6. THE APPEAL

An appeal was taken to the Supreme Court of the United States and was

argued on the ground that the Espionage Act was unconstitutional. No act

was charged against Debs, except the Canton speech. In that speech he

had simply stated what he had said a thousand times before, but the

Court held that under the Espionage Act a man who made a speech, the

probable result of which was to create mutiny or to hinder recruiting

and enlistment--was guilty, providing that he did it knowingly and

wilfully. The jury had to decide, first, that he had done something the

probable result of which was to create mutiny or to hinder recruiting

and enlistment, and then if he had done it, that it was done with

intent, knowingly and wilfully. The jury had found Debs guilty under

these circumstances.

Debs was an American, and as an American he relied upon a certain

guarantee contained in the First Amendment to the Constitution:

"Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof, or abridging the freedom of

speech or of the press, or the right of the people peacefully to

assemble and to petition the Government for a redress of grievances."

Debs, as an American citizen, relied upon that guarantee, and his

lawyers, in making the appeal, relied upon that guarantee.

Over and against that guarantee was the Espionage Act passed originally

in 1917--June 15th--and amended June 16, 1918.

The language of the original act was as follows:

(Title I, Sec. 3.) "Whoever, when the United States is at war, shall (1)

wilfully make or convey false reports or false statements with intent to

interfere with the operation or success of the military or naval forces

of the United States or to promote the success of its enemies, and

whoever, when the United States is at war, (2) shall wilfully cause or

attempt to cause insubordination, disloyalty, mutiny, or refusal of

duty, in the military or naval forces of the United States, or shall (3)

wilfully obstruct the recruiting or enlistment service of the United

States, to the injury of the service or of the United States, shall be

punished by a fine of not more than $10,000 or imprisonment for not more

than twenty years, or both."

The Amended Act was far more drastic:

"Whoever, when the United States is at war, shall wilfully make or

convey false reports or false statements with intent to interfere with

the operation or success of the military or naval forces of the United

States, or to promote the success of its enemies, or shall wilfully make

or convey false reports or false statements, or say or do anything

except by way of bona fide and not disloyal advice to an investor or

investors, with intent to obstruct the sale by the United States of

bonds or other securities of the United States or the making of loans by

or to the United States, and whoever, when the United States is at war,

shall wilfully cause, or attempt to cause, or incite or attempt to

incite, insubordination, disloyalty, mutiny, or refusal of duty, in the

military or naval forces of the United States, or shall wilfully

obstruct or attempt to obstruct the recruiting or enlistment service of

the United States, and whoever, when the United States is at war, shall

wilfully utter, print, write or publish any disloyal, profane,

scurrilous or abusive language about the form of government of the

United States, or the Constitution of the United States, or the military

or naval forces of the United States, or the flag of the United States,

or the uniform of the Army or Navy of the United States, or any language

intended to bring the form of government of the United States, or the

Constitution of the United States, or the military or naval forces of

the United States, or the flag of the United States, or the uniform of

the Army or Navy of the United States into contempt, scorn, contumely,

or disrepute, or shall wilfully utter, print, write or publish any

language intended to incite, provoke or encourage resistance to the

United States or to promote the cause of its enemies, or shall wilfully

display the flag of any foreign enemy, or shall wilfully, by utterance,

writing, printing, publication or language spoken, urge, incite or

advocate any curtailment of production in this country of any thing or

things, product or products, necessary or essential to the prosecution

of the war in which the United States may be engaged, with intent by

such curtailment to cripple or hinder the United States in the

prosecution of the war, and whoever shall wilfully advocate, teach,

defend, or suggest the doing of any of the acts or things in this

section enumerated, and whoever shall, by word or act, support or favor

the cause of any country with which the United States is at war or by

word or act oppose the cause of the United States therein, shall be

punished by a fine of not more than $10,000 or imprisonment for not more

than twenty years, or both." ...

There you have both pieces of legislation. On the one hand, the

Constitution provides immunity, and on the other hand, the Espionage Act

provides a penalty for the expression of opinion.

The Supreme Court on the 10th of March handed down its decision. The

decision was read by Justice Holmes and concurred in by the entire

court.

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