 |
 |
 |
MR. JUSTICE HOLMES delivered the opinion of the court
ERROR TO THE DISTRICT COURT OF THE UNITED STATES
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Evidence held sufficient to connect the defendants with the mailing of printed circulars in pursuance of a conspiracy to obstruct the recruiting and enlistment service, contrary to the Espionage Act of June 15, 1917. P. 49.
Incriminating documents seized under a search warrant directed against a Socialist headquarters, held admissible in evidence, consistently with the Fourth and Fifth Amendments, in a criminal prosecution against the general secretary of a Socialist party, who had charge of the office. P. 50.
Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment, may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done. P. 51.
A conspiracy to circulate among men called and accepted for military service under the Selective Service Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the intent to effect that result, and followed by the sending of such circulars is within the power of Congress to punish, and is punishable under the Espionage Act, § 4, although unsuccessful. P. 52.
The word "recruiting" as used in the Espionage Act, § 3, means the gaining of fresh supplies of men for the military forces, as well by draft as otherwise. P. 52.
The amendment of the Espionage Act by the Act of May 16, 1918, c. 75, 40 Stat. 553, did not affect the prosecution of offenses under the former. P. 53.
Affirmed.
THE case is stated in the opinion.
Mr. John Lord O'Brian, Special Assistant
to the Attorney General, with whom Mr. Alfred Bettman, Special
Assistant to the Attorney General, was on the brief, for the United
States.
MR. JUSTICE HOLMES
delivered the opinion of the court.
This is an indictment in three counts.
The first charges a conspiracy to violate the Espionage Act of
June 15, 1917, c. 30, § 3, 40 Stat. 217, 219, by causing
and attempting to cause insubordination, &c., in
the military and naval forces of the United States, and to obstruct
the recruiting and enlistment service of the United States, when
the United States was at war with the German Empire, to-wit, that
the defendants wilfully conspired to have printed and circulated
to men who had been called and accepted for military service under
the Act of May 18, 1917, a document set forth and alleged to be
calculated to cause such insubordination and obstruction. The
count alleges overt acts in pursuance of the conspiracy, ending
in the distribution of the document set forth. The second count
alleges a conspiracy to commit an offence against the United States,
to-wit, to use the mails for the transmission of matter declared
to be non-mailable by Title XII, § 2 of the Act of June 15,
1917, to-wit, the above mentioned document, with an averment of
the same overt acts. The third count charges an unlawful use
of the mails for the transmission of the same matter and otherwise
as above. The defendants were found guilty on all the counts.
They set up the First Amendment to the Constitution forbidding
Congress to make any law abridging the freedom of speech, or of
the press, and bringing the case here on that ground have argued
some other points also of which we must dispose.
It is argued that the evidence, if admissible,
was not sufficient to prove that the defendant Schenck was concerned
in sending the documents. According to the testimony Schenck
said he was general secretary of the Socialist party and had charge
of the Socialist headquarters from which the documents were sent.
He identified a book found there as the minutes of the Executive
Committee of the party. The book showed a resolution of August
13, 1917, that 15,000 leaflets should be printed on the other
side of one of them in use, to be mailed to men who had passed
exemption boards, and for distribution. Schenck personally attended
to the printing. On August 20 the general secretary's report
said "Obtained new leaflets from printer and started work
addressing envelopes" &c.; and there was a resolve that
Comrade Schenck be allowed $ 125 for sending leaflets through
the mail. He said that he had about fifteen or sixteen thousand
printed. There were files of the circular in question in the
inner office which he said were printed on the other side of the
one sided circular and were there for distribution. Other copies
were proved to have been sent through the mails to drafted men.
Without going into confirmatory details that were proved, no
reasonable man could doubt that the defendant Schenck was largely
instrumental in sending the circulars about. As to the defendant
Baer there was evidence that she was a member of the Executive
Board and that the minutes of its transactions were hers. The
argument as to the sufficiency of the evidence that the defendants
conspired to send the documents only impairs the seriousness of
the real defence.
