TRANSCRIBER’S NOTE
Italic text is denoted by _underscores_.
Footnotes have been renumbered to be unique throughout the book.
References to notes have been updated to the new numbers. Footnote
anchors are denoted by [number], and the footnotes have been placed at
the end of the paragraph and after quotations.
A superscript is denoted by ^x, for example und^r.
Some minor changes to the text are noted at the end of the book.
FREEDOM _of_ SPEECH
BY
ZECHARIAH CHAFEE, JR.
PROFESSOR OF LAW IN HARVARD UNIVERSITY
“GIVE YOUR MIND SEA ROOM”
[Illustration: Colophon]
NEW YORK
HARCOURT, BRACE AND HOWE
1920
COPYRIGHT, 1920, BY
HARCOURT, BRACE AND HOWE, INC.
THE QUINN & BODEN COMPANY
RAHWAY, N. J.
TO
LEARNED HAND
UNITED STATES DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF NEW YORK
WHO DURING THE TURMOIL OF WAR
COURAGEOUSLY MAINTAINED
THE TRADITION OF ENGLISH-SPEAKING FREEDOM
AND GAVE IT NEW CLEARNESS AND STRENGTH
FOR THE WISER YEARS TO COME
CONTENTS
CHAPTER PAGE
I. FREEDOM OF SPEECH IN WAR TIME 1
II. OPPOSITION TO THE WAR WITH GERMANY 40
I. The Espionage Acts of 1917 and 1918 42
II. Masses Publishing Co. _v._ Patten 46
III. The District Court Cases 56
IV. The Human Machinery of the Espionage Acts 66
V. The Supreme Court Decisions 87
VI. Censorship and Exile 106
VII. State Espionage Acts 110
VIII. Reflections During a Technical State of War 113
III. A CONTEMPORARY STATE TRIAL—THE UNITED STATES _v._ JACOB
ABRAMS _et al._ 120
I. The District Court 125
II. The Supreme Court 148
IV. LEGISLATION AGAINST SEDITION AND ANARCHY 161
I. The Normal Law Against Violence and Revolution 165
II. The Normal Criminal Law of Words 169
III. The Difference Between the Normal Law and the New
Legislation 173
IV. Radical Meetings and the Red Flag 180
V. Criminal Anarchy and Criminal Syndicalism 187
VI. The Federal Sedition Bills 194
VII. The Constitutionality of a Federal Sedition Law 199
VIII. The Wisdom and Expediency of a Federal Sedition Law 207
V. THE DEPORTATIONS 229
I. The Statute as to Deportable Radicals 230
II. The Administrative Machinery for Deporting Radicals 232
III. The Raids of January, 1920 241
IV. The Arrest of American Citizens for Deportation 252
V. A Review of the Actual Cases of Radicals Held for
Deportation 256
(1) Communists—Guilt by Association and Government
Spies 256
(2) Industrial Workers of the World 272
(3) Anarchists 275
VI. The Deportations and the Bill of Rights 280
VII. Suggested Changes in Our Deportation Policy 291
VI. JOHN WILKES, VICTOR BERGER, AND THE FIVE MEMBERS 294
I. John Wilkes 295
II. The Raids of 1763 and the Raids of 1919 296
III. The Exclusion of Wilkes from the House of Commons 311
IV. The Exclusion of Victor L. Berger from the House of
Representatives 315
V. The Five Socialist Members of the New York Assembly 332
VII. FREEDOM AND INITIATIVE IN THE SCHOOLS 365
APPENDICES
APPENDIX
I. Bibliography on Freedom of Speech 377
_A._ General and Historical; _B._ The War;
_C._ Radical Activities in the United States
and Peace-time Restrictions upon Freedom of
Speech; _D._ Power of a Legislature to Exclude
or Expel for Opinions; _E._ Schools.
II. Index of Reported Cases under the Espionage Acts of 1917
and 1918 387
III. Text and Construction of the Espionage Act of 1918 395
IV. Normal Law of Four Jurisdictions Against Actual or Threatened
Violence 398
V. State War and Peace Statutes Affecting Freedom of Speech 399
Index of Cases 407
General Index 411
FREEDOM OF SPEECH
CHAPTER I
FREEDOM OF SPEECH IN WAR TIME
And though all the winds of doctrine were let loose to play
upon the earth, so Truth be in the field, we do injuriously by
licensing and prohibiting to misdoubt her strength. Let her and
Falsehood grapple; who ever knew Truth put to the worse, in a
free and open encounter?—MILTON, _Areopagitica_.
Never in the history of our country, since the Alien and Sedition Laws
of 1798, has the meaning of free speech been the subject of such sharp
controversy as to-day. Over nineteen hundred prosecutions and other
judicial proceedings during the war, involving speeches, newspaper
articles, pamphlets, and books, have been followed since the armistice
by a widespread legislative consideration of bills punishing the
advocacy of extreme radicalism. It is becoming increasingly important
to determine the true limits of freedom of expression, so that speakers
and writers may know how much they can properly say, and governments
may be sure how much they can lawfully and wisely suppress. The United
States Supreme Court has recently handed down several decisions upon
the Espionage Act, which put us in a much better position than formerly
to discuss the war-time aspects of the general problem of liberty of
speech. Therefore, instead of beginning with an abstract treatment of
that problem, I shall take the concrete situation of opposition to war,
and from it endeavor to work out the fundamental principles of the
whole subject. These can afterwards be tested by their application to
radical agitation in peace.
It is already plain, I hope, that this book is an inquiry into the
proper limitations upon freedom of speech, and is in no way an argument
that any one should be allowed to say whatever he wants anywhere and
at any time. We can all agree from the very start that there must be
some point where the government may step in, and my main purpose is to
make clear from many different angles just where I believe that point
to lie. We ought also to agree that a man may believe that certain
persons have a right to speak or other constitutional rights, without
at all identifying himself with the position and views of such persons.
In a country where John Adams defended the British soldiers involved
in the Boston Massacre and Alexander Hamilton represented British
Loyalists and General Grant insisted upon amnesty for Robert E. Lee,
it is surprising how in the last three years it has been impossible
for any one to uphold the rights of a minority without subjecting
himself to the accusation that he shared their opinions. If he urged
milder treatment of conscientious objectors, he was a pacifist. If
he held that the treaty with Germany should not violate the terms of
the armistice, he was a pro-German. This popular argument reached its
climax when an opponent of the disqualified Socialist assemblymen
informed the world that he had always suspected Governor Hughes of
being disloyal.
I am not an atheist, but I would not roast one at the stake as in the
sixteenth century, or even exclude him from the witness-stand as in the
nineteenth. Neither am I a pacifist or an anarchist or a Socialist or
a Bolshevik. I have no sympathy myself with the views of most of the
men who have been imprisoned since the war began for speaking out. The
only one, I suppose, of all that number with whom I could sit down for
half an hour’s conversation without losing my temper is Mr. Bertrand
Russell. My only interest is to find whether or not the treatment which
they have received accords with freedom of speech. That principle may
be invoked just as eagerly in future years by conservatives. Whatever
political or economic opinion falls within the scope of the First
Amendment ought to be safeguarded from governmental interference by
every man who has sworn to uphold the Constitution of the United
States, no matter how much he disagrees with those who are entitled to
its protection or how lofty the patriotism of those who would whittle
away the Bill of Rights into insignificance.
