Chapter VII: Section 4: of the same Title punishes persons conspiring to violate (3)

Justice Holmes seems to discuss the constitutionality of the Espionage Act of 1917 rather than its construction. There can be little doubt that it is constitutional under any test if construed naturally, but it has been interpreted in such a way as to violate the free speech clause and the plain words of the statute, to say nothing of the principle that criminal statutes should be construed strictly. If the Supreme Court test had been laid down in the summer of 1917 and followed in charges by the District Courts, the most casual perusal of the utterances prosecuted makes it sure that there would have been many more acquittals. Instead, bad tendency and presumed intent have been the tests of criminality, tests which this article has endeavored to prove wholly inconsistent with freedom of speech, and any genuine discussion of public affairs.

The decision shows clearly the evils of the broad construction of the Espionage Act, which rejected the objective standard of the meaning of the words used. Debs was convicted of an attempt to cause insubordination in the army and obstruct recruiting, yet no provocation to any such definite and particular acts was proved. He spoke to a convention of Socialists in support of their economic views, instancing the war as the supreme curse of capitalism. In a few sentences he approved the conduct of persons convicted of like offenses, saying, for example, that if Mrs. Stokes was guilty so was he. Her conviction has since been reversed. Not one word was designed for soldiers, not one word urged his hearers to resist the draft, objectionable as he considered it. Undoubtedly he admitted at his trial that he had obstructed the war—“I abhor war. I would oppose the war if I stood alone. When I think of a cold, glittering steel bayonet being plunged in the white, quivering flesh of a human being, I recoil with horror.” But the only question before the jury was whether he had tried to obstruct it in the ways made unlawful in the statute. If all verbal or written opposition to the war furnishes a basis for conviction, because it is dangerous under the circumstances and indicates a criminal mind, then none but the most courageous will dare speak out against a future war.

“It is useless,” writes Ernst Freund,[163] “to over-emphasize the substantive limitations of the constitution; the real securities of rights will always have to be found in the painstaking care given to the working out of legal principles. So long as we apply the notoriously loose common law doctrines of conspiracy and incitement to offenses of a political character, we are adrift on a sea of doubt and conjecture. To know what you may do and what you may not do, and how far you may go in criticism, is the first condition of political liberty; to be permitted to agitate at your own peril, subject to a jury’s guessing at motive, tendency and possible effect, makes the right of free speech a precarious gift.”

[163] Ernst Freund, “The Debs Case and Freedom of Speech,” 19 _New Republic_ 13 (May 3, 1919); and the correspondence in 19 _ibid._ 151 (May 31, 1919).

The last sentence of the passage quoted from the Schenck case seems to mean that the Supreme Court will sanction any restriction of speech that has military force behind it, and reminds us that the Justice used to say when he was young, “that truth was the majority vote of that nation that could lick all others.”[164] His liberalism seems in these decisions to be held in abeyance by his belief in the relativity of values. It is not by giving way to force and the majority that truth has been won. Hard it may be for a court to protect those who oppose the cause for which men are dying in France, but others have died in the past for freedom of speech.

[164] Oliver Wendell Holmes, “Natural Law,” 32 _Harv. L. Rev._ 40 (1918).

After all, whatever we may think about such a close case as the Debs decision, it can best be regarded as a reason for repealing the Espionage Act, if it must be so construed. And surely the cause of freedom of speech profited in the long run from Justice Holmes’s opinion in these three cases more than if he had favored reversal, for subsequent decisions prove that he would then have been in the minority and would not have been able, as he was, to announce with the backing of a unanimous court the rule of clear and present danger, which should serve as a guiding principle in the future. Already its application in the Circuit Courts of Appeals has led to the setting aside of some convictions,[165] and it ought to make impossible hereafter a repetition of some of the worst decisions under the Espionage Act.

[165] Kammann _v._ U. S., 259 Fed. 192; Harshfield _v._ U. S., 260 Fed. 659.

That it has not, however, made freedom of speech secure is proved by the later interpretations of that statute in the Supreme Court. In November, 1919, came a second group of cases, of which one turned largely on procedure,[166] and the other, Abrams _v._ United States, has been reserved for a separate chapter, because it involves the special element of opposition to Russian intervention and because it furnishes a valuable example of the way political crimes, which were first known in this country because of the Espionage Act, are liable to be tried. Justice Holmes and Justice Brandeis have now and henceforth parted company with the rest of the court.

[166] Stilson _v._ U. S., 250 U. S. 583 (1919).

In the opening of 1920 came a third group of two decisions,[167] which were chiefly concerned with the first clause of the Espionage Act of 1917, punishing willfully published “false reports and statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies.” Thus far, very little has been said of this clause and of the District Court cases which construed it to apply to opinions about the causes of the war, or the influence of profiteers.

[167] Schaefer _v._ U. S., 251 U. S. 468; Pierce _v._ U. S., 40 Sup. Ct. 205.

