Faced with widespread union busting and a feckless NLRB, a more aggressive labor movement is brewing.

The National Labor Relations Board has a long history of dysfunction, but its job just got a lot harder. In January, a federal appeals court ruled that Obama had illegally appointed three of the board’s members while the Senate was in recess early last year. Now, recess appointments are a touchy subject in Washington, but Obama had good reason. Republicans in the Senate had threatened to block any and all NLRB appointments, leaving the president with few options. (Oddly, there’s no law against deliberately obstructing a vital government agency.)

If the decision stands, the board is toast. With only one remaining member, the NLRB lacks a quorum, and legally loses all decision-making power. The bedrock of labor law enforcement would grind to a halt. What’s more, all decisions since the January 4 appointments last year could be nullified—that’s hundreds of rulings on everything from workers using social media, to who handles union dues on a day-to-day basis.

This is bad news for organized labor, but not as bad as you might think. While few doubt the board’s importance in protecting things the right to organize, the NLRB also has a long history of institutionalizing the bureaucracy and hierarchy that have plagued American labor for decades. The board was born during an era of historic labor militancy, and reforms that established basic workplace protections also went hand in hand with bans on more militant actions like sit-downs, sympathy strikes, and wildcats. In their place, the board set up channels like union elections and regulated negotiations. The new system was more predictable for everyone, but also more top-down, less democratic, and arguably much less effective for labor.

So, alienated by the rigidity and hierarchy of the NLRB system, many workers and organizers have begun learning to live without it, preferring to engage in struggles on their own terms. Indeed, with or without a functioning labor board, many of the movement’s brightest flashpoints are operating well outside the system.

One of the clearest of those flashpoints was certainly last year’s unprecedented organizing effort at Walmart, a grassroots campaign that united unions, labor groups, and activists across the country. The push began in September, when workers at a Walmart-controlled warehouse in Mira Loma, California, walked off the job and began a “Walmarch” to Los Angeles to demand safer working conditions. Earning well below a living wage, the Mira Loma workers had suffered 120-degree heat, inadequate ventilation, and broken equipment—conditions that lead more than 80 percent to experience on-the-job injuries. They were also mostly part-time workers, and often relied on a “buddy system” during slower workweeks.

The symbolism of the 50-mile march, inspired by the 1966 United Farm Workers march to Sacramento, was striking. Like the UFW, the warehouse workers found themselves excluded from the protection of the NLRB system—the UFW because the board explicitly excludes agricultural workers, the warehouse workers because of Walmart’s notorious (not to mention illegal) union-busting. But also like the UFW, where the warehouse workers lacked legal support, they found an outpouring of community reinforcement. During some of the march’s hottest days (with temps climbing above 100 degrees), volunteers set up impromptu clinics to provide health care to the mostly uninsured workers. A few days later, the warehouse workers were joined by more than 100 California farm workers as well as activists from Students Against Sweatshops, who marched alongside them in solidarity. By October 5, the marchers returned to work with a guarantee of better conditions.

That extraordinary victory soon galvanized Walmart workers in other states to more militant action. Within a couple of days of the Mira Loma strike, workers at a Walmart warehouse in Elwood, Illinois, presented a petition for safer conditions, consistent schedules, and an end to forced overtime. When supervisors began firing those who had signed, workers walked out. On October 1, hundreds of community activists joined the striking workers, where riot police arrived and arrested 17 protesters for civil disobedience. But like the workers in California, the Elwood strikers quickly won victories on core demands. By October 15, increasingly under the umbrella of the labor group OUR Walmart, actions had spread to a dozen cities nationwide.

Such early success had a lot to do with strategy, writes historian Staughton Lynd in December’s Industrial Worker. Although they relied on support from recognized unions like the United Food and Commercial Workers (UFCW), their grievances, demands, tactics, and victories were entirely their own. At every step of the way, including the climactic Black Friday actions throughout the country, Walmart workers operated decidedly outside the NLRB system of petition and arbitration. Instead of channeling time and energy into the tedious process of requesting recognition and electing representatives to negotiate, workers in Mira Loma and Elwood decided collectively to organize and take action themselves. This direct action approach had a big impact.  

For one thing, it meant a much quicker process. Workers in Illinois and California organized, went public, and won concrete victories within a matter of weeks—an unheard of timeline for unions sticking with official channels. Eschewing official recognition also meant sidestepping legal restrictions like no-strike clauses and bans on civil disobedience, sympathy actions, and boycotts. In California, Illinois, and across the country, much of the campaign would’ve been difficult under the NLRB umbrella—from the “Walmarch” in California to the civil disobedience in Elwood, not to mention the spontaneous way it all took off.

But most importantly, workers took the company by surprise. For decades, Walmart has remained union-free by exposing and undermining union campaigns in whatever way it could. A 2007 Human Rights Watch report found that the company routinely breaks US labor law to snuff out labor actions, from spying on workers, to banning discussions of unions on company property, to firing those who join. The report added that because labor law in the US is so toothless, Walmart’s illegal conduct usually results in little more than a “slap on the wrist.”  