A friend of Lovejoy, the Abolitionist printer killed in the Alton
riots, said at the time that we are more especially called upon to
maintain the principles of free discussion in case of unpopular
sentiments or persons, as in no other case will any effort to maintain
them be needed.[1]
[1] Edward Beecher, _Alton Riots_, Alton, Ill., 1838 (Widener Library).
A bibliographical note to this and other chapters will be found in
Appendix I.
The free speech clauses of the American constitutions are not merely
expressions of political faith without binding legal force. Their
history shows that they limit legislative action as much as any
other part of the Bills of Rights. The United States Constitution as
originally drafted contained no guaranty of religious or intellectual
liberty, except that it forbade any religious test oath and gave
immunity to members of Congress for anything said in debates. Pinckney,
of South Carolina, had sought to insert a free speech clause,
grouping liberty of the press with trial by jury and habeas corpus
as “essentials in free governments.” His suggestion was rejected
by a slight majority as unnecessary, in that the power of Congress
did not extend to the press, a natural belief before Hamilton and
Marshall had developed the doctrine of incidental and implied powers.
Hamilton himself defended the omission on the ground that liberty of
the press was indefinable and depended only on public opinion and the
general spirit of the people and government for its security, little
thinking that he himself would frame a definition now embodied in the
constitutions of half the states.[2] The citizens of the states were
not satisfied, and the absence of the guaranty of freedom of speech
was repeatedly condemned in the state conventions and in outside
discussion. Virginia, New York, and Rhode Island embodied a declaration
of this right in their ratifications of the federal Constitution.
Virginia expressly demanded an amendment and Maryland drafted one in
its convention, basing it on a very significant reason, to be mentioned
shortly. At the first session of Congress a Bill of Rights, including
the present First Amendment, was proposed for adoption by the states,
and became part of the Constitution November 3, 1791. Massachusetts,
Virginia, and Pennsylvania already had similar provisions, and such
a clause was eventually inserted in the constitutions of all other
states. Thus the guaranty of freedom of speech was almost a condition
of the entry of four original states into the Union, and is now
declared by every state to be as much a part of its fundamental law as
trial by jury or compensation for property taken by eminent domain.
Such a widely recognized right must mean something, and have behind it
the obligation of the courts to refuse to enforce any legislation which
violates freedom of speech.
[2] The various types of free speech clauses are given in _Index
Digest of State Constitutions_, N. Y. State Cons. Conv. Comm., 1915,
pp. 700–702, 956–958. Twenty-three state constitutions follow Hamilton
(note 330, _infra_) in making truth a defense to criminal libel if
published with good motives. The first was _New York Constitution_,
1821, Art. 7, § 8. See _Reports of New York Constitutional Convention
of 1821_, pp. 167, 487. All but five states have a clause resembling
another sentence of the New York section: “Every citizen may freely
speak, write, and publish his sentiments, on all subjects, being
responsible for the abuse of that right; and no law shall be passed,
to restrain, or abridge the liberty of speech, or of the press.”
Massachusetts, Mississippi, New Hampshire, Vermont, and South Carolina
retain a short clause much like the federal Constitution. The express
exception of “abuse” was first made by Pennsylvania in 1790 (note 36,
_infra_); but since I regard such an exception as implied in the United
States form, I have assumed in this book that there is no difference
in legal effect. The effect of the Hamiltonian clause is discussed by
Henry Schofield, “Freedom of the Press in the United States,” 9 _Proc.
Am. Sociolog. Soc._ 88 ff., cited hereafter as Schofield.
We shall not, however, confine ourselves to the question whether a
given form of federal or state action against pacifist and similar
utterances is void under the constitutions. It is often assumed that so
long as a statute is held valid under the Bill of Rights, that document
ceases to be of any importance in the matter, and may be henceforth
disregarded. On the contrary, a provision like the First Amendment to
the federal 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 peaceably to assemble, and to petition the Government for
a redress of grievances,
is much more than an order to Congress not to cross the boundary
which marks the extreme limits of lawful suppression. It is also
an exhortation and a guide for the action of Congress inside that
boundary. It is a declaration of national policy in favor of the public
discussion of all public questions. Such a declaration should make
Congress reluctant and careful in the enactment of all restrictions
upon utterance, even though the courts will not refuse to enforce
them as unconstitutional. It should influence the judges in their
construction of valid speech statutes, and the prosecuting attorneys
who control their enforcement. The Bill of Rights in a European
constitution is a declaration of policies and nothing more, for the
courts cannot disregard the legislative will though it violates the
Constitution.[3] Our Bills of Rights perform a double function. They
fix a certain point to halt the government abruptly with a “Thus far
and no farther”; but long before that point is reached they urge upon
every official of the three branches of the state a constant regard for
certain declared fundamental policies of American life.[4]
[3] A. V. Dicey, _Law of the Constitution_, 8 ed., 130: “This curious
result therefore ensues. The restrictions placed on the action of the
legislature under the French constitution are not in reality laws,
since they are not rules which in the last resort will be enforced
by the Courts. Their true character is that of maxims of political
morality, which derive whatever strength they possess from being
formally inscribed in the constitution and from the resulting support
of public opinion. What is true of the constitution of France applies
with more or less force to other polities which have been formed under
the influence of French ideas.”
Probably some Americans anticipated only the same effect from our bills
of rights, not realizing that an unconstitutional statute would be
held unenforceable. Spencer said in the North Carolina Convention: “If
a boundary were set up, when the boundary is passed, the people would
take notice of it immediately.” 4 _Elliot’s Debates_ (2 ed.) 175.
[4] “No doubt our doctrine of constitutional law has had a tendency
to drive out questions of justice and right, and to fill the mind of
legislators with thoughts of mere legality, of what the constitution
allows.”—J. B. Thayer, _Legal Essays_, 38. See his quotation from 1
Bryce, _American Commonwealth_, 1 ed., 377.
Our main task, therefore, is to ascertain the nature and scope of
the policy which finds expression in the First Amendment to the
United States Constitution and the similar clauses of all the state
constitutions, and then to determine the place of that policy in
the conduct of war, and particularly the war with Germany. The free
speech controversy of the last two years has chiefly gathered about
the federal Espionage Act. This Act contains a variety of provisions
on different subjects, such as the protection of ships in harbors,
spy activities, unlawful military expeditions, etc., but the portion
which concerns us, Title I, section 3, discussed at length in the next
chapter, as it has been interpreted by the courts, makes criminal
several kinds of spoken or written opposition to this or any future
war, and imposes a maximum penalty of $10,000 fine or twenty years’
imprisonment, or both. Any material violating this section may, under
Title XII of the Act, be excluded from the mails. This statute has been
enacted and vigorously enforced under a constitution which provides:
“Congress shall make no law ... abridging the freedom of speech, or of
the press.”
Clearly, the problem of the limits of freedom of speech in war time is
no academic question. On the one side, thoughtful men and journals are
asking how scores of citizens can be imprisoned under this constitution
only for their open disapproval of the war as irreligious, unwise, or
unjust. On the other, federal and state officials point to the great
activities of German agents in our midst and to the unprecedented
extension of the business of war over the whole nation, so that in the
familiar remark of Ludendorff, wars are no longer won by armies in the
field, but by the _morale_ of the whole people. The widespread Liberty
Bond campaigns, and the shipyards, munition factories, government
offices, training camps, in all parts of the country, are felt to make
the entire United States a theater of war, in which attacks upon our
cause are as dangerous and unjustified as if made among the soldiers
in the rear trenches. The government regards it as inconceivable that
the Constitution should cripple its efforts to maintain public safety.