Conspicuous among such cases was the conviction of five officers of the corporation issuing the _Philadelphia Tageblatt_, a German-language daily and Sunday newspaper. After an acquittal on the charge of treason for publishing fifteen articles, which were most assuredly unpatriotic in tone, glorifying German strength and success, abusing our allies, and attacking the sincerity of the United States, they were indicted in nine counts under the Espionage Act for the same utterances and all found guilty. In Schaefer _v._ United States two defendants were discharged by the Supreme Court for want of responsibility for the articles. Three convictions (two for five years, one for two years) were affirmed by a majority of six speaking through Justice McKenna; Justice Brandeis filed a dissenting opinion on behalf of himself and Justice Holmes; and Justice Clarke, who had spoken for the majority in the Abrams case, now also dissented, not because he found any violation of the First Amendment, but upon the ground that the Act had been misinterpreted by the trial court, whose charge “was so utterly unadapted to the case ... as to be valueless or worse as a direction to the jury.”

This newspaper was so poor financially that it was not able to have any telegraphic service, and consequently filled its columns with clippings from other newspapers. As it did not print so many columns as they, it was necessarily obliged to cut and condense both the headlines and the body of the articles. It did not indicate the source of its articles or imply that they were complete copies. The falsity alleged by the government was not that the articles which were published were false in fact, but merely that they differed from the originals, and had been altered or mistranslated so as to bear a changed meaning which was depressing or detrimental to patriotic ardor. For instance, the news editor quoted an Amsterdam dispatch about the shortage of food in Holland because of our seizure of ships, and was convicted for adding a sentence of comment that our proposal for sending food would be rejected, although this sentence was not made part of the quotation, but was clearly indicated for what it was.[168] He was convicted for copying an account of the fall of Riga, and omitting one sentence from the original, “From this it can be concluded that the fall of Riga has united the opposing political factions in Russia.” He was convicted because in translating a speech of Senator La Follette, predicting bread-lines as a consequence of the failure to tax profiteers, the word _Brot-riots_ was used instead of _Brod-reihen_. The wide divergence of opinion in the Court is indicated by Justice McKenna’s statement, “There could be no more powerful or effective instruments of evil than two German newspapers organized and conducted as these papers were organized and conducted,” as against that of Justice Brandeis, “To hold that such harmless additions to or omissions from news items, and such impotent expressions of editorial opinion, as were shown here, can afford the basis even of a prosecution, will doubtless discourage criticism of the policies of the Government.”

[168] U. S. _v._ Werner, 247 Fed. 708.

A comparison of the opinions of Justice McKenna and Justice Brandeis will form a valuable study in judicial method and in the two ways of solving any problem of freedom of speech. Of course we shall not find that total ignoring of the social interest in discussion, which blots many District Court cases, in a member of the Supreme Court. The difference between the two Justices is a difference in the degree of emphasis placed upon that interest and in their approach to the case. Since the limits of the right of freedom of speech in war time necessarily involve a conflict between the desirability of public knowledge of the truth about the war and the danger of defeat, it makes all the difference in the world whether the judge who sets out to determine those limits starts from the unqualified language of the First Amendment, which, unlike the Habeas Corpus clause, makes no exception of invasion,[169] and seeks to give to public opinion as much scope as is possible in view of the danger and the precise words of the statute; or whether he is primarily concerned to avert all influences which might conceivably delay or forfeit victory and is anxious not to go any farther to permit words of that tendency than seems absolutely necessary if we are to have any discussion about a war at all. Again, it makes all the difference in the world whether this judge is satisfied to say, “Free speech is not an absolute right, and when it or any right becomes wrong by excess is somewhat elusive of definition,” without seeking to define it, or whether he insists that the preservation of this right must inevitably depend on the latitude allowed to the human machinery administering the law.

[169] “Not one of these safeguards [in the Bill of Rights] can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of _habeas corpus_.”—Field, J., in _Ex parte_ Milligan, 2 Wall. 125.

Justice McKenna approaches the problem from the side of the war power, and entrusts freedom of speech to the jury’s sense of fairness rather than to any guiding principles. In his opinion the restraints of the Espionage Act are not excessive or ambiguous, and the trial court gives sufficient protection to the right of free speech if it admonishes the jury to decide impartially after close attention to the evidence. The statute is directed against conduct which might cause our armies “to operate to defeat and the immeasurable horror and calamity of it.” He is surprised that the Constitution should have been invoked to protect “the activities of anarchy or of the enemies of the United States.” This is an argument always used to undermine freedom of speech, for if it does not protect criticism hostile to the government it has little value, and such criticism in the times when it is most needed is invariably denounced by the supporters of the government as revolution or treason. Only wide discussion and time can tell whether the activities of the opponents of our wars, James Russell Lowell, the Hartford Convention, William Graham Sumner, Vallandigham, were the activities of the enemies of the United States or of its friends.

To all the passages he applies the eighteenth-century tests of bad tendency and presumptive intent to see whether the evidence would justify conviction. The only limit on remoteness which he recognizes seems to depend on the will of the jury. Thus he says of the conviction for obstructing enlistment by a reprint from a Berlin paper, entitled “Yankee Bluff,” which ridiculed the possibility of our giving any aid to the Entente, so slow were our war preparations, that the article might seem to its readers truly descriptive of American inability to combat German prowess and thereby “chill and check the ardency of patriotism and make it despair of success and in hopelessness relax energy both in preparation and in action.” What was its purpose if not that? We cannot conclude that the observations were the mere expression of peevish discontent, but must take them at their word, as the jury did, and ascribe a more active and sinister aim. Success is unnecessary. The tendency of the articles and their efficacy were enough for offense, and this is all that “intent” and “attempt” mean. To require more would make the law useless, for it was passed in precaution, and the consequences of its violation might appear only in disaster. In other words, any newspaper editor who reprints German bragging is liable to imprisonment unless he can furnish a clean bill of health as to his loyal intentions.

