Chapter VI: Section 4: of the same Title punishes persons conspiring to violate (2)

[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.?”