Abstaining from countercharges of disloyalty and tyranny, let us
recognize the issue as a conflict between two vital principles, and
endeavor to find the basis of reconciliation between order and freedom.
At the outset, we can reject two extreme views in the controversy.
First, there is the view that the Bill of Rights is a peace-time
document and consequently freedom of speech may be ignored in war.
This view has been officially repudiated.[5] At the opposite pole
is the belief of many agitators that the First Amendment renders
unconstitutional any Act of Congress without exception “abridging the
freedom of speech, or of the press,” that all speech is free, and only
action can be restrained and punished. This view is equally untenable.
The provisions of the Bill of Rights can not be applied with absolute
literalness, but are subject to exceptions.[6] For instance, the
prohibition of involuntary servitude in the Thirteenth Amendment does
not prevent military conscription, or the enforcement of a “work or
fight” statute. The difficulty, of course, is to define the principle
on which the implied exceptions are based, and an effort to that end
will be made subsequently.
[5] Report of the Attorney General of the United States (1918), 20:
“This department throughout the war has proceeded upon the general
principle that the constitutional right of free speech, free assembly,
and petition exist in war time as in peace-time, and that the right of
discussion of governmental policy and the right of political agitation
are most fundamental rights in a democracy.”
[6] Robertson _v._ Baldwin, 165 U. S. 275, 281 (1897); Selective Draft
Law Cases, 245 U. S. 366, 390 (1918); Claudius _v._ Davie, 175 Cal. 208
(1917); State _v._ McClure, 105 Atl. 712 (Del. Gen. Sess., 1919).
Since it is plain that the true solution lies between these two extreme
views, and that even in war time freedom of speech exists subject to
a problematical limit, it is necessary to determine where the line
runs between utterances which are protected by the Constitution from
governmental control and those which are not. Many attempts at a legal
definition of that line have been made, but two mutually inconsistent
theories have been especially successful in winning judicial
acceptance, and frequently appear in the Espionage Act cases.
One theory construes the First Amendment as enacting Blackstone’s
statement that “the liberty of the press ... consists in laying no
_previous_ restraints upon publications and not in freedom from censure
for criminal matter when published.”[7] The line where legitimate
suppression begins is fixed chronologically at the time of publication.
The government cannot interfere by a censorship or injunction _before_
the words are spoken or printed, but can punish them as much as it
pleases _after_ publication, no matter how harmless or essential to
the public welfare the discussion may be. This Blackstonian definition
found favor with Lord Mansfield,[8] and is sometimes urged as a
reason why civil libels should not be enjoined,[9] so that on this
theory liberty of the press means opportunity for blackmailers and no
protection for political criticism. The same definition was adopted by
a few American judges in early contempt proceedings and prosecutions
for libel.[10] The Federalist judges of that time were so notorious
for their slavish adherence to English authorities in disregard of our
own constitutions and statutes,[11] that their Blackstonian statements
should have little weight in the construction of constitutional
guaranties. However, one of these cases was in Massachusetts, whence
Justice Holmes carried the Blackstonian definition into the United
States Supreme Court.[12] Fortunately he has now repudiated this
interpretation of freedom of speech,[13] but not until his dictum had
had considerable influence, particularly in Espionage Act cases.[14]
Of course, if the First Amendment does not prevent prosecution
and punishment of utterances, the Espionage Act is unquestionably
constitutional.
[7] 4 Blackstone, _Commentaries_, 151.
[8] King _v._ Dean of St. Asaph, 3 T. R. 428, 431 (1784): “The liberty
of the press consists in printing without any previous license, subject
to the consequence of law.”
[9] See Roscoe Pound, “Equitable Relief Against Defamation and Injuries
to Personality,” 29 _Harv. L. Rev._ 651, and recent federal cases in
32 _ibid._ 938 n. Dean Pound discusses two views besides Blackstone’s.
The view mentioned as Story’s is really that of St. George Tucker, whom
Story was criticising. 2 Story, _Constitution_, § 1886.
[10] McKean in Respublica _v._ Oswald, 1 Dall. 319 (Pa., 1788), and
Trial of William Cobbett, Wharton’s State Trials, 322 (Pa., 1797),
Yeates in Respublica _v._ Dennie, 4 Yeates 267 (Pa., 1805); Parker in
Comm. _v._ Blanding, 3 Pick. 304 (Mass., 1825). See Schofield in 9
_Proc. Am. Sociolog. Soc._ 69.
[11] Beveridge’s _Marshall_, III, 23 ff. See page 22, _infra_.
[12] Patterson _v._ Colorado, 205 U. S. 454, 462 (1907).
[13] Schenck _v._ U. S., 249 U. S. 47 (1919); Abrams _v._ U. S., 250 U.
S. 616 (1919).
[14] Masses Pub. Co. _v._ Patten, 246 Fed. 24 (1917); U. S. _v._
Coldwell, Bull. Dept. Just., No. 158, page 4.
This Blackstonian theory dies hard, but it ought to be knocked on the
head once for all. In the first place, Blackstone was not interpreting
a constitution, but trying to state the English law of his time, which
had no censorship and did have extensive libel prosecutions. Whether
or not he stated that law correctly, an entirely different view of the
liberty of the press was soon afterwards enacted in Fox’s Libel Act,
so that Blackstone’s view does not even correspond to the English law
of the last hundred and twenty-five years. Furthermore, Blackstone is
notoriously unfitted to be an authority on the liberties of American
colonists, since he upheld the right of Parliament to tax them, and was
pronounced by one of his own colleagues to have been “we all know, an
anti-republican lawyer.”[15]
[15] 1 Blackstone, _Commentaries_, 109; Willes, J., in Dean of St.
Asaph’s Case, 4 Doug. 73, 172 (1784).
Not only is the Blackstonian interpretation of our free speech clauses
inconsistent with eighteenth-century history, soon to be considered,
but it is contrary to modern decisions, thoroughly artificial, and
wholly out of accord with a common-sense view of the relations of state
and citizen. In some respects this theory goes altogether too far in
restricting state action. The prohibition of previous restraint would
not allow the government to prevent a newspaper from publishing the
sailing dates of transports or the number of troops in a sector. It
would render illegal removal of an indecent poster from a billboard or
the censorship of moving pictures before exhibition, which has been
held valid under a free speech clause.[16] And whatever else may be
thought of the decision under the Espionage Act with the unfortunate
title, United States _v._ The Spirit of ’76,[17] it was clearly
previous restraint for a federal court to direct the seizure of a film
which depicted the Wyoming Massacre and Paul Revere’s Ride, because it
was “calculated reasonably so to excite or inflame the passions of our
people or some of them as that they will be deterred from giving that
full measure of co-operation, sympathy, assistance, and sacrifice which
is due to Great Britain, as an ally of ours,” and “to make us a little
bit slack in our loyalty to Great Britain in this great catastrophe.”
[16] Mutual Film Corporation _v._ Industrial Commission of Ohio, 236 U.