Justice McKenna also regards it as criminal to predict turbulent resistance to a war, as in the La Follette report, or to say that the war was commenced without the people’s consent. Of an article, attacking “the pro-British policy of the Government,” he says, in language that leaves no room for questioning as to the righteousness of any war:

Its statements were deliberate and willfully false, the purpose
being to represent that the war was not demanded by the people
but was the result of the machinations of executive power, and
thus to arouse resentment to it and what it would demand of ardor
and effort. In final comment we may say that the article in
effect justified the German aggressions.

Justice Brandeis, on the other hand, starts from the danger-test of freedom of speech in the Schenck case and from the actual words of the Espionage Act. He even goes back to an important circumstance preceding the statute, the recommendation of the War College for legislation to prevent injurious disclosures on military matters, to get help on the meaning of the “false statement clause.”

Congress sought thereby to protect the American people from
being willfully misled to the detriment of their cause by one
actuated by the intention to further the cause of the enemy.
Willfully untrue statements which might mislead the people as to
the financial condition of the Government and thereby embarrass
it; as to the adequacy of the preparations for war or the support
of the forces; as to the sufficiency of the food supply; or
willfully untrue statements or reports of military operations
which might mislead public opinion as to the competency of the
army or navy or its leaders [see “The Relation Between the
Army and the Press in War Time,” War College Publication,
1916]; or willfully untrue statements or reports which might
mislead officials in the execution of the law, or military
authorities in the disposition of the forces. Such is the kind
of false statement and the only kind which, under any rational
construction, is made criminal by the act. Could the military
and naval forces of the United States conceivably have been
interfered with or the success of the enemy conceivably have been
promoted by any of the three publications set forth above?

And in connection with the “Yankee Bluff” article, he applied the same tests of danger and statutory wording to the recruiting clause of the 1917 Act, confirming the interpretation of the Act advanced earlier in this chapter:[170]

It is not apparent on a reading of this article—which is not
unlike many reprints from the press of Germany to which our
patriotic societies gave circulation in order to arouse the
American fighting spirit—how it could rationally be held to tend
even remotely or indirectly to obstruct recruiting. But as this
court has declared ... the test to be applied—as in the case of
criminal attempts and incitements—is not the remote or possible
effect. There must be the clear and present danger. Certainly
men judging in calmness and with this test presented to them
could not reasonably have said that this coarse and heavy humor
immediately threatened the success of recruiting.

[170] Page 54, _supra_.

The most important part of his opinion is the repeated criticism of the administration of the statute in the trial below. The jury, however much instructed to be calm and unbiased, were authorized to convict for any words which would lessen “our will to win, or, as it is generally expressed, our will to conquer.” Jurymen need something more than “a sense of duty and a sense of justice.” They need hard and fast tests of criminality, which will bring home to them the standard of “clear and present danger.” And in this case that test should have prevented the evidence, so remote is it, from going to the jury at all. After quoting the words of the unanimous Court in the Schenck case, he said:

This is a rule of reason. Correctly applied, it will preserve
the right of free speech both from suppression by tyrannous,
well-meaning majorities and from abuse by irresponsible,
fanatical minorities. Like many other rules for human conduct, it
can be applied correctly only by the exercise of good judgment;
and to the exercise of good judgment, calmness is, in times of
deep feeling and on subjects which excite passion, as essential
as fearlessness and honesty. The question whether in a particular
instance the words spoken or written fall within the permissible
curtailment of free speech is, under the rule enunciated by
this Court, one of degree. And because it is a question of
degree the field in which the jury may exercise its judgment is,
necessarily, a wide one. But its field is not unlimited. The
trial provided for is one by judge _and_ jury; and the judge may
not abdicate his function. If the words were of such a nature and
were used under such circumstances that men, judging in calmness,
could not reasonably say that they created a clear and present
danger that they would bring about the evil which Congress sought
and had a right to prevent, then it is the duty of the trial
judge to withdraw the case from the consideration of the jury;
and if he fails to do so, it is the duty of the appellate court
to correct the error.

Then he emphasized a principle which has often been ignored in sedition trials, and which might have affected the Debs decision, as well as the Abrams case, that the appellate court ought not to determine the nature and possible effect of a speech or writing simply by culling here and there a sentence and presenting it separated from the context. It ought to be read as a whole, and often considered with other evidence which may control its meaning.

Finally, he warned the Court, in a passage which I shall quote later with reference to peace-time Sedition laws, that the sweeping application of a criminal statute to utterances with scant regard for the First Amendment would have disastrous consequences for freedom of speech in future periods of excitement. In truth, the passage of the simple language of the Espionage Act of 1917 was, little as we thought it at the time, the deadliest blow ever struck at a free press in the United States, and the beginning of a series of encroachments on civil rights of every kind, whose full consequences we are dimly beginning to realize.