And if workers can somehow make it over these barriers and go public with their demands, retaliation can be swift. When organizing workers at a Quebec Walmart went public in 2005, the company pulled up roots and left. When a handful of Walmart meat-cutters in Jacksonville voted to join the UFCW in 2000, Walmart announced it was terminating meat-cutting operations in 700 stores. And like many big-box companies, Walmart’s managers have long been trained to put a stop to organizing efforts before they get off the ground. One “Manager’s Toolbox” from 1997 urges supervisors to be “constantly alert for efforts by a union to organize your associates.” It also gives instructions on curbing unionization at every step of the process, from initial organizing to petitions to elections and bargaining. The handbook even provides a “Union Hotline” to alert upper management at the first sign of trouble. Bottom line: Walmart knows the NLRB process very well, and how to subvert it.

Which is what made last fall so exciting. If workers in Mira Loma had circulated a petition, signed cards, or went public with demands, management would’ve been all over it. But there’s nothing in the “Manager’s Toolbox” about a Walmarch. This is what gives unofficial actions their power: instead of working through a process stacked against them, workers in Mira Loma, Elwood, and across the country took up the fight on their own terms. In so doing, Staughton Lynd argues, Walmart workers revived the tactics and strategy of the labor movement’s zenith—the heady decades before the NLRB put a lid on labor militancy in during the Depression.  

But as groundbreaking as these victories have been, they’ve not been alone. Workers in Mina Loma and Elwood are part of a growing trend in organized labor, one that relies more and more on decentralized, grassroots action outside the NLRB system—what the American Prospect’s Josh Eidelson calls “alt-labor.” It’s a method more radical unions like the Industrial Workers of the World have been pushing for a long time, and lately, it’s been catching on. Especially in big cities like New York, workers in traditionally unorganized sectors have started to organize in a different kind of way, and it’s led to more than a few concrete victories. From broad-based movements like Coalition to Immokalee Workers to local restaurants like Hot and Crusty, workers, particularly in food service, are winning critical victories by taking a more militant and creative approach to demanding their rights.

One of the most interesting approaches has been that of the Restaurant Opportunities Center, a radical labor group based in New York City. Like OUR Walmart, the ROC is not a formal union and has no desire to become one. Their strategy is a familiar one: direct action, unofficial strikes, and building community support for campaigns. Not only that, with a cadre of lawyers and worker advocates, the ROC helps educate workers on their rights, and when necessary, provides legal support against the industry’s worst offenders. It’s also adept at publicizing ongoing struggles. When food service workers win a victory on, say, overtime violations, like they did at Mario Batali’s Del Posto restaurant in Manhattan in 2012, the ROC labels them a “high road” establishment. To date, the ROC has won more than a dozen settlements against employers in New York City, along with millions of dollars in workers’ back-pay.

The ROC has been active in the New York area for more than a decade, but last year, they were joined by Fast Food Forward, a coalition of community groups and unions including the SEIU. Unlike OUR Walmart and the ROC, Fast Food Forward would eventually like to see their workers gain NLRB protection. But instead of petitioning for recognition and then entering into negotiations with employers, the group decided to take action in a more direct way. Less than a week after Black Friday, the group organized a mass walkout in New York to demand higher wages and greater labor protection. Workers pulled off the largest strike in fast food history before anyone even signed a union card.

Now, at first glance, the fast food strike doesn’t make a lot of sense. Historically, big unions like the SEIU have not been fans of acting outside the NRLB system. Even during the Depression, when wildcat actions and unofficial strikes broke out in hundreds of cities nationwide and labor’s power was at its height, large, established unions like the AFL and CIO urged moderation. The difference today, argues Labor Notes reporter Jenny Brown, is that the moderate strategy hasn’t worked. If labor was at its militant height in the 1930s, today it’s at an historic low. Faced with employers like Walmart that regularly violate the law to impede organization, and an NLRB system that offers few prospects for victory, some labor leaders have started to rethink and retool. The result has been a labor movement that is more grassroots, more democratic, and more about action.

And it seems to be working. The last few years have seen a wave of unprecedented achievements, often in industries long thought impossible to organize. Numbers are still small, but activists and strikers in New York, Mira Loma, and across the country have shown an energy and creativity that’s been hard to ignore. Whether supported by established unions or not, this new militant wing of organized labor has in many ways brought the movement back to its roots—rank and file workers, organizing themselves democratically to fight for their rights in direct and meaningful ways. If the campaigns spearheaded by OUR Walmart and the ROC can continue this trajectory, it will have much more to do with their unique vision and spirit than whatever ends up happening at the NLRB.

Above image, of a Fast Food Forward/Occupy/RiseUpNY day of action in July 2012, by Katie Moore. Used with permission.  

