Clement L. Vallandigham: Free Speech Martyr for the Copperheads

For this blog, I have mostly been looking at events in the 20th century (roughly 1917-1980), when modern free speech jurisprudence developed. Yet, the history of free speech obviously goes back before the First World War. I came across this amusing video from LegalEagle on Youtube the other day,¹ which sparked an interest in the case of Clement L. Vallandigham, an Ohio Democratic politician and lawyer. While the video was focused on Vallandigham’s death (he accidentally shot himself while defending his client), an earlier event of his life caught my attention. During the Civil War, Vallandigham was arrested for giving a speech opposing the war effort and demanding a “peaceful” resolution to the Civil War. I think the case presents some interesting information to consider when discussing free speech.

During the Civil War, Northern Democrats who opposed the war effort were known as “Copperheads,” a term of abuse adopted by the Republican press, which Democrats then took to calling themselves. Vallandigham was one such copperhead, otherwise known as a “Peace Democrat,” who in 1863 was a popular figure in his hometown of Dayton.² That year, he was seeking the Democratic nomination for the gubernatorial race, but party members preferred someone else. Upset at his inability to get the nomination, but still ambitious, Vallandigham sought to go around party insiders with an idea – he would get arrested under a new general order forbidding treasonous speeches and use that to bolster his political fortunes.³

The order under which Vallandigham was arrested was General Order No. 38, promulgated by the head of the Department of Ohio, General Ambrose Burnside. The order, among other things, banned treasonous speech, which, from Burnside’s perspective, included much of Vallandigham’s speech at a meeting of Democratic copperheads in Mount Vernon. In his speech, which lasted over two hours, Vallandigham attacked a number of targets. He accused the Republican Party of refusing to end the war by allowing Southern states to secede. He attacked President Abraham Lincoln as a tyrant and a king. He accused the Republican Party of violating the Constitution, and of usurping power with General Order No. 38 and others.⁴ Each of these would later be brought up at his trial as examples of treason.

Among his arguments, too, was the suggestion that, because of the Emancipation Proclamation and other decrees, the war was now being fought for the abolition of slavery – something he abhorred – and to replace the slavery of blacks with the enslavement of whites. He was fine with “peace” as long as it was a peace for white people, and was fine with free speech so long as only white people were able to express it. That the enslaved people of the South had no rights or protections under the Constitution was of no concern to him. That Vallandigham did not see any contradiction in loudly demanding his Constitutional right to free speech, while preferring to keep millions of people enslaved and denied of that same right, is not really surprising for a white Democratic politician in 1863. Indeed, he shared a major cognitive dissonance with many American whites who loudly denounced “tyrannical” attempts to end slavery.

Following Vallandigham's speech, Burnside had him arrested. At the trial, he acted as his own defense, cross-examining the main witnesses, two Republicans who attended his speech, possibly on the orders of Burnside himself. He made several arguments. Chiefly, he argued that a military tribunal had no authority to hear his case. After all, he argued, he was not a member of the military. This, as well as a numerous other Constitutional complaints formed the bulk of his defense, so this was far from a strictly free speech case. However, he also made free speech arguments – criticizing General Order No. 38 for violating his right to discuss and criticize both civil and military governments. In his protest to the trial he wrote of his speech:

“It is words spoken to the people of Ohio in an open and public political meeting, lawfully and peaceably assembled, under the Constitution and upon full notice. It is words of criticism of the public policy of the public servants of the people, by which policy it was alleged that the welfare of the country was not promoted. It was an appeal to the people to change that policy, not by force, but by free elections and the ballot-box. It is not pretended that I counseled disobedience to the Constitution, or resistance to laws and lawful authority. I never have. Beyond this protest I have nothing further to submit.”⁵

The importance of noting that Vallandigham uses this language is that he is describing free speech much more narrowly than we do today. As I have noted several times before in this blog, what we think of as “free speech” has changed a lot of the centuries. Not only was he thinking only of white Americans' free speech; he seems to be thinking only of purely political speech as constituting free speech.⁶ He wouldn't, for instance, if I had to guess, be as supportive of free speech for obscenity (or, more precisely for those things that used to be considered obscenity but are no longer since obscenity does not get free speech protection, technically).⁷ His supporters, certainly, did not share any strong commitment to free speech. They burnt down a Republican newspaper during the trial.⁸

Unsurprisingly, Vallandigham lost. Rather than have him imprisoned, however, Lincoln commuted his sentence to exile and banished him to the Confederacy. Later, he would move to Canada and try to raise an army in Ohio to attack the Union. Vallandigham would go on, after the Civil War, to oppose Reconstruction before finally succumbing to accidentally shooting himself. He would never reclaim political office after being exiled.

