, when he gets through his present amusements might do some pardoning.

Now, Woodrow Wilson did eventually do some pardoning, did he not, Rep. Cox? Does that mean that he regretted what he did during the war in pushing for the Espionage and Sedition Acts and their prosecutions?

Chris Cox: Wilson showed no signs, and of course it’s a little bit unfair because as we’ve discussed, he was medically waylaid in a serious way at the end of his presidency. He was clearly not doing any business of any kind. He was literally watching movies every day. His wife Edith kept him away from all business. He was at one point completely recused, secluded from contact with anyone for four months. So, this would have been the time, naturally, for him to become reflective, to look back on things, perhaps to use his better judgment. He lacked his better judgment.

But he was vindictive at the end of his presidency. One of the people that he was urged strongly to pardon was his former opponent in presidential election of 1912, Eugene V. Debs. There was every good reason to pardon Debs. Debs’ crime was opposing the draft and opposing US entry into the war, which of course had been Woodrow Wilson’s own position when he ran for reelection in 1916. Yes, Wilson could not bring himself to pardon Eugene Debs. The same thing was true when it came to close associates like Dudley Field Malone, who he cast out of his orbit forever, never spoke to him again after Malone stood up for women whose rights were being abused.

He actually instructed his wife Edith to make sure Malone and also Col. House, who had been his advisor in matters domestic and foreign, but especially at the Paris Peace Conference, he broke with House because House wouldn’t stick with him to oppose the mild reservations when it came to ratifying the League of Nations. So, House was also cast away. Edith was instructed to make sure neither Malone nor House could attend his funeral, and they were kept away. So, while other presidents in other circumstances might have had second thoughts, Wilson remained a vindictive man.

Nico Perrino: When you look at what happened with the suffragists and the silent protests holding up signs that had Wilson’s own words often printed on them, and they were thrown in jail for their silent protests, did this galvanize public support for the suffragists in the same way, for example, seeing on video or hearing about it or reading about it in the news galvanized support for civil rights advocates who were being fire hosed? It spoke to the moral clarity that Americans might have had that even if you had reservation about extending civil rights, this isn’t the way you treat people. Did that same thing happen with the suffragists? Because one of the things we often say is that censorship can often backfire in ways that the censors do not anticipate.

Chris Cox: Well, it certainly galvanized the suffrages themselves, at least those who were doing the protesting. There were two suffrage organizations that actually competed with one another because they had such different strategies and tactics. One was the National American Women’s Suffrage Association that because that’s such a mouthful, went by the acronym NAWSA. And the other was the National Women’s Party, which was run by Alice Paul. Alice Paul’s group were the silent sentinels that were holding up their banners in front of the White House.

NAWSA aligned itself with President Wilson and, ironically, Carrie Chapman Catt, who was its president, had been a leader in the Woman’s Peace Party. So, the Peace Party, of course, was opposed to US entry in the World War, even before Wilson decided to bring America into the war. She had a dinner with him and with Josephus Daniels, who was Secretary of the Navy, and pledged that NAWSA, this millions strong suffrage organization across the country, would support the president if he went into war. She was evicted from the Women’s Peace Party as a result of that.

So, during the war the largest suffrage group, NAWSA, was then by far larger than the National Women’s Party, was all in for the war. They attacked their fellow suffragists and said – some of them said they should not even be allowed to be in the United States, that they should be, I don’t know where they should be sent, but they were not Americans, and they were disloyal and so on. And we had the CPI whipping up all of this angst directed against the disloyal people such as the suffragists. Wilson’s appointees actually accused the National Women’s Party protestors of being the agents of the Germans. So, public opinion all got riled up very effectively, just as it did for the war effort itself, against the so-called militant suffragists.

It’s a great irony that the CPI and all of the messaging from the administration kept calling these women militants because they were the exact opposite of the militants in England that were throwing bricks through windows and destroying portraits and statues and so on. They were totally peaceful. Alice Paul was a Quaker. She was a pacifist. She admired Ghandi. May have even met with Ghandi when she was in England. They literally were the silent sentinels. So, they were not militants.

But the coverage in the newspapers all followed the coverage in the official bulletin. The coverage in the Chicago Tribune, which we’ve been discussing here, was sort of typical. They labeled the banners not only an insult but defamatory of Wilson. This, of course, is getting them close to sending them to prison for violating the Espionage Act. By calling it defamatory, they’re misinforming their readers by the way the statements were false. The statements were not false.

