CHAPTER II
OPPOSITION TO THE WAR WITH GERMANY
Vital as is the necessity in time of war not to hamper acts of the executive in the defense of the nation and in the prosecution of the war, of equal and perhaps greater importance, is the preservation of constitutional rights.—JUDGE MAYER, in _Ex parte_ Gilroy, 257 Fed. 110, 114 (1919).
On April 6, 1917, Congress declared war against Germany. On May 18 it enacted the Selective Service Act for raising a National Army. The people, by an overwhelming majority, believed conscription to be a necessary and just method of waging an unavoidable war, and the machinery for enforcing the draft by civilian aid was admirably planned. “The result,” says Attorney General Gregory,[78] “was that the ultimate opposition to the draft by those liable was surprisingly small, considering the persistent propaganda carried on against the policy of the law and against its constitutionality.” And his Assistant, Mr. John Lord O’Brian, adds, “No anti-draft propaganda had the slightest chance of success.” The decision of the Supreme Court sustaining the validity of the statute[79] merely fulfilled the general expectation.
[78] Report of the Attorney General, 1917, p. 74. “Civil Liberty in War Time,” John Lord O’Brian, 42 Rep. N. Y. Bar Assn. 275, 291 (1919), cited hereafter as O’Brian.
[79] Selective Draft Law Cases, 245 U. S. 366 (1918).
Besides the military and civilian organization for reaching the men who were liable to registration and subsequently called into service, the government had at its disposal several criminal statutes enacted during the Civil War, which it could and did use to punish conspiracies to resist recruiting and conscription by riots[80] and other forcible means, or seeking by speeches and publications to induce men to evade the draft.[81] In some respects, however, these statutes were felt to be incomplete. It was not a crime to persuade a man not to enlist voluntarily, and an attempt by an isolated individual to obstruct the draft, if unsuccessful, was beyond the reach of the law, unless his conduct was sufficiently serious to amount to treason. The treason statute, the only law on the books affecting the conduct of the individual, was of little service,[82] since there was considerable doubt whether it applied to utterances. Therefore, although it is probable that under the circumstances the existing conspiracy statutes would have met any serious danger to the prosecution of the war, new legislation was demanded.
[80] Bryant _v._ U. S., 257 Fed. 378 (C. C. A., 1919); Orear _v._ U. S., 261 Fed. 257 (C. C. A., 1919); U. S. _v._ Reeder, Bull. Dept. Just., No. 161 (1918); Reports of the Attorney General, 1917, p. 75; 1918, p. 45.
[81] Emma Goldman _v._ U. S., 245 U. S. 474 (1918); Wells _v._ U. S., 257 Fed. 605 (C. C. A., 1919); U. S. _v._ Phillips, Bull. Dept. Just., No. 14 (1917); and other cases in the bulletins; Reports of the Attorney General, _supra_.
[82] O’Brian, 277. Among the treason cases of the war were U. S. _v._ Werner, 247 Fed. 708 (1918), and Nelles, Espionage Act Cases, 4, cited hereafter as Nelles; U. S. _v._ Robinson, 259 Fed. 685 (1919); U. S. _v._ Fricke, 259 Fed. 673 (1919). See Bibliography, on treason.
If the government had been content to limit itself to meeting the tangible needs just mentioned, the effect on discussion of the war would probably have been very slight, for treason, conspiracies, and attempts constitute a direct and dangerous interference with the war, outside the protection of freedom of speech as defined in the preceding chapter. Two additional factors, however, influenced the terms of the new statutes, and even more the spirit in which they were enforced. First, came the recollection of the opposition during the Civil War, which was handled under martial law in so far as it was suppressed at all, a matter which I shall take up later. Some persons, full of old tales of Copperheads, were for stigmatizing all opponents of this war as traitors. Senator Chamberlain of Oregon introduced a bill which made the whole United States “a part of the zone of operations conducted by the enemy,” and declared any person who endangered or interfered with the successful operation of our forces by publishing anything to be a spy subject to trial by court martial and the penalty of death. The bill was dropped upon receipt of a letter from the President, in which he attacked the constitutionality and advisability of the law.[83] Whatever control was exercised over civilians should be through the ordinary courts, and it was evident that the conspiracy statutes did not make that possible on a large scale. The second factor was the fear of German propaganda and the knowledge of legislation and administrative regulations guarding against it in Great Britain[84] and Canada.[85] Although we did not adopt the British administrative control, which combined flexibility with possibilities of despotism, it was easy to forget our own policy of non-interference with minorities and put the United States also in a position to deal severely with written and spoken opposition to the war.
[83] “Freedom of Speech and of the Press in War Time: the Espionage Act,” Thomas F. Carroll, 17 _Mich. L. Rev._ 663 note; cited hereafter as Carroll. Such a bill seems clearly unconstitutional in view of the Fifth Amendment and _Ex parte_ Milligan. See note 71 in chapter I.
[84] The Defense of the Realm Consolidation Act, 1914, 5 Geo. 5, c. 8, § 1, gives His Majesty in Council power “to issue regulations.” A very wide scope is given to this power by the House of Lords in Rex _v._ Halliday (1917) A. C. 260, Lord Shaw of Dunfermline dissenting. See 31 _Harv. L. Rev._ 296. Regulation 27 of the Orders in Council makes various forms of speech, writing, etc., offenses. Regulation 51 A provides for the seizure of publications on warrant, and Regulation 56 (13) for the punishment of press offenses. See Pulling, _Defense of the Realm Manual_, revised monthly. These regulations have been construed in Norman _v._ Mathews, 32 T. L. R. 303, 369 (1915); Fox _v._ Spicer, 33 T. L. R. 172 (1917); Rex _v._ Bertrand Russell, _infra_, note 114. The practical effect has been to establish an administrative censorship. H. J. Laski, _Authority in the Modern State_, 101.
[85] Carroll, 17 _Mich. L. Rev._ 621 note.
I. _The Espionage Acts of 1917 and 1918_
The result of these various influences was the third section of Title I of the Espionage Act. As originally enacted on June 15, 1917, this section established three new offenses:[86]
(1) Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies (2) and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, (3) or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.
[86] Act of June 15, 1917, c. 30, Title I, § 3. The numerals are inserted by me.
Although most of the Espionage Act deals with entirely different subjects, like actual espionage, the protection of military secrets, and the enforcement of neutrality in future conflicts between other nations, the section just quoted is buttressed by four provisions. Section 4 of the same Title punishes persons conspiring to violate section 3, if any one of them does any act to effect the object of the conspiracy. Section 5 imposes a penalty of $10,000 or two years’ imprisonment for harboring or concealing any person suspected of committing or being about to commit any of the offenses already mentioned. Title XI authorizes the issue of search-warrants for the seizure of property used as the means of committing a felony, which would include violations of the section just quoted. It was under this provision that the moving-picture film was confiscated in the _Spirit of ’76_ case, and raids were made on the offices of anti-war organizations. Finally, Title XII made non-mailable any matter violating the Act, or advocating treason, insurrection, or forcible resistance to any law of the United States, directed that it should not be conveyed or delivered, and imposed heavy penalties for attempting to use the mails for its transmission.
Attorney General Gregory reports that, although this Act proved an effective instrumentality against deliberate or organized disloyal propaganda, it did not reach the individual casual or impulsive disloyal utterances. Also some District Courts gave what he considered a narrow construction of the word “obstruct” in clause (3), so that, as he puts it, “most of the teeth which we tried to put in were taken out.”[87]
These individual disloyal utterances, however, occurring with considerable frequency throughout the country, naturally irritated and angered the communities in which they occurred, resulting sometimes in unfortunate violence and lawlessness and everywhere in dissatisfaction with the inadequacy of the Federal law to reach such cases. Consequently there was a popular demand for such an amendment as would cover these cases.[88]
[87] 4 _Am. Bar Assoc. Journ._ 306.
[88] The history of the amendment is taken from Report of the Attorney General of the United States (1918), 18; and O’Brian, 302. See _Montana Laws_, 1918. sp., c. 11.
The history of what then happened in Congress is not without interest. The Attorney General asked for a brief amendment of the Act by the addition of attempts to obstruct the recruiting service, and the punishment of efforts intentionally made for the purpose of discrediting and interfering with the flotation of war loans. The Senate Committee on the Judiciary, being thus stirred up, took the bit in its teeth, and decided to stamp on all utterances of a disloyal character. It went for a model of legislation affecting freedom of discussion to a recent sedition statute of the state of Montana, and borrowed a large number of its clauses for the new federal law. While this measure was pending in Congress it was proposed to incorporate a provision exempting anti-war utterances if made with good motives and for justifiable ends. Mr. Gregory informed Congress that the experience of his department had shown “that some of the most dangerous types of propaganda were either made from good motives or else that the traitorous motive was not provable,” and that the defense would “in effect destroy the value of the Espionage Act as a weapon against propaganda.” The bill became law without the proviso.
This amendment of May 16, 1918,[89] which is sometimes called the Sedition Act, inserted “attempts to obstruct” in the third of the original offenses, and added nine more offenses, as follows: (4) saying or doing anything with intent to obstruct the sale of United States bonds, except by way of bona fide and not disloyal advice; (5) uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language, or language intended to cause contempt, scorn, contumely or disrepute as regards the form of government of the United States; (6) or the Constitution; (7) or the flag; (8) or the uniform of the Army or Navy; (9) or any language intended to incite resistance to the United States or promote the cause of its enemies; (10) urging any curtailment of production of any things necessary to the prosecution of the war with intent to hinder its prosecution; (11) advocating, teaching, defending, or suggesting the doing of any of these acts; and (12) words or acts supporting or favoring the cause of any country at war with us, or opposing the cause of the United States therein. Whoever commits any one of these offenses in this or any future war is liable to the maximum penalty of the original act, $10,000 fine or twenty years’ imprisonment, or both.
[89] The full text of this Amendment is in Appendix III.
The buttressing provisions of the Act of 1917 apply to this 1918 Act and the non-mailable provision is made still more severe. The Postmaster General can now, if “on evidence satisfactory to _him_” he thinks anything mailed constitutes any one of the twelve offenses of the Sedition Act, prevent the sender from receiving any mail at all, however innocent. Without any jury trial or hearing before a judge, the citizen in question becomes for the post-office an outlaw.
The Espionage Act of 1918 has been defended on the ground that when the public found that many obnoxious utterances were regarded by United States District Attorneys as outside the simple Act of 1917, loyal people would take matters into their own hands. Two lynchings and many horsewhippings and tar-and-featherings had occurred, and over two hundred miners, mostly members of the I.W.W., were forcibly deported from their homes in Bisbee, Arizona, into the desert.[90] Congress responded to this outcry by the passage of the Sedition Law. Doubtless some governmental action was required to protect pacifists and extreme radicals from mob violence, but incarceration for a period of twenty years seems a very queer kind of protection. If Congress had adopted some plan by which persons outside the existing conspiracy statutes whose speeches and writings were really causing trouble could be tried and confined until the actual emergency was passed, and in no case beyond the termination of hostilities, this would have prevented every danger to such men, and, what is more, every danger from them, and would have accorded with the preventive but not punitive policy pursued by Lincoln in the Civil War toward his most disloyal opponents. Instead, many persons convicted under the Espionage Act remained out on bail for months, often until the war was over, so that all the preventive purposes of the statute were defeated, and then were sent to prison for years.[91]
[90] See note 88. Many cases of mob violence are listed on pp. 5–13 of _War-time Prosecutions and Mob Violence_, N. Y., 1919. The Bisbee deportations were held not to be a federal crime, U. S. _v._ Wheeler, 254 Fed. 611 (1918). State prosecutions are now pending.
[91] O’Brian, 311.
The chief importance of the new crimes created by the Espionage Act of 1918 is in their effect on future wars, for the amendment came so late in this war that all the big cases, except the Abrams prosecution, turned on the meaning of the three original offenses of the 1917 Act or on “attempts to obstruct.” As the Abrams case is reserved for a chapter by itself, I shall hereafter in this chapter confine myself to those three offenses except when I expressly refer to the statute of 1918.
II. _Masses Publishing Co._ _v._ _Patten_
The framers of the First Amendment knew that the right to criticise might weaken the support of the Government in a time of war. They appreciated the value of a united public opinion at such a time. They were men who had experienced all those things in the war of the Revolution, and yet they knew too that the republic which they were founding could not live unless the right of free speech, of freedom of the press was maintained at such a time. They balanced these considerations and then wrote the First Amendment.—JUDGE CHARLES F. AMIDON.
The Espionage Act of 1917 seems on its face constitutional under the interpretation of the First Amendment reached in this book, but it may have been construed so extremely as to violate the Amendment. Furthermore, freedom of speech is not only a limit on Congressional power, but a policy to be observed by the courts in applying constitutional statutes to utterance. The scope of that policy is determined by the same method of balancing social interests. The boundary line of punishable speech under this Act was consequently fixed at the point where words come close to injurious conduct by that judge who during the war gave the fullest attention to the meaning of free speech,—Judge Learned Hand, of the Southern District of New York.
In Masses Publishing Co. _v._ Patten[92] Judge Hand was asked to enjoin the postmaster of New York from excluding from the mails the August issue of _The Masses_, a monthly revolutionary journal, which contained several articles, poems, and cartoons attacking the war. When notified of the exclusion, the publisher had offered to delete any passages pointed out by the postmaster, but was refused such information. After suit was started, the postmaster, while objecting generally that the whole purport of the number was unlawful, since it tended to encourage the enemies of the United States and hamper the government in the conduct of the war, specified four cartoons, entitled “Liberty Bell,” “Conscription,” “Making the World Safe for Capitalism,” and “Congress and Big Business”; also a poem, which declared Emma Goldman and Alexander Berkman, who were in prison for conspiracy to resist the draft, to be “elemental forces”—
Like the water that climbs down the rocks; Like the wind in the leaves; Like the gentle night that holds us.
He also objected to three articles admiring the “sacrifice” of conscientious objectors, and praising Goldman and Berkman as “friends of American freedom.”
[92] 244, Fed. 535 (S. D. N. Y., 1917).
The Espionage Act, it will be remembered, made non-mailable any publication which violated the criminal provisions of the section already quoted. One important issue was, therefore, whether the postmaster was right in finding such a violation. The case did not raise the constitutional question whether Congress could make criminal any matter which tended to discourage the successful prosecution of the war, but involved only the construction of the statute, whether Congress had as yet gone so far. Judge Hand held that it had not and granted the injunction. He refused to turn the original Act, which obviously dealt only with interference with the conduct of military affairs,[93] into a prohibition of all kinds of propaganda and a means for suppressing all hostile criticism and all opinion except that which encouraged and supported the existing policies of the war, or fell within the range of temperate argument. As Cooley pointed out long ago, you cannot limit free speech to polite criticism, because the greater a grievance the more likely men are to get excited about it, and the more urgent the need of hearing what they have to say.[94] The normal test for the suppression of speech in a democratic government, Judge Hand insists, is neither the justice of its substance nor the decency and propriety of its temper, but the strong danger that it will cause injurious acts. The Espionage Act should not be construed to reverse this national policy of liberty of the press and silence hostile criticism, unless Congress had given the clearest expression of such an intention in the statute.
[93] The plain fact that the original Espionage Act is a military statute and not a sedition statute is also recognized by United States _v._ Fontana, Bull. Dept. Just., No. 148 (N. D. 1917), Amidon, J.; United States _v._ Wishek, Bull. Dept. Just., No. 153 (N. D., 1917), Amidon, J.; United States _v._ Henning, Bull. Dept. Just., No. 184 (Wis., 1917), Geiger, D. J.; and implied by other cases. The large number of cases which ignore the clear meaning of the statute is astounding in view of the rule that criminal statutes must be construed strictly.
[94] Cooley, _Constitutional Limitations_, 7 ed., 613.
Congress had shown no such intention. Moreover, whether or not it could create a personal censorship of the press under the war power, it had not yet done so. Since the portions of _The Masses_ selected by the postmaster did not actually advocate violence, he had no right to suppress the magazine “on the doctrine that the general tenor and animus of the paper were subversive to authority and seditious in effect.”
The tradition of English-speaking freedom has depended in no small part upon the merely procedural requirement that the state point with exactness to just that conduct which violates the law. It is difficult and often impossible to meet the charge that one’s general ethos is treasonable.
Judge Hand places outside the limits of free speech one who counsels or advises others to violate existing laws. Language is not always exempt from punishment. “Words are not only the keys of persuasion, but the triggers of action, and those which have no purport but to counsel the violation of law cannot by any latitude of interpretation be a part of that public opinion which is the final source of government in a democratic state.” It is also true, he says, that any discussion designed to show that existing laws are mistaken in means or unjust in policy may result in their violation. Nevertheless, if one stops short of urging upon others that it is their duty or their interest to resist the law, he should not be held to have attempted to cause illegal conduct. If this is not the test, the 1917 Act punishes every political agitation which can be shown to be apt to create a seditious temper. The language of the statute proves that Congress had no such revolutionary purpose in view.