The humanitarian crisis in Palestine is not something you hear much about these days. It didn’t come up in the presidential foreign policy debate on Monday, though of course Obama and Romney spent a long time talking about Netanyahu’s “red line” with Iran. G8 nations were similarly silent on Palestine during the group’s conference back in May, although Israel’s ongoing blockade of Gaza was a major G8 talking point just two years ago, as was the peace process a year later.

When we do see Palestine in the news, it’s mostly about why and how the two-state solution is dead—a theme that’s been driven home repeatedly over the last year by the likes of Jimmy Carter, Atlantic senior editor Robert Wright, and Haaretz journalist Gideon Levy. Not that there’s much reason to believe otherwise. In fact, the crisis there only seems to be getting worse.

For one thing, Jews are now a minority in Israel and the Occupied Territories, raising serious questions about minority rule and apartheid. Last week, Israel officially declared that of the 12 million people living between the Jordan and the Mediterranean, Israeli Jews represent about 5.9 million (a fact Israeli demography expert Sergio Della Pergola had already pointed out in 2010). “Apartheid is here,” says Haaretz columnist Akiva Eldar. “The Jewish majority is history.”

And apartheid is not a subjective term, says UC Irvine professor Mark LeVine at Al-Jazeera. Since its formal implementation in 1948 in South Africa, a series of international treaties like International Convention on the Elimination of All Forms of Racial Discrimination of 1966 and the 2002 Rome Statute have defined apartheid in no uncertain terms. Despite cosmetic differences in how it’s implemented, Israel’s policies toward Palestine fit the international definition—as Rome calls it, an “institutionalised regime of systematic oppression and domination”—to a bill, says LeVine. Arabs in Israel may have some basic political rights like voting and holding office, he says, but it's hard to ignore the widespread economic discrimination they face, "as well as in access to land and most components of social citizenship (education, healthcare, language and access to upper echelons of political life)." Not to mention the entangling maze of checkpoints, settlements, and walls dotting and dominating Palestinian territory.

Of course, the charge has been raised before, most famously by Jimmy Carter in 2006. A year later, John Dugard, a South African international law professor and UN human rights envoy to the Occupied Territories, echoed the same concern. “It is difficult to resist the conclusion that many of Israel's laws and practices violate the 1966 Convention on the Elimination of all forms of Racial Discrimination,” he wrote at the time. And late last year, Dugard reiterated his point, writing in Al-Jazeera that, “Most South Africans who visit the West Bank are struck by the similarities between apartheid and Israel's practices there.”

But whatever we choose to call it, human rights abuses in Palestine are only escalating, whether our political leaders discuss it or not. Last week, Israel released its “red lines” document, which spells out some of the tactical specifics of the Gaza blockade, and their intended impact on Palestinians living there. (The revelation was almost totally ignored in the U.S. media.) The idea, reports Amira Hass in Haaretz, was to allow Gazans access to only the minimum number of calories each day to avoid outright starvation. Despite the fact that the blockaded Gaza is almost entirely dependent on outside resources, Israeli government attorneys defended such “economic warfare” as entirely within Israel’s rights, while also attempting to prevent the document’s disclosure.

So what’s the minimum number? 2,279 calories each day for each person, or 131 truckloads entering Gaza, says Hass. (To put that in perspective, the average American has access to about 3,800 calories each day.) But, says Hass, UN data show the actual number entering the territory has been far less. And Israeli prohibitions on seeds and agricultural technology served to make food insecurity even more of a serious problem for Gaza’s 1.7 million residents.

Though the specific policies outlined in the “red lines” document officially ended in 2010, the blockade continues to enforce a real and growing hunger crisis in Gaza. A report by the United Nations Relief and Works Agency, released in August of this year, finds that in a territory where a majority are under 18, three out of five families face, or are at risk of facing, food insecurity. The report went on: With unemployment now nearing 30 percent, and Palestinians there already facing a severe shortage of schools and medical care, Gaza’s future looks grim unless serious changes can be made. By 2020, it concluded, by which time Gaza will grow by half a million residents, the territory may be completely uninhabitable, unless serious steps are taken to reverse the humanitarian crisis.

This is a bleak portrait, but a more humane future for Palestine is certainly possible. The work the Middle East Children’s Alliance has been doing for 25 years gives us an inspiring vision of what that humane future could look like, as do the flotilla movement's ongoing efforts to break the Gaza siege. If a two-state solution is indeed finished, writes Gideon Levy, the real fight is for human rights. And that fight has much to do with us: because crimes like the blockade are so dependent on U.S. aid and support, Americans have enormous influence on the future of the crisis. Human rights in Palestine may not be a campaign issue this year, but neither was South African apartheid in 1984. It was only through popular struggle—here and in South Africa—that more humane alternatives became politically possible.

 

Image by Paolo Cuttitta, licensed under Creative Commons.  