The latest decision is United States _v._ Pierce. This was a prosecution for distributing “The Price We Pay,” one of those leaflets which, like “The Finished Mystery” of the Pastor Russell sect, figure in several Espionage Act cases. The pamphlet was a highly colored and sensational document by St. John Tucker, one of the defendants in the Berger case. It was issued by the national office of the Socialist Party at Chicago, and “contained much in the way of denunciation of war in general, the pending war in particular, something in the way of assertion that under Socialism things would be better, little or nothing in the way of fact or argument to support the assertion.” The four defendants in New York had refrained from circulating it until after a prosecution of other persons in Maryland, based on the same pamphlet but under the conspiracy statutes for obstruction of the draft, had terminated in a directed acquittal on the ground that it was intended to get recruits for the Socialist Party, and not even an attempt to persuade men to disobey the draft law.[171] Pierce and his associates were then arrested and convicted. Seven judges through Justice Pitney sustained the conviction, while Justice Brandeis dissented with the concurrence of Justice Holmes.

[171] U. S. _v._ Baker, 247 Fed. 124 (1917).

The principal ground of conviction was the false statements clause. Justice Brandeis pointed out that the danger-test applies to this clause as much as the other two, and that three additional elements of crime must be established: (1) The statement or report must be of something capable of being proved false in fact. The expression of an opinion, for instance, whether sound or unsound, might conceivably afford a sufficient basis for the charge of attempting to cause insubordination, disloyalty or refusal of duty, or for the charge of obstructing recruiting; but, because an opinion is not capable of being proved false in fact, a statement of it cannot be made the basis of a prosecution under this clause. (2) The statement or report must be proved to be false. (3) The statement or report must be known by the defendant to be false when made or conveyed.

Three passages, consisting of five sentences in all, were culled from this long document as constituting the false statements or reports:

1. Into your homes the recruiting officers are coming. They will
take your sons of military age and impress them into the army....

And still the recruiting officers will come; seizing age after
age, mounting up to the elder ones and taking the younger ones as
they grow to soldier size.

2. The Attorney General of the United States is so busy sending
to prison men who do not stand up when the Star-Spangled Banner
is played, that he has no time to protect the food supply from
gamblers.

3. Our entry into it was determined by the certainty that if the
allies do not win, J. P. Morgan’s loans to the allies will be
repudiated, and those American investors who bit on his promises
would be hooked.

Only the last passage need detain us. The first is clearly true, since “recruiting” was held in the Schenck case to include the draft, though a regular army major gravely testified at the trial that it had only to do with the volunteer service. The prediction that older and younger persons would be drafted was, of course, fulfilled. Yet the point was left to the jury. While civilians could not be prosecuted for sitting during the National Anthem, such an obviously figurative way of saying that the Attorney General was devoting important time to trivial sedition cases could not properly be regarded as a statement of fact within a twenty-year criminal penalty.[172]

[172] Under a local law, J. W. Beckstrom of Chicago was, since the Pierce trial, fined $50 for refusing to stand when the “Star-Spangled Banner” was played in a theater.—_War-time Prosecutions_, 30.

Justice Pitney held that these passages satisfied the three requirements laid down by Justice Brandeis.

On the points of intention and proximate cause he said that the jury might fairly believe that the leaflet “would have a tendency to cause insubordination”; and that it was intended to bring home to eligible men and especially to “their parents, sisters, wives, and sweethearts,” a sense of impending personal loss, calculated to discourage men from entering the service, to arouse suspicion whether the chief law officer was not more concerned in enforcing the strictness of military discipline than in protecting the people against improper speculation in their food supply, and to produce a belief that our participating in the war was the product of sordid and sinister motives. One rubs his eyes and wonders whether he has dreamed himself back into the eighteenth century.

The most dangerous aspect of this case, however, is the decision that the opinion about the economic cause of the war is a false statement and known to be false. Justice Pitney says:

Common knowledge (not to mention the President’s Address to
Congress of April 2, 1917, and the Joint Resolution of April 6
declaring war, which were introduced in evidence) would have
sufficed to show at least that the statements as to the causes
that led to the entry of the United States into the war against
Germany were grossly false; and such common knowledge went to
prove also that defendants knew they were untrue. That they were
false if taken in a literal sense hardly is disputed.

Justice Pitney is a great equity judge, and often a man is held subject to the equitable rights of others because he ought reasonably to know of them though in fact he does not, but such constructive notice has never before been made the basis of criminal responsibility. For example, a man purchasing land cannot get rid of a heavy recorded mortgage just because he was ignorant of it, but if he resells the land without mentioning this still unknown mortgage he is not guilty of obtaining money under false pretenses. Yet the Supreme Court is willing to say that men who wrangled with their neighbors for years about the capitalistic causes of the war and clung to their views with pig-headed devotion knew they were wrong just because they were in a small minority.