The Washington Evening Star at the time was the highest circulation paper in the nation’s capital. They had in one of their edition a giant, all-caps headline charting “Obnoxious Banners Torn to Shreds.” That’s the kind of coverage that they gave when people were attacking these women. And then there’s a sub-headline that says, “Denounced as Seditious.” So, they’re literally accusing the women of – sedition is encouraging insurrection against lawful authority. What they’re doing is they’re holding up banners saying, “We want to be able to vote.” It sort of manifested in a weekend editorial in, I think it was another Chicago paper, but I remember the headline, “Shut Up or be Locked Up.” That was public opinion.

Nico Perrino: I grew up in Chicago. And the two papers we had then were the Chicago Tribute and the Sun Times. I know back in those days there were often many more papers. I want to put to Prof. Beito the same question that I put to you Rep. Cox, which is did FDR ever regret any of the censorship that he did during his administration? I was struck in your book reading this passage or this quote from Attorney General Francis Biddle speaking about FDR, “He was not much interested in the theory of sedition or in the Constitutional right to criticize the government in war time. He wanted this anti-war talk stopped.”

There seems to be a conflict here then with FDR that many people think of, which is the FDR of the four freedoms. He gave the famous speech in which he said that there are four core freedoms, the freedom of speech, the freedom of worship, the freedom of want, and the freedom from fear. But one of the feelings that I got from reading your book, Prof. Beito, was that FDR wasn’t so much a theorist or a believer in some of these lofty Constitutional concepts, so much as he was a believer in pragmatism. Perhaps that’s a false impression coming out of your book.

David T. Beito: Yeah, FDR is again, not even rhetorically from the civil liberties wing of the progressive moment. You can tell some interesting things that happened in 1938. There’s a close ally of FDR named Mayor Hague in Jersey City. He’s like Boss Crump in Memphis. Very key, big city democratic machine leader. Hague made the statement at one point, “I am the law.” He brooked no criticism at all. Well, there was a demonstration, basically supporting a labor union, the CIO, in Jersey City. And Eugene Debs and some other people, Debs is the most prominent example, came to the demonstration, was going to speak there, was arrested by the police and expelled from Jersey City. He was forced to leave.

And FDR was asked about this repeatedly. And he evaded it. He had evidence, his secretary of – postmaster general had evidence that Hague was reading mail of opponents and FDR said we need Hague. Jersey, New Jersey was a swing state. He needed Hague, so he protected him. But there was more and more criticism of FDR from the left, including leading left-wing papers that had always supported him. I’ll say that the left was a lot more willing to take some risks during this time. He was getting hammered. So, FDR finally starts speaking about civil liberties. He starts saying, “Well, I’m for free speech. We’ve got to defend the free speech of people.” It was all rhetorical. But his rhetoric changes in response to this incident.

And then, of course, we have in 1941, FDR announces the four freedoms. At that time, J.D. Martin was living in exile and could not even return to Memphis. I always thought it would be interesting in Martin, what his response to that speech would have been. So, it’s all rhetorical, but we do remember FDR for that. FDR is a very charismatic person. Very charming. You think that he agrees with you once you meet with him for a few minutes. He would have been a very effective radio announcer. He’s a charmer. And he’s eloquent. So, it’s quotable in that sense.

Just some more things about the vindictive aspects, did FDR have any regrets? No, he did not, precisely the opposite. Example of FDR’s attitude, he had two good friends. One of them was Joseph Patterson, the publisher of the New York Daily News. The other one was Cissy Patterson, Joseph’s sister, who was the publisher of the Washington Times Herald. A very leading woman publisher. There’s been a fair amount written about her. They were basically supportive of FDR, supported him in each election, including 1940.

But both turned against him on Land-Lease because they were kind of anti-war people. And FDR was really mad. They both pledged to support the administration after Pearl Harbor. And FDR rebuffed them and gave Joseph a lecture. He said, “Reread some of your editorials criticizing me.” His subordinates depicted them as Nazis, sympathizers to the enemy. And this friendship was destroyed. Even some of FDR’s more hard-hearted supporters in the administration said, “Why can’t you make up with the Pattersons? They could be very helpful to the war effort. They’ve been your friends for years.” He didn’t care. They’d been instrumental to his political success. So, that, I think, says it all.

And even now if you read about the Pattersons, I don’t know if Maddow depicts them in this way, they’re often depicted as kind of nazi types or something or Republicans. They weren’t. They were hardcore democrats who supported FDR in every election he ran in, including 1940. 1944 they didn’t, but that was a different matter.

Nico Perrino: I’m going to close out with one final question, and I’ll start with you Prof. Beito. Having heard everything that Rep. Cox shared and after this discussion, do you stand by your contention that FDR was far worse than Woodrow Wilson on free speech?

