March 27, 2006
The Hon. Brian Schweitzer
Governor of Montana
State Capitol
Helena, Montana

Dear Gov. Schweitzer:

In 1918 and 1919, 40 men and one woman were convicted and incarcerated at the Montana State Penitentiary in Deer Lodge for terms of up to 20 years because they criticized the government during wartime. Another 37 persons were convicted but did not go to prison.

WE, THE UNDERSIGNED, urge you to grant these men and women posthumous pardons under your Article VI authority generally and under your Article VI, section 12 authority specifically. We respectfully urge you to do this for two basic reasons: (1) to affirm Montana's commitment to free expression; and (2) to bring a measure of justice and redemption to these people and their living descendants.

The state law under which these people were convicted, signed by then Governor Sam Stewart on Feb. 23, 1918, was patterned after the federal Sedition Act of 1798 but was even harsher in its terms. Anyone who in wartime uttered or published any "disloyal, profane, violent, scurrilous, contemptuous, slurring or abusive language about the form of government of the United States” could be convictedof sedition, sent to prison for up to 20 years, and fined up to $20,000.

Beginning in March 1918 and continuing for about a year, even after the Armistice had been signed, county prosecutors charged some 150 people in the state with sedition; about half were convicted. As the formal petition record makes clear, the trials took place in an atmosphere of suspicion and fear, at a time when any dissent was rooted out and punished.

These convictions were obtained in Montana courts at a time when almost all courts in our nation viewed free speech rights as dispensable—and at a time when the First Amendment had not yet been held binding on the states. One of the nation’s true judicial heroes of this era, federal District Court Judge George Bourquin of Montana, observed at the time that the prosecution of such individuals betrayed both “the genius of democracy and spirit of our people.”

Judge Bourquin’s views later became the law of the United States. The crabbed conception of free speech reflected in the Montana state court decisions has long since been rejected in Montana and throughout the nation. It has been replaced, to draw from Justice William Brennan's opinion for the Supreme Court in New York Times v. Sullivan (1964), with "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Montana’s own right to participate in government, and to criticize it in the most severe terms is preserved in the Montana Constitution.

Should you exercise your authority to pardon those punished for exercising what we now acknowledge to have been their constitutional right to question their own government, you would be acting in accord with a tradition dating back at least as far as 1840, when President Martin Van Buren posthumously pardoned Vermont newspaperman Matthew Lyon. The former Revolutionary War hero, later a Congressman, had been convicted under the Sedition Act of 1798 for speaking out against President Adams' "unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice." In June 1927 California Governor Clement C. Young pardoned Charlotte Anita Whitney after the U.S. Supreme Court upheld her state conviction for criminal syndicalism. In 1921, President Warren Harding pardoned Socialist leader Eugene Debs, who had been convicted of violating the federal sedition act during World War I. Four years later, New York Gov. Al Smith pardoned another socialist leader, Benjamin Gitlow, who had been convicted of violating a New York law by publishing "The Left Wing Manifesto." In much the same spirit, President Franklin D. Roosevelt in 1933 restored voting rights and other civil liberties to approximately 1,500 men and women who had been convicted of seditious utterances under federal law during World War I. More recently, in 2003, New York Gov. George Pataki posthumously pardoned pioneer stand-up comedian Lenny Bruce for a 40-year-old obscenity conviction based on biting comedic political commentary.

Granting the posthumous pardon petitions herein requested would ease the hearts of the living descendants of those convicted and would provide justice and a measure of redemption. We understand that more than two dozen descendants await your decision, and hope to be able to travel to Montana from across the United States to put closure to a terrible chapter in their family history.

By pardoning the men and women convicted of sedition in Montana during a time when fear and hysteria gripped the nation, you affirm our state and national commitment to free speech in America. You thereby affirm freedom. In that American spirit, we respectfully urge you to grant the posthumous petitions herein requested.

Respectfully,