According to this view, criminality under the Espionage Act of 1917 would be determined by an objective test, the nature of the words used. The jury could pass on this much better than on questions of political and economic tendency. Moreover, the Act would have a meaning easily understood by the opponents of the war. They could safely engage in discussion of its merits and the justice of war policies, so long as they refrained from urging violation of laws. The Act, thus interpreted, does not go to the limits of Congressional power as I have construed them. Under some circumstances an expression of opinion which does not counsel any unlawful act may be highly dangerous. Even Mill would punish a statement that grain-dealers are starvers of the poor, or that private property is robbery, when delivered orally to an excited mob assembled before the house of a grain-dealer.[95] A scathing analysis of the incompetence of the commanding general circulated among the troops on the eve of battle would be a direct and dangerous interference with the war. But military law would deal with this offense within the lines, and the law of illegal assembly will come into play elsewhere, as in Mill’s case. There is no need to make the expression of opinion in itself criminal. It has not been so normally in this country, especially not under federal law, and the Espionage Act of 1917 (unlike that of 1918) contains nothing to indicate such an interference with the attainment and dissemination of truth. That statute by its terms fills in the gap between the treason and the conspiracy laws by reaching the individual who actually attempts or incites interference with the war, whether by acts like assaulting a recruiting officer or by words whose tenor shows that they have very little to do with the social interest in truth, since they do not discuss the merits of the war, but counsel immediate and injurious acts. In other words, Congress was punishing dangerous acts and such words as had all the effect of acts, because they could have no other purpose but a direct and dangerous interference with the war.
[95] Mill, _Liberty_, opening of c. 3.
There was during the war no finer judicial statement of the right of free speech than these words of Judge Hand:
Political agitation, by the passions it arouses or the convictions it engenders, may in fact stimulate men to the violation of law. Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them in execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government. The distinction is not a scholastic subterfuge, but a hard-bought acquisition in the fight for freedom.
Look at the Espionage Act of 1917[96] with a post-armistice mind, and it is clear that Judge Hand was right. There is not a word in it to make criminal the expression of pacifist or pro-German opinions. It punishes false statements and reports—necessarily limited to statements of fact—but beyond that does not contain even a provision against the use of language. It differs entirely from the Act of 1918, and from state laws making utterances criminal for their own sake as nuisances or breaches of the peace. Utterances (except false statements) are punishable, if at all, because of their relation to specified acts. Clauses (2) and (3) punish successful interference with military affairs and attempts to interfere, which would probably include incitement.[97] The tests of criminal attempt and incitement are well settled.[98] The first requirement is the intention to bring about the overt criminal act. But the law does not punish bad intention alone, or even everything done with a bad intention. A statute against murder will not be construed to apply to discharging a gun with the intention to kill a man forty miles away. Writing a letter to a firm in San Francisco requesting a shipment of liquor into Alaska is not an attempt to import liquor into Alaska until it is brought near the borders, headlands, or waters of that territory. Attempts and incitement to be punishable must come dangerously near success, and bad intention is merely one modifying factor in determining whether the actual conduct is thus dangerous. A speaker is guilty of solicitation or incitement to a crime only if he would have been indictable for the crime itself, had it been committed, either as accessory or principal.[99] Of course his liability when nothing really happens will not be greater than if his conduct leads to actual crime. Now even in that event, at common law the utterer of written or spoken words is not criminally liable merely because he knows they will reach those who may find in them the excuse for criminal acts. The assassin of President McKinley may have been influenced by the denunciatory cartoons of “Willy and his Papa” in the Hearst newspapers, but the artist was not an accessory to the murder.
[96] See page 42, _supra_, for text of the Act.
[97] Attempts do not ordinarily include solicitation, see Beale, _infra_, 16 _Harv. L. Rev._ 491, 506 note 1; but attempts to commit offenses under the 1917 Espionage Act would naturally be by incitement.
[98] Joseph H. Beale, “Criminal Attempts,” 16 _Harv. L. Rev._ 491; U. S. _v._ Stephens, 12 Fed. 52. See also 32 _Harv. L. Rev._ 417.
[99] See Beale, _supra_, 16 _Harv. L. Rev._ 491, 505. Under the federal statutes he would be a principal. Rev. Stat. §§ 5323, 5427; March 4, 1909, c. 321, § 332; U. S. Comp. Stat., 1918, § 10506 (Crim. Code, § 332).
Wharton, a leading writer on criminal law, shows how wise the common law was in refusing to establish any rule of indirect causation with respect to utterances:
For we would be forced to admit, if we hold that solicitations to criminality are generally indictable, that the propagandists, even in conversation, of agrarian or communistic theories are liable to criminal prosecutions; and hence the necessary freedom of speech and of the press would be greatly infringed. It would be hard, also, we must agree, if we maintain such general responsibility, to defend, in prosecutions for soliciting crime, the publishers of Byron’s _Don Juan_, of Rousseau’s _Émile_, or of Goethe’s _Elective Affinities_. Lord Chesterfield, in his letters to his son, directly advises the latter to form illicit connections with married women; Lord Chesterfield, on the reasoning here contested, would be indictable for solicitation to adultery. Undoubtedly, when such solicitations are so publicly and indecently made as to produce public scandal, they are indictable as nuisances or as libels. But to make bare solicitations or allurements indictable as _attempts_, not only unduly and perilously extends the scope of penal adjudication, but forces on the courts psychological questions which they are incompetent to decide, and a branch of business which would make them despots of every intellect in the land.[100]
[100] Wharton, _Criminal Law_, I (9 ed.), § 179.
On the contrary, the rule has always been that, to establish criminal responsibility, the words uttered must constitute dangerous progress toward the consummation of the independent offense attempted and amount to procurement, counsel, or command to commit the forbidden acts.[101] This standard can be applied, not only to attempts to cause insubordination and obstruction of the draft, where the ultimate result would be a crime, but also to the persuasion of men not to volunteer. Their failure to enlist is not a crime, but is a serious injury to the government. The speaker is interfering with the right of the army to a free labor market, in a manner analogous to picketing and boycotting in private business, which often constitute civil wrongs, compensated by damages.[102] Such interference may justly be made criminal, but only if it is direct and dangerous, for the measure of liability ought not to be larger than for solicitation to a criminal result like evasion of the draft.[103]
[101] 4 Blackstone’s _Commentaries_ 36.
[102] Gompers _v._ Bucks Stove and Range Co., 221 U. S. 418 (1911); Vegelahn _v._ Guntner, 167 Mass. 92 (1896). The boycott may become a crime under the Sherman Law, Loewe _v._ Lawlor (Danbury Hatters’ Case), 208 U. S. 274 (1908).
[103] See Hand in U. S. _v._ Nearing, 252 Fed. 223, 227 (1918). The same principle applies to interference with Liberty Bond sales under the 1918 Act.
Consequently, no one should have been held under clauses (2) and (3) of the Espionage Act of 1917 who did not satisfy these tests of criminal attempt and incitement. As Justice Holmes said in Commonwealth _v._ Peaslee,[104] “It is a question of degree.” We can suppose a series of opinions, ranging from “This is an unwise war” up to “You ought to refuse to go, no matter what they do to you,” or an audience varying from an old women’s home to a group of drafted men just starting for a training camp. Somewhere in such a range of circumstances is the point where direct causation begins and speech becomes punishable as incitement under the ordinary standards of statutory construction and the ordinary policy of free speech, which Judge Hand applied. Congress could push the test of criminality back beyond this point, although eventually it would reach the extreme limit fixed by the First Amendment, beyond which words cannot be restricted for their remote tendency to hinder the war.[105] In other words, the ordinary tests punish agitation just before it begins to boil over; Congress could change those tests and punish it when it gets really hot, but it is unconstitutional to interfere when it is merely warm. And there is not a word in the 1917 Espionage Act to show that Congress did change the ordinary tests or make any speech criminal except false statements and incitement to overt acts. Every word used, “cause,” “attempt,” “obstruct,” clearly involves proximate causation, a close and direct relation to actual interference with the operations of the army and navy, with enlistment and the draft. Finally, this is a penal statute and ought to be construed strictly. Attorney General Gregory’s charge that judges like Learned Hand “took the teeth” out of the 1917 Act[106] is absurd, for the teeth the government wanted were never there until other judges in an excess of patriotism put in false ones.
[104] 177 Mass. 267, 272 (1901). See also his opinion in Swift _v._ U. S., 196 U. S. 375, 396 (1905).
[105] See the quotation from Justice Brandeis, page 99, _infra_.
[106] See note 87, _supra_.
Nevertheless, Judge Hand was reversed[107] on a point of administrative law, that the postmaster’s decision must stand unless clearly wrong,[108] but the Circuit Court of Appeals thought it desirable to reject his construction of the Espionage Act and substitute the view that speech is punishable under the Act “if the natural and reasonable effect of what is said is to encourage resistance to law, and the words are used in an endeavor to persuade to resistance.” His objective test of the nature of the words was considered unsound. Advice in direct language was repudiated as a requisite of guilt. Judge Hough used the Sermon on the Mount as a precedent for the government’s war policy: “It is at least arguable whether there can be any more direct incitement to action than to hold up to admiration those who do act.... The Beatitudes have for some centuries been considered highly hortatory, though they do not contain the injunction: ‘Go thou and do likewise.’” It is possible that the Court of Appeals did not intend to lay down a very different principle from Judge Hand, but chiefly wished to insist that in determining whether there is incitement one must look not only at the words themselves but also at the surrounding circumstances which may have given the words a special meaning to their hearers. Judge Hand agrees with this, and regards Mark Antony’s funeral oration, for instance, as having counseled violence while it expressly discountenanced it. However, the undoubted effect of the final decision in Masses _v._ Patten was to establish the old-time doctrine of remote bad tendency in the minds of district judges throughout the country. By its rejection of the common-law test of incitement,[109] it deprived us of the only standard of criminal speech there was, since there had never been any well-considered discussion of the meaning of “freedom of speech” in the First Amendment.
[107] Masses Pub. Co. _v._ Patten, 245 Fed. 102 (C. C. A. 2d, 1917), Hough, J., stayed the injunction; _ibid._ 246, Fed. 24 (C. C. A. 2d, 1917), Ward, Rogers, and Mayer, JJ., reversed the order granting the injunction.
[108] See for authorities against this proposition, 32 _Harv. L. Rev._ 417, 420. See page 106, _infra_, VI. Censorship; also Chapter V.
[109] See the review of Masses _v._ Patten by Learned Hand, J., in U. S. _v._ Nearing, 252 Fed. 223, 227 (1918). Judge Rogers may not have realized he was rejecting it (246 Fed. 38), but the test of common-law incitement has never been applied to the Act by a District Judge since.
As a result of this and similar decisions, the district judges ignored entirely the first element of criminal attempt and solicitation, that the effort, though unsuccessful, must approach dangerously near success. They repudiated the test of guilt under the Act laid down by Judge Hand, that the words must in themselves urge upon their readers or hearers a duty or an interest to resist the law or the appeal for volunteers, and substituted the test that the words need only have a tendency to cause unrest among soldiers or to make recruiting more difficult. The remaining element, intention to cause the bad overt action, they retained. This new standard of guilt allowed conviction for any words which had an indirect effect to discourage recruiting and the war spirit, like the poem about Emma Goldman and the wind, if only the intention to discourage existed. Intention thus became the crucial test of guilt in any prosecution of opposition to the government’s war policies, and this requirement of intention became a mere form since it could be inferred from the existence of the indirect injurious effect.[110] A few judges, notably Amidon of North Dakota, have stemmed the tide, but of most Espionage Act decisions what Jefferson and Stephen and Schofield said about the prosecutions under George III and the Sedition Act of 1798 can be said once more, that men have been punished without overt acts, with only a presumed intention to cause overt acts, merely for the utterance of words which judge and jury thought to have a tendency to injure the state. Judge Rogers was right in saying[111] that the words of the Espionage Act of 1917 bear slight resemblance to the Sedition Law of 1798, but the judicial construction is much the same, except that under the Sedition Law truth was a defense.
[110] Masses Pub. Co. _v._ Patten, 246 Fed. 24, 39 (1917), Ward, J.; and Rogers, J.: “The court does not hesitate to say that, considering the natural and reasonable effect of the publication, it was intended willfully to obstruct recruiting.”
[111] _Ibid._ 29.
III. _The District Court Cases_
The effect of the prosecutions under this Act has, no doubt, been beneficial in maintaining law and order.—Report of the Attorney General, 1919.
The revival of the doctrines of bad tendency and constructive intent always puts an end to genuine discussion of public matters. It is unnecessary to review the two thousand Espionage Act prosecutions in detail, but a few general results may be presented here. The courts have treated opinions as statements of fact and then condemned them as false because they differed from the President’s speech or the resolution of Congress declaring war. Their construction of this first clause of the Act will be considered in connection with the Supreme Court decisions. Under the second and third clauses against causing insubordination or obstructing recruiting, only a few persons have been convicted for actually urging men to evade the draft or not to enlist. Almost all the convictions have been for expressions of opinion about the merits and conduct of the war. It became criminal to advocate heavier taxation instead of bond issues, to state that conscription was unconstitutional though the Supreme Court had not yet held it valid, to say that the sinking of merchant vessels was legal, to urge that a referendum should have preceded our declaration of war, to say that war was contrary to the teachings of Christ. Men have been punished for criticising the Red Cross and the Y.M.C.A., while under the Minnesota Espionage Act it has been held a crime to discourage women from knitting by the remark, “No soldier ever sees these socks.”[112] It was in no way necessary that these expressions of opinion should be addressed to soldiers or men on the point of enlisting or being drafted. Most judges held it enough if the words might conceivably reach such men. They have made it impossible for an opponent of the war to write an article or even a letter in a newspaper of general circulation because it will be read in some training camp where it might cause insubordination or interfere with military success. He cannot address a large audience because it is liable to include a few men in uniform; and some judges have held him punishable if it contains men between eighteen and forty-five, since they may be called into the army eventually; some have emphasized the possible presence of shipbuilders and munition-makers. All genuine discussion among civilians of the justice and wisdom of continuing a war thus becomes perilous.
[112] State _v._ Freerks, 140 Minn. 349 (1918). References to all cases mentioned by name in succeeding paragraphs will be found indexed in Appendix II. Among the many other cases illustrating the statements of this paragraph may be mentioned the trials of Sandberg, Miller, Nagler, Goldsmith, Kaufman, Weist, Kirchner, Shaffer, Albers, Krafft, Boutin, Granzow, Hitchcock, Weinsberg, Denson, Von Bank, White (all in Appendix II). A few of these convictions have been reversed, but this does not excuse the conduct of the trial courts. See also the Supreme Court cases discussed _infra_. See 32 _Harv. L. Rev._ 417, and other references in Appendix I. The facts of many cases are in _War-time Prosecutions and Mob Violence_.
Judge Van Valkenburgh, in United States _v._ Rose Pastor Stokes, would even make it criminal to argue to women against a war, by the words, “I am for the people and the government is for the profiteers,” because what is said to mothers, sisters, and sweethearts may lessen their enthusiasm for the war, and “our armies in the field and our navies upon the seas can operate and succeed only so far as they are supported and maintained by the folks at home.” The doctrine of indirect causation never had better illustration than in his charge. It shows how a very able judge of large experience can be swept from his moorings by war passion. Furthermore, although Mrs. Stokes was indicted only for writing a letter, the judge admitted her speeches to show her intent, and then denounced the opinions expressed in those speeches in the strongest language to the jury as destructive of the nation’s welfare, so that she may very well have been convicted for the speeches and not for the letter.
Just as Lord Kenyon, while trying a man who happened to sympathize with the French Revolution, went out of his way to emphasize its massacres as a consequence of theories like the defendant’s,[113] so Judge Van Valkenburgh denounced the Russian Revolution as “the greatest betrayal of the cause of democracy the world has ever seen,” and made use of Mrs. Stokes’ declared sympathy with that Revolution, an offense not punishable even under the Espionage Act, to show how dangerous it was for her to talk about profiteers.
[113] Rex. _v._ Cuthell, 27 How. St. Tr. 642, 674 (1799).
Of course, the jury convicted Mrs. Stokes after such a charge. They found that the words, “I am for the people, and the government is for the profiteers,” were a false statement, known to be false and intended and calculated to interfere with the success of our military and naval forces, that they were an attempt to cause insubordination in those forces, and that they obstructed recruiting. The judge sentenced her to ten years in prison. The Circuit Court of Appeals set aside this conviction in March, 1920, but it stood all during the war as a stern example that it was a heinous crime to discuss profiteering, because of “the possible, if not probable effect on our troops.”
A case in the Second Circuit makes it equally perilous to urge a wider exemption for conscientious objectors because this tends to encourage more such objectors, a close parallel to the English imprisonment of Bertrand Russell.[114]
[114] Fraina _v._ United States, 255 Fed. 28 (C. C. A. 2d, 1918), for conspiracy and not under the Espionage Act; Rex _v._ Bertrand Russell, Littell’s _Living Age_, Feb. 15, 1919, p. 385.