David T. Beito: I will say this, that in his attitudes towards civil liberties, and of course we could include Japanese internment in that, his attitudes, his mindset was just as anti-civil libertarian, I would argue more so, than Woodrow Wilson. But they are two peas in a pod in a lot of different ways. I don’t know if Wilson was the charmer of FDR. He was a little more self-righteous about things, perhaps, and a little less jaded maybe. That’s what I would come down on, that it’s the context that really matters here, not so much the attitudes. Because in both cases the attitudes are terrible.

Nico Perrino: Rep. Cox, having heard Prof Beito’s argument for FDR and coming out of this conversation, do you think Woodrow Wilson was worse than FDR in practice, or in regards simply to attitude about freedom of expression?

Chris Cox: I don’t purport to be an expert in FDR. I am an expert in Woodrow Wilson in the extent that 14 years of research might entitled me to claim that. I have to agree with Prof. Beito that Wilson never violated American rights on the scale of the Japanese internment. So, if that’s one of the metrics –

Nico Perrino: He did intern German Americans, though, is that correct?

Chris Cox: Oh yes. There’s no question that he was during the model and that during World War II which were invented then were expanded. As we’ve been discussing, Wilson lobbied for and signed the Espionage Act, which figured later. That included such harsh criminal penalties for any words the administration determined could obstruct them.

In that law, we haven’t discussed this piece of it, the postmaster general, Albert Burleson, who had been a member – who was a member of Wilson’s cabinet, had been a former Democratic congressman, incidentally he was the one who initiated the move in the cabinet to champion Jim Crow across the federal government. He was given carte blanche in the Espionage Act to determine what words could be deemed obstructed. When it came to war policy, not just war policy but really almost anything, he could ban it from the mails without court approval. As we discussed, violations of that law were punishable by many years of prison or if they were significant enough, death.

The day after Wilson signed that law giving Burleson his power, the postmaster general started out directing postmasters across the country to watch every newspaper, every magazine for any material, and what he said in his directive, this isn’t the law now, but this is his directive, was anything that could embarrass the government. My gosh, that’s all discussion of public policy. Within months he’s banned more than a dozen major publications. By the end of 1918, 74 newspapers are denied mailing privileges. Many of those publishers had to go out of business. Many of them went to jail. So, it was a direct assault on free speech, and it effected not only newspapers that were traditionally anti-Wilson, but loyally supportive newspapers as well, such as the New York Times. Everybody felt that pushback.

So, to take it to a comparison to the FDR administration, I think of Wilson based on Prof. Beito’s and your very helpful discussion of Hugo Black. I think of Wilson for the first time as a sort of reverse Hugo Black. He got worse as time went on. And if FDR was worse in some respects, FDR was very much a product of the Wilson administration. He served in it. Wilson set the example for FDR. So, I’d say these two are both to blame.

Nico Perrino: And I think we’ll have to put it to the listeners to decide for themselves. I’m interested in hearing what they have to say on this subject, which president was worse, Woodrow Wilson, FDR. I will say, personally, however, regardless of which president might have been better or worse on free expression, I think they are largely responsibly, more so than almost any other president, have to think about it a little bit, for our conception surrounding free speech today. As I had mentioned before, the actions taken during World War I and during the Palmer Raids led to the first kind of real organized effort to change the law and culture surrounding free speech.

And then if you look at the Smith Act under FDR and how that super charged the second Red Scare and all the free speech advocates that came out of that era, there is a case to be made that it supercharged the second wave of free speech activism in America. But I’m just thinking aloud here. I’d love to hear what our listeners have to say.

And I’d urge our listeners, also, to check out these two great authors’ books. Christopher Cox is the author of the newly released, out today, we’re recording on November 5, it’s election day. The title of that book is “Woodrow Wilson, the Light Withdrawn.” And also, of course, joining us today was David T. Beito, author of the “New Deal’s War on the Bill of Rights, the Untold Story of FDR’s Concentration Camps, Censorship, and Mass Surveillance.” Thank you gentleman for joining us today on So to Speak.

David T. Beito: Thank you.

Chris Cox: Thanks, Nico. Thank you, Prof. Beito. It was very illuminating and therefore very enjoyable.

David T. Beito: This is the way discussions should be, right?

Nico Perrino: There we go. Only here, only here on So to Speak, ladies and gentleman. I am Nico Perrino, and this podcast is recorded and edited by a rotating roster of my FIREcolleagues, including Aaron Reese and Chris Maltby and coproduced by my colleague Sam Li. To learn more about So to Speak, you can subscribe to our YouTube channel or our Substack page, both of which feature video versions of this conversation. You can also follow us on X by searching for the handle Free Speech Talk. You can find us on Facebook, and you can send us feedback at sotospeak@thefire.org. As I’ve mentioned before, if you enjoyed this conversation, leaving us a review on Apple Podcasts or Spotify are two of the best ways that you can attract new listeners to the show and to these ideas. And as always, until next time, thanks for listening.