S. 230, 241 (1915).
[17] 252 Fed. 946 (D. C. S. D. Cal., 1917), Bledsoe, J. See also
Goldstein _v._ U. S., 258 Fed. 908 (C. C. A. 9th, 1919).
On the other hand, it is hardly necessary to argue that the
Blackstonian definition gives very inadequate protection to the freedom
of expression. A death penalty for writing about socialism would be
as effective suppression as a censorship. The government which holds
twenty years in prison before a speaker and calls him free to talk
resembles the peasant described by Galsworthy:[18]
The other day in Russia an Englishman came on a street-meeting
shortly after the first revolution had begun. An extremist was
addressing the gathering and telling them that they were fools
to go on fighting, that they ought to refuse and go home, and so
forth. The crowd grew angry, and some soldiers were for making a
rush at him; but the chairman, a big burly peasant, stopped them
with these words: “Brothers, you know that our country is now
a country of free speech. We must listen to this man, we must
let him say anything he will. But, brothers, when he’s finished,
we’ll bash his head in!”
[18] John Galsworthy, “American and Briton,” 8 _Yale Rev._ 27 (October,
1918). _Cf._ Boswell’s Johnson, ed. G. B. Hill, IV, 12.
Cooley’s comment on Blackstone is unanswerable:[19]
... The mere exemption from previous restraints cannot be all
that is secured by the constitutional provisions, inasmuch as of
words to be uttered orally there can be no previous censorship,
and the liberty of the press might be rendered a mockery and a
delusion, and the phrase itself a byword, if, while every man was
at liberty to publish what he pleased, the public authorities
might nevertheless punish him for harmless publications, ...
Their purpose [of the free speech clauses] has evidently been
to protect parties in the free publication of matters of public
concern, to secure their right to a free discussion of public
events and public measures, and to enable every citizen at any
time to bring the government and any person in authority to the
bar of public opinion by any just criticism upon their conduct
in the exercise of the authority which the people have conferred
upon them.... The evils to be prevented were not the censorship
of the press merely, but any action of the government by means of
which it might prevent such free and general discussion of public
matters as seems absolutely essential to prepare the people for
an intelligent exercise of their rights as citizens.
[19] Cooley, _Constitutional Limitations_, 7 ed., 603, 604.
If we turn from principles to precedents, we find several decisions
which declare the constitutional guarantee of free speech to be
violated by statutes and other governmental action which imposed
no previous restraint, but penalized publications after they were
made.[20] And most of the decisions in which a particular statute
punishing for talking or writing is sustained do not rest upon the
Blackstonian interpretation of liberty of speech,[21] but upon another
theory, now to be considered. Therefore, it is possible that the
severe punishments imposed by Title I, section 3, of the Espionage
Act, violate the First Amendment, although they do not interfere with
utterances before publication.[22]
[20] Louthan _v._ Commonwealth, 79 Va. 196 (1884)—statute punishing
school superintendent for political speeches; Atchison, etc. Ry. _v._
Brown, 80 Kans. 312 (1909)—service-letter statute, making employer
liable to civil action if he failed to furnish a discharged employee a
written statement for the true reason for discharge. St. Louis, etc.
Ry. Co. _v._ Griffin, 106 Texas 477 (1914), same; Wallace _v._ Georgia
Ry. Co., 94 Ga. 732 (1894), same; _Ex parte_ Harrison, 212 Mo. 88
(1908),—statute punishing voters’ leagues for commenting on candidates
for office without disclosing the names of all persons furnishing
the information; State _ex rel._ Metcalf _v._ District Court, 52
Mont. 46 (1916)—contempt proceedings for criticism of judge for past
decision; State _ex rel._ Ragan _v._ Junkin, 85 Neb. 1 (1909),—statute
invalidating nomination of candidates by conventions or any other
method except primaries; State _v._ Pierce, 163 Wis. 615 (1916)—corrupt
practices act punishing political disbursements outside one’s own
county except through a campaign committee; State _v._ Printing Co.,
177 Pac. 751 (N. M., 1918)—contempt. Some of these decisions are open
to dispute on the desirability of the statutes, and some are opposed
by other cases for that reason, but in their repudiation of the
Blackstonian test they furnish unquestioned authority.
[21] Examples in such cases of express repudiation of the Blackstonian
doctrine are found in Schenck _v._ United States, 249 U. S. 47 (1919);
State _v._ McKee, 73 Conn. 18 (1900); State _v._ Pioneer Press Co., 100
Minn. 173 (1907); Cowan _v._ Fairbrother, 118 N. C. 406, 418 (1896).
[22] Title XII of the Espionage Act does impose previous restraint
on publications which violate the Act by authorizing the Postmaster
General to exclude them from the mails. See page 108, _infra_.
A second interpretation of the freedom of speech clauses limits them
to the protection of the use of utterance and not to its “abuse.” It
draws the line between “liberty” and “license.” Chief Justice White[23]
rejects:
the contention that the freedom of the press is the freedom
to do wrong with impunity and implies the right to frustrate
and defeat the discharge of those governmental duties upon the
performance of which the freedom of all, including that of the
press, depends.... However complete is the right of the press to
state public things and discuss them, that right, as every other
right, enjoyed in human society, is subject to the restraints
which separate right from wrong-doing.
[23] Toledo Newspaper Co. _v._ United States, 247 U. S. 402, 419 (1918).
A statement of the same view in another peace case is made by Judge
Hamersley of Connecticut:[24]
Every citizen has an equal right to use his mental endowments, as
well as his property, in any harmless occupation or manner; but
he has no right to use them so as to injure his fellow-citizens
or to endanger the vital interests of society. Immunity in
the mischievous use is as inconsistent with civil liberty as
prohibition of the harmless use.... The liberty protected is
not the right to perpetrate acts of licentiousness, or any act
inconsistent with the peace or safety of the State. Freedom of
speech and press does not include the abuse of the power of
tongue or pen, any more than freedom of other action includes an
injurious use of one’s occupation, business, or property.
[24] State _v._ McKee, 73 Conn. 18, 28 (1900).
The decisions in the war are full of similar language,[25] of which a
few specimens will suffice:
In this country it is one of our foundation stones of liberty
that we may freely discuss anything we please, provided that
that discussion is in conformity with law, or at least not in
violation of it.
No American worthy of the name believes in anything else than
free speech; but free speech means, not license, not counseling
disobedience of the law. Free speech means that frank, free,
full, and orderly expression which every man or woman in the
land, citizen or alien, may engage in, in lawful and orderly
fashion.
No one is permitted under the constitutional guaranties to commit
a wrong or violate the law.
[25] Mayer, J., in United States _v._ Phillips, Bull. Dept. Just., No.
14 (S. D. N. Y., 1917), 5; and United States _v._ Goldman, Bull. Dept.
Just., No. 41 (S. D. N. Y., 1917), 2; Van Valkenburgh, J., in United
States _v._ Stokes, Bull. Dept. Just., No. 106 (W. D. Mo., 1918), 12.
See also United States _v._ Pierce, Bull. Dept. Just., No. 52
(S. D. N. Y., 1917), 22, Ray, J.; United States _v._ Nearing, Bull.
Dept. Just., No. 192 (S. D. N. Y., 1917), 4, Mayer, J.; United States
_v._ Wallace, Bull. Dept. Just. 4 (Ia., 1917), 4, Wade, J.
