Chapter V: Section 4: of the same Title punishes persons conspiring to violate (1)

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_.