It is objected that the documentary evidence
was not admissible because obtained upon a search warrant, valid
so far as appears. The contrary is established. Adams v. New
York, 192 U.S. 585; Weeks v. United States, 232 U.S. 383, 395,
396. The search warrant did not issue against the defendant but
against the Socialist headquarters at 1326 Arch Street and it
would seem that the documents technically were not even in the
defendants' possession. See Johnson v. United States, 228 U.S.
457. Notwithstanding some protest in argument the notion that
evidence even directly proceeding from the defendant in a criminal
proceeding is excluded in all cases by the Fifth Amendment is
plainly unsound. Holt v. United States, 218 U.S. 245, 252, 253.
The document in question upon its first
printed side recited the first section of the Thirteenth Amendment,
said that the idea embodied in it was violated by the Conscription
Act and that a conscript is little better than a convict.
In impassioned language it intimated that conscription was despotism
in its worst form and a monstrous wrong against humanity in the
interest of Wall Street's chosen few. It said "Do not submit
to intimidation," but in form at least confined itself to
peaceful measures such as a petition for the repeal of the act.
The other and later printed side of the sheet was headed "Assert
Your Rights." It stated reasons for alleging that any one
violated the Constitution when he refused to recognize "your
right to assert your opposition to the draft," and went on
"If you do not assert and support your rights, you are helping
to deny or disparage rights which it is the solemn duty of all
citizens and residents of the United States to retain." It
described the arguments on the other side as coming from cunning
politicians and a mercenary capitalist press, and even silent
consent to the conscription law as helping to support an infamous
conspiracy. It denied the power to send our citizens away to
foreign shores to shoot up the people of other lands, and added
that words could not express the condemnation such cold-blooded
ruthlessness deserves, &c., &c., winding up "You
must do your share to maintain, support and uphold the rights
of the people of this country." Of course the documents would
not have been sent unless it had been intended to have some effect,
and we do not see what effect it could be expected to have upon
persons subject to the draft except to influence them to obstruct
the carrying of it out. The defendants do not deny that the jury
might find against them on this point.
But it is said, suppose that that was the
tendency of this circular, it is protected by the First Amendment
to the Constitution. Two of the strongest expressions are said
to be quoted respectively from well-known public men. It well
may be that the prohibition of laws abridging the freedom of speech
is not confined to previous restraints, although to prevent them
may have been the main purpose, as intimated in Patterson v.
Colorado, 205 U.S. 454, 462. 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. Aikens v. Wisconsin, 195 U.S. 194, 205,
206. The most stringent protection of free speech would not protect
a man in falsely shouting fire in a theatre and causing a panic.
It does not even protect a man from an injunction against uttering
words that may have all the effect of force. Gompers v. Bucks
Stove & Range Co., 221 U.S. 418, 439. 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.
It seems to be admitted that if an actual obstruction of the
recruiting service were proved, liability for words that produced
that effect might be enforced. The statute of 1917 in §
4 punishes conspiracies to obstruct as well as actual obstruction.
If the act, (speaking, or circulating a paper,) its tendency
and the intent with which it is done are the same, we perceive
no ground for saying that success alone warrants making the act
a crime. Goldman v. United States, 245 U.S. 474, 477. Indeed
that case might be said to dispose of the present contention if
the precedent covers all media concludendi. But as the right to
free speech was not referred to specially, we have thought fit
to add a few words.
It was not argued that a conspiracy to obstruct
the draft was not within the words of the Act of 1917. The
words are "obstruct the recruiting or enlistment service,"
and it might be suggested that they refer only to making it hard
to get volunteers. Recruiting heretofore usually having been
accomplished by getting volunteers the word is apt to call up
that method only in our minds. But recruiting is gaining fresh
supplies for the forces, as well by draft as otherwise. It is
put as an alternative to enlistment or voluntary enrollment in
this act. The fact that the Act of 1917 was enlarged by the amending
Act of May 16, 1918, c. 75, 40 Stat. 553, of course, does not
affect the present indictment and would not, even if the former
act had been repealed. Rev. Stats., § 13.
Judgments affirmed.
|
|
|
© 1995 - 2009, Touro Law Center