Just the same sort of distinction was made by Lord Kenyon during the
French revolution:
The liberty of the press is dear to England. The licentiousness
of the press is odious to England. The liberty of it can never be
so well protected as by beating down the licentiousness.
This exasperated Sir James Fitzjames Stephen into the comment, “Hobbes
is nearly the only writer who seems to me capable of using the word
‘liberty’ without talking nonsense.”[26]
[26] 2 _Hist. Crim. Law_ 348 n.
A slightly more satisfactory view is adopted by Cooley,[27] that the
clauses guard against repressive measures by the several departments
of government, but not against utterances which are a public offense,
or which injure the reputation of individuals.
[27] Cooley, _Constitutional Limitations_, 7 ed., 605; quoted by Hough,
J., in Fraina _v._ United States, 255 Fed. 28, 35 (C. C. A. 2d, 1918).
We understand liberty of speech and of the press to imply not
only liberty to publish, but complete immunity from legal censure
and punishment for the publication, so long as it is not harmful
in its character, when tested by such standards as the law
affords.
To a judge obliged to decide whether honest and able opposition to the
continuation of a war is punishable, these generalizations furnish as
much help as a woman forced, like Isabella in _Measure for Measure_,
to choose between her brother’s death and loss of honor, might obtain
from the pious maxim, “Do right.” What is abuse? What is license? What
standards does the law afford? To argue that the federal Constitution
does not prevent punishment for criminal utterances begs the whole
question, for utterances within its protection are not crimes. If it
only safeguarded lawful speech, Congress could escape its operation at
any time by making any class of speech unlawful. Suppose, for example,
that Congress declared any criticism of the particular administration
in office to be a felony, punishable by ten years’ imprisonment.
Clearly, the Constitution must limit the power of Congress to create
crimes. But how far does that limitation go? Cooley suggests that the
constitutional guaranties must be interpreted in the light of the
contemporary common law of blasphemy, obscenity, and defamation, but
flatly denies that they enact the common law of sedition and libels
against the government.[28] Conditions in 1791 must be considered, but
they do not arbitrarily fix the division between lawful and unlawful
speech for all time.
[28] _Ibid._ 604, 612 ff.
Clearly, we must look further and find a rational test of what is use
and what is abuse. Saying that the line lies between them gets us
nowhere. And “license” is too often “liberty” to the speaker, and what
happens to be anathema to the judge.
We can, of course, be sure that certain forms of utterance, which have
always been crimes or torts at common law, are not within the scope
of the free speech clauses. The courts in construing such clauses
have, for the most part, done little more than place obvious cases on
this or that side of the line. They tell us, for instance, that libel
and slander are actionable, or even punishable, that indecent books
are criminal, that it is contempt to interfere with pending judicial
proceedings, and that a permit can be required for street meetings;
and on the other hand, that some criticism of the government must be
allowed, that a temperate examination of a judge’s opinion is not
contempt, and that honest discussion of the merits of a painting causes
no liability for damages. But when we ask where the line actually runs
and how they know on which side of it a given utterance belongs, we
find little answer in their opinions.
We do have two very able judicial statements which take us far toward
the ultimate solution of the problem of the limits of free speech, but
they unfortunately lack the weight of binding adjudications, for one
is a decision by Judge Learned Hand which was subsequently reversed on
appeal and the other a dissenting opinion by Justice Holmes. Therefore,
it is regrettable that when Justice Holmes spoke for all members of the
United States Supreme Court in the earlier Espionage Act decisions, he
did not feel at liberty to go beyond the particular facts before him
into a fuller exposition of fundamental principles, and make articulate
for us that major premise, under which judges ought to classify words
as inside or outside the scope of the First Amendment. He, we then
hoped, would concentrate his great abilities on fixing the line.
Instead, like other judges, he told us that certain plainly unlawful
utterances are, to be sure, unlawful.
The First Amendment ... obviously was not intended to give
immunity for every possible use of language.... We venture
to believe that neither Hamilton nor Madison, nor any other
competent person then or later, ever supposed that to make
criminal the counselling of a murder ... would be an
unconstitutional interference with free speech.[29]
The most stringent protection of free speech would not protect a
man in falsely shouting fire in a theater and causing a panic.[30]
[29] Frohwerk _v._ United States, 249 U. S. 204 (1919).
[30] Schenck _v._ United States, 249 U. S. 47 (1919).
How about the man who gets up in a theater between the acts and informs
the audience honestly, but perhaps mistakenly, that the fire exits are
too few or locked? He is a much closer parallel to Frohwerk or Debs.
How about James Russell Lowell when he counseled, not murder, but
the cessation of murder, his name for war? The question whether such
perplexing cases are within the First Amendment or not cannot be solved
by the multiplication of obvious examples, but only by the development
of a rational principle to mark the limits of constitutional protection.
“The gradual process of judicial inclusion and exclusion,”[31] which
has served so well to define other clauses in the federal Constitution
by blocking out concrete situations on each side of the line until
the line itself becomes increasingly plain, has as yet been of very
little use for the First Amendment. The cases are too few, too varied
in their character, and often too easily solved, to develop any
definite boundary between lawful and unlawful speech. Even if some
boundary between the precedents could be attained, we could have
little confidence in it unless we knew better than now the fundamental
principle on which the classification was based. Indeed, many of the
decisions in which statutes have been held to violate free speech seem
to ignore so seriously the economic and political facts of our time,
that they are precedents of very dubious value for the inclusion and
exclusion process.[32] Nearly every free speech decision, outside such
hotly litigated portions as privilege and fair comment in defamation,
appears to have been decided largely by intuition.
[31] Miller, J., in Davidson _v._ New Orleans, 96 U. S. 97, 104 (1877).
[32] See note 20, _supra_.
In the next chapter I shall return to the opinions of Justice Holmes
and Judge Hand. For the moment, however, it may be worth while to
forsake the purely judicial discussion of free speech, and obtain light
upon its meaning from the history of the constitutional clauses and
from the purpose free speech serves in social and political life.
The framers of the First Amendment make it plain that they regarded
freedom of speech as very important—“absolutely necessary” is Luther
Martin’s phrase. But they say very little about its exact meaning. That
should not surprise us if we recall our own vagueness about freedom of
the seas. Men rarely define their inspirations until they are forced
into doing so by sharp antagonism. Therefore, it is not until the
Sedition Law of 1798 made the limits of liberty of the press a concrete
and burning issue that we get much helpful expression of opinion on our
problem.[33] Before that time, however, we have a few important pieces
of evidence to show that the words were used in the Constitution in a
wide and liberal sense.
[33] See Appendix I for references on the Law of 1798.
On October 26, 1774, the Continental Congress issued an address to the
inhabitants of Quebec, declaring that the English colonists had five
invaluable rights, representative government, trial by jury, liberty of
the person, easy tenure of land, and freedom of the press:[34]
The last right we shall mention regards the freedom of the press.
The importance of this consists, besides the advancement of
truth, science, morality and arts in general, in its diffusion of
liberal sentiment on the administration of government, its ready
communication of thoughts between subjects, and its consequential
promotion of union among them, whereby oppressive officials are
shamed or intimidated into more honorable and just modes of
conducting affairs.