Many men have been imprisoned for arguments or profanity used in the heat of private altercation, on a railroad train, in a hotel lobby, or at that battle-ground of disputation, a boarding-house table.[115] In one case,[116] two strangers came to a farmhouse and asked the owner if he could let them have some gasoline, saying that they had been stranded out in the country. He not only gave them the gasoline, but invited them to dinner. An argument arose during the meal, and the farmer used scurrilous and presumably unpatriotic language in the presence of his guests, two hired men, two nieces, and some children. The guests reported his language, and he was convicted of a willful attempt to cause disloyalty, insubordination, mutiny, and refusal of duty in the military and naval forces of the United States. Even unexpressed thoughts have been prosecuted through an ingenious method of inquisition. A German-American who had not subscribed to Liberty bonds was visited in his house by a committee who asked his reasons and received a courteous reply that he did not wish either side to win the war and could not conscientiously give it his aid. He was thereupon arrested and held in confinement until released by a district court.[117]
[115] For instance, Sandberg, Albers, Goldsmith, Denson. But Judge Bourquin refused to let the jury pass on such evidence in the case of V. Hall, involving “kitchen gossip and saloon debate.”
[116] U. S. _v._ Harshfield, 260 Fed. 659 (C. C. A., 8th, 1919), reversing the conviction. In Schoberg _v._ U. S., 264 Fed. 1, under 1918 Act, three elderly German-Americans, hobnobbing together in the cobbler’s shop of one of them and growling about the war, were convicted by means of a dictagraph.
[117] United States _v._ Pape, 253 Fed. 270 (1918). State _v._ Ludemann, 172 N. W. (Minn.) 887 (1919), _acc._
A few concrete cases of convictions that have been upheld will show how the Espionage Act operates to punish expressions of opinion.
J. P. Doe, son of the great Chief Justice of New Hampshire, while living in Colorado because of bad health, mailed an “endless chain” letter, to be sent “to friends of immediate peace,” which stated that although the President and Secretary of State had said Germany had broken her promise to end submarine warfare, Germany had made no such promise, but had reserved in the _Sussex_ note complete liberty of decision as to the future. Doe’s statement was a legitimate inference from the note, whatever its bearing on the merits of our position—and this he did not discuss. Yet he was convicted for it, the alleged intent to obstruct recruiting being evidenced by passages from a long personal letter to his sister. The Court of Appeals said it was a fair construction of the circular that Doe intended to convey the idea that the United States was wrong in relying on the alleged promise as a cause of war; “such an argument would have a direct tendency to obstruct the recruiting and enlistment service.” Doe was sentenced to eighteen months in prison.
Robert Goldstein, who had been connected with D. W. Griffith in producing “The Birth of a Nation,” a well-known moving-picture film of the Civil War, planned a similar presentation of the Revolution in a film called “The Spirit of ’76,” which contained such scenes as Patrick Henry’s Speech, the Signing of the Declaration of Independence, and Valley Forge. After a year and a half of work the picture was finished, just before the outbreak of our war with Germany. The film was displayed in Los Angeles to the usual audience, which was not shown to contain either soldiers or sailors. The government thereupon indicted Goldstein for presenting a play designed and intended to arouse antagonism, hatred and enmity between the American people, particularly the armed forces, and the people of Great Britain, particularly their armed forces, when Great Britain was “an ally” of the United States, because one scene, the Wyoming Massacre, portrayed British soldiers bayoneting women and children and carrying away girls. The film was seized, the business was thrown from prosperity into bankruptcy with a loss of over $100,000, and Goldstein was convicted of attempting to cause insubordination, etc., in the armed forces and sentenced to ten years in the federal penitentiary at Steilacoom, Washington. His punishment for depicting the origin of this nation has been commuted to three years.[118]
[118] 258 Fed. 908; 252 Fed. 946. This conviction has been defended on two grounds. (1) That Goldstein inserted the massacre at the public performance, though he had omitted it at a preliminary representation before officials. If they had no right to censor by previous restraint any way (cf. Dailey _v._ Superior Court, 112 Cal. 94), this fact seems immaterial. In any event it does not merit three years in jail. (2) That he had attempted to finance the enterprise by appeal to the anti-British sentiments of German-Americans. As this was before we entered the war, it should have no bearing whatever even if true.
Rev. Clarence H. Waldron, of Windsor, Vermont, was charged with handing to five persons, among whom were a woman, two men apparently above military age, and another clergyman, a pamphlet to show where he himself stood on the war. The judge in his charge quoted the following statements from the pamphlet:
Surely, if Christians were forbidden to fight to preserve the Person of their Lord and Master, they may not fight to preserve themselves, or any city they should happen to dwell in. Christ has no kingdom here. His servants must not fight.
The Christian may not go to “the front” to repel the foe—for there he is required to kill men.
They (referring to the Twelve Apostles) knew the force of their Lord’s example, and whether to save themselves or to save others—never, never use the sword.
Better a thousand times to die than for a Christian to kill his fellow.
I do not say that it is wrong for a nation to go to war to preserve its interests, but it is wrong to the Christian, absolutely, unutterably wrong.
Under no circumstances can I undertake any service that has for its purpose the prosecution of war.
Mr. Waldron was convicted for causing insubordination and obstructing recruiting, and sentenced to fifteen years in prison.[119]
[119] He was pardoned after a year in prison.
D. H. Wallace, an ex-British soldier, was sentenced to twenty years for saying:
That when a soldier went away he was a hero and that when he came back flirting with a hand organ he was a bum, and that the asylums will be filled with them; that the soldiers were giving their lives for the capitalists, that 40 per cent of the ammunition of the allies or their guns was defective because of graft.
Wallace went insane and died in jail.
D. T. Blodgett was given the same sentence by the same judge, Wade, for circulating a pamphlet urging the voters of Iowa not to re-elect the Congressmen who voted for conscription, and reprinting an argument of Thomas E. Watson, of Georgia, against the constitutionality of the Draft Act. This was before its validity had been upheld by the Supreme Court. Judge Wade charged that the government had passed the Espionage Act, “realizing that it must protect the feeling and spirit of the American people against the work of those who defy authority; it was not intended for ninety-five per cent of the American people, but necessary for the few who will not heed the judgment of the ninety-five per cent; who assume to know more than all the others put together. It is not a harsh Act.” He recalled the draft riots of the Civil War, and suggested that Blodgett had felt that a little mutiny might aid his political cause. “Just look at this that he wants drafted men to buy:”
In Washington City it is a carnival, a wild extravagance; an orgy of prodigal waste; a Bacchanalian revel of men who act as though they were drunk on power and had lost every sense of shame, duty and responsibility. The huge appropriations made will accrue to the benefit of the classes. Great is the gathering of the vultures at the National Capital, for never before has there been such a carcase inviting them to the feast. Three thousand millions of dollars in one appropriation, and the vultures fiercely shrieking for more.
“There is no better way,” said the judge, “of unsettling the confidence of the people and stirring their souls against the war than to paint it as a war of capitalism, organized by capitalists and for capitalists, and painting the officers of the government as representing willing tools of Wall Street. There is no better way.”
Undoubtedly in all these cases, intention to cause insubordination or obstruct recruiting was made a test of guilt. It may seem to many persons that, so long as a speaker talks with such a purpose it makes no difference whether he satisfies Judge Hand’s objective standard by saying, “Don’t enlist, don’t register, shoot over the enemies’ heads,” or whether he confines himself to statements about the horrors of a modern battlefield and opinions about the legality of the German entry into Belgium. Very likely the moral quality of the two methods is the same; the tendency to prevent enlistment may be the same. But the reason that makes it, if not unconstitutional, at least very unwise, to punish the second type of utterance, the expression of fact or opinion, is that it is only by absence of penalties for such utterances that a self-governing people can learn and disseminate the truth on public affairs. The first type of utterance, on the other hand, has practically no value for such a purpose. When the public is interested, bad motives ought not to deprive it of the benefit of what is said. Opposition to governmental action through discussion, like opposition to private action through law-suits, is the alternative to the use of force. If the law should require litigants to have good motives, it might as well shut up the courts. In the same way, truth is truth, and just as valuable to the public, whether it comes from the most enthusiastic supporter of the war or from a pro-German, and in order to get the truth, conflicting views must be allowed. What a pacifist says about the extravagance of Congress or bad camp conditions during the influenza epidemic or the desire of France for the left bank of the Rhine, may be worth hearing and acting on, and it will be just as important, although he does it with the hope of hindering the war. If disclosures like those made by Admiral Sims are true, they would have been very valuable if made by some private citizen during the war, and no less so if printed in Berger’s _Milwaukee Leader_. So long as the speaker creates no great danger of losing the war, so long as the discouraging effects of his utterances can be checked by the draft organization, the four-minute men, and the general loyalty, it is wiser to let him talk for the sake of possible good.
The last case reviewed, Judge Wade’s trial of Blodgett, brings out my point clearly. Every one will admit that Congress may properly consider ending a war. If so, the men to favor this must be elected, as many of them were in 1864, and the election will be a poor expression of the popular will unless it is preceded by discussion of the merits of beginning and continuing the war. Once more, that discussion will have little value for the formation of opinion if the presence of a man within draft age brings it within the scope of the Espionage Act, and if those who oppose the war vigorously are cowed into silence by twenty-year sentences. It must never be forgotten that the Espionage Act applies to all future wars, and the next one may be as questionable as those of 1812 and 1846. The same considerations apply to the right of petitioning Congress and high officials, which is expressly secured by the First Amendment. Twenty-seven South Dakota farmers were opposed to the draft and believed that an unduly high quota was exacted from their county. They petitioned various state officers, asking a new arrangement, a referendum on the war, payment of war expenses from taxation and repudiation of war debts. As an alternative they threatened defeat to the officers, their party, and the nation. Foolish as this petition was, it stated a grievance which deserved inquiry. Instead, the twenty-seven were sentenced to more than a year in prison. This conviction, Attorney General Gregory declares to have been “one of the greatest deterrents against the spread of hostile propaganda, and particularly that class of propaganda which advanced and played upon the theme that this was a capitalists’ war.” Yet after it had served this suppressive purpose, and reached the Supreme Court, he confessed that the conviction was erroneous.[120]
[120] Baltzer case; Report of Attorney General, 1918, 48. Jared Peck was indicted under the Sedition Act of 1798 for circulating a petition to Congress for the repeal of the Act.—Beveridge’s _Marshall_, III, 42 note.
In the same way, punishment of alleged evil tendency coupled with unlawful intention limits the general influence of the press on legislation and administrative policies, which is a recognized part of American democracy. Undoubtedly, the statement that $640,000,000 had been spent on aeroplanes without a single machine in France had as great a tendency to weaken the national morale as any event of the war. The District Court test makes it criminal for an editor to mention that fact with the purpose of turning public opinion against the war. It is true that no prosecutions were brought on that account, but are we any worse off without them? Was it not an advantage to have the fact as widely known as possible so as to produce a complete alteration of government methods? And so with respect to the territorial and commercial aims of our associates in the war, which have caused us so much concern since the armistice. In short, the truth may be told with a bad purpose, but it is none the less truth; and the most dangerous falsehoods (like the report of the premature armistice, which probably cost a very great loss of production of munitions), may be committed from motives of the highest patriotism. Even on the assumption, which I shall soon show to be questionable, that all the persons convicted under the Espionage Act intended to hinder the war, intention is a very poor test of the truth and value of reports and opinions, and in effect results in the punishment of men, not for any actual or probable injury, but for their state of mind.
IV. _The Human Machinery of the Espionage Acts_
If there be a scintilla of real _evidence_ that seditious rags are infecting the Native Army, nobody would refuse suppression. Only you won’t forget that in moments of excitement, such as this may become, people are uncommonly liable to confuse suspicions and possibilities with certainty and reality.—MORLEY, _Recollections_. Letter to the Viceroy of India.
A less obvious but not less vital objection to the District Court test is its unfitness for practical administration. Even if we decide that the man who makes discouraging utterances in war time with a bad intention deserves punishment, we ought not to lay down a rule of law to punish him, unless we can be sure that in its actual operation it will catch him and let the man with good intention go. A rule is not desirable simply because it reads well. It must also work well. The law is not self-operating and it cannot pick out the bad man automatically. It must discover him through human machinery, and the defects of this machinery are the very greatest reason for preserving an immunity of speech from prosecution far wider than the District Court test.
“We have to consider,” said Macaulay of a theory of criminal law very similar to this test,[121] “not merely the goodness of the end, but also the fitness of the means.... There is surely no contradiction in saying that a certain section of the community may be quite competent to protect the persons and property of the rest, yet quite unfit to direct our opinions.”
[121] Essay on Southey’s _Colloquies_. The whole is worth re-reading to-day, especially the warning against a Paul Pry government, declaring what we shall think and what we shall drink.
Jefferson pointed out in the Virginia Toleration Statute, quoted in the first chapter,[122] the unfitness of this machinery for discriminating between utterances of good tendency and utterances of bad tendency. Its unsuitability to separate good from bad intention is just as great.[123] The trouble with the District Court test is, that in making intention the crucial fact in criminality, it exposes all who discuss heated questions to an inquiry before a jury as to their purposes. That inquiry necessarily is of the widest scope and if the general attitude of the person is singular and intransigeant, there is an insufficient protection. You cannot tell a man’s intention by looking at his forehead, you must look through it to the inside of his head, and no judge and jury are capable of looking through the skull of a man who has done nothing but talk, to see what goes on inside. It is true that intention is material in other crimes, such as murder, but in dealing with an overt criminal act the intention is evidenced by many other acts, which are a kind of fact with which the jurymen are familiar and capable of dealing. On the other hand, the intention in making utterances is evidenced by inferences drawn from the supposed bad tendency of the words themselves, and by other utterances, which will also be viewed under the obnoxious test of bad tendency. For instance, in the Stokes and Doe cases the judge admitted speeches or letters not included in the indictment. In many cases opinions expressed before the United States entered the war have also been admitted, opinions which the defendants then shared with many persons who afterwards supported the war. No matter how carefully the judge instructs the jury to disregard such prior language except as evidence of intention, there can be no doubt that it is human nature to lump together all the utterances, inside and outside the indictment, and decide whether or not the defendant deserves punishment for everything he said. The Abrams case in the next chapter will bring this out very clearly.
[122] See page 31, _supra_.
[123] “It seems to me perfectly clearly established, that no official yet born on this earth is wise enough or generous enough to separate good ideas from bad ideas, good beliefs from bad beliefs, and that the utmost that anybody can ask of a government, is that if it is efficient it should detect and run down criminal acts; that beyond reaching words which are the direct and immediate incitement to criminal acts, no government dare go.”—Walter Lippmann, Bull. League of Free Nations Assn., Mar., 1920.
The parallelism with the French revolutionary trials is often curiously close. Just as Lord Ellenborough could see no motive for Leigh Hunt’s attack on flogging in the army except to cause a mutiny, so the District Court judges have often been ready to infer a similar criminal intent from talk of profiteering or Wall Street. It is easy for the supporters of a war to class all its opponents as traitors, forgetting that some of them argue against it merely because they cannot bear to see what seems to them a needless conflict, cripple or destroy the lives of thousands of their fellow-countrymen. A lawyer who has defended many Espionage Act cases tells me that there was much speculation among his clients as to whether they actually possessed the requisite criminal intent. A few of them admitted to him that they had it, and there is not much question that some of the utterances which were prosecuted were made with the purpose of obstructing recruiting or the draft, although the danger of their doing so was usually non-existent. But it is impossible to read over the various cases without coming to the conclusion that most of the defendants had no real intention to cause trouble, but were only engaged in heated altercations or expounding economic doctrines.
A saw is a very good thing, but not to shave with, and a judge and jury are an excellent instrument to pass on overt acts. They are also well-fitted to decide the effect of words upon the reputation of an individual, when the harmfulness of the language can be easily tested by common-sense standards, and its counterbalancing benefit to the public, if any, is indicated by well-established principles of law as to privilege and fair comment. But they are not trained and they are not able to apply such vague and misleading tests of the criminality of utterances as bad tendency and presumptive intent.
It is on this account that I have spent so much time in emphasizing the difference between Judge Hand’s test and the District Court test, in what may seem to many of my readers a mere interest in technicalities, far removed from the broad principles of freedom of speech. They forget that the technical rules of the common law are often the greatest safeguards of freedom. As Sir Henry Maine said, “Substantive law has at first the look of being gradually secreted in the interstices of procedure.”[124] It is only necessary to recall the tremendous importance to human liberty of such procedural regulations as the Habeas Corpus Act, Fox’s Libel Act, and the rule that no man shall be compelled to give evidence against himself. This is the great value of Judge Hand’s test, which was the only sort of rule about war-time utterances which should have been permitted. If it was not the correct interpretation of the language of the Espionage Act, then an act with different language ought to have been passed. Even if not the only constitutional construction, it was the only workable construction. His rule gave the jury something definite to consider, the actual nature of the words and the danger of interference with the armed forces. The District Court test left them nothing but speculation upon the remote political and economic effect of words and the probable condition of mind of a person whose ideas were entirely different from their own.
In peaceable and quiet times, our legal rights are in little danger of being overborne; but when the wave of power lashes itself into violence and rage, and goes surging up against the barriers which were made to confine it, then we need the whole strength of an unbroken Constitution to save us from destruction.[125]
[124] _Early Law and Custom_, 389.