Consider where this leads. If opinions about the origin and justice of a war are to be regarded as false statements if the jury find them erroneous, the proof of truth or falsity involves logically all available evidence about the causes of the war, a staggering task. The proof surely ought not to be limited to the President’s Message or the Resolution of Congress, for then conviction would be a foregone conclusion. Neither by sight nor by hearing can the jury investigate this “question of fact.” It is a matter of inference from the complex and obscure political, economic, and social conditions of the nation or even of the world. The data for such a judgment, even if a jury had the very slightest capacity for making it, are not available during a war or for years afterwards. Imagine John Bright or James Russell Lowell trying to convince a jury that the Crimean or the Mexican Wars were due to sinister motives, a question on which men are still disputing.

What minority opinion can be safe in war time under Justice Pitney’s test? Surely, language which is immune from civil defamation suits as comment on a public matter ought to be equally immune from the sterner rigors of the federal penitentiary. If everything an opponent of a war says is to be adjudged false because the jury and the Supreme Court disagree with it, and then he is declared to know it is false because most people think it so, the whole value of the First Amendment as a means of learning the truth about future wars is lost.

Into this technical reasoning, which virtually ignores the standard of clear and present danger and revives the District Court test of remotely injurious tendency, cuts the common sense of Justice Brandeis. The so-called statement of fact about the Morgan loans is, he says, merely a conclusion or deduction from facts. True, it is not a conclusion of law, but it is not an evidentiary fact. In its essence it is the expression of a judgment, like the statements of many so-called historical facts. There is no exact standard of absolute truth by which to prove the assertion false.[173] Himself a strong supporter of the war, he recognizes nevertheless the possibility of divergent views:

The cause of a war—as of most human action—is not single. War is
ordinarily the result of many co-operating causes, many different
conditions, acts and motives. Historians rarely agree in their
judgment as to what was the determining factor in a particular
war, even when they write under circumstances where detachment
and the availability of evidence from all sources minimizes
both prejudice and other sources of error. For individuals, and
classes of individuals, attach significance to those things which
are significant to them. And, as the contributing causes cannot
be subjected, like a chemical combination in a test tube, to
qualitative and quantitative analysis so as to weigh and value
the various elements, the historians differ necessarily in their
judgments. One finds the determining cause of war in a great man,
another in an idea, a belief, an economic necessity, a trade
advantage, a sinister machination, or an accident. It is for
this reason largely that men seek to interpret anew in each age,
and often with each new generation, the important events in the
world’s history.

[173] Citing American School of Magnetic Healing _v._ McAnnulty, 187 U. S. 94, 104, which held that the Postmaster General could not exclude from the mails as fraudulent, proposals to cure disease by mental treatment, since the claim was not subject to proof as to its falsity.

Not all who voted for the declaration of war did so for the President’s reasons, and the previous debate, Justice Brandeis reminds us, includes many statements that the vast loans were instrumental in causing a sentiment through the nation in favor of war.

However strongly we may believe that these loans were not the
slightest makeweight, much less a determining factor, in the
country’s decision, the fact that some of our representatives in
the Senate and the House declared otherwise on one of the most
solemn occasions in the history of the Nation, should help us to
understand that statements like that here charged to be false
are in essence matters of opinion and judgment, not matters of
fact to be determined by a jury upon or without evidence; and
that even the President’s address, which set forth high moral
grounds justifying our entry into the war, may not be accepted as
establishing beyond a reasonable doubt that a statement ascribing
a base motive was criminally false. All the alleged false
statements were an interpretation and discussion of public facts
of public interest.... To hold that a jury may make punishable
statements of conclusions or of opinion, like those here
involved, by declaring them to be statements of facts and to be
false would practically deny members of small political parties
freedom of criticism and of discussion in times when feelings run
high and the questions involved are deemed fundamental.

It seems extremely ominous that at a time when the Supreme Court has shown such solicitude in the United States Steel Corporation and stock dividend cases,[174] and rightly as I believe, in protecting large bodies of capital from unlawful governmental action, it should have been so careless in its safeguarding of the fundamental human need of freedom of speech, so insistent in this sphere that the interests of the government should be secured at all costs. Progress is possible only through a genuine application of the great principle behind that Amendment which the Abrams, Schaefer, and Pierce decisions have reduced almost to a pious hope.

[174] U. S. _v._ U. S. Steel Corp., 251 U. S. 417 (1920); Eisner _v._ Macomber, 40 Sup. Ct. 189 (1920).

The fundamental right of free men to strive for better conditions
through new legislation and new institutions will not be
preserved, if efforts to secure it by argument to fellow-citizens
may be construed as criminal incitement to disobey the existing
law—merely, because the argument presented seems to those
exercising judicial power to be unfair in its portrayal of
existing evils, mistaken in its assumptions, unsound in reasoning
or intemperate in language.[175]

[175] Brandeis, J., in Pierce _v._ U. S., _supra_.