[34] Journal of the Continental Congress, Vol. I (ed. 1800), p. 57.
In 1785 Virginia, which was the first state to insert a clause
protecting the liberty of the press in its constitution (1776), enacted
a statute drawn by Jefferson for Establishing Religious Freedom.[35]
This opened with a very broad principle of toleration: “Whereas,
Almighty God hath created the mind free; that all attempts to influence
it by temporal punishments or burthens, or by civil incapacitations,
tend only to beget habits of hypocrisy and meanness——” While this
relates specifically to religion, it shows the trend of men’s thoughts,
and the meaning which “liberty” had to Jefferson long before the bitter
controversy of 1798.
[35] See note 66, _infra_.
One other framer of our government has stated his views on this matter
in less solemn language, Benjamin Franklin.[36] In discussing the brief
“freedom of speech” clause in the Pennsylvania Constitution of 1776, he
said in 1789, that if by the liberty of the press were to be understood
merely the liberty of discussing the propriety of public measures and
political opinions, let us have as much of it as you please. On the
other hand, if it means liberty to calumniate another there ought to
be some limit; but he has been at a loss to imagine any that may not
be construed an infringement of the sacred _liberty of the press_. At
length, however, he thinks he has found one that instead of diminishing
general liberty shall augment it; he means _the liberty of the cudgel_.
If, however, it should be thought that this proposal of his may disturb
the public peace, he would humbly recommend to our legislators to take
up the consideration of both liberties, that of the _press_, and that
of the _cudgel_, and by an explicit law mark their extent and limits.
Thus Franklin construed this clause so widely as even to grant immunity
from private libel actions. Next year the Pennsylvania Constitution was
amended to impose responsibility for the abuse of the liberty, but no
such exception was thought necessary in the United States Constitution,
probably because private libels were not within the purview of the
federal law.
[36] _Works_, ed. A. H. Smyth, X, 36 ff. See Pa. Cons. (1776), c. I,
sect. 12; Pa. Cons. (1790), Art. IX, sect. 7.
The most significant evidence of the meaning of the First Amendment
is the reason given by the Maryland convention of 1788 to the people
for including such a clause in the proposed federal Bill of Rights:[37]
“In prosecutions in the federal courts, for libels, the constitutional
preservation of this great and fundamental right may prove invaluable.”
This is, of course, absolutely inconsistent with any Blackstonian
limitation of the right to absence of a censorship.
[37] 2 Elliot’s Deb. (2 ed.) 511; see the same argument in newspaper
letters given in _Pennsylvania and the Federal Constitution_, ed. J.
B. McMaster and F. D. Stone, 151, 181. The second letter suggests the
possibility of a prohibitive stamp tax as in Massachusetts to crush the
press.
If we apply Coke’s test of statutory construction, and consider what
mischief in the existing law the framers of the First Amendment
wished to remedy by a new safeguard, we can be sure that it was not
the censorship. This had expired in England in 1695, and in the
colonies by 1725.[38] For years the government here and in England
had substituted for the censorship rigorous and repeated prosecutions
for criminal libel or seditious libel, as it was often called, which
were directed against political discussion, and for years these
prosecutions were opposed by liberal opinion and popular agitation.
Primarily the controversy raged around two legal contentions of the
great advocates for the defense, such as Erskine and Andrew Hamilton.
They argued, first, that the jury and not the judge ought to decide
the libellous nature of the writing, and secondly, that the truth of
the charge ought to prevent conviction. The real issue, however, lay
much deeper. Two different views of the relation of rulers and people
were in conflict. According to one view, the rulers were the superiors
of the people, and therefore must not be subjected to any censure that
would tend to diminish their authority. The people could not make
adverse criticism in newspapers or pamphlets, but only through their
lawful representatives in the legislature, who might be petitioned in
an orderly manner. According to the other view, the rulers are agents
and servants of the people, who may therefore find fault with their
servants and discuss questions of their punishment or dismissal, and of
governmental policy.
[38] Macaulay, _History of England_, Chap. XXI; C. A. Duniway, _Freedom
of Speech in Massachusetts_, 89 note.
Under the first view, which was officially accepted until the close
of the eighteenth century, developed the law of seditious libel. This
is defined as “the intentional publication, without lawful excuse or
justification, of written blame of any public man, or of the law, or
of any institution established by law.” There was no need to prove
any intention on the part of the defendant to produce disaffection or
excite an insurrection. It was enough if he intended to publish the
blame, because it was unlawful in him merely to find fault with his
masters and betters. Such, in the opinion of the best authorities, was
the common law of sedition.[39]
[39] Madison, Report on the Virginia Resolutions, 1799, 4 Ell. Deb.
(2 ed.) 596 ff.; 2 Stephen, _History of the Criminal Law_, 299, 353,
and Chap. XXIV., _passim_; Schofield, in _9 Proc. Am. Sociol. Soc._ 70
ff., gives an excellent summary with especial reference to American
conditions.
It is obvious that under this law liberty of the press was nothing
more than absence of the censorship, as Blackstone said. All through
the eighteenth century, however, there existed beside this definite
legal meaning of liberty of the press, a definite popular meaning:
the right of unrestricted discussion of public affairs. There can be
no doubt that this was in a general way what freedom of speech meant
to the framers of the Constitution. Thus Madison in 1799 bases his
explanation of the First Amendment on “the essential difference between
the British Government and the American constitutions.” In England, he
says, Parliament is omnipotent and all the ramparts for protecting the
rights of the people are reared only against the royal prerogative.
Therefore, exemption from the censorship of the king’s appointees is
the only freedom secured to the press. In the United States, however,
the people and not the government possess the absolute sovereignty, and
the legislature as well as the executive is under limitations of power.
The effective security of the press requires that it should be exempt
not only from previous restraint by the executive as in England, but
from legislative restraint also through the subsequent penalty of laws.
After this repudiation of the Blackstonian doctrine, Madison goes on to
reject the theory that the legislature is free to punish anything which
was criminal at English common law. Here again, he says, the different
natures of the two governments must have its effect and contemplate a
different degree of liberty in the use of the press. A government which
is “elective, limited and responsible” in all its branches may well be
supposed to require “a greater freedom of animadversion” than might
be tolerated by one that is composed of an irresponsible hereditary
king and upper house, and an omnipotent legislature. This inference is
favored, he continues, by the actual English practice. “Notwithstanding
the general doctrine of the common law, on the subject of the press,
and the occasional punishment of those who use it with a freedom
offensive to the Government, it is well known that with respect to the
responsible measures of the Government, where the reasons operating
here become applicable there, the freedom exercised by the press and
protected by public opinion far exceeds the limits prescribed by the
ordinary rules of law.”[40]
[40] Madison’s Report on the Virginia Resolutions, 4 Ell. Deb. (2 ed.)
596–598. The same distinction was made by Erastus Root, _Report of the
New York Constitutional Convention of 1821_, p. 489. See also _Speeches
of Charles Pinckney_, 1800, p. 116 ff.
This contemporary testimony corroborates the conclusion of Professor
Schofield:
One of the objects of the Revolution was to get rid of the
English common law on liberty of speech and of the press....
Liberty of the press as declared in the First Amendment, and the
English common-law crime of sedition, cannot co-exist.[41]
[41] Schofield, 76, 87.
