February 12, 2009
A Mathew Brady portrait of President Abraham Lincoln in 1860. (Library of Congress, Prints & Photographs Division)

A Mathew Brady portrait of President Abraham Lincoln in 1860. (Library of Congress, Prints & Photographs Division)

During Civil War, Lincoln Sidestepped First Amendment

Once the Civil War began, President Abraham Lincoln allowed his critics — including Northerners opposed to the war, known as "Copperheads" — wide latitude in railing against his policies. Thus, the "Copperhead press" was routinely vitriolic in its protests. And yet, voices of dissent were often tolerated.

There were, however, instances in which Lincoln found it necessary to abridge the First Amendment. While some may criticize Lincoln, none can question the unique and daunting challenges facing him.

Suspending the Great Writ

On April 27, 1861, Lincoln, fearful of Southern troops overtaking the capital, suspended the writ of habeas corpus and declared martial law. Shortly afterward, Union soldiers captured John Merryman, a cavalryman who had burned bridges and destroyed telegraph lines. Merryman contested his military detention. A federal court upheld his claim. Lincoln, however, ignored the order and continued to seize and hold adversaries subject only to the constraints of military law. Insofar as all constitutional rights were suspended, all First Amendment rights were likewise suspended.

The Temperate President and His Intemperate General

In September 1862, Lincoln issued his Emancipation Proclamation, which drew considerable opposition from rebels and anti-war Copperheads. These newspapers lashed out against the president, tagging his proclamation "bloody" and "barbarous." With increasing frequency, more and more newspapers opposed the president’s proclamation. That in turn fueled new opposition, sometimes treasonous, to the Union effort.

Lincoln appointed Gen. Ambrose Burnside to oversee Ohio. In Burnside’s view, any criticism of the president was treasonous. He thus issued an order that warned that "declaring sympathies for the enemy" was a punishable offense. Burnside then went after anti-war protesters, most notably former Ohio congressman Clement Vallandigham, a rabid Copperhead and a vigorous defender of states’ rights. Burnside ordered Vallandigham arrested and charged him with uttering "disloyal sentiments and opinions."

A military tribunal convicted Vallandigham, who was sentenced to "close confinement" until the war’s end. Lincoln commuted the punishment to banishment to the Confederate states. Later, Burnside closed down the Chicago Times, which had been critical of Lincoln and supportive of Vallandigham. Lincoln urged Burnside to be less aggressive and to try to find some middle ground. Lincoln directed that the Chicago Times be allowed to resume publication.

Lincoln Loses His Patience

By May 1864, Lincoln’s patience with the Copperhead press ran out. What triggered his wrath was a bogus item that appeared in two New York papers — the Journal of Commerce and the World. A fake story reported a presidential proclamation that claimed Lincoln was about to draft 400,000 men. Lincoln ordered the two newspapers shut down and their publishers imprisoned. The Independent Telegraph System, which dispersed the story, was taken over by the military.

 

While Lincoln’s wartime First Amendment record is certainly controversial, it is nonetheless remarkable how much restraint he exercised in the face of truly nation-threatening challenges.

To read the complete version of this story, please visit www.firstamendmentcenter.org. A new exhibit on Lincoln’s death, “Manhunt: Chasing Lincoln’s Killer,” opens Feb. 14 through Dec. 2009.

Ron Collins is co-author with David M. Skover of "The Trials of Lenny Bruce" (Sourcebooks, 2002)

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