[125] Jeremiah Black, arguing in _Ex parte_ Milligan, 4 Wall. 2, 75 (1866).
Judge Hand’s test would have been a sea-wall against these surging waves, but the District Court test was nothing but a mud-bank which was rapidly swept away.
No one reading the simple language of the Espionage Act of 1917 could have anticipated that it would be rapidly turned into a law under which opinions hostile to the war had practically no protection. Such a result was made possible only by the District Court test and by the tremendous wave of popular feeling against pacifists and pro-Germans during the war. This feeling was largely due to the hysterical fear of spies and other German propaganda. All of us on looking back to 1917 and 1918 are now sure that the emotions of ourselves and every one else were far from normal. I remember hearing one woman in a railroad train say to another, “Yes, my brother was going to France with the Y.M.C.A., but the sailing of his boat has been put off and put off. I don’t like to say that it’s German propaganda, but it certainly looks like it.”
Mr. John Lord O’Brian, Assistant to the Attorney General in the prosecution of the most important Espionage Act cases, gives a vivid account of the false stories of enemy activities within the United States, put forth through the medium of press dispatches, pamphlets of patriotic societies, and occasionally speeches on the floor of Congress:[126]
A phantom ship sailed into our harbors with gold from the Bolsheviki with which to corrupt the country; another phantom ship was found carrying ammunition from one of our harbors to Germany; submarine captains landed on our coasts, went to the theater and spread influenza germs; a new species of pigeon, thought to be German, was shot in Michigan; mysterious aeroplanes floated over Kansas at night, etc. Then there were the alleged spies themselves,—Spoermann, alleged intimate of Bernstorff, landed on our coasts by the U-53, administrator of large funds, caught spying in our camps, who turned out to be a plumber from Baltimore. Several other alleged spies caught on the beaches signaling to submarines were subsequently released because they were, in the several cases, honest men, one of whom had been changing an incandescent light bulb in his hotel room, another of whom was trying to attract the attention of a passerby on the beach, etc. There was no community in the country so small that it did not produce a complaint because of failure to intern or execute at least one alleged German spy. These instances are cited, not to make light of the danger of hostile activities, nor to imply that incessant vigilance was not necessary in watching the German activities, but to show how impossible it was to check that kind of war hysteria and war excitement which found expression in impatience with the civil courts and the oft-recurring and false statement that this government showed undue leniency toward enemies within our gates.
[126] 52 N. Y. Bar Assn. Rep. 281 (1919). Judge G. W. Anderson, who was U. S. District Attorney in Massachusetts in 1917, says, “More than ninety-nine per cent of the advertised and reported pro-German plots never existed.”—21 _New Republic_ 251.
Yet not one case under this part of the statute shows the slightest evidence that the utterances were actuated by German money or German plans. Mr. O’Brian says it is doubtful if even the I.W.W. had any degree of German support. Besides this fear of spies another influence which made fair trials under the Espionage Act very difficult was the passion for becoming spies. Not only did the American Protective League act as auxiliary to the Department of Justice, but as the same authority says:[127]
Throughout the country a number of large organizations and societies were created for the purpose of suppressing sedition. All of these were the outgrowth of good motives and manned by a high type of citizens. The membership of these associations ran into the hundreds of thousands. One of them carried full page advertisements in leading papers from the Atlantic to the Pacific, offering in substance to make every man a spy chaser on the payment of a dollar membership fee. These associations did much good in awakening the public to the danger of insidious propaganda, but no other one cause contributed so much to the oppression of innocent men as the systematic and indiscriminate agitation against what was claimed to be an all-pervasive system of German espionage.
[127] O’Brian, 279, 292, 297. On the I.W.W., 299.
It is obvious that the presence of members of these societies on juries made a just determination of such vague facts as the bad tendency of utterances and the intention of the defendant impossible. Once more we have a curious parallelism with the experiences of England during the French Revolution:[128]
Another agency was evoked by the spirit of the times, dangerous to the liberty of the press, and to the security of domestic life. Voluntary societies were established in London and throughout the country, for the purpose of aiding the executive Government in the discovery and punishment of seditious writings or language.... These societies, supported by large subscriptions, were busy in collecting evidence of seditious designs, often consisting of anonymous letters, often of the report of informers, liberally rewarded for their activity. They became, as it were, public prosecutors, supplying the Government with proof of supposed offenses, and quickening its zeal in the prosecution of offenders. Every unguarded word at the club, the market-place or the tavern, was reported to these credulous alarmists and noted as evidence of disaffection.
Such associations were repugnant to the policy of our laws, by which the Crown is charged with the office of bringing offenders to justice, while the people, represented by juries, are to judge, without favor or prejudice, of their guilt or innocence. But here the people were invited to make common cause with the Crown against offenders, to collect the evidence, and prejudge the guilt. How then could members of these societies assist in the pure administration of justice, as jurymen and justices of the peace? In the country especially was justice liable to be warped.
[128] May, _Constitutional History_, II, 36.
Attorney General Gregory corroborates Mr. O’Brian’s statement:[129]
The department has also been hampered by the circulation of unfounded reports, running into the hundreds, of supposed unpunished alien enemy activities in the way of fires alleged to have been caused by enemy agents, alleged uses of poison by enemy agents, alleged uses of ground glass, alleged damage to Red Cross supplies, etc. In view of the necessity for constant vigilance on the part of the public, it has not always seemed advisable to this department to enter into controversies as to the truth of these irresponsible reports.
[129] Report, 1918, 23.
It was with the country in the atmosphere above described that the laws affecting free speech received the severest test thus far placed upon them in our history.[130] It is obvious that a country full of would-be spies chasing imaginary spies and finding only pro-Germans and pacifists is a very unfit place for the decision of those psychological questions, which, as Wharton pointed out,[131] inevitably arise from the prosecution of utterances. It may be helpful to examine briefly the effect of this atmosphere upon the three main parts of the human machinery through which the Espionage Act necessarily operated, namely, the prosecuting officials, the juries, and the trial judges.
[130] O’Brian, 299.
[131] See page 52, _supra_.
The Assistants to the Attorney General in charge of the administration of the Espionage Act were John Lord O’Brian of Buffalo, so frequently quoted in these pages, and Alfred Bettman of Cincinnati. Although these men enforced the statute in accordance with the District Court test, which in my opinion made the maintenance of a real freedom of speech impracticable, nevertheless they were firm believers in that principle and singularly free from the effects of war emotion. In particular, great praise must be given to their thorough investigation of hundreds of convictions, as a result of which the sentences imposed by the judges were in many instances commuted by the President to a small fraction of their original length.[132] Unfortunately, it was very hard for these officials in Washington to impress their ideas of fairness and open discussion upon some of their subordinates and upon the public, and consequently to keep control of prosecutions throughout the country. Mr. O’Brian sums up this local situation:
It has been quite unnecessary to urge upon the United States Attorneys the importance of prosecuting vigorously, and there has been little difficulty in securing convictions from juries. On the contrary, it has been necessary at all times to exercise caution in order to secure to defendants accused of disloyalty the safeguard of fair and impartial trials. In addition to the causes already recited there were the patriotic agitations continually being carried on by the Liberty Loan speakers, four-minute men and others, all of which worked the whole country up to a pitch of intense patriotism, resulting in instinctive aversion toward anyone even under suspicion for disloyalty.
[132] Report of the Atty. Gen., 1919, Exhibit 21.
The situation became particularly serious after the passage of the Espionage Act of 1918. Despite the very wide scope given the Act of 1917 by the judges, it did after all require some connection between the expressions of opinion and the raising of our armed forces and did not punish disloyal utterances as such. Before the Amendment, isolated disloyal utterances had been treated in many parts of the country as incitement to disorder and had been summarily disposed of under a rather generous interpretation of state or local laws providing punishment for disorderly conduct. The Act of 1918 threw upon the law machinery of the Federal Government a great burden which it was ill-adapted to assume. It was almost impossible for the law officials to keep abreast of the complaints, and the result everywhere tended to encourage impatience with the action of civil tribunals.
The general publicity given the statute through the newspapers and, in many cases, through employers, who circularized their employees with copies of the act (calling attention to the dangers of strike activities), fanned animosities into flame, vastly increasing the amount of suspicion and complaints throughout the country. This, in turn, resulted in a large increase in the amount of prosecutions, backed up by strong local patriotic sentiment. Up to the time that this statute went into practical operation the United States Attorneys throughout the country, except in genuine cases of treason, had each acted as the supreme law official of his district, exercising on his own account full discretion in all matters as to prosecution.[133]
[133] O’Brian, 304, 305, 309. See the facts of some of the local cases in _War-time Prosecutions_, 27 ff., listing 126 convictions under local laws (a few under state sedition statutes).
Under these circumstances, on May 23, 1918, the Attorney General issued to all United States attorneys a circular about the amended act. It stated that the prompt and aggressive enforcement of the act was of the highest importance, but it was also of great importance that it should be administered with discretion and should not be permitted to become the medium whereby efforts were made to suppress honest, legitimate criticism of the administration or discussion of government policies, or for personal feuds or persecution.[134] It is obvious that this circular simply transferred the strain from the judge and jury to another portion of the human machinery, the district attorney, who is a government official, and naturally less impartial. Opinions may differ as to the wisdom of enacting a very broad criminal statute which enables the government to deal with persons who are really dangerous and ignore others who are actually within its terms. Such irregularity of application is certainly novel in our system of criminal law. It has been well said that this circular “converts every United States attorney into an angel of life and death clothed with the power to walk up and down his district, saying, ‘This one will I spare, and that one will I smite.’ If the law leaves it to the district attorney to determine when an act shall be prosecuted as a crime and when it shall not be, how is a citizen to know when he is exercising his constitutional right, and when he is committing a crime? Of course such conduct in administering criminal law, punishable by imprisonment for twenty years, simply converts government into a government of men and not of law.” The Department of Justice eventually realized this, wide divergencies appearing in the theories entertained by the various prosecuting attorneys, so that the Attorney General about a month before the end of the war issued a circular directing district attorneys to send no more cases to grand juries under the Espionage Act of 1918, without first submitting a statement of facts to the Attorney General and receiving by wire his opinion as to whether or not the facts constituted an offense under the Act.[135] “This circular,” says Mr. O’Brian, “is suggestive of the immense pressure brought to bear throughout the war upon the Department of Justice in all parts of the country for indiscriminate prosecution demanded in behalf of a policy of wholesale repression and restraint of public opinion.” Doubtless this circular made it possible for the Attorney General to weed out mere “clamor” cases, but it came too late in the war to have any practical effect. Until that time all persons who were opposed to the war were practically at the mercy of the local district attorneys, and under the District Court test of the 1917 Act or the express language of the 1918 Act prosecution almost invariably resulted in conviction.
[134] Rep. Atty. Gen., 1918, 674.
[135] _Ibid._; O’Brian, 306.
For the human machinery broke down at a second point—the jury. It is sometimes suggested that a jury trial gives a sufficient protection for freedom of speech, and that public sentiment will inevitably reflect itself in verdicts of acquittal if the prosecution seems unjust.[136] It is undoubtedly true that in England freedom of discussion is, as Dicey says, “little else than the right to write or say anything which a jury, consisting of twelve shopkeepers, think it expedient should be said or written.” In my first chapter, however, I have endeavored to show that this protection is entirely inadequate and that the constitutional provision must mean much more. It is only in times of popular panic and indignation that freedom of speech becomes important as an institution, and it is precisely in those times that the protection of the jury proves illusory. As the Assistant to the Attorney General admits, “There has been little difficulty in securing convictions from juries.”
[136] _E.g._, W. R. Vance in 2 _Minn. L. Rev._ 260; 33 _Harv. L. Rev._ 448. In England freedom of speech is necessarily protected only by jury trial plus the common law rules of criminal attempt and solicitation, unlawful meetings, etc. See Dicey, _Law of the Constitution_, chapters VI and VII. Without the guidance of these rules the jury would be far less valuable. Hence the merit of Judge Hand’s test.
Judge Amidon, who has had much experience in Espionage Act cases, says:
Only those who have administered the Espionage Act can understand the danger of such legislation. When crimes are defined by such generic terms, instead of by specific acts, the jury becomes the sole judge, whether men shall or shall not be punished. Most of the jurymen have sons in the war. They are all under the power of the passions which war engenders. For the first six months after June 15, 1917, I tried war cases before jurymen who were candid, sober, intelligent business men, whom I had known for thirty years, and who under ordinary circumstances would have had the highest respect for my declarations of law, but during that period they looked back into my eyes with the savagery of wild animals, saying by their manner, “Away with this twiddling, let us get at him.” Men believed during that period that the only verdict in a war case, which could show loyalty, was a verdict of guilty.
There are strong indications of other influences which accentuated the effect of the general war emotion, of circumstances which resemble the situation in England during the French Revolution, when the juries were chosen largely from men much opposed to the prisoners.[137] Mr. O’Brian tells[138] how the administration of the Act was affected by economic conflicts growing out of the activities of the Non-Partisan League and the I.W.W. Although the Attorney General insisted upon the doctrine that guilt was personal and refused to proscribe any group as such, the effect on juries in federal and state prosecutions was probably serious. For instance, in the trial of the president of the Non-Partisan League, under the Minnesota Espionage Act, the jury was chosen from the regular term panel of thirty-two men, which in turn was selected by lot from a total panel of one hundred and forty-four, picked from among the voters by the County Commissioner. Three “triers” also aided, who are charged with hostility to the League. Although the farmers of Jackson County were sharply divided into members of the Non-Partisan League and bitter opponents with practically no neutrals, and the League candidate at the last election had fallen only thirty-one short of a majority, the panel of one hundred and forty-four contained not a single member of the League, but consisted of men from sections of the county which League organizers and speakers were barred from visiting. The defense had only four peremptory challenges. The jury was not segregated, but was subjected to the heat of popular discussion during the trial.[139]
[137] May, II, 36, 87.
[138] O’Brian, 295.
[139] See Bibliography on Townley trial.
This was not a federal case, but similar problems are raised by the method of selecting juries in the federal courts. As long ago as the Sedition trials of 1798 the method of securing indictments and convictions met with public condemnation because of the men from whom and by whom the jury were chosen. Mr. Beveridge says,[140] “In many states the United States Marshals selected what persons they pleased as members of the grand juries and trial juries. These officers of the National courts were, without exception, Federalists; in many cases, Federalist politicians. When making up juries they selected only persons of the same manner of thinking as that of the marshals and judges themselves. So it was that the juries were nothing more than machines that registered the will, opinion, or even inclination of the National judges and the United States District Attorneys. In short, in these prosecutions, trial by jury in any real sense was not to be had.”
[140] Beveridge’s _Marshall_, III, 42. F. M. Anderson, “The Enforcement of the Alien and Sedition Laws,” Rep. Am. Hist. Assn. (1912), 125, says that the grand juries were composed preponderantly, if not exclusively, of Federalists; that the Callender trial jury was drawn in a manner that went far toward justifying the charge of packing, and that other juries could scarcely be called impartial.
It would certainly be improper without a very elaborate investigation to assert that such conditions exist in federal juries at the present time. The method of selection varies so much that generalization is impossible. There can be no doubt, however, that in some districts a wide power of selection, otherwise than by lot, is exercised by the officials. Federal juries in civil cases are considered by members of the bar to be superior in quality to state juries, and this is accounted for by the practice of the officials to go through the lists carefully and exclude persons who are considered undesirable. While this method may not have been exercised with any desire to prejudice the jury in Espionage Act cases, the jury might naturally be limited to men of means who were not likely to understand at all the position of a person opposed to the war for economic reasons. On the other hand, federal jurors in New York City are said by a member of the Department of Justice to be inferior to those in the state courts. The government had more difficulty there in securing convictions in war cases than almost anywhere else, and this was attributed by some of the government counsel to the presence on the jury list of many persons with radical tendencies of thought. Without framing any conclusions myself on this extremely delicate matter, I shall present certain statements made on behalf of the defendants in various cases as material for criticism and subsequent investigation by other persons interested in this field.
Max Eastman in his account of the Debs case speaks from the point of view, obviously partisan but worth attention, of one who has himself been on trial under the Espionage Act:[141]
As to the jury ... they were about seventy-two years old, worthy fifty to sixty thousand dollars, retired from business, from pleasure, and from responsibility for all troubles arising outside of their own family. An investigator for the defense computed the average age of the entire venire of 100 men; it was seventy years. Their average wealth was over $50,000. In the jury finally chosen every man was a retired farmer or a retired merchant, but one, who was a contractor still active. They were none of them native to leisure, however, but men whose faces were bitterly worn and wearied out of all sympathy with a struggle they had individually surmounted.
[141] “The Trial of Eugene Debs,” 1 _Liberator_, No. 9 (Nov., 1918), 9. The charge of Mayer, J., in United States _v._ Phillips, was so favorable to the defendant that, I am informed by an eyewitness, an acquittal was generally expected in the court-room, but the defendants were convicted.