One of the ironies of American political culture is that in such an overwhelmingly urban and increasingly nonwhite society, issues of poverty, segregation, and race rarely figure into presidential races in a meaningful way. Listening to campaign rhetoric, it’s hard to find evidence that America is becoming poorer, more divided, and less integrated than it was a generation ago.     

This was especially true of Tuesday’s town hall debate. Despite pointed questions about issues like crime and economic growth, both candidates chose not to connect them with the persistent poverty and racial division that increasingly define American cities. Instead, Obama got into a lengthy joust with Romney over who supported natural gas drilling more (and coal and fracking). Meanwhile, America’s racial and class makeup continues to change in profound ways.

For one thing, we’re becoming a more segregated society. A recent report by the Pew Research Center finds that income segregation in American cities has increased dramatically since 1980, especially in places like New York and Philadelphia. While middle-income neighborhoods have shrunk over the past 30 years, low-income and high-income areas are more concentrated than they have been in decades—problems only intensified by the recession. Racial segregation is no less prominent. On average, U.S. cities are more racially segregated now than they were in 1940, says the Economic Policy Institute.

Divisions like these are deeply felt in our public schools. A recent study by UCLA’s Civil Rights Project finds that race and income segregation have been rising quickly in American schools, especially since 1991. Today, most students of color attend schools that are overwhelmingly low-income and nonwhite, and one in seven attend what are called apartheid schools, where whites make up less than 2 percent of the student body. In some areas, like the Western U.S., a full 43 percent of Latino student attend such hyper-segregated schools.

And while the Obama administration has touted its support for underprivileged and underachieving schools and students, they haven’t seen much success. In particular, Obama’s support for charter schools, the UCLA report finds, has undermined modest desegregation efforts, as charters remain by far the most segregated branch of public schools. What’s more, issues like these don’t make it very far in the presidential race. “Though segregation is powerfully related to many dimensions of unequal education,” the report concludes, “neither candidate has discussed it in the current presidential race.”

That issues of urban segregation and unequal education are so absent from this year’s election cycle is more than a little ironic, says Richard Rothstein at the American Prospect. When racial segregation became a visible political issue in the late 1960s, even Republican leaders became active in fighting it. One Republican in particular, George Romney, the head of the Department of Housing and Urban Development under Nixon, supported a broad-based policy of residential integration—of the kind unthinkable today.

Not content with approaches like busing that attacked school segregation at the student level, Romney saw integration as an expansive, holistic public issue, says Rothstein. A student’s success in the classroom, he believed, had as much to do with their access to health care, their parents’ employment situation, and the safety of their neighborhood as it did with the racial makeup of their class. Following advice from 1968’s Kerner Commission (which President Johnson flatly ignored), Romney’s plan was to invest heavily in low-income and subsidized housing mostly in white suburbs, and to force suburbanites to reverse racist zoning practices. But the plan, despite having (conservative) supporters in high places, did not see the light of day. Nixon, whose ideas on school and residential integration might today be considered liberal, believed that forcing communities to integrate was the wrong approach. As a result, the principled Romney, who as a presidential candidate had strongly spoken out against segregation in the tumultuous year of 1968, chose to resign.

Needless to say, Mitt hasn’t followed in his father’s footsteps—but then, Obama hasn’t made much noise on poverty or race either. In the first three debates this year, the GOP team has actually mentioned poverty far more than the Dems, says Seth Freed Wessler at Colorlines. At the same time, Obama has spoken “less about race than any other Democratic president since 1961,” writes Ta-Nehisi Coates in The Atlantic.

That’s a shame, because problems of inequality and segregation won’t go away without dialogue and serious action. An Obama presidency may be somewhat better overall than a Romney presidency in terms of race and poverty, but that assumes structural solutions are impossible. To really tackle segregation and inequality, we need a holistic approach—like the kind that might have worked in 1968.

Image of Milwaukee’s racial makeup from 2000 U.S. Census (public domain). Milwaukee is famously the most segregated city in the United States; blue dots represent black residents.  

In January of this year, former CIA agent John Kiriakou was arrested and charged with illegally revealing classified information to journalists about the interrogation of detainees at Guantanamo Bay. Much of the government’s case against Kiriakou leans on alleged violations of the Espionage Act, a law passed during World War I to stem antiwar dissent and control the use of official information. At that time, the law’s targets were mostly activists, union organizers, and radical writers and speakers. Many of those prosecuted made up the Industrial Workers of the World (IWW), a radical labor union that fought for free expression as much as it did workers’ rights. But since then, the law has shifted focus toward government leakers and, potentially, to journalists. Kiriakou’s case is only the latest under Obama to threaten whistleblowers’ ability to reveal wrongdoing, and the press’ ability to report on it.