The few early judicial decisions[42] to the contrary ought not to
weigh against the statements of Franklin, Jefferson, and Madison,
and the general temper of the time. These judges were surely wrong in
holding as they did that sedition was a common-law crime in the federal
courts, and in other respects they drew their inspiration from British
precedents and the British bench instead of being in close contact
with the new ideas of this country. “Indeed,” as Senator Beveridge
says, “some of them were more British than they were American.” “Let a
stranger go into our courts,” wrote one observer, “and he would almost
believe himself in the Court of the King’s Bench.”[43] Great as was the
service of these judges in establishing the common law as to private
rights, their testimony as to its place in public affairs is of much
less value than the other contemporary evidence of the men who sat in
the conventions and argued over the adoption of the Constitution. The
judges forgot the truth emphasized by Maitland: “The law of a nation
can only be studied in relation to the whole national life.” I must
therefore strongly dissent, with Justice Holmes,[44] from the position
sometimes taken in arguments on the Espionage Act, that the founders of
our government left the common law as to seditious libel in force and
merely intended by the First Amendment “to limit the new government’s
statutory powers to penalize utterances as seditious, to those which
were seditious under the then accepted common-law rule.”[45] The
founders had seen seventy English prosecutions for libel since 1760,
and fifty convictions under that common-law rule, which made conviction
easy.[46] That rule had been detested in this country ever since it was
repudiated by jury and populace in the famous trial of Peter Zenger,
the New York printer, the account of which went through fourteen
editions before 1791.[47] The close relation between the Zenger trial
and the prosecutions under George III in England and America is shown
by the quotations on reprints of the trial and the dedication of the
1784 London edition to Erskine, as well as by reference to Zenger in
the discussions preceding the First Amendment.[48] Nor was this the
only colonial sedition prosecution under the common law, and many
more were threatened.[49] All the American cases before 1791 prove
that our common law of sedition was exactly like that of England, and
it would be extraordinary if the First Amendment enacted the English
sedition law of that time, which was repudiated by every American and
every liberal Englishman,[50] and altered through Fox’s Libel Act by
Parliament itself in the very next year, 1792. We might well fling
at the advocates of this common law view the challenge of Randolph
of Roanoke, “whether the common law of libels which attaches to this
Constitution be the doctrine laid down by Lord Mansfield, or that
which has immortalized Mr. Fox?”[51] The First Amendment was written
by men to whom Wilkes and Junius were household words, who intended to
wipe out the common law of sedition, and make further prosecutions for
criticism of the government, without any incitement to law-breaking,
forever impossible in the United States of America.
[42] Cases in note 10; Charge to the Grand Jury of Judge Addison (who
was born and educated in the United Kingdom), Addison Ch. (Pa.) 270.
Marshall’s Minority Report in opposition to Madison’s is chiefly
devoted to establishing an implied power of the government to protect
itself against libels. His discussion of the First Amendment, while
undoubtedly opposed to my view, is little more than a repetition of
Blackstone. _The Address of the Minority in the Virginia Legislature_,
etc. (Library of Congress, Class E 327, Book A 22; extracts in U. S.
reply brief in Debs _v._ U. S.)
[43] Beveridge’s _Marshall_, III, 23–29.
[44] Abrams _v._ U. S., 250 U. S. 616 (1919).
[45] W. R. Vance, in “Freedom of Speech and the Press,” 2 _Minn. L.
Rev._ 239, 259.
[46] 2 May, _Constitutional History of England_, 2 ed., 9 note.
[47] 17 How. St. Tr. 675 (1735). The fullest account of Zenger and the
trial is given by Livingston Rutherford, _John Peter Zenger_, New York,
1904. Rutherford’s bibliography lists thirteen editions of the account
of the trial before 1791. The Harvard Law School Library contains four
of these (London, 1738; London, 1752; London, 1765; New York, 1770),
and also an undated copy without specified place, differing from any
listed by Rutherford. See also the life of Zenger’s counsel, Andrew
Hamilton, by William Henry Loyd, in 1 _Great American Lawyers_ 1.
[48] Newspaper letter, reprinted in _Penn. and the Fed. Cons._, 151.
[49] C. A. Duniway, _Freedom of the Press in Massachusetts_, 91, 93,
115, 123, 130, and note. In 1767 Chief Justice Hutchinson charged the
grand jury on Blackstonian lines, “This Liberty means no more than a
Freedom for every Thing to pass from the Press without a License.”
_Ibid._, 125.
[50] 2 May, _Constitutional History of England_, Chap. IX; 2 Stephen,
_History of the Criminal Law_, Chap. XXIV.
[51] 3 Beveridge’s _Marshall_ 85.
It must not be forgotten that the controversy over liberty of the
press was a conflict between two views of government, that the law of
sedition was a product of the view that the government was master, and
that the American Revolution transformed into a working reality the
second view that the government was servant, and therefore subjected to
blame from its master, the people. Consequently, the words of Sir James
Fitzjames Stephen about this second view have a vital application to
American law.[52]
To those who hold this view fully and carry it out to all its
consequences there can be no such offense as sedition. There may
indeed be breaches of the peace which may destroy or endanger
life, limb, or property, and there may be incitements to such
offenses, but no imaginable censure of the government, _short
of a censure which has an immediate tendency to produce such a
breach of the peace_, ought to be regarded as criminal.
[52] 2 Stephen, _History of the Criminal Law_, 300. The italics are
mine. See also Schofield, 9 _Proc. Am. Sociol. Soc._, 75.
The repudiation by the constitutions of the English common law of
sedition, which was also the common law of the American colonies, has
been somewhat obscured by judicial retention of the two technical
incidents of the old law after the adoption of the free speech clauses.
Many judges, rightly or wrongly, continued to pass on the criminality
of the writing and to reject its truth as a defense,[53] until statutes
or new constitutional provisions embodying the popular view on these
two points were enacted.[54] Doubtless, a jury will protect a popular
attack on the government better than a judge, and the admission of
truth as a defense lessens the evils of suppression. These changes help
to substitute the modern view of rulers for the old view, but they are
not essential. Sedition prosecutions went on with shameful severity in
England after Fox’s Libel Act[55] had given the jury power to determine
criminality. The American Sedition Act of 1798, which President Wilson
declares to have “cut perilously near the root of freedom of speech and
of the press,”[56] entrusted criminality to the jury and admitted truth
as a defense. On the other hand, freedom of speech might exist without
these two technical safeguards. The essential question is not, who is
judge of the criminality of an utterance, but what is the test of its
criminality. The common law and the Sedition Act of 1798 made the test
blame of the government and its officials, because to bring them into
disrepute tended to overthrow the state. The real issue in every free
speech controversy is this—whether the state can punish all words which
have some tendency, however remote, to bring about acts in violation of
law, or only words which directly incite to acts in violation of law.
[53] Duniway, _supra_, Chap. IX; Commonwealth _v._ Clap, 4 Mass. 163
(1808); Commonwealth _v._ Blanding, 3 Pick. (Mass.) 304 (1825).
[54] Examples are: Pa. Cons. 1790, Art. 9, § 7; N. Y. Session Laws,
1805, c. 90; N. Y. Cons., 1821, Art. VII, § 8; Mass. Laws, 1827, c.
107. See Schofield, _op. cit._, 95–99.
[55] 32 Geo. III, c. 60 (1792).