Berger’s counsel made the following statement to the Committee of the House of Representatives:[142]
On the selection and composition of the jury, I want to say that out of a panel that was examined of fully 50 there was only one laboring man who appeared, out of a 90 per cent. population of that judicial district, on the panel, and he was promptly treated as though he were a spy in camp. The jury was made up of a number of insurance brokers of the city of Chicago, of a number of very wealthy farmers, retired farmers, I think five, all men of much acreage and wealth in Illinois, and two bankers. Racially, it was utterly unrepresentative. I mean the whole panel was utterly unrepresentative of the racial, national, or industrial composition of the masses of the people in that district.... It is the marshal’s personal selection. It is the most extraordinary thing and the judicial system of our country ought to be corrected, because he is the appointee of the civil administration.
[142] Victor L. Berger: Hearings before the Special Committee, I, 636. See John Wurts, “The Jury System under Changing Social Conditions,” 47 _Am. L. Rev._ 67; Mamaux _v._ U. S., 264 Fed. 816.
Whether or not these accusations are just, they certainly present a problem in the trial of persons of radical inclinations, which must be solved in the future with considerable thought. The solution should not only give justice, but be so plain as to satisfy all classes, in so far as that is possible, that they are getting justice.
The third point at which the human machinery breaks down in the enforcement of a sedition law is the trial judges. Some of the English charges against agitators have already been mentioned. It is well known that one of the worst features of the Sedition Act of 1798 was its administration by the Federalist judges, which afterwards caused a determined assault upon the National Judiciary. In their charges to grand juries, they lectured and preached on religion, on morality, on partisan politics. At the trials, freedom of speech was ignored, no distinction was made between fact and opinion, and prosecutions for “wholly justifiable political criticisms—some of them trivial and even amusing”—were allowed to go to the jury. Although the deportment of the judges, with the exception of Chase, was substantially correct and the charges were usually right in what they said, convictions followed because of what was omitted or because the jury should have been prevented by a direction of acquittal from passing on the cases at all.[143]
[143] Beveridge’s _Marshall_, III, 30 note; II, 421; and III, 29–49 _passim_; F. M. Anderson, _op. cit._, 126.
Some Espionage Act charges which merit a similar criticism have already been mentioned, and make it plain that in contrast to the Civil War judges who stood rock-ribbed for legality,[144] a few men on the present United States bench felt it to be their duty to deliver stump speeches to the jury as if they were soliciting subscriptions to a Liberty Loan. One more instance may be given.
[144] _E.g._, Taney’s decision in _Ex parte_ Merryman, Taney, 246 (1861); and the release of the Copperhead Milligan, 4 Wall. 2 (1866).
Judge Aldrich in a New Hampshire case charged:[145]
These are not times for fooling. The times are serious. Nobody knows what is going to happen to our institutions within the next year, or the next month. Out West they are hanging men for saying such things as this man is accused of saying. They are feeling outraged by such expressions to such extent that they are taking the law into their own hands. Now, that is a very bad thing to do. We do not want that in New Hampshire, but we do want a courageous enforcement of the law.
[145] U. S. _v._ Taubert, Bull. Dept. Just., No. 108. He was sentenced to three years for obstructing bond sales by saying, “This was a Morgan war and not a war of the people.” There is nothing about bonds in the 1917 Act, but Judge Aldrich held it covered them because an army could not be raised without them and “the Government must not be embarrassed in those respects by unreasonable opposition.”
Besides this attitude toward opposition to the war in general, some judges have expressed an attitude on economic questions which seriously affects not only the enforcement of Espionage Act cases but of the Deportation law and of a federal peace-time Sedition law, should one be enacted. A considerable portion of hostility to the declaration of war and conscription was due to the belief of radicals that it represented a sacrifice of working-class lives for the benefit of the wealthy. This belief was expressed by many members of the Non-Partisan League, the Socialist Party, and the Industrial Workers of the World. Sympathy with the Russian Revolution was also a complicating factor. It was clearly the duty of the judges to keep their minds free from economic prejudices and to warn the jury that just because a defendant held unpopular radical views this in no way affected his guilt for interference with the war. Of course judges, like other men, are entitled to definite opinions on vital controversies of the day, and most of them will naturally favor only gradual changes in the present order, but the increasingly frequent part which radicalism is playing in legal proceedings of various kinds, and particularly in sedition prosecutions during and since the war, makes it essential that the judge hearing such cases shall have a scholarly and dispassionate attitude and an ability to discriminate between different schools of revolutionary thought. The warning of Justice Holmes deserves reprinting:[146]
When twenty years ago a vague terror went over the earth and the word socialism began to be heard, I thought and still think that fear was translated into doctrines that had no proper place in the Constitution or the common law. Judges are apt to be naif, simple-minded men, and they need something of Mephistopheles. We too need education in the obvious—to learn to transcend our own convictions and to leave room for much that we hold dear to be done away with short of revolution by the orderly change of law.
[146] Speeches by Oliver Wendell Holmes, 101; quoted in 29 _Harv. L. Rev._ 691.
Consequently, it is a cause for grave concern when we find Judge Albert B. Anderson, who later enjoined the coal strike, using this language from the bench, even though in the particular case he made a very good decision:[147]
I think that about the least commendable sort of folks I know are these Russians, who have fled to this country, and are not anything like satisfied with what they have here. Why? Because we do not give them everything they want. Mary Antin was here not long ago and delivered an address, but she didn’t simply want the Jews to have their rights. The trouble with Mary Antin is that she wanted the Jews to have everything that we have got; and that is the way with this gentleman.... I do not like the word “Socialist” or these Socialists. The Socialist always flatters himself when he calls himself a Socialist. He means to leave the impression that he is more generous and more unselfish than the average run of men; but he doesn’t want to be called an anarchist.... If I had time I would like to have somebody explain what it means except for the “have-nots” to take it away from the “haves”. That is all there is to it; so I have not much patience with that sort of thing or soap-box orators. Why don’t they go hire a hall?
[147] U. S. _v._ Zimmerman, Nelles, 10–12.
One fears that he will not always add as he wisely did:
Free speech means the right to say foolish things as well as the right to say sensible things.
Judge Wade said in sentencing Mrs. O’Hare:[148]
Well, I tell you, if that is the sort of stuff the socialist party stands for, if its gospel is the gospel of hate, and contempt of religion and charity, it has not any place on the American soil either in times of war or times of peace.
[148] Nelles, 47.
The feeling against the I.W.W. was very bitter in the West, and convictions were numerous. One of these has been reversed because Judge Wolverton in Oregon charged:[149]
The I.W.W. is a disloyal and unpatriotic organization. Adherents thereof owe no allegiance to any organized government, and so far as the government is concerned the organization itself is thoroughly bad.
[149] Kumpula _v._ U. S., 261 Fed. 49. Another case of reversal for the prejudicial attitude of the court is Rutherford _v._ U. S., 258 Fed. 855. See “Lawless Enforcement of Law,” 33 _Harv. Law Rev._ 956.
Contrast with this language the words of Judge Amidon in trying a member of the Non-Partisan League:[150]
The head and front of it is that the speech tended to array class against class. I have been on this earth quite a spell myself. I never have known of any great reform being carried through where the people whose established condition would be disturbed by the carrying out of the reform did not say that the people who were trying to bring about the reform were stirring up class against class. That is an argument that I know to be at least 3,500 years old from my knowledge of history, and it is repeated in every effort to change an existing condition.
[150] U. S. _v._ Brinton, Bull. Dept. Just., No. 132.
Besides the war spirit and economic opinions, one more factor must be mentioned which may possibly have affected the Espionage Act cases, the supervision of United States judges by the Department of Justice. Here, as with regard to the methods of jury selection, I draw no conclusions whatever because of the insufficiency of data, but present the charge which has been made, that special agents have watched the proceedings of the courts and the district attorneys, swift to report to Washington any charge or action which has seemed to their excited temper not to measure up to the full standard of patriotic duty. In his book on Juridical Reform,[151] John D. Works, formerly Justice of the Supreme Court of California, and United States Senator for that state, points out:
Practically, Federal judges are selected by the Attorney General of the United States. All applications for appointment are referred to, investigated by, and reported upon by him, and, where there are a number of applicants, he recommends to the President the one selected by him, and usually his recommendation is approved and the applicant of his choice appointed. The Attorney General is also the attorney of the Government in all its litigation before the judges he has selected. Not only this, but he assumes, and actually exercises, the right to investigate and supervise the course and conduct of these same judges, and has in some instances,—whether generally or not is not known,—made secret investigations of Federal judges through secret agents and without the knowledge of such judges.
[151] N. Y., 1919, pp. 123–125. Senator Works recommends that the power of selecting, recommending, and investigating judges be vested elsewhere than in the Department of Justice.
If these charges are not proved untrue, a very serious danger in all sedition legislation is revealed, for there is no branch of the criminal law where convictions may on occasion become so important in the eyes of a government.
The number of Espionage Act judges who are guilty of actually prejudicial conduct at the trials is comparatively few, and in many respects the judges deserve the praise which Mr. O’Brian expresses[152] for giving great latitude to the defendant’s proof[153] and urging upon the jury the necessity for the dispassionate consideration of evidence. The defect is, for the most part, not so much in what they said as in what they did not say. In the first place, despite the vagueness of the District Court test, common sense ought to have led them to withdraw many more cases of remote language from the jury, as Justice Brandeis has forcibly insisted in his _Tageblatt_ opinion.[154] And whenever there was enough apparent relation to the raising of armies to justify the submission of the evidence to the jury, they should have cautioned them against convicting because the words might possibly and indirectly cause discontent in the forces or a refusal to enlist. The juries needed much more careful guidance on the issue of intent and far more discretion should have been exercised in the admission of prior utterances, because of the danger that the jury would convict the defendant as an undesirable citizen, who, taken all in all, ought to be shut up.[155] Furthermore, whenever a charge does mention freedom of speech, it is almost sure to say or imply that it has nothing to do with opposition to war and class such opposition with such extreme utterances like advocacy of a natural right to kill men or outrage women. Almost no emphasis is laid on the desirability of wide discussion so long as there is no real interference with the raising of armies, even discussion by those opposed to the war. The charge of Judge Augustus Hand in the trial of Max Eastman is a notable exception:[156]
Every citizen has a right, without intent to obstruct the recruiting or enlistment service, to think, feel, and express disapproval or abhorrence of any law or policy or proposed law or policy, including the Declaration of War, the Conscription Act, and the so-called sedition clauses of the Espionage Act; belief that the war is not or was not a war for democracy; belief that our participation in it was forced or induced by powers with selfish interests to be served thereby; belief that our participation was against the will of the majority of the citizens or voters of the country; belief that the self-sacrifice of persons who elect to suffer for freedom of conscience is admirable; belief that war is horrible; belief that the Allies’ war aims were or are selfish and undemocratic; belief that the Hon. Elihu Root is hostile to socialism, and that his selection to represent America in a socialistic republic was ill-advised.
It is the constitutional right of every citizen to express his opinion about the war or the participation of the United States in it; about the desirability of peace; about the merits or demerits of the system of conscription, and about the moral rights or claims of conscientious objectors to be exempt from conscription. It is the constitutional right of the citizen to express such opinions, even though they are opposed to the opinions or policies of the administration; and even though the expression of such opinion may unintentionally or indirectly discourage recruiting and enlistment.
[152] O’Brian, 310.
[153] On the importance of such a policy in political criminal trials, see Robert Ferrari in 3 _Minn. L. Rev._ 365, and 66 _Dial_ 647 (June 28, 1919). _Cf._ the opportunity given Debs, Nearing, Eastman, and even the I.W.W.’s at Chicago to speak in their own defense with the refusal of the Minnesota state court to hear Townley, when at the close of his case he arose in the hot night with coat off to address the jury. 109 _Nation_ 144.
[154] See page 100, _infra_. _Cf._ O’Brian, 309: “The chief difficulty on any trial has naturally been the question of what _quantum of evidence_ would, as a matter of law, justify submitting to the jury the question of unlawful intent and the question of the reasonable and natural result of the utterance complained of.”
[155] Admissibility of such utterances has been contested, but see the Abrams decision. _Cf._ People _v._ Molyneux, 168 N. Y. 264, a famous case of the other view. See Wigmore on Evidence, §§ 302, 367.
[156] Nelles, 29, 30. As this charge was not reprinted in the Bulletins of the Department of Justice, it had no effect upon other district judges, except possibly in U. S. _v._ Debs, which permits “reasonable and tempered discussions.” Bull. Dept. Just., No. 155, p. 12. Judge Clayton refused to repeat Judge Hand’s words in his Abrams charge.
In one matter over which they had complete control, the District Court judges must bear a lasting blame. The only proceedings in our law comparable to the Espionage Act sentences are the sedition prosecutions under George III, with which so many parallels have been found. Indeed, at this point the parallelism breaks down. The longest sentences for sedition in England were four years, and even Braxfield and his Scotch colleagues did not exceed fourteen years, of transportation and not imprisonment. Our judges have condemned at least eleven persons to prison for ten years, six for fifteen years, and twenty-four for twenty years.[157] Judge Van Valkenburgh summed up the facts with appalling correctness in view of the virtual life terms imposed under the Espionage Act, when he said that freedom of speech means the protection of “criticism which is made friendly to the government, friendly to the war, friendly to the policies of the government.”[158]
[157] These figures include only sentences stated in Rep. Atty. Gen., 1919, Exh. 21, and in the reported cases, listed in Appendix II, except the I.W.W. case (U. S. _v._ Haywood), which is omitted because I do not know how far the sentences were imposed because of counts under the old conspiracy statutes. There are, however, many unreported cases with long sentences, _e.g._, 26 at Sacramento for ten years. No omission is made for reversals and commutations, because they do not lessen the responsibility of the district court judges, whose work is at this point under review. Indeed, there could be no more biting comment on the way these judges administered the Act than the enormous reductions in scores of sentences recommended by the Department of Justice. See Appendix II for instances.
[158] United States _v._ Rose Pastor Stokes, p. 14.
V. _The Supreme Court Decisions_
To me it seems simply a case of flagrant mistrial, likely to result in disgrace and great injustice, probably in life imprisonment for two old men, because this court hesitates to exercise the power, which it undoubtedly possesses, to correct, in this calmer time, errors of law which would not have been committed but for the stress and strain of feeling prevailing in the early months of the late deplorable war.—JUSTICE CLARKE, dissenting in the _Tageblatt_ case.
The United States Supreme Court did not have an opportunity to consider the Espionage Act until 1919, after the armistice was signed and almost all the District Court cases had been tried. Several appeals from conviction had resulted in a confession of error by the government,[159] but at last four cases were heard and decided against the accused.[160] Of these the Schenck case was one of the few reported prosecutions under the Act where there clearly was incitement to resist the draft. The defendants had mailed circulars to men who had passed exemption boards, which not only declared conscription to be unconstitutional despotism, but urged the recipients in impassioned language to assert their rights. Such utterances could fairly be considered a direct and dangerous interference with the power of Congress to raise armies, and were also counseling unlawful action within Judge Hand’s interpretation of the statute. Consequently, no real question of free speech arose. Nevertheless, the defense of constitutionality was raised, and denied by Justice Holmes:
We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.... _The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent._ It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.
[159] Baltzer and Head cases, 249 U. S. 593.
[160] Schenck _v._ U. S., 249 U. S. 47 (1919); Sugarman _v._ U. S., _ibid._ 130; Frohwerk _v._ U. S., _ibid._ 204; Debs _v._ U. S., _ibid._ 211. The italics are mine.
Although “the substantive evils” are not specifically defined, they mean successful interference with the particular power of Congress that is in question—in this instance, the war power. Since Congress is authorized to declare war and raise armies, it can expedite its task by punishing those who actually keep men out of the service, whether by starting a draft riot or by effectually persuading men not to register or not to enlist. And Congress can go one step farther. Besides punishing overt acts of interference with the war, it can prevent such acts from occurring by penalizing unsuccessful efforts to interfere, whether they are acts or words. But this desire to head off actual injury to the government is, we have seen, the basis of all suppression of discussion, unless it is limited very narrowly. In order to give force to the First Amendment, Justice Holmes draws the boundary line very close to the test of incitement at common law and clearly makes the punishment of words for their remote bad tendency impossible. Moreover, the close relation between freedom of speech and criminal attempts is indicated by the use of a phrase employed by the Justice in a leading attempt case, Commonwealth _v._ Peaslee.[161] Justice Holmes interprets the Espionage Act more widely than Judge Hand, in making the nature of the words only one element of danger, and in not requiring that the utterances shall in themselves satisfy an objective standard. Thus he loses the great administrative advantages of Judge Hand’s test. But while the decision, like the District Courts, allows conviction for expressions of opinion uttered with a bad intention, it imposes additional requirements, which most trial courts had neglected. Words are criminal under the second and third clauses of the Act only because of their relation to the armed forces, and that relation must be so close that the words constitute “a clear and present danger” of injury to the raising of those forces or of mutiny and similar breaches of discipline. Words and intentions are not punishable for their own sake, or merely for their tendency to discourage citizens at war. Thus the opinion, especially the italicized sentence, substantially agrees with the conclusion reached by investigation of the history and political purpose of the First Amendment. The concept of freedom of speech received for the first time an authoritative judicial interpretation in accord with the purpose of the framers of the Constitution.