In the final years of the Bush administration, as cases of CIA waterboarding began to surface, many observers still saw them as isolated incidents. But Kiriakou begged to differ. In a now-infamous interview with ABC in late 2007, he revealed that torture—waterboarding, in particular—was CIA policy in the years after September 11. What’s more, he said, it was effective. Waterboarding provided critical intelligence from detainees that probably saved American lives. But, Kiriakou insisted, the effectiveness of waterboarding doesn’t excuse it—an argument he expanded on in a book three years later.

Kiriakou’s testimony had a complex effect on the national debate over torture, says Brian Stelter in the New York Times. Because he described how valuable and efficient waterboarding can be—one detainee’s resistance was broken in less than 35 seconds, he said—conservative pundits like Rush Limbaugh and National Review’s Jonah Goldberg saw Kiriakou as lending legitimacy to the right-wing side of the torture debate. At the same time, Stelter points out, it also revealed that CIA leaders had authorized harsh and controversial interrogation techniques, sparking a national outcry. Brian Ross, who conducted the original ABC interview, later said it was critical to “shine some light on what was happening.” Kiriakou agreed. “We should be debating this,” he told Ross in 2007. “It shouldn't be secret. It should be out there as part of the national debate.”    

The debate that did happen led to an uproar against torture and to President Obama’s formal ban on waterboarding in early 2009. While Kiriakou’s 2007 revelation was one of many in a series of scandals and conversations since September 11 regarding the use of torture, his disclosure was significant. Not only did he point to CIA leaders for directing harsh interrogation, he was one of the first in the CIA to come out against waterboarding, and to label it as torture.

But now, despite Obama’s actions against waterboarding, Kiriakou has become a Department of Justice target for leaking classified information to journalists related to torture in the months after the ABC interview. What’s more, as Government Accountability Project attorney Jesselyn Radack points out in Salon, because Obama has declined to investigate war crimes under Bush 43, Kiriakou remains the only person to be charged in connection with torture at Guantanamo Bay—for any reason. In total, Obama has charged six people under Espionage for leaking government secrets, including Kiriakou, though Julian Assange could make seven if he is indicted as well.  

In what some have dubbed a war on whistleblowers, Obama has invoked Espionage more than any other president against journalists and government leakers. But at the same time, as Glenn Greenwald argues, the administration leaks secret informationon a regular basis, from the Olympic Games assassination program in Iran, to details of Osama bin Laden’s assassination, to the president’s now-infamous “kill list.” The difference between these leaks and those perpetrated by people like John Kiriakou, Greenwald says, is that this information makes the White House look good (it’s also emphatically beyond judicial oversight). The fact is that investigative journalists at papers like the New York Times and Washington Post depend on the right to publish classified information—very often with the (technically illegal) cooperation of government officials. The implication, says Peter Van Buren at Tom Dispatch, seems to be that publishing state secrets is only OK if you make the powers that be look like the good guys.  

No doubt that’s concerning, but the greater danger is that the government’s treatment of whistleblowers will have a chilling effect on the press, something that more  than  one prominent journalist has warned about. If whistleblowers are afraid to come forward with crucial information, we may know less and less about what our government is doing and what is happening in the world around us. It’s almost impossible to imagine the debates surrounding the Vietnam War without the Pentagon Papers, just as revelations about torture have dramatically changed our understanding of the War on Terror.

And it wouldn’t be a stretch to suggest that those revelations—and not just Kiriakou’s—had a direct impact on the 2008 election, and on Obama’s subsequent ban on waterboarding and extraordinary rendition (though by no means is Obama’s record on torture entirely clean). Without leaks like the Taguba Report or the Iraq War Logs, both the reality of the war and our knowledge of it may well have been very different. Today, it’s this knowledge that the Espionage Act threatens.

Illegal Information 

Amidst Obama’s controversial treatment of whistleblowers, the current standard narrative has been that the Espionage Act was originally passed to combat actual espionage—that is, spying on behalf of unfriendly foreign governments. It’s only since then, the argument goes, that the Act has been distorted and manipulated from its original, more justifiable purpose. But that narrative actually blurs a lot of history. Congress’ real focus in 1917 was fighting dissent, which as it turned out, was much more of a threat to Washington than German (or, Austro-Hungarian) spies. Washington’s wartime use of Espionage and the Red Scare that followed destroyed much of the power of organized labor, not to mention the tiny antiwar movement, and set a precedent for prosecuting political speech that remained in force until the 1960s.

When Congress passed the Espionage Act in June 1917, the U.S. had been at war for less than ten weeks, but President Wilson was adamant about unifying the country behind the war effort. Wilson had asked Congress for action against “disloyalty” more than a year and a half beforehand in his 1915 State of the Union speech. Singling out foreign-born radicals in particular, he railed against those who spread “the poison of disloyalty,” ominously adding, “I need not suggest the terms in which they may be dealt with.” Though the nation was by no means headed directly for war—and actually, Wilson stressed his dedication to neutrality, in this speech and in the following year’s election—Wilson’s warnings would prove prescient. “No president had ever spoken that way before; none has since,” wrote historian and politician Daniel Patrick Moynihan in Secrecy, his 2003 history of political intrigue. “[T]he intensity of fear, and yes, loathing in those years was never equaled later.” Shortly after the war began, Wilson doubled down on his commitment to target dissent, and took to the New York Times to demand strict press censorship. 

