A montage created by the Montana Historical Society of people arrested and convicted of seditious speech during the World War I era. This photo is by no means exhaustive. Seventy-two Montanans were charged, tried and convicted for running afoul of the Montana Sedition Act.
A new presidential memo on national security is a direct attack on civil liberties — and a reminder of a disturbing period of Montana history, said the head of the American Civil Liberties Union of Montana and a retired University of Montana professor.
“Countering Domestic Terrorism and Organized Political Violence,” also known as NSPM-7 (National Security Presidential Memorandum), states that recent incidents of political violence, including the fatal shooting of right-wing activist Charlie Kirk, are not isolated and merit a “new law enforcement strategy.”
It said a National Joint Terrorism Task Force, with support from local law enforcement, will root out groups rallying around “Anti-Americanism” and “Anti-Christianity” in chat rooms, in-person meetings, social media, and educational institutions.
But the directive against “anti-fascism” and “terrorism” is also a reminder of the lessons that came after the Montana sedition law of 1918, said UM professor Clem Work and the ACLU’s Akilah Deernose in recent interviews.
“Sticking to the legal aspects, it is just an assault on the First Amendment for sure — and on dissent,” said Work, who led the Montana Sedition Project of the UM School of Journalism.
In a special session in 1918, Montana lawmakers passed a law that “criminalized just about anything negative said or written about the government or its conduct of the war,” according to the Montana Sedition Project.
Smithsonian Magazine described the law in Montana as “one of the harshest sedition laws in U.S. history.”
Deernose said the memo is part of a larger pattern of the Trump administration silencing and intimidating its critics or anyone who speaks for ideologies for which the president does not agree.
“Truly, there is nothing more un-American than abrogating freedom of speech or freedom of expression,” Deernose said.
Signed by President Donald Trump on Sept. 25, the memo outlines strategies for a task force to investigate Americans who participate in “organized structures, networks, entities, (and) organizations” and “all participants in these criminal and terroristic conspiracies” that it believes pose a security threat.
There are about 200 such task forces in the U.S., including at least one in each Federal Bureau of Investigation’s 56 field offices and the rest in local, state and other federal agencies, according to States Newsroom’s Washington, D.C., Bureau, citing the FBI.
“Common threads animating this violent conduct include anti-Americanism, anti-capitalism, and anti-Christianity; support for the overthrow of the United States Government; extremism on migration, race, and gender; and hostility towards those who hold traditional American views on family, religion, and morality,” the memo said.
Deernose said part of what’s stunning is “the breadth of what is prohibited.”
However, she also said the labels used in the memo are vague and undefined, and it’s important to remember that just because the president offers a narrative, it doesn’t mean people have to adopt it.
“There’s no doubt right now that we have an administration who seems determined to undermine and constrain civil rights and civil liberties,” Deernose said. “And we’ve also seen a lot of puffery. The president is experimenting to see what he can and cannot get away with.”
She recommended people filter the narrative through what they know to be true. For example, Deernose said Americans have the Constitutional right to free speech and freedom of expression, and those rights are strong.
She also said the judiciary is a check on presidential power, and people shouldn’t take for granted that the president has all the authority he tries to claim.
“Don’t accept that you are powerless because you are not powerless,” Deernose said.
Work, who said his “hairs stood on end” reading the memo, said the ideas it presents are based on fear, as are a lot of laws and political actions.
“We need to be aware that this is an attempt to instill fear based on a fear that the enemy is within, and recognize that it is a lot more sophisticated attack on free speech than Montana’s sedition law was,” Work said.
But work also said the terms in the memo are vague and undefined.
“What is anti-capitalism? What is anti-Christianity? What is hostility toward those who hold traditional American views?” Work said. ” … If you air it to the logical conclusion, that would amount to the prosecution of a whole helluva lot of people in this country.”
Work said free speech rights were protected under the First Amendment, but the anti-sedition law would not have been held unconstitutional at the time it was passed.
He said the U.S. Supreme Court didn’t start taking a more robust view of the First Amendment until 1925, when it found in Gitlow v. New York that the protection covers abuses by state governments, not just the federal government.
Protections for dissent strengthened in the 1930s through the 1960s, “kind of the golden age of protection of political dissent,” Work said.
He said people still have those rights in this country, and while Republican-appointed members of the U.S. Supreme Court are generally sensitive to First Amendment rights, they’re also likely to give greater weight to security concerns.
“But this memorandum is a much more sophisticated assault on political dissent,” Work said. “It’s kind of comparing a broadax to an AR-15.”
For example, he said it is using the memo to go after the tax-exempt status of organizations, which has raised concerns among law firms with large nonprofit clients.
Work’s book, “Darkest Before Dawn: Sedition and Free Speech in the American West,” spurred the project to clear the names of people who were convicted of sedition in Montana in World War I.
Most of the 79 people convicted of sedition were blue collar workers, according to the Montana Sedition Project.
After attending a reading of “Darkest Before Dawn,” a UM law school professor launched a clinic with students to research the idea of posthumous pardons.
In May 2006, Democratic Gov. Brian Schweitzer signed a proclamation of clemency for 78 Montanans convicted under the Montana Sedition Act. It said the law of 1918 ushered in “one of the darkest periods in Montana’s political history,” punishing “even the mildest forms of political dissent.”
(The Missoulian said one man had his sentence commuted in 1921.)
The Smithsonsian said one “scofflaw” was Peter Ervik, who “got two-to-four years for allegedly saying, “I would sooner fight for the Kaiser than I would for the United States, f*ck the United States and f*ck the flag. I mean it.”
One refused to kiss the flag, and another criticized butter and sugar rations, according to examples from the Smithsonian.
The proclamation from Schweitzer said he had the power to grant the pardons, even nearly one century after those who were convicted faced punishment for the enforcement of “a unanimity of thought” around the war.
“There is no time limitation for correcting injustice and clearing the names of honorable people,” the proclamation said. “By this Proclamation, I have extended and do extend a full and unconditional pardon from the offense of Sedition alleged to have been committed during 1918-1919 and from the conviction of Sedition and from all sentences, judgments, and executions thereon.”
Work said the memory of the actions, especially when the gubernatorial pardons brought them to light, seemed to resonate strongly with people, but he also said history has the potential to repeat itself if people don’t exercise their rights.
“The fates of those political prisoners who were put in prison for years tells us that hysteria can take over so easily, and people can be punished for no just reason, just because it’s politically expedient at the moment,” Work said.
The ACLU was founded partly in response to the first wave of anti-sedition laws, Deernose said, and she encouraged people to learn from Montana’s sedition history to prevent repeating the mistakes of the past.
“It’s unimaginable that in Montana, people were jailed — actually jailed — for saying benign statements such as, ‘The ration system is dumb,'” Deernose said.
She said she believes there’s still time to avoid a backslide in democracy, and one way people can steer a different way is to band together.
“Hopefully, one silver lining of this scary time is that we build more connection, we build more bridges, and we unite on all the things that really connect us, because there are a lot more things that connect us than divide us,” Deernose said.