[161] 177 Mass. 267, 272 (1901). See page 53, _supra_.
The Sugarman decision, written by Justice Brandeis, was much like the Schenck case, as there was evidence that the defendant had in a speech advised a number of registrants not to report for military service when called. The Espionage Act plainly covers such utterances, and they would have been criminal under the conspiracy statutes of the Civil War, if other persons had been associated with the speaker. The Frohwerk decision was more difficult, and Justice Holmes’ opinion recognizes that if more evidence had been presented on the inadequately prepared record there might have been cause for reversal. The defendant had inserted several articles in the _Missouri Staats-Zeitung_ on the constitutionality and merits of the draft and on the purposes of the war. Even in the Department of Justice there was considerable question whether these were not an advocacy of a change in governmental policy as distinguished from advocacy of obstruction of such policy, and it did not appear that there was any special effort to reach men who were subject to the draft. Justice Holmes thought, however, that on the record as it was the evidence might conceivably have been sufficient to sustain a conviction, since the circumstances and the intention, though not the words _per se_, might satisfy the danger-test.
It may be that all this might be said or written even in time of war in circumstances that would not make it a crime. We do not lose our right to condemn either measures or men because the country is at war.... But we must take the case on the record as it is, and of that record it is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that the fact was known and relied on by those who sent that paper out.
If the Supreme Court had applied this same standard of “clear and present danger” to the utterances of Eugene V. Debs, in the remaining decision, it is hard to see how he could have been held guilty. The test is not mentioned, however, but Justice Holmes is willing to accept the verdict as proof that actual interference with the war was intended and was the proximate effect of the words used. It is regrettable that he should have felt unable to go behind a verdict which had been found without any reference to the danger of the utterances. The point is that Judge Westenhaver did not instruct the jury according to the Supreme Court test at all, but allowed Debs to be found guilty, in Justice Holmes’s words, because of the “natural _tendency_ and reasonably probable effect” of his speech, and gave a fairly wide scope to the doctrines of indirect causation and constructive intent, so that the defendant could have been and probably was[162] convicted for an exposition of socialism, merely because the jury thought his speech had a tendency to bring about resistance to the draft. If the Supreme Court test is to mean anything more than a passing observation, it must be used to upset convictions for words when the trial judge did not insist that they must create “a clear and present danger” of overt acts.
[162] United States _v._ Debs, Bull. Dept. Just., No. 155 (N. D. Oh., 1918). See especially the last paragraphs on page 8, and page 15: “In deciding what the defendant’s intention was, permit me to suggest to you these questions: Ought he not to have reasonably foreseen that the natural and probable consequences of such words and utterances would or _might_ be to cause insubordination, etc.?”
Justice Holmes seems to discuss the constitutionality of the Espionage Act of 1917 rather than its construction. There can be little doubt that it is constitutional under any test if construed naturally, but it has been interpreted in such a way as to violate the free speech clause and the plain words of the statute, to say nothing of the principle that criminal statutes should be construed strictly. If the Supreme Court test had been laid down in the summer of 1917 and followed in charges by the District Courts, the most casual perusal of the utterances prosecuted makes it sure that there would have been many more acquittals. Instead, bad tendency and presumed intent have been the tests of criminality, tests which this article has endeavored to prove wholly inconsistent with freedom of speech, and any genuine discussion of public affairs.
The decision shows clearly the evils of the broad construction of the Espionage Act, which rejected the objective standard of the meaning of the words used. Debs was convicted of an attempt to cause insubordination in the army and obstruct recruiting, yet no provocation to any such definite and particular acts was proved. He spoke to a convention of Socialists in support of their economic views, instancing the war as the supreme curse of capitalism. In a few sentences he approved the conduct of persons convicted of like offenses, saying, for example, that if Mrs. Stokes was guilty so was he. Her conviction has since been reversed. Not one word was designed for soldiers, not one word urged his hearers to resist the draft, objectionable as he considered it. Undoubtedly he admitted at his trial that he had obstructed the war—“I abhor war. I would oppose the war if I stood alone. When I think of a cold, glittering steel bayonet being plunged in the white, quivering flesh of a human being, I recoil with horror.” But the only question before the jury was whether he had tried to obstruct it in the ways made unlawful in the statute. If all verbal or written opposition to the war furnishes a basis for conviction, because it is dangerous under the circumstances and indicates a criminal mind, then none but the most courageous will dare speak out against a future war.
“It is useless,” writes Ernst Freund,[163] “to over-emphasize the substantive limitations of the constitution; the real securities of rights will always have to be found in the painstaking care given to the working out of legal principles. So long as we apply the notoriously loose common law doctrines of conspiracy and incitement to offenses of a political character, we are adrift on a sea of doubt and conjecture. To know what you may do and what you may not do, and how far you may go in criticism, is the first condition of political liberty; to be permitted to agitate at your own peril, subject to a jury’s guessing at motive, tendency and possible effect, makes the right of free speech a precarious gift.”
[163] Ernst Freund, “The Debs Case and Freedom of Speech,” 19 _New Republic_ 13 (May 3, 1919); and the correspondence in 19 _ibid._ 151 (May 31, 1919).
The last sentence of the passage quoted from the Schenck case seems to mean that the Supreme Court will sanction any restriction of speech that has military force behind it, and reminds us that the Justice used to say when he was young, “that truth was the majority vote of that nation that could lick all others.”[164] His liberalism seems in these decisions to be held in abeyance by his belief in the relativity of values. It is not by giving way to force and the majority that truth has been won. Hard it may be for a court to protect those who oppose the cause for which men are dying in France, but others have died in the past for freedom of speech.
[164] Oliver Wendell Holmes, “Natural Law,” 32 _Harv. L. Rev._ 40 (1918).
After all, whatever we may think about such a close case as the Debs decision, it can best be regarded as a reason for repealing the Espionage Act, if it must be so construed. And surely the cause of freedom of speech profited in the long run from Justice Holmes’s opinion in these three cases more than if he had favored reversal, for subsequent decisions prove that he would then have been in the minority and would not have been able, as he was, to announce with the backing of a unanimous court the rule of clear and present danger, which should serve as a guiding principle in the future. Already its application in the Circuit Courts of Appeals has led to the setting aside of some convictions,[165] and it ought to make impossible hereafter a repetition of some of the worst decisions under the Espionage Act.
[165] Kammann _v._ U. S., 259 Fed. 192; Harshfield _v._ U. S., 260 Fed. 659.
That it has not, however, made freedom of speech secure is proved by the later interpretations of that statute in the Supreme Court. In November, 1919, came a second group of cases, of which one turned largely on procedure,[166] and the other, Abrams _v._ United States, has been reserved for a separate chapter, because it involves the special element of opposition to Russian intervention and because it furnishes a valuable example of the way political crimes, which were first known in this country because of the Espionage Act, are liable to be tried. Justice Holmes and Justice Brandeis have now and henceforth parted company with the rest of the court.
[166] Stilson _v._ U. S., 250 U. S. 583 (1919).
In the opening of 1920 came a third group of two decisions,[167] which were chiefly concerned with the first clause of the Espionage Act of 1917, punishing willfully published “false reports and statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies.” Thus far, very little has been said of this clause and of the District Court cases which construed it to apply to opinions about the causes of the war, or the influence of profiteers.
[167] Schaefer _v._ U. S., 251 U. S. 468; Pierce _v._ U. S., 40 Sup. Ct. 205.
Conspicuous among such cases was the conviction of five officers of the corporation issuing the _Philadelphia Tageblatt_, a German-language daily and Sunday newspaper. After an acquittal on the charge of treason for publishing fifteen articles, which were most assuredly unpatriotic in tone, glorifying German strength and success, abusing our allies, and attacking the sincerity of the United States, they were indicted in nine counts under the Espionage Act for the same utterances and all found guilty. In Schaefer _v._ United States two defendants were discharged by the Supreme Court for want of responsibility for the articles. Three convictions (two for five years, one for two years) were affirmed by a majority of six speaking through Justice McKenna; Justice Brandeis filed a dissenting opinion on behalf of himself and Justice Holmes; and Justice Clarke, who had spoken for the majority in the Abrams case, now also dissented, not because he found any violation of the First Amendment, but upon the ground that the Act had been misinterpreted by the trial court, whose charge “was so utterly unadapted to the case ... as to be valueless or worse as a direction to the jury.”
This newspaper was so poor financially that it was not able to have any telegraphic service, and consequently filled its columns with clippings from other newspapers. As it did not print so many columns as they, it was necessarily obliged to cut and condense both the headlines and the body of the articles. It did not indicate the source of its articles or imply that they were complete copies. The falsity alleged by the government was not that the articles which were published were false in fact, but merely that they differed from the originals, and had been altered or mistranslated so as to bear a changed meaning which was depressing or detrimental to patriotic ardor. For instance, the news editor quoted an Amsterdam dispatch about the shortage of food in Holland because of our seizure of ships, and was convicted for adding a sentence of comment that our proposal for sending food would be rejected, although this sentence was not made part of the quotation, but was clearly indicated for what it was.[168] He was convicted for copying an account of the fall of Riga, and omitting one sentence from the original, “From this it can be concluded that the fall of Riga has united the opposing political factions in Russia.” He was convicted because in translating a speech of Senator La Follette, predicting bread-lines as a consequence of the failure to tax profiteers, the word _Brot-riots_ was used instead of _Brod-reihen_. The wide divergence of opinion in the Court is indicated by Justice McKenna’s statement, “There could be no more powerful or effective instruments of evil than two German newspapers organized and conducted as these papers were organized and conducted,” as against that of Justice Brandeis, “To hold that such harmless additions to or omissions from news items, and such impotent expressions of editorial opinion, as were shown here, can afford the basis even of a prosecution, will doubtless discourage criticism of the policies of the Government.”
[168] U. S. _v._ Werner, 247 Fed. 708.
A comparison of the opinions of Justice McKenna and Justice Brandeis will form a valuable study in judicial method and in the two ways of solving any problem of freedom of speech. Of course we shall not find that total ignoring of the social interest in discussion, which blots many District Court cases, in a member of the Supreme Court. The difference between the two Justices is a difference in the degree of emphasis placed upon that interest and in their approach to the case. Since the limits of the right of freedom of speech in war time necessarily involve a conflict between the desirability of public knowledge of the truth about the war and the danger of defeat, it makes all the difference in the world whether the judge who sets out to determine those limits starts from the unqualified language of the First Amendment, which, unlike the Habeas Corpus clause, makes no exception of invasion,[169] and seeks to give to public opinion as much scope as is possible in view of the danger and the precise words of the statute; or whether he is primarily concerned to avert all influences which might conceivably delay or forfeit victory and is anxious not to go any farther to permit words of that tendency than seems absolutely necessary if we are to have any discussion about a war at all. Again, it makes all the difference in the world whether this judge is satisfied to say, “Free speech is not an absolute right, and when it or any right becomes wrong by excess is somewhat elusive of definition,” without seeking to define it, or whether he insists that the preservation of this right must inevitably depend on the latitude allowed to the human machinery administering the law.
[169] “Not one of these safeguards [in the Bill of Rights] can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of _habeas corpus_.”—Field, J., in _Ex parte_ Milligan, 2 Wall. 125.
Justice McKenna approaches the problem from the side of the war power, and entrusts freedom of speech to the jury’s sense of fairness rather than to any guiding principles. In his opinion the restraints of the Espionage Act are not excessive or ambiguous, and the trial court gives sufficient protection to the right of free speech if it admonishes the jury to decide impartially after close attention to the evidence. The statute is directed against conduct which might cause our armies “to operate to defeat and the immeasurable horror and calamity of it.” He is surprised that the Constitution should have been invoked to protect “the activities of anarchy or of the enemies of the United States.” This is an argument always used to undermine freedom of speech, for if it does not protect criticism hostile to the government it has little value, and such criticism in the times when it is most needed is invariably denounced by the supporters of the government as revolution or treason. Only wide discussion and time can tell whether the activities of the opponents of our wars, James Russell Lowell, the Hartford Convention, William Graham Sumner, Vallandigham, were the activities of the enemies of the United States or of its friends.
To all the passages he applies the eighteenth-century tests of bad tendency and presumptive intent to see whether the evidence would justify conviction. The only limit on remoteness which he recognizes seems to depend on the will of the jury. Thus he says of the conviction for obstructing enlistment by a reprint from a Berlin paper, entitled “Yankee Bluff,” which ridiculed the possibility of our giving any aid to the Entente, so slow were our war preparations, that the article might seem to its readers truly descriptive of American inability to combat German prowess and thereby “chill and check the ardency of patriotism and make it despair of success and in hopelessness relax energy both in preparation and in action.” What was its purpose if not that? We cannot conclude that the observations were the mere expression of peevish discontent, but must take them at their word, as the jury did, and ascribe a more active and sinister aim. Success is unnecessary. The tendency of the articles and their efficacy were enough for offense, and this is all that “intent” and “attempt” mean. To require more would make the law useless, for it was passed in precaution, and the consequences of its violation might appear only in disaster. In other words, any newspaper editor who reprints German bragging is liable to imprisonment unless he can furnish a clean bill of health as to his loyal intentions.
Justice McKenna also regards it as criminal to predict turbulent resistance to a war, as in the La Follette report, or to say that the war was commenced without the people’s consent. Of an article, attacking “the pro-British policy of the Government,” he says, in language that leaves no room for questioning as to the righteousness of any war:
Its statements were deliberate and willfully false, the purpose being to represent that the war was not demanded by the people but was the result of the machinations of executive power, and thus to arouse resentment to it and what it would demand of ardor and effort. In final comment we may say that the article in effect justified the German aggressions.
Justice Brandeis, on the other hand, starts from the danger-test of freedom of speech in the Schenck case and from the actual words of the Espionage Act. He even goes back to an important circumstance preceding the statute, the recommendation of the War College for legislation to prevent injurious disclosures on military matters, to get help on the meaning of the “false statement clause.”
Congress sought thereby to protect the American people from being willfully misled to the detriment of their cause by one actuated by the intention to further the cause of the enemy. Willfully untrue statements which might mislead the people as to the financial condition of the Government and thereby embarrass it; as to the adequacy of the preparations for war or the support of the forces; as to the sufficiency of the food supply; or willfully untrue statements or reports of military operations which might mislead public opinion as to the competency of the army or navy or its leaders [see “The Relation Between the Army and the Press in War Time,” War College Publication, 1916]; or willfully untrue statements or reports which might mislead officials in the execution of the law, or military authorities in the disposition of the forces. Such is the kind of false statement and the only kind which, under any rational construction, is made criminal by the act. Could the military and naval forces of the United States conceivably have been interfered with or the success of the enemy conceivably have been promoted by any of the three publications set forth above?
And in connection with the “Yankee Bluff” article, he applied the same tests of danger and statutory wording to the recruiting clause of the 1917 Act, confirming the interpretation of the Act advanced earlier in this chapter:[170]
It is not apparent on a reading of this article—which is not unlike many reprints from the press of Germany to which our patriotic societies gave circulation in order to arouse the American fighting spirit—how it could rationally be held to tend even remotely or indirectly to obstruct recruiting. But as this court has declared ... the test to be applied—as in the case of criminal attempts and incitements—is not the remote or possible effect. There must be the clear and present danger. Certainly men judging in calmness and with this test presented to them could not reasonably have said that this coarse and heavy humor immediately threatened the success of recruiting.
[170] Page 54, _supra_.
The most important part of his opinion is the repeated criticism of the administration of the statute in the trial below. The jury, however much instructed to be calm and unbiased, were authorized to convict for any words which would lessen “our will to win, or, as it is generally expressed, our will to conquer.” Jurymen need something more than “a sense of duty and a sense of justice.” They need hard and fast tests of criminality, which will bring home to them the standard of “clear and present danger.” And in this case that test should have prevented the evidence, so remote is it, from going to the jury at all. After quoting the words of the unanimous Court in the Schenck case, he said:
This is a rule of reason. Correctly applied, it will preserve the right of free speech both from suppression by tyrannous, well-meaning majorities and from abuse by irresponsible, fanatical minorities. Like many other rules for human conduct, it can be applied correctly only by the exercise of good judgment; and to the exercise of good judgment, calmness is, in times of deep feeling and on subjects which excite passion, as essential as fearlessness and honesty. The question whether in a particular instance the words spoken or written fall within the permissible curtailment of free speech is, under the rule enunciated by this Court, one of degree. And because it is a question of degree the field in which the jury may exercise its judgment is, necessarily, a wide one. But its field is not unlimited. The trial provided for is one by judge _and_ jury; and the judge may not abdicate his function. If the words were of such a nature and were used under such circumstances that men, judging in calmness, could not reasonably say that they created a clear and present danger that they would bring about the evil which Congress sought and had a right to prevent, then it is the duty of the trial judge to withdraw the case from the consideration of the jury; and if he fails to do so, it is the duty of the appellate court to correct the error.