VI. _Censorship and Exile_

The Federal Government has restricted speech in two ways besides punishment. It possesses a virtual censorship in war time over all criticism of its policies, and exercises this power at the arbitrary will of an administrative official, who is of course directly interested to preserve those policies from attack, especially when they touch his own department. That this official is not called a censor is immaterial. Under the Espionage Act the Postmaster General can exclude from the mails, the only profitable, and often the only possible means of effective publication, anything which he considers to be in violation of the statute. In no case during the war has any court set aside his decision by injunction or mandamus since Judge Hand was reversed as to the _Masses_. Some judges say that they will not review his ruling unless it is clearly wrong, which means never. Others declare that an opponent of the war does not come into court with clean hands and therefore cannot get judicial relief even though the ruling is illegal. And the power of the Postmaster General is not limited to the particular issue of the periodical which he declares non-mailable. For instance, after Mr. Burleson had suppressed the August number of the _Masses_, he refused to admit the September or any future issues to the second-class mailing privilege, even if absolutely free from any objectionable passages, on the ground that since the magazine had skipped a number, _viz._, the July number, it was no longer a periodical, since it was not regularly issued! He took the same position as to Berger’s _Milwaukee Leader_, and in both instance the courts sustained him, thus confirming his right to drive a newspaper or magazine out of existence for one violation as determined by him.

Let us now see what Mr. Burleson has considered to violate the Espionage Act. By no means did he limit himself to pro-German and pacifist articles and books, like Latzko’s _Men in War_. He suppressed an issue of the _Public_ for urging that more money be raised by taxes and less by loans. He suppressed Lenine’s _Soviets at Work_, a purely economic pamphlet, although we were not at war with Russia. He suppressed the _Nation_ of September 14, 1918, either for criticising the great slacker round-up in New York City, which Mr. O’Brian states to have been in contravention of specific instructions from the Attorney General and a mistake which could not be condoned,[176] or more probably for attacking Mr. Gompers. He censored any adverse comment on the affairs of the British Empire. He censored a pamphlet by Lajpat Rai on India. He censored the _Freeman’s Journal and Catholic Register_ for reprinting Jefferson’s opinion that Ireland should be a republic; the _Gaelic American_ for denouncing the felicitous remarks of F. E. Smith during his flying trip to this country, and saying, “The clear-headed, keen-witted Yankees who read his bitter attack on the Irish will not wonder at the Irish for refusing to fight for a government of which Smith is a member”; and the _Irish World_ for expressing the expectation that Palestine would not be a Jewish kingdom, but on the same footing as Egypt, and that the trend of French life and ideals for a century has been toward materialism. And finally, Thorstein Veblen’s _Imperial Germany and the Industrial Revolution_, which was published in 1915, was recommended by Mr. Creel’s Committee on Public Information as containing damaging data about Germany, and then excluded by Mr. Burleson from the mails.

[176] O’Brian, 292.

This is clearly previous restraint and might seem forbidden by the Blackstonian definition, which, however, is held not to apply to the postal power.[177] This power, like the war power, ought to be subject to the requirements of free speech and due process of law, and there are dicta of the Supreme Court that it is not unlimited.[178] Although the post-office may not be strictly a common carrier,[179] it is in the nature of a public service company. Its functions have been performed by private persons in the past, and if it were not unlawful, would probably be shared by them now because of the greater speed possible.[180] According to the political theories of Leon Duguit,[181] the government in furnishing public service must be judged by ordinary standards of public callings. If the United States owned the railroads, it ought not to make unreasonable discrimination among passengers any more than a private railroad corporation, and a similar limitation should apply to the postal power. The congressional restrictions which have been upheld by the courts may be considered as reasonable regulations in view of the nature of the service. Even opposition to the government may be entitled to some consideration by the post-office as by the judges, who frequently decide against the United States. It is clear that exclusion from the mails practically destroys the circulation of a book or periodical, and makes free speech to that extent impossible. To say, as many courts do, that the agitator is still at liberty to use the express or the telegraph,[182] recalls the remark of the Bourbon princess when the Paris mob shouted for bread, “Why don’t they eat cake?”

[177] Masses Pub. Co. _v._ Patten, 246 Fed. 24, 27 (1917), Rogers, J. The operation of our postal censorship is shown by material cited in the Bibliography. The cases are at the end of Appendix II. See also the Trading with the Enemy Act for regulation of the foreign language press. U. S. Comp. Stat. 1918, §3115½ j.

[178] _Ex parte_ Jackson, 96 U. S. 727 (1877); Public Clearing House _v._ Coyne, 194 U. S. 497, 507 (1904).

[179] Masses Pub. Co. _v._ Patten, 245 Fed. 102, 106 (1917), Hough, J.

[180] Something like this happened when the Western Union Telegraph Co. recently tried to carry “night-letters” by messengers on trains.

[181] _Law in the Modern State_, translated by F. and H. Laski, N. Y., 1919. See H. J. Laski in 31 _Harv. L. Rev._ 186; and his _Authority in the Modern State_, p. 378.

[182] This alternative is even less valuable when the government controls the express and the telegraph. The _New York World_ was denied the opportunity to use the telegraph to distribute a criticism of Mr. Burleson. _Collier’s Weekly_, May 17, 1919, p. 16.