Wilson didn’t get everything he was after, but he got a lot. The Espionage Act as passed granted the executive branch sweeping powers to prosecute and interfere with political speech in a variety of forms. Section 2, which repeated and expanded on the Defense Secrets Act’s regulation of official information, forms the backdrop of many controversies today, but in 1917, Section 3 got the most attention. That passage criminalized virtually any speech that could be said to encourage “insubordination, disloyalty, mutiny, [or] refusal of duty” in the military. A year later, Congress expanded its definition of unacceptable speech with the Sedition Act, which criminalized “disloyal, profane, scurrilous, or abusive language” against the government in a time of war. But really, all Justice needed was Espionage, which remained on the books long after Sedition had expired.

In his history of the IWW, There is Power in a Union, historian Philip Dray explores Espionage’s effect on the American labor movement. Within months of the Act’s passage, Dray writes, federal agents began rounding up hundreds of radical and antiwar activists for violating the 1917 law, while Postmaster General Albert S. Burleson wasted no time in banning more than a dozen leftwing newspapers like The Masses, TheMilwaukee Leader, and the Jewish Daily Forward, from the U.S. mail. Even mainstream papers were not allowed to step out of line, says Christopher Finan in From the Palmer Raids to the Patriot Act, a history of free speech. When The Nation published a story that criticized AFL leader Samuel Gompers, a Wilson ally, the post office refused to mail it. Facing threats from the postmaster’s office, The New Republic declined to publish an ad supporting the IWW. And while German spies remained the ostensible targets of the federal crackdown, they represented a very small minority of Espionage Act cases. The real targets were antiwar activists, leftists, and union leaders. Within months, more than 2,000 were arrested for things like speechmaking and publishing dissenting newspapers. And some, like Socialist Party leader Eugene Debs, spent years in prison.    

But even without a war in Europe, says Dray, free speech was a very contentious issue in the years leading up to war, and many labor activists were quick to make the connection between a growing movement for workers’ rights and battles over the First Amendment. In many American cities, speechmaking about taboo or critical topics was already banned. Three years before the IWW was founded in 1905, many of its future leaders formed the Free Speech League to combat municipal codes against soap-boxing and other public political speech, which were then quite common.

Expression in a broader sense was also under attack in the first decades of the new century—including fundamental labor tools like boycotts. In Loewe v. Lawlor (1908), the Supreme Court ruled that a striking union’s boycott against a fur hat producer violated the Sherman Antitrust Act. In another case three years later, the Court was unswayed by AFL lawyers’ arguments that encouraging a peaceful boycott should be protected free speech. The same was true of virtually anything that had to anarchism. A pair of Immigration Acts, passed in 1903 and 1918, empowered Washington to exclude or deport anarchist immigrants, or anyone who believed in assassinating public officials, from the United States. Emma Goldman, a prominent anarchist speaker and activist who emigrated from Russia in 1885, was deported in 1919 after years of police harassment. Had she tried to emigrate later in her life, it’s likely she would’ve been turned away.

Freedom of assembly was likewise hard to come by. The early flashpoints of American labor—Haymarket, Tompkins Square, Pullman—were arguably as much about defending the right to peaceably assemble as about labor conditions, argues Dray. In 1874, Justus Schwab was arrested for waving a red flag during a rally in New York City’s Tompkins Square. Adolph Fischer, one of the defendants tried in the aftermath of the Haymarket riot in 1886, said, “I was tried here in this room for murder, and I was convicted of Anarchy. This verdict is a death-blow to free speech, free press and free thought in this country.” Despite a lack of physical evidence, Fischer, along with three other defendants, were hanged the following year, and quickly became martyrs in the nascent American labor movement.

And so after the IWW organized itself formally in 1905, some of its fiercest battles and most creative campaigns were in free speech fights in cities across the country, from Seattle to Spokane to San Diego. One of the first was in Missoula in 1909, where IWW activists faced down a new municipal ordinance banning street-speaking. There, activists devised a strategy to beat back speech restrictions in dozens of cities over the next eight years. The idea was to defy the law with as many people as possible, overcrowd the local jail, and force the town to recant. Wobblies from all over the West began showing up to get arrested. “It was said ranchers from the surrounding area came on buckboards and mules to witness the spectacle of men who wanted to go to jail,” writes Dray. Nevertheless, the tactic worked. In Missoula, after the local jail was full, municipal leaders had to take over the fire station. And when residents balked at using tax dollars to feed the new inmates, the city declared defeat. All IWW inmates were released and the anti-speech ordinance was repealed. The resounding victory led the IWW to successfully apply the same strategy to dozens of other cities across the American West. Free speech was never more of a labor issue. 