Then he emphasized a principle which has often been ignored in sedition trials, and which might have affected the Debs decision, as well as the Abrams case, that the appellate court ought not to determine the nature and possible effect of a speech or writing simply by culling here and there a sentence and presenting it separated from the context. It ought to be read as a whole, and often considered with other evidence which may control its meaning.
Finally, he warned the Court, in a passage which I shall quote later with reference to peace-time Sedition laws, that the sweeping application of a criminal statute to utterances with scant regard for the First Amendment would have disastrous consequences for freedom of speech in future periods of excitement. In truth, the passage of the simple language of the Espionage Act of 1917 was, little as we thought it at the time, the deadliest blow ever struck at a free press in the United States, and the beginning of a series of encroachments on civil rights of every kind, whose full consequences we are dimly beginning to realize.
The latest decision is United States _v._ Pierce. This was a prosecution for distributing “The Price We Pay,” one of those leaflets which, like “The Finished Mystery” of the Pastor Russell sect, figure in several Espionage Act cases. The pamphlet was a highly colored and sensational document by St. John Tucker, one of the defendants in the Berger case. It was issued by the national office of the Socialist Party at Chicago, and “contained much in the way of denunciation of war in general, the pending war in particular, something in the way of assertion that under Socialism things would be better, little or nothing in the way of fact or argument to support the assertion.” The four defendants in New York had refrained from circulating it until after a prosecution of other persons in Maryland, based on the same pamphlet but under the conspiracy statutes for obstruction of the draft, had terminated in a directed acquittal on the ground that it was intended to get recruits for the Socialist Party, and not even an attempt to persuade men to disobey the draft law.[171] Pierce and his associates were then arrested and convicted. Seven judges through Justice Pitney sustained the conviction, while Justice Brandeis dissented with the concurrence of Justice Holmes.
[171] U. S. _v._ Baker, 247 Fed. 124 (1917).
The principal ground of conviction was the false statements clause. Justice Brandeis pointed out that the danger-test applies to this clause as much as the other two, and that three additional elements of crime must be established: (1) The statement or report must be of something capable of being proved false in fact. The expression of an opinion, for instance, whether sound or unsound, might conceivably afford a sufficient basis for the charge of attempting to cause insubordination, disloyalty or refusal of duty, or for the charge of obstructing recruiting; but, because an opinion is not capable of being proved false in fact, a statement of it cannot be made the basis of a prosecution under this clause. (2) The statement or report must be proved to be false. (3) The statement or report must be known by the defendant to be false when made or conveyed.
Three passages, consisting of five sentences in all, were culled from this long document as constituting the false statements or reports:
1. Into your homes the recruiting officers are coming. They will take your sons of military age and impress them into the army....
And still the recruiting officers will come; seizing age after age, mounting up to the elder ones and taking the younger ones as they grow to soldier size.
2. The Attorney General of the United States is so busy sending to prison men who do not stand up when the Star-Spangled Banner is played, that he has no time to protect the food supply from gamblers.
3. Our entry into it was determined by the certainty that if the allies do not win, J. P. Morgan’s loans to the allies will be repudiated, and those American investors who bit on his promises would be hooked.
Only the last passage need detain us. The first is clearly true, since “recruiting” was held in the Schenck case to include the draft, though a regular army major gravely testified at the trial that it had only to do with the volunteer service. The prediction that older and younger persons would be drafted was, of course, fulfilled. Yet the point was left to the jury. While civilians could not be prosecuted for sitting during the National Anthem, such an obviously figurative way of saying that the Attorney General was devoting important time to trivial sedition cases could not properly be regarded as a statement of fact within a twenty-year criminal penalty.[172]
[172] Under a local law, J. W. Beckstrom of Chicago was, since the Pierce trial, fined $50 for refusing to stand when the “Star-Spangled Banner” was played in a theater.—_War-time Prosecutions_, 30.
Justice Pitney held that these passages satisfied the three requirements laid down by Justice Brandeis.
On the points of intention and proximate cause he said that the jury might fairly believe that the leaflet “would have a tendency to cause insubordination”; and that it was intended to bring home to eligible men and especially to “their parents, sisters, wives, and sweethearts,” a sense of impending personal loss, calculated to discourage men from entering the service, to arouse suspicion whether the chief law officer was not more concerned in enforcing the strictness of military discipline than in protecting the people against improper speculation in their food supply, and to produce a belief that our participating in the war was the product of sordid and sinister motives. One rubs his eyes and wonders whether he has dreamed himself back into the eighteenth century.
The most dangerous aspect of this case, however, is the decision that the opinion about the economic cause of the war is a false statement and known to be false. Justice Pitney says:
Common knowledge (not to mention the President’s Address to Congress of April 2, 1917, and the Joint Resolution of April 6 declaring war, which were introduced in evidence) would have sufficed to show at least that the statements as to the causes that led to the entry of the United States into the war against Germany were grossly false; and such common knowledge went to prove also that defendants knew they were untrue. That they were false if taken in a literal sense hardly is disputed.
Justice Pitney is a great equity judge, and often a man is held subject to the equitable rights of others because he ought reasonably to know of them though in fact he does not, but such constructive notice has never before been made the basis of criminal responsibility. For example, a man purchasing land cannot get rid of a heavy recorded mortgage just because he was ignorant of it, but if he resells the land without mentioning this still unknown mortgage he is not guilty of obtaining money under false pretenses. Yet the Supreme Court is willing to say that men who wrangled with their neighbors for years about the capitalistic causes of the war and clung to their views with pig-headed devotion knew they were wrong just because they were in a small minority.
Consider where this leads. If opinions about the origin and justice of a war are to be regarded as false statements if the jury find them erroneous, the proof of truth or falsity involves logically all available evidence about the causes of the war, a staggering task. The proof surely ought not to be limited to the President’s Message or the Resolution of Congress, for then conviction would be a foregone conclusion. Neither by sight nor by hearing can the jury investigate this “question of fact.” It is a matter of inference from the complex and obscure political, economic, and social conditions of the nation or even of the world. The data for such a judgment, even if a jury had the very slightest capacity for making it, are not available during a war or for years afterwards. Imagine John Bright or James Russell Lowell trying to convince a jury that the Crimean or the Mexican Wars were due to sinister motives, a question on which men are still disputing.
What minority opinion can be safe in war time under Justice Pitney’s test? Surely, language which is immune from civil defamation suits as comment on a public matter ought to be equally immune from the sterner rigors of the federal penitentiary. If everything an opponent of a war says is to be adjudged false because the jury and the Supreme Court disagree with it, and then he is declared to know it is false because most people think it so, the whole value of the First Amendment as a means of learning the truth about future wars is lost.
Into this technical reasoning, which virtually ignores the standard of clear and present danger and revives the District Court test of remotely injurious tendency, cuts the common sense of Justice Brandeis. The so-called statement of fact about the Morgan loans is, he says, merely a conclusion or deduction from facts. True, it is not a conclusion of law, but it is not an evidentiary fact. In its essence it is the expression of a judgment, like the statements of many so-called historical facts. There is no exact standard of absolute truth by which to prove the assertion false.[173] Himself a strong supporter of the war, he recognizes nevertheless the possibility of divergent views:
The cause of a war—as of most human action—is not single. War is ordinarily the result of many co-operating causes, many different conditions, acts and motives. Historians rarely agree in their judgment as to what was the determining factor in a particular war, even when they write under circumstances where detachment and the availability of evidence from all sources minimizes both prejudice and other sources of error. For individuals, and classes of individuals, attach significance to those things which are significant to them. And, as the contributing causes cannot be subjected, like a chemical combination in a test tube, to qualitative and quantitative analysis so as to weigh and value the various elements, the historians differ necessarily in their judgments. One finds the determining cause of war in a great man, another in an idea, a belief, an economic necessity, a trade advantage, a sinister machination, or an accident. It is for this reason largely that men seek to interpret anew in each age, and often with each new generation, the important events in the world’s history.
[173] Citing American School of Magnetic Healing _v._ McAnnulty, 187 U. S. 94, 104, which held that the Postmaster General could not exclude from the mails as fraudulent, proposals to cure disease by mental treatment, since the claim was not subject to proof as to its falsity.
Not all who voted for the declaration of war did so for the President’s reasons, and the previous debate, Justice Brandeis reminds us, includes many statements that the vast loans were instrumental in causing a sentiment through the nation in favor of war.
However strongly we may believe that these loans were not the slightest makeweight, much less a determining factor, in the country’s decision, the fact that some of our representatives in the Senate and the House declared otherwise on one of the most solemn occasions in the history of the Nation, should help us to understand that statements like that here charged to be false are in essence matters of opinion and judgment, not matters of fact to be determined by a jury upon or without evidence; and that even the President’s address, which set forth high moral grounds justifying our entry into the war, may not be accepted as establishing beyond a reasonable doubt that a statement ascribing a base motive was criminally false. All the alleged false statements were an interpretation and discussion of public facts of public interest.... To hold that a jury may make punishable statements of conclusions or of opinion, like those here involved, by declaring them to be statements of facts and to be false would practically deny members of small political parties freedom of criticism and of discussion in times when feelings run high and the questions involved are deemed fundamental.
It seems extremely ominous that at a time when the Supreme Court has shown such solicitude in the United States Steel Corporation and stock dividend cases,[174] and rightly as I believe, in protecting large bodies of capital from unlawful governmental action, it should have been so careless in its safeguarding of the fundamental human need of freedom of speech, so insistent in this sphere that the interests of the government should be secured at all costs. Progress is possible only through a genuine application of the great principle behind that Amendment which the Abrams, Schaefer, and Pierce decisions have reduced almost to a pious hope.
[174] U. S. _v._ U. S. Steel Corp., 251 U. S. 417 (1920); Eisner _v._ Macomber, 40 Sup. Ct. 189 (1920).
The fundamental right of free men to strive for better conditions through new legislation and new institutions will not be preserved, if efforts to secure it by argument to fellow-citizens may be construed as criminal incitement to disobey the existing law—merely, because the argument presented seems to those exercising judicial power to be unfair in its portrayal of existing evils, mistaken in its assumptions, unsound in reasoning or intemperate in language.[175]
[175] Brandeis, J., in Pierce _v._ U. S., _supra_.
VI. _Censorship and Exile_
The Federal Government has restricted speech in two ways besides punishment. It possesses a virtual censorship in war time over all criticism of its policies, and exercises this power at the arbitrary will of an administrative official, who is of course directly interested to preserve those policies from attack, especially when they touch his own department. That this official is not called a censor is immaterial. Under the Espionage Act the Postmaster General can exclude from the mails, the only profitable, and often the only possible means of effective publication, anything which he considers to be in violation of the statute. In no case during the war has any court set aside his decision by injunction or mandamus since Judge Hand was reversed as to the _Masses_. Some judges say that they will not review his ruling unless it is clearly wrong, which means never. Others declare that an opponent of the war does not come into court with clean hands and therefore cannot get judicial relief even though the ruling is illegal. And the power of the Postmaster General is not limited to the particular issue of the periodical which he declares non-mailable. For instance, after Mr. Burleson had suppressed the August number of the _Masses_, he refused to admit the September or any future issues to the second-class mailing privilege, even if absolutely free from any objectionable passages, on the ground that since the magazine had skipped a number, _viz._, the July number, it was no longer a periodical, since it was not regularly issued! He took the same position as to Berger’s _Milwaukee Leader_, and in both instance the courts sustained him, thus confirming his right to drive a newspaper or magazine out of existence for one violation as determined by him.
Let us now see what Mr. Burleson has considered to violate the Espionage Act. By no means did he limit himself to pro-German and pacifist articles and books, like Latzko’s _Men in War_. He suppressed an issue of the _Public_ for urging that more money be raised by taxes and less by loans. He suppressed Lenine’s _Soviets at Work_, a purely economic pamphlet, although we were not at war with Russia. He suppressed the _Nation_ of September 14, 1918, either for criticising the great slacker round-up in New York City, which Mr. O’Brian states to have been in contravention of specific instructions from the Attorney General and a mistake which could not be condoned,[176] or more probably for attacking Mr. Gompers. He censored any adverse comment on the affairs of the British Empire. He censored a pamphlet by Lajpat Rai on India. He censored the _Freeman’s Journal and Catholic Register_ for reprinting Jefferson’s opinion that Ireland should be a republic; the _Gaelic American_ for denouncing the felicitous remarks of F. E. Smith during his flying trip to this country, and saying, “The clear-headed, keen-witted Yankees who read his bitter attack on the Irish will not wonder at the Irish for refusing to fight for a government of which Smith is a member”; and the _Irish World_ for expressing the expectation that Palestine would not be a Jewish kingdom, but on the same footing as Egypt, and that the trend of French life and ideals for a century has been toward materialism. And finally, Thorstein Veblen’s _Imperial Germany and the Industrial Revolution_, which was published in 1915, was recommended by Mr. Creel’s Committee on Public Information as containing damaging data about Germany, and then excluded by Mr. Burleson from the mails.
[176] O’Brian, 292.
This is clearly previous restraint and might seem forbidden by the Blackstonian definition, which, however, is held not to apply to the postal power.[177] This power, like the war power, ought to be subject to the requirements of free speech and due process of law, and there are dicta of the Supreme Court that it is not unlimited.[178] Although the post-office may not be strictly a common carrier,[179] it is in the nature of a public service company. Its functions have been performed by private persons in the past, and if it were not unlawful, would probably be shared by them now because of the greater speed possible.[180] According to the political theories of Leon Duguit,[181] the government in furnishing public service must be judged by ordinary standards of public callings. If the United States owned the railroads, it ought not to make unreasonable discrimination among passengers any more than a private railroad corporation, and a similar limitation should apply to the postal power. The congressional restrictions which have been upheld by the courts may be considered as reasonable regulations in view of the nature of the service. Even opposition to the government may be entitled to some consideration by the post-office as by the judges, who frequently decide against the United States. It is clear that exclusion from the mails practically destroys the circulation of a book or periodical, and makes free speech to that extent impossible. To say, as many courts do, that the agitator is still at liberty to use the express or the telegraph,[182] recalls the remark of the Bourbon princess when the Paris mob shouted for bread, “Why don’t they eat cake?”
[177] Masses Pub. Co. _v._ Patten, 246 Fed. 24, 27 (1917), Rogers, J. The operation of our postal censorship is shown by material cited in the Bibliography. The cases are at the end of Appendix II. See also the Trading with the Enemy Act for regulation of the foreign language press. U. S. Comp. Stat. 1918, §3115½ j.
[178] _Ex parte_ Jackson, 96 U. S. 727 (1877); Public Clearing House _v._ Coyne, 194 U. S. 497, 507 (1904).
[179] Masses Pub. Co. _v._ Patten, 245 Fed. 102, 106 (1917), Hough, J.
[180] Something like this happened when the Western Union Telegraph Co. recently tried to carry “night-letters” by messengers on trains.
[181] _Law in the Modern State_, translated by F. and H. Laski, N. Y., 1919. See H. J. Laski in 31 _Harv. L. Rev._ 186; and his _Authority in the Modern State_, p. 378.
[182] This alternative is even less valuable when the government controls the express and the telegraph. The _New York World_ was denied the opportunity to use the telegraph to distribute a criticism of Mr. Burleson. _Collier’s Weekly_, May 17, 1919, p. 16.
Still another method of suppression of opinion has been used. Not only have we substantially revived the Sedition Act of 1798, but the Alien Act as well. Aliens have been freely deported under statutes passed during the war, to be discussed in a later chapter, and even naturalized citizens or native American women marrying foreigners are within the reach of this power. A former German subject who was naturalized in 1882 refused in 1917 to contribute to the Red Cross and the Young Men’s Christian Association because he would do nothing to injure the country where he was brought up and educated. His naturalization certificate was revoked after thirty-five years on the presumption that his recent conduct showed that he took the oath of renunciation in 1882 with a mental reservation as to the country of his birth. He may therefore be deported as an enemy alien.[183]
[183] United States _v._ Wursterbarth, 249 Fed. 908 (N. J., 1918), Haight, J.; see also United States _v._ Darmer, 249 Fed. 989 (W. D. Wash., 1918), Cushman, J.; U. S. _v._ Kramer, 262 Fed. 395 (C. C. A., 5th, 1919); Schurmann _v._ U. S., 264 Fed. 917 (C. C. A., 9th, 1920).
VII. _State Espionage Acts_
Him that escapeth the sword of Hazael shall Jehu slay.—_The First Book of Kings._
One would have supposed that the federal Espionage Act was a sufficient safeguard against opposition to the war, but many states were not satisfied with either its terms or its enforcement, and enacted similar but more drastic laws of their own.[184] These were particularly common in western states, where feeling ran high against the Non-Partisan League or the I.W.W. The most important of these statutes, that of Minnesota, made it unlawful to say “that men should not enlist in the military or naval forces of the United States or the State of Minnesota,” or that residents of that state should not aid the United States in carrying on war with the public enemies.[185] There have been a very large number of prosecutions and many convictions under this statute, chiefly of members of the Non-Partisan League, culminating in the condemnation of its president.