There are at least two lessons here, I think. While Vallandingham portrayed himself as a crusader for free speech, he did so in part to bolster his own political career – using his censorship as a means of acquiring political power. His opportunistic nature shows, on the one hand, that the performance of free speech martyrdom for personal gain is not a new phenomenon. On the other hand, it also makes clear that this martyrdom was only possible because of the heavy-handed way that Burnside set out to limit free speech in Ohio. If one wanted to make an argument that censorship tends to have a “blowback” effect, this would be good evidence. Of course, the strength of that argument is tempered by the fact that his trial and exile was ultimately successful in silencing him. He never re-acquired political office, so whatever “blowback” there was does not seem to have helped him much in that regard.

The second thing to note here, is that this is another case where discussions of “free speech” are really just discussions of white free speech, just in the most restrictive and racist of terms. While most people would not articulate Vallandigham's argument publicly today, there are obvious continuations of this racist cognitive dissonance, such as the recent news that the Kentucky state Senate passed a bill that would ban protesters from taunting the police.⁹ This bill is clearly aimed squarely at limiting the free speech of Black Lives Matter protestors, and is being pushed by the same party which, at the national level, has spent a lot of time of late denouncing “cancel culture” and censorship.

Free speech advocates are fond of quoting Voltaire as saying (incorrectly, because he never said it), “I may disapprove of what you say, but I will defend to the death your right to say it,” but often the question is not just what gets to be said, but who gets to say anything in the first place.

1. Here’s the video: https://www.youtube.com/watch?v=YOHpNTjE1bo
2. The Limits of Dissent: Clement L. Vallandigham & the Civil War pages 138-143, accessible from: https://archive.org/details/limitsofdissentc00klem/.
3. Ibid. Pages 150 – 155. To what extent his arrest was actually planned, and to what extent he simply used the arrest to his advantage, I'm not sure. Dr. Frank Klemet, now deceased, who wrote the book on Vallandigham (literally) and was an expert on Northern dissidents during the Civil War argued the arrest was intentional. But, much of the language in the book gives me a great deal of pause – it demonstrates a clear and strong slant towards Vallandigham and the copperheads. He seems to cast Vallandigham as a cunning man of the people against a bloated and tyrannical Republican party, a sentiment Vallandigham might well have agreed with, but which might not necessarily align with historical reality. For our purposes in this blog, it probably doesn’t matter a great deal if the arrest was planned or not – Vallandigham played the free speech martyr either way.
4. The trial of Hon. Clement L. Vallandigham : by a military commission: and the proceedings under his application for a writ of habeas corpus in the Circuit Court of the United States for the Southern district of Ohio page 22, accessible from: https://archive.org/details/trialofhonclemen00vall/
5. Ibid. page 30.
6. Of course, on its own, one could perhaps see this as being narrowly tailored solely for the purpose of the trial. Vallandigham could be describing free speech in this way solely to appeal to the court as any trained lawyer would do. However, I don't think this is the case. Vallandigham was a firebrand, and his willingness to denounce the court altogether, his potential planning of the trial, and his general showmanship suggest to me that he would not be mincing words here. Rather, he was reflecting the ideal of free speech as it was generally understood, at least by those who took up that mantle, at the time.
7. How far he even supported purely political speech, I can't say. In a biography of his life, seemingly written by one of his family, the author recounts a story in which Vallandigham helped prevent the censorship of an abolitionist pamphlet, a favor which was returned by those abolitionists seeking to censor Democratic papers. It's the kind of story that seems too purely full of martyrdom for me to take at face value, and despite some searching, I was unable to find anything to corroborate it, as the author failed to mention the names of the people, the pamphlet, the paper, or anything else which might be of use to prove the story's validity. See: ttps://archive.org/details/lifeofclementlva00vall
8. Limits of Dissent page 160. A great example of the bias of the book is in this passage. Klemet describes the mob burning down the paper with phrases like “a few rash rascals,” and “misguided malcontents,” and downplays their burning of the newspaper with passive language such as, “One such 'turpentine ball' landed among the newspapers,” setting the building on fire.
9. https://www.usatoday.com/story/news/politics/2021/03/13/kentucky-senate-passes-riot-bill-criminalizing-insulting-police/4680301001/