But while the IWW had an impressive record of defending free speech against municipal ordinances and corrupt local officials, it was ill prepared for the repression, censorship, and violence that accompanied America’s entry into World War I. But prepared or not, American political culture changed dramatically in 1917, and few felt it as viscerally as the Wobblies, along with pacifists, antiwar activists, and other “unpatriotic” standouts—not to mention Germans and German-Americans. 

In some ways, the fierce wartime nationalism might sound familiar to 21^st century Americans. In Security Versus Liberty, historian Alan Brinkley describes some of the more outlandish flashpoints, as Americans swept under the rug any reference to the country’s considerable German heritage. Public schools refused to teach German. Many German-language newspapers, schools, and churches either switched to English or shuttered. German-sounding place names were refashioned, as were many family names. At least one German-born man was lynched in Illinois, while a mob in Wisconsin threatened to lynch another German-American for not contributing enough to a drive for war bonds. Orchestras banned Mozart and Beethoven. Sauerkraut, apparently too popular to be banned outright, became “liberty cabbage.” It might sound funny now, but it’s not hard to see modern equivalents—think freedom fries and Park51. Suffice it to say, in a political atmosphere like that, the IWW’s radical message was less than welcome. And after Espionage passed, Washington’s movement against the Wobblies was swift.

On April 1, 1918, 101 editors, writers, speakers, and union organizers belonging to the IWW entered a courthouse in Chicago to begin a trial that would last the better part of five months—the longest in American history up to that point. All 101 defendants were charged with violating the Espionage Act, in addition to dozens of other, lesser charges. Back in September, federal agents had raided 48 IWW halls across the country, arrested some 165 members, and confiscated nearly five tons of documents. What prosecutors were looking for was proof of a conspiracy to undermine the ongoing war effort. But to the Wobblies, conspiracy didn’t make much sense. As defendant Robert Brazier pointed out (quoted by Dray), “most of us had never met prior to our arrests.” Nevertheless, they were all convicted, with barely a discussion. The verdict came after five months of hearings and less than an hour of jury deliberation.

Though the immediate postwar years saw a wave of important and highly visible strikes, the IWW never recovered from the convictions. Most of the defendants received five to ten years in prison, but the union’s more famous and active leaders, like Bill Haywood, received 20. The following years would see a violent, large-scale confrontation between organized labor and government agencies like the newly formed Bureau of Investigation, along with vigilantes and local police—but the IWW was mostly absent. And though labor scored some sizeable victories in those years—the 1919 Seattle General Strike stands out for groups like the AFL—it didn’t take long for the Palmer Raids and the larger Red Scare to destroy what power organized labor had left. Of course, Espionage continued to play a vital role, especially in the courts, where the conviction of radicals for political speech was continuously upheld—most dramatically in the famous Schenck v. U.S., which upheld the conviction of a socialist antiwar activist and established the “clear and present danger” test.

It’s in this context of free speech fights and labor struggles that we should understand the Espionage Act. Washington’s obsession with quashing dissent, its lopsided enforcement against IWW chapters, its use of Espionage during the postwar Red Scare long after the German threat had vanished—none of this makes sense without seeing Espionage as intrinsically connected to labor. In criminalizing dissenting speech, in shuttering radical presses, and in imprisoning and deporting some of labor’s most important leaders, the Espionage Act helped create an obedient political culture, in which information and debate could be regulated and controlled. In this way, its function in 1917 was not all that different than it is now, despite a change in how it is enforced. During the War on Terror, as during World War I, the Espionage Act’s concern is public awareness and public debate. The critical difference is where the federal government can interfere in the discussion.

A New Target 

That difference in enforcement reflects dramatic changes in American political culture, with some of the clearest movements in the courts. The 1960s was a period of unprecedented openness to democratic ideas, especially when it came to freedom of expression. And as Christopher Finan argues, some of the earliest and most important battles for expanded free speech protections came from the civil rights movement. In Supreme Court cases like NAACP v. Button and New York Times v. Sullivan, civil rights activists won unprecedented First Amendment protections that would have a remarkable impact far beyond the fight for racial equality.   

But it wasn’t until 1969, says Finan, that the Court established the sweeping free speech protections we know today. That year, in Brandenburg v. Ohio, the Court struck down “clear and present danger” and established a new standard: “imminent lawless action,” meaning speech is only criminal if it is likely, and intended to, result in breaking the law. The ruling was in many ways a watershed, and reflected extraordinary changes in Americans’ attitude toward dissent. Much of the Espionage Act’s Section 3 was toast—no longer could the federal government punish political speech simply because it encouraged “insubordination” or “disloyalty.” In rejecting both Schenck and the most draconian passages of Espionage, the 1969 decision established some of the strongest legal protections of free speech in the world (though the War on Terror has undoubtedly complicated matters). It also changed the meaning of the Espionage Act for decades to come.