[184] These statutes and the decisions under them are collected in Appendix V. Other state cases arising out of war utterances are: _Breaches of the peace_: People _v._ Nesin, 179 N. Y. App. Div. 869 (1917); People _v._ Whitaker (Cal.), Nelles, p. 53; _War-time Prosecutions_, p. 27.
_Municipal Ordinance regulating newspapers invalid_: Star _v._ Brush, 170 N. Y. Supp. 987 (1918); 172 N. Y. Supp. 851 (1918); New Yorker Staats-Zeitung _v._ Nolan, 105 Atl. 72 (N. J., 1918). _Conspiracy to compel newsdealer to handle distasteful newspaper_: Sultan _v._ Star Co., 174 N. Y. Supp. 52 (1919). _Ordinance prohibiting German opera_: Star Opera Co. _v._ Hylan, 109 N. Y. Misc. 132 (1919). _Libel in war controversy_: Van Lonkhuyzen _v._ Daily News, 195 Mich. 283, 161 N. W. 979 (1917), 170 N. W. 98 (1918). _Expulsion of college student for pacifism_: not reviewed, Samson _v._ Columbia, 101 N. Y. Misc. 146, 167 N. Y. Supp. 202 (1917).
[185] Minn. Laws, 1917, c. 463. This was superseded in 1919 by a still more drastic act, to take care of future wars. Laws, 1919, c. 93. See cases in Appendix V and Bibliography on Townley Trial.
Although these statutes have been held in several cases[186] to punish crimes within the jurisdiction of the states, it seems possible that the offenses named are, unless mere breaches of the peace, crimes against the United States, and therefore cognizable only in the federal courts. Of course, the same act may be both a federal and a state crime, for instance, counterfeiting, which injures United States money and is also a kind of cheating. Consequently, it is urged in support of these sedition statutes, that a violation of the Espionage Act is also a breach of the duty of citizens of a state to assist that state in performing its duty to support the nation in war, and that sedition, although directly aimed at the federal government, must indirectly affect the security of the state government. On the other hand, it has been held that treason against the United States cannot be prosecuted by the states[187] and interference with the federal war power is closely analogous. The argument that there is also interference with the states is open to question. They have no war powers; their control over the militia in so far as that was affected by any of the utterances prosecuted was taken out of their hands during the war; and although the state officers did render aid in the raising of troops, that does not make it a state function, any more than the assistance of a policeman in the arrest of a deserter renders him amenable to state law. The control was entirely in the hands of the federal government.
[186] State _v._ Holm, 139 Minn. 267 (1918); State _v._ Tachin, 106 Atl. 145, 108 Atl. 318, two JJ. dissenting (N. J., 1919); State _v._ Gibson, 174 N. W. 34 (Ia. 1919). But see _Ex parte_ Meckel, 220 S. W. 81 (Tex. 1920), the only case holding a sedition statute unconstitutional.
[187] People _v._ Lynch, 11 Johns. (N. Y.) 549 (1814); _Ex parte_ Quarrier, 2 W. Va. 569 (1866). The National Guard, when called into the service of the United States, were discharged from the state militia, U. S. Comp. Stat. 1918, § 2044a; S. T. Ansell, “Status of State Militia under the Hay Bill,” 30 _Harv. Law Rev._ 712.
Even though the crime be not held exclusively within the jurisdiction of the United States, still this seems like one of those cases where the state government has at the most a power concurrent with that of Congress, which must cease to operate when Congress has determined the proper laws to apply to the subject matter. For example, a state would have power to grant immunity from civil suits to persons in military service so long as there was no federal law on the subject, but when Congress passed the Soldiers’ and Sailors’ Civil Relief Act, a state law giving a less or a greater degree of protection became thereby invalid.[188] The same principle applies to regulations as to interference with the raising of armies.
[188] Konkel _v._ State, 168 Wis. 335 (1919), with a very full discussion; see State _v._ Darwin, 102 Wash. 402 (1918). _Cf._ Halter _v._ Nebraska, 205 U. S. 34 (1907); Houston _v._ Moore, 5 Wheat. 1 (1820). The dissenting opinions in S. _v._ Tachin, 108 Atl. 318, make the same point and also attack the N. J. statute as a violation of freedom of speech.
For there can be no doubt that state acts like that in Minnesota conflict very seriously with the enforcement of the federal statute, so as to render the state legislation extremely undesirable even if not unconstitutional. If a man deserves to be prosecuted for his anti-war activities it is fair to presume that the Department of Justice will have him indicted under the ample provisions of the Espionage Act, and it is important that the control of proceedings should be in the hands of the Department, without parallel prosecutions by independent state officials. On the other hand, if Congress and the federal officials think it wise to allow much discussion of war aims and economic aspects, it is very unfortunate that their policy should be hampered by bitter prosecutions based on an entirely different policy and growing out of local hysteria or directed against opinions which are objectionable to influential political or economic groups in the state. Mr. O’Brian contrasts the federal policy of restraint against members of the Non-Partisan League and adherence to the fundamental principle that guilt is personal and that no class of individuals will be proscribed as a class, with the sweeping and severe action of Minnesota:[189]
The result of its adoption increased discontent and the most serious cases of alleged interference with civil liberty were reported to the federal government from that state. Our view was that, while cases of individual guilt must be prosecuted with severity, class movements cannot be controlled or molded by indictments. Arbitrary repression or interference often adds to their dynamic force. But unfortunately the constructive teachings and arguments of persuasion necessary to deal with movements of this character were not at any time in evidence in these disturbed districts of the country.
[189] O’Brian, 296.
If hostilities had continued for another year, these local statutes might have produced an alarming effect upon the output of the grain-producing states by breeding a suppressed but no less active hatred of the war in the Non-Partisan League, and might also in jailing members of the I.W.W., whom the Department of Justice was leaving alone, have blocked the conciliatory work of Colonel Disque in the spruce forests and of other federal agents in the copper regions.[190]
[190] O’Brian, 299; Report to the President of the President’s Mediation Commission. For a very harsh case of a ten-year sentence for the victim of a flag-kissing mob, _Ex parte_ Starr, 263 Fed. 145 (1920).
VIII. _Reflections During a Technical State of War_
I do not speak of what is past and gone; but in case of a future war what results will follow from your decision indorsing the Attorney General’s views?—JEREMIAH BLACK, arguing in _Ex parte_ Milligan, 2 Wall. 78.
The Espionage Act of 1917, as interpreted by the Supreme Court, suppresses free speech for all opponents of a war, but allows militant newspapers and politicians to block, by unbounded abuse, the efforts of the President to end a war by a just settlement. Congress reached the same result by the 1918 Act, making it criminal to “oppose the cause of the United States” in any war.
The Espionage Act of 1918 is not limited to this war. The pacifists and Socialists were, I believe, wrong about that, but they may be right next time. They might have been right a few months ago had we been drawn into war with Mexico as carelessly as England was drawn into the war with Spain over Jenkins’ ear. Balance military necessity in such a case against the harm of suppressing truth by a ten-year sentence. The government can argue better than its opponents, if it has any case at all, and at its back are public opinion, the press, the police, the army, to prevent their words from causing unlawful acts. And while national welfare doubtless demands that a just war be pushed to victory, it also demands that an unjust war be stopped. The only way to find out whether a war is unjust is to let people say so.
The 1918 clauses punishing attacks on the Constitution and our form of government raise still stronger objections. They have nothing to do with war. They may be used during some petty struggle with Haiti to arrest and imprison for twenty years an excitable advocate of the repeal of the Eighteenth Amendment or the abolition of the Senate. If there was one thing which the First Amendment was meant by our ancestors to protect, it was criticism of the existing form of government and advocacy of change, the kind of criticism which George III’s judges punished. Even if the Act permits temperate discussion, which is doubtful, in view of the words about causing “contempt ... or disrepute,” it still abridges free speech, for the greater the need of change, the greater the likelihood that agitators will lose their temper over the present situation. It is impossible to speak respectfully of that portion of our Constitution and form of government which is represented by the electoral college, and much hatred has justly been directed to the clause for the return of fugitive slaves. Other parts may prove equally objectionable in the course of years. Particularly dangerous are the 1918 clauses about defamation of the army and navy. They would surely be invoked by advocates of compulsory military service against their opponents, if they wished to take advantage of any hostilities to fasten conscription upon the nation as a continuous policy. They make any scathing criticism of military methods a very perilous matter in future wars even for the most loyal and eminent civilians (no intent to favor the enemy being required by the statute), and raise the army and navy into a privileged position beyond the range of ordinary outspoken discussion, such as is enjoyed by no civilians. This is what the French army wanted during the Dreyfus affair, and a petty war will suffice to give it. Furthermore, if the language used does bring the army or navy into contempt, it is absolutely immaterial that the charge made is true.
That these predictions of what will happen in a petty war are by no means exaggerated is proved by what has been done under the Espionage Act in a time when there is no war at all—except by a legal fiction. First, the Attorney General, a year after the armistice, raided and closed the office of the _Seattle Union-Record_, because it urged the workers to kick the governing class into the discard at the next election, and said that the Centralia shootings were the culmination of a long series of illegal acts by ex-service men, pleading for law and order by rich and poor alike.[191] Secondly, thirteen months after the armistice, Mr. Burleson still kept the _New York Call_ from the mails, and announced to the Supreme Court of the District of Columbia that in view of the facts, his exercise of judgment was “not subject to be reviewed, reversed, set aside, or controlled by a court of law.”[192] Thirdly, fourteen months after all fighting had stopped three men were tried in Syracuse for distributing circulars in the autumn of 1919, describing ill-treatment of political prisoners, calling an amnesty meeting, and requesting that letters be written to the President and members of Congress. The leaflets quoted the First Amendment, _Ex parte_ Milligan, and a speech by President Wilson. The defendants were convicted and sentenced to eighteen months in prison for disloyal language about our form of government and the military forces, language designed to bring them and the Constitution into contempt, inciting resistance to the United States, and obstruction of recruiting.[193]
[191] Anna Louise Strong, “A Newspaper Confiscated—and Returned,” 109 _Nation_ 738 (Dec. 13, 1919). Indictments of the editors for items published during the year after the armistice were quashed in U.S. _v._ Strong, 263 Fed. 789; U.S. _v._ Listman, _ibid._ 798; U.S. _v._ Ault, _ibid._ 800. For the other side, see Ole Hanson, _Americanism versus Bolshevism_, N.Y., 1920.
[192] United States of America _ex rel._ The Workingmen’s Co-operative Publishing Association _v._ Burleson, Supreme Court, Dist. Col., Oct. Term, 1919, Law No. 63134. Answer of Respondent.
[193] 21 _New Republic_ 302 (Feb. 11, 1920); “Bringing the Constitution into Disrepute,” 21 _ibid._ 330 (Feb. 18, 1920). U. S. _v._ Steene, 263 Fed. 130.
The Supreme Court has never passed squarely on these sections of the Espionage Act of 1918, though some of them were involved in the Abrams case, and it is to be hoped that they will be declared unconstitutional. It would be better yet if they and the whole of section 3 were repealed.
Whatever be decided as to constitutionality, the Espionage Act prosecutions break with a great tradition in English and American law. Only once before has the United States tried to punish political crimes, and the Sedition Act of 1798 with its maximum of two years’ imprisonment wrecked the Federalist party. The Mexican War produced the Biglow Papers, and every stanza in the opening poem would have violated a separate clause of the Espionage Act of 1918, if the slaveholders had drafted such a statute. We fought the Civil War with the enemy at our gates and powerful secret societies in our midst without an Espionage Act.
When the disloyal press was curbed by Burnside and his subordinates, they received sharp telegrams of revocation from Lincoln. The irritation produced by such acts was in his opinion “likely to do more harm than the publication would do.”[194] Undoubtedly he permitted a very large number of arbitrary arrests by Seward and Stanton, or under martial law in the border states. “Must I shoot a simple soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?” But Lincoln’s policy, apart from all questions of its legality, was very different in nature from most of the Espionage Act prosecutions and sentences. He was proceeding against men who were so far within the test of direct and dangerous interference with the war that they were actually causing desertions, and even then he acted to prevent and not to punish. Vallandigham was sent through into the Confederate lines, and left unmolested on his return. Lincoln would not have allowed an old man, a Presidential opponent and the choice of nine hundred thousand American citizens, to lie in prison for sincere and harmless, even though misguided, words, over a year after the last gun was fired.
[194] J. F. Rhodes, _History of the United States_, III, 553; IV, 223–253, 267 note, 467, 473; VI, 78, 96. For Lincoln’s refusal to allow General Burnside and his subordinates to suppress the _Chicago Times_ and other newspapers of Copperhead tendencies in Illinois, Indiana, and Ohio, see also Official Record of the Rebellion, Series II, Vol. V, 723, 741; Series III, Vol. III, 252. On number of arrests, Rhodes, IV, 230 note; Lincoln’s Proclamation suspending _habeas corpus_ for “aiders or abettors of the enemy,” 13 Stat, at L. 734.
The case of _Ex parte_ Vallandigham, 1 Wall. (U. S.) 243 (1863), is sometimes supposed to support the unlimited exercise of the war power to restrict speech. See Ambrose Tighe in 3 _Minn. L. Rev._ 1 (1918). The decision merely holds that the writ of _certiorari_ does not lie to a military tribunal. Nothing is said as to the existence of some other remedy such as _habeas corpus_, or an action for false imprisonment. _Ex parte_ Vallandigham, 28 Fed. Cas. 874 (1863), lends support to Mr. Tighe. The treatment of Vallandigham is considered illegal by Rhodes, _op. cit._, IV, 245–252, and would seem so under _Ex parte_ Milligan. On the South, Rhodes, V, 473, is contradicted by Edward A. Pollard, Jefferson Davis, p. 316. As late as May 19, 1864, a resolution was introduced in the Confederate Congress to inquire if legislation was necessary to prevent press disclosures of military information. 4 Journ. C. S. A. Cong., p. 60.
If the North was a dictatorship, says Rhodes, the South was a socialized state, which was much closer to the situation of all the countries engaged in the World War. There the newspapers were probably under closer control, but there were no prosecutions.
And so in England. Bright and Cobden in the Crimean War, Morley and Lloyd George in the Boer War, were untouched. Even in this war, while the terms of the Defense of the Realm Act are more sweeping than our statute, the administration has been less severe. Those who enforced it have allowed a wide range of discussion and imposed brief sentences, though they sat within sound of the German guns. And of all the nations at war, we alone, three thousand miles from the conflict, still refuse a general amnesty to political prisoners.[195]
[195] This was granted in Italy on November 19, 1918, before the signing of peace and in Germany before the armistice. The French amnesty was October 24, 1919. Sentences under the British Defense of the Realm Act have all expired, being very short; the longest, three years, was commuted to one year. This note comprises only seditious utterances in the war, not treasonable acts like the Bonnet Rouge affair or Irish convictions since the armistice.
Undoubtedly some utterances had to be suppressed. We have passed through a period of danger, and have reasonably supposed the danger to be greater than it actually was, but the prosecutions in Great Britain during a similar period of peril in the French Revolution have not since been regarded with pride. Action in proportion to the emergency was justified, but we have censored and punished speech which was very far from direct and dangerous interference with the conduct of the war. The chief responsibility for this must rest, not upon Congress which was content for a long period with the moderate language of the Espionage Act of 1917, but upon the officials of the Department of Justice and the Post-office, who turned that statute into a drag-net for pacifists, and upon the judges who upheld and approved this distortion of law. It may be questioned too, how much has actually been gained. Men have been imprisoned, but their words have not ceased to spread.[196] The poetry in the _Masses_ was excluded from the mails only to be given a far wider circulation in two issues of the _Federal Reporter_. The mere publication of Mrs. Stokes’ statement in the _Kansas City Star_, “I am for the people and the Government is for the profiteers,” was considered so dangerous to the morale of the training camps that she was sentenced to ten years in prison, and yet it was repeated by every important newspaper in the country during the trial. There is an unconscious irony in all suppression. It lurks behind Judge Hough’s comparison of the _Masses_ to the Beatitudes,[197] and in the words of Lord Justice Scrutton during this struggle against autocracy: “It had been said that a war could not be conducted on the principles of the Sermon on the Mount. It might also be said that a war could not be carried on according to the principles of Magna Charta.”[198]
[196] _Cf._ a similar experience of the Emperor Tiberius: Tacitus, _Annals_, IV, c. 35: “Punitis ingeniis, gliscit auctoritas.” “A man who preaches in the stocks will always have hearers enough.”—Dr. Johnson.
[197] See page 55, _supra_.
[198] Ronnfeldt _v._ Phillips, 35 T. L. R. 46 (1918, C. A.).
Those who gave their lives for freedom would be the last to thank us for throwing aside so lightly the great traditions of our race. Not satisfied to have justice and almost all the people with our cause, we insisted on an artificial unanimity of opinion behind the war. Keen intellectual grasp of the President’s aims by the nation at large was very difficult when the opponents of his idealism ranged unchecked while the men who urged greater idealism went to prison. In our efforts to silence those who advocated peace without victory we prevented at the very start that vigorous threshing out of fundamentals which might to-day have saved us from a victory without peace.