Still another method of suppression of opinion has been used. Not only have we substantially revived the Sedition Act of 1798, but the Alien Act as well. Aliens have been freely deported under statutes passed during the war, to be discussed in a later chapter, and even naturalized citizens or native American women marrying foreigners are within the reach of this power. A former German subject who was naturalized in 1882 refused in 1917 to contribute to the Red Cross and the Young Men’s Christian Association because he would do nothing to injure the country where he was brought up and educated. His naturalization certificate was revoked after thirty-five years on the presumption that his recent conduct showed that he took the oath of renunciation in 1882 with a mental reservation as to the country of his birth. He may therefore be deported as an enemy alien.[183]

[183] United States _v._ Wursterbarth, 249 Fed. 908 (N. J., 1918), Haight, J.; see also United States _v._ Darmer, 249 Fed. 989 (W. D. Wash., 1918), Cushman, J.; U. S. _v._ Kramer, 262 Fed. 395 (C. C. A., 5th, 1919); Schurmann _v._ U. S., 264 Fed. 917 (C. C. A., 9th, 1920).

VII. _State Espionage Acts_

Him that escapeth the sword of Hazael shall Jehu slay.—_The First
Book of Kings._

One would have supposed that the federal Espionage Act was a sufficient safeguard against opposition to the war, but many states were not satisfied with either its terms or its enforcement, and enacted similar but more drastic laws of their own.[184] These were particularly common in western states, where feeling ran high against the Non-Partisan League or the I.W.W. The most important of these statutes, that of Minnesota, made it unlawful to say “that men should not enlist in the military or naval forces of the United States or the State of Minnesota,” or that residents of that state should not aid the United States in carrying on war with the public enemies.[185] There have been a very large number of prosecutions and many convictions under this statute, chiefly of members of the Non-Partisan League, culminating in the condemnation of its president.

[184] These statutes and the decisions under them are collected in Appendix V. Other state cases arising out of war utterances are: _Breaches of the peace_: People _v._ Nesin, 179 N. Y. App. Div. 869 (1917); People _v._ Whitaker (Cal.), Nelles, p. 53; _War-time Prosecutions_, p. 27.

_Municipal Ordinance regulating newspapers invalid_: Star _v._ Brush, 170 N. Y. Supp. 987 (1918); 172 N. Y. Supp. 851 (1918); New Yorker Staats-Zeitung _v._ Nolan, 105 Atl. 72 (N. J., 1918). _Conspiracy to compel newsdealer to handle distasteful newspaper_: Sultan _v._ Star Co., 174 N. Y. Supp. 52 (1919). _Ordinance prohibiting German opera_: Star Opera Co. _v._ Hylan, 109 N. Y. Misc. 132 (1919). _Libel in war controversy_: Van Lonkhuyzen _v._ Daily News, 195 Mich. 283, 161 N. W. 979 (1917), 170 N. W. 98 (1918). _Expulsion of college student for pacifism_: not reviewed, Samson _v._ Columbia, 101 N. Y. Misc. 146, 167 N. Y. Supp. 202 (1917).

[185] Minn. Laws, 1917, c. 463. This was superseded in 1919 by a still more drastic act, to take care of future wars. Laws, 1919, c. 93. See cases in Appendix V and Bibliography on Townley Trial.

Although these statutes have been held in several cases[186] to punish crimes within the jurisdiction of the states, it seems possible that the offenses named are, unless mere breaches of the peace, crimes against the United States, and therefore cognizable only in the federal courts. Of course, the same act may be both a federal and a state crime, for instance, counterfeiting, which injures United States money and is also a kind of cheating. Consequently, it is urged in support of these sedition statutes, that a violation of the Espionage Act is also a breach of the duty of citizens of a state to assist that state in performing its duty to support the nation in war, and that sedition, although directly aimed at the federal government, must indirectly affect the security of the state government. On the other hand, it has been held that treason against the United States cannot be prosecuted by the states[187] and interference with the federal war power is closely analogous. The argument that there is also interference with the states is open to question. They have no war powers; their control over the militia in so far as that was affected by any of the utterances prosecuted was taken out of their hands during the war; and although the state officers did render aid in the raising of troops, that does not make it a state function, any more than the assistance of a policeman in the arrest of a deserter renders him amenable to state law. The control was entirely in the hands of the federal government.

[186] State _v._ Holm, 139 Minn. 267 (1918); State _v._ Tachin, 106 Atl. 145, 108 Atl. 318, two JJ. dissenting (N. J., 1919); State _v._ Gibson, 174 N. W. 34 (Ia. 1919). But see _Ex parte_ Meckel, 220 S. W. 81 (Tex. 1920), the only case holding a sedition statute unconstitutional.

[187] People _v._ Lynch, 11 Johns. (N. Y.) 549 (1814); _Ex parte_ Quarrier, 2 W. Va. 569 (1866). The National Guard, when called into the service of the United States, were discharged from the state militia, U. S. Comp. Stat. 1918, § 2044a; S. T. Ansell, “Status of State Militia under the Hay Bill,” 30 _Harv. Law Rev._ 712.

Even though the crime be not held exclusively within the jurisdiction of the United States, still this seems like one of those cases where the state government has at the most a power concurrent with that of Congress, which must cease to operate when Congress has determined the proper laws to apply to the subject matter. For example, a state would have power to grant immunity from civil suits to persons in military service so long as there was no federal law on the subject, but when Congress passed the Soldiers’ and Sailors’ Civil Relief Act, a state law giving a less or a greater degree of protection became thereby invalid.[188] The same principle applies to regulations as to interference with the raising of armies.