When it came to official secrets, however, that change was very much two-sided. Before the 1970s, government leaks were not unheard of—federal laws protecting whistleblowers date back to 1863. But the Pentagon Papers leak in 1971 was and remains the most significant and damning disclosure of government wrongdoing in U.S. history. The leak brought a powerful change in how America saw its involvement in Vietnam, while the subsequent Supreme Court case had a similarly significant impact on the legality of secret information. In a landmark decision the same year the Papers were exposed (New York Times v. U.S.), the Court found that prior restraint against newspapers attempting to publish the leaks was unconstitutional. Striking down prior restraint was another clear victory for First Amendment rights, but the ruling came with a caveat. The Justice Department, the Court said, could still pursue a case against Daniel Ellsberg and Anthony Russo for leaking the classified documents under the Espionage Act, as well as The New York Times and Washington Post for publishing them. The ruling expanded the potential use of the Act’s Section 2 dramatically—the passages that deal with the illegal use of official documents—which could now apply to both whistleblowers and the journalists they contact. The change was unprecedented, and this standard remains on the books as well.

While Justice declined to pursue the newspapers, as the New Yorker’s Jane Mayer points out, its case against Ellsberg and Russo in 1973 marked the first time federal prosecutors attempted to use the Espionage Act to punish government leakers. The case ultimately fell through, mostly because prosecutors gathered evidence illegally, but it remains an important turning point. In the span of about four years, then, the Espionage Act and its relationship with free speech changed significantly. And since 1973, the exact limits of the government’s power against dissent have been a little fuzzy. A handful of court cases have established rough standards, but because journalists so regularly handle classified documents and information—and so often with cooperation from Washington officials—enforcement often seems arbitrary. 

This is a big part of the problem, says Mayer. When government employee Thomas Drake was indicted in 2010 for leaking information about a secret NSA program, his violations of Espionage included “willful retention” of classified information. The implication, argues Mayer, is that if a journalist “willfully retains” the same information—which is kind of a given if you plan to publish something—they could be charged too. The same issue forms a major part of Washington’s possible case against Julian Assange. Another problem is that official secrecy doesn’t always make sense, writes Patrice McDermott, director of OpenGovernment.org and author of Who Needs to Know: the State of Public Access to Federal Government Information. Security classifications often determine who gets indicted and who doesn’t, but the classification system is mostly a hodge-podge of executive orders that add up to very little consistency. Predicting who gets in trouble and why can therefore be very difficult. Could investigative journalists be targeted under Espionage? Is prosecution really based on byzantine classification systems, or does it have more to do with who’s making the government look good, as Greenwald and Van Buren argue? The scary thing is, ultimately, we don’t know.

Of course, this guesswork underscores a deeper set of questions about why Washington is pursuing these cases in the first place. Why has Obama sought to punish whistleblowers more than any president in history? Why have sources who blew the whistle on Bush-era crimes been charged, while those perpetrating the crimes have not? What impact does all this have on our knowledge of what our government is doing?

The uncomfortable fact is we don’t know the motivations behind the administration’s war on whistleblowers, any more than Americans knew why a wartime “Espionage Act” seemed to have much more to do with antiwar journalists and speakers than German spies. In both cases, Washington’s motives remained conspicuously hidden. The irony this poses—not knowing why we don’t know something—is both concerning and antithetical to a functioning democratic culture. At least for now, it may be unrealistic to expect no state secrets, but upholding a basic level of transparency in government—like the approach the Obama White House promised upon taking office—would be a good start.

By now the fact that Obama has turned out to be one of the most secretive presidents in decades is well known (the confused  debate about leaks notwithstanding). This also makes his use of Espionage less surprising. In classifying unprecedented numbers of documents, using and abusing the state secrets privilege, and attacking those who bring uncomfortable truths to light—such as John Kiriakou—Obama has, like President Wilson, undermined the democratic ideals he supposedly sought to protect. Although the two presidents acted in somewhat different ways, their use of the Espionage Act has had a similarly repressive effect on public knowledge and public debate.

To be sure, in the 21^st century, the landscape of First Amendment rights is very different from what it was a century ago. Today, IWW free speech fights have much more in common with controversies over so-called free speech zones at public protests—like the ones recently enforced at the Republican and Democratic conventions, or the wildly abusive police response to Occupy Wall Street—than with the current targets of the Espionage Act. Still, the law’s function in deciding the difference between acceptable and unacceptable expression and information in the public arena remains unchanged. And the same can be said for its arbitrary and inconsistent enforcement. Just as Wilson’s raids helped create a culture of fear and submission, Obama’s actions against whistleblowers and journalists may well have intimidated others to keep quiet for the very credible fear of retaliation. But like so many other facets of this issue, it’s impossible to know for sure.

Image above is from an IWW demonstration in New York City, 1914.