[188] Konkel _v._ State, 168 Wis. 335 (1919), with a very full discussion; see State _v._ Darwin, 102 Wash. 402 (1918). _Cf._ Halter _v._ Nebraska, 205 U. S. 34 (1907); Houston _v._ Moore, 5 Wheat. 1 (1820). The dissenting opinions in S. _v._ Tachin, 108 Atl. 318, make the same point and also attack the N. J. statute as a violation of freedom of speech.

For there can be no doubt that state acts like that in Minnesota conflict very seriously with the enforcement of the federal statute, so as to render the state legislation extremely undesirable even if not unconstitutional. If a man deserves to be prosecuted for his anti-war activities it is fair to presume that the Department of Justice will have him indicted under the ample provisions of the Espionage Act, and it is important that the control of proceedings should be in the hands of the Department, without parallel prosecutions by independent state officials. On the other hand, if Congress and the federal officials think it wise to allow much discussion of war aims and economic aspects, it is very unfortunate that their policy should be hampered by bitter prosecutions based on an entirely different policy and growing out of local hysteria or directed against opinions which are objectionable to influential political or economic groups in the state. Mr. O’Brian contrasts the federal policy of restraint against members of the Non-Partisan League and adherence to the fundamental principle that guilt is personal and that no class of individuals will be proscribed as a class, with the sweeping and severe action of Minnesota:[189]

The result of its adoption increased discontent and the most
serious cases of alleged interference with civil liberty were
reported to the federal government from that state. Our view
was that, while cases of individual guilt must be prosecuted
with severity, class movements cannot be controlled or molded by
indictments. Arbitrary repression or interference often adds to
their dynamic force. But unfortunately the constructive teachings
and arguments of persuasion necessary to deal with movements
of this character were not at any time in evidence in these
disturbed districts of the country.

[189] O’Brian, 296.

If hostilities had continued for another year, these local statutes might have produced an alarming effect upon the output of the grain-producing states by breeding a suppressed but no less active hatred of the war in the Non-Partisan League, and might also in jailing members of the I.W.W., whom the Department of Justice was leaving alone, have blocked the conciliatory work of Colonel Disque in the spruce forests and of other federal agents in the copper regions.[190]

[190] O’Brian, 299; Report to the President of the President’s Mediation Commission. For a very harsh case of a ten-year sentence for the victim of a flag-kissing mob, _Ex parte_ Starr, 263 Fed. 145 (1920).

VIII. _Reflections During a Technical State of War_

I do not speak of what is past and gone; but in case of a future
war what results will follow from your decision indorsing the
Attorney General’s views?—JEREMIAH BLACK, arguing in _Ex parte_
Milligan, 2 Wall. 78.

The Espionage Act of 1917, as interpreted by the Supreme Court, suppresses free speech for all opponents of a war, but allows militant newspapers and politicians to block, by unbounded abuse, the efforts of the President to end a war by a just settlement. Congress reached the same result by the 1918 Act, making it criminal to “oppose the cause of the United States” in any war.

The Espionage Act of 1918 is not limited to this war. The pacifists and Socialists were, I believe, wrong about that, but they may be right next time. They might have been right a few months ago had we been drawn into war with Mexico as carelessly as England was drawn into the war with Spain over Jenkins’ ear. Balance military necessity in such a case against the harm of suppressing truth by a ten-year sentence. The government can argue better than its opponents, if it has any case at all, and at its back are public opinion, the press, the police, the army, to prevent their words from causing unlawful acts. And while national welfare doubtless demands that a just war be pushed to victory, it also demands that an unjust war be stopped. The only way to find out whether a war is unjust is to let people say so.

The 1918 clauses punishing attacks on the Constitution and our form of government raise still stronger objections. They have nothing to do with war. They may be used during some petty struggle with Haiti to arrest and imprison for twenty years an excitable advocate of the repeal of the Eighteenth Amendment or the abolition of the Senate. If there was one thing which the First Amendment was meant by our ancestors to protect, it was criticism of the existing form of government and advocacy of change, the kind of criticism which George III’s judges punished. Even if the Act permits temperate discussion, which is doubtful, in view of the words about causing “contempt ... or disrepute,” it still abridges free speech, for the greater the need of change, the greater the likelihood that agitators will lose their temper over the present situation. It is impossible to speak respectfully of that portion of our Constitution and form of government which is represented by the electoral college, and much hatred has justly been directed to the clause for the return of fugitive slaves. Other parts may prove equally objectionable in the course of years. Particularly dangerous are the 1918 clauses about defamation of the army and navy. They would surely be invoked by advocates of compulsory military service against their opponents, if they wished to take advantage of any hostilities to fasten conscription upon the nation as a continuous policy. They make any scathing criticism of military methods a very perilous matter in future wars even for the most loyal and eminent civilians (no intent to favor the enemy being required by the statute), and raise the army and navy into a privileged position beyond the range of ordinary outspoken discussion, such as is enjoyed by no civilians. This is what the French army wanted during the Dreyfus affair, and a petty war will suffice to give it. Furthermore, if the language used does bring the army or navy into contempt, it is absolutely immaterial that the charge made is true.