[56] 3 Woodrow Wilson, _History of the American People_, 153.
If words do not become criminal until they have “an immediate tendency
to produce a breach of the peace,” there is no need for a law of
sedition, since the ordinary standards of criminal solicitation
and attempt apply. Under those standards the words must bring the
speaker’s unlawful intention reasonably near to success. Such a limited
power to punish utterances rarely satisfies the zealous in times of
excitement like a war. They realize that all condemnation of the
war or of conscription may conceivably lead to active resistance or
insubordination. Is it not better to kill the serpent in the egg? All
writings that have even a remote tendency to hinder the war must be
suppressed.
Such has always been the argument of the opponents of free speech.
And the most powerful weapon in their hands, since the abolition of
the censorship, is this doctrine of indirect causation, under which
words can be punished for a supposed bad tendency long before there is
any probability that they will break out into unlawful acts. Closely
related to it is the doctrine of constructive intent, which regards
the intent of the defendant to cause violence as immaterial so long as
he intended to write the words, or else presumes the violent intent
from the bad tendency of the words on the ground that a man is presumed
to intend the consequences of his acts. When rulers are allowed to
possess these weapons, they can by the imposition of severe sentences
create an _ex post facto_ censorship of the press. The transference of
that censorship from the judge to the jury is indeed important when the
attack on the government which is prosecuted expresses a widespread
popular sentiment, but the right to jury trial is of much less value in
times of war or threatened disorder when the herd instinct runs strong,
if the opinion of the defendant is highly objectionable to the majority
of the population, or even to the particular class of men from whom or
by whom the jury are drawn.
Under Charles II trial by jury was a blind and cruel system. During
part of the reign of George III it was, to say the least, quite as
severe as the severest judge without a jury could have been. The
revolutionary tribunal during the Reign of Terror tried by a jury.[57]
It is worth our frank consideration, whether in a country where the
doctrine of indirect causation is recognized by the courts twelve
small property-holders, who have been through an uninterrupted series
of patriotic campaigns and are sufficiently middle-aged to be in no
personal danger of compulsory military service, are fitted to decide
whether there is a tendency to obstruct the draft in the writings of
a pacifist, who also happens to be a socialist and in sympathy with
the Russian Revolution. This, however, is perhaps a problem for the
psychologist rather than the lawyer.
[57] 1 Stephen, _History of the Criminal Law_, 569.
Another significant fact in sedition prosecutions is the well-known
probability that juries will acquit, after the excitement is over, for
words used during the excitement, which are as bad in their tendency as
other writings prosecuted and severely punished during the critical
period. This was very noticeable during the reign of George III. It is
also interesting to find two juries in different parts of the country
differing as to the criminal character of similar publications or
even the same publication. Thus Leigh Hunt was acquitted for writing
an article, for the printing of which John Drakard was convicted. The
acquittal of Scott Nearing and the conviction by the same jury of the
American Socialist Society for publishing his book form an interesting
parallel.[58]
[58] Judge Mayer has decided that there is not such inconsistency in
the two verdicts as to warrant a new trial. American Socialist Society
_v._ United States, 260 Fed. 885 (1919).
The manner in which juries in time of excitement may be used to
suppress writings in opposition to the government, if bad tendency is
recognized as a test of criminality, is illustrated by the numerous
British sedition trials during the French Revolution. These were
after the passage of Fox’s Libel Act. For instance, in the case just
mentioned, Drakard was convicted for printing an article on the
shameful amount of flogging in the army, under a charge in which Baron
Wood emphasized the formidable foe with whom England was fighting, and
the general belief that Napoleon was using the British press to carry
out his purpose of securing her downfall.[59]
It is to be feared, there are in this country many who are
endeavoring to aid and assist him in his projects, by crying down
the establishment of the country, and breeding hatred against
the government. Whether that is the source from whence the paper
in question springs, I cannot say, but I advise you to consider
whether it has not that tendency. You will consider whether it
contains a fair discussion—whether it has not a manifest tendency
to create disaffection in the country and prevent men enlisting
into the army—whether it does not tend to induce the soldier to
desert from the service of his country. And what considerations
can be more awful than these?...
The House of Parliament is the proper place for the discussion
of subjects of this nature.... It is said that we have a right
to discuss the acts of our legislature. That would be a large
permission indeed. Is there, gentlemen, to be a power in the
people to counteract the acts of the parliament, and is the
libeller to come and make the people dissatisfied with the
government under which he lives? This is not to be permitted to
any man,—it is unconstitutional and seditious.
[59] 31 How. St. Tr. 495, 535 (1811).
The same emphasis on bad tendency appears in Lord Ellenborough’s charge
at Leigh Hunt’s trial, although it failed to secure his conviction.
Can you conceive that the exhibition of the words “One Thousand
Lashes,” with strokes underneath to attract attention, could be
for any other purpose than to excite disaffection? Could it have
any other tendency than that of preventing men from entering into
the army?[60]
[60] 31 How. St. Tr. 367, 408, 413 (1811).
The same desire to nip revolution in the bud was shown by the Scotch
judges who secured the conviction of Muir and Palmer for advocating
reform of the rotten boroughs which chose the House of Commons and the
extension of the franchise, sentences of transportation for seven and
fourteen years being imposed.[61]
The right of universal suffrage, the subjects of this country
never enjoyed; and were they to enjoy it, they would not long
enjoy either liberty or a free constitution. You will, therefore,
consider whether telling the people that they have a just right
to what would unquestionably be tantamount to a total subversion
of this constitution, is such a writing as any person is entitled
to compose, to print, and to publish.
[61] 2 May, _Constitutional History_, 38–41, on the trials of Muir and
Palmer. Philip A. Brown, _The French Revolution in English History_,
97. Fourteen years appears to have been the longest sentence for
sedition imposed in Scotland during the French wars. Four years was the
longest in England. See note 157 in Chapter II, _infra_, for sentences
under the Espionage Act. Compare with these charges that of Van
Valkenburgh, J., in United States _v._ Rose Pastor Stokes, _infra_, and
the remarks of Judge Clayton in the Abrams trial in Chapter III.
American sentiment about sedition trials was decisively shown by
an expedition to New South Wales to rescue Muir, a sort of reverse
deportation.
In the light of such prosecutions it is plain that the most vital
indication that the popular definition of liberty of the press,
unpunishable criticism of officials and laws, has become a reality, is
the disappearance of these doctrines of bad tendency and presumptive
intent. In Great Britain they lingered until liberalism triumphed in
1832,[62] but in this country they disappeared with the adoption of the
free speech clauses.
[62] That they may not have wholly disappeared even yet is indicated by
the definition of sedition in Stephen’s _Digest of Criminal Law_, which
should have no application to American law. See also House Judiciary
Hearings on S. 3317 etc., 66th Cong., 2d Sess., p. 277.
The revival of those doctrines is a sure symptom of an attack upon the
liberty of the press.
Only once in our history prior to 1917 has an attempt been made to
apply those doctrines. In 1798 the impending war with France, the
spread of revolutionary doctrines by foreigners in our midst, and the
spectacle of the disastrous operation of those doctrines abroad,—facts
that have a familiar sound to-day—led to the enactment of the Alien
and Sedition Laws.[63] The Alien Law allowed the President to compel
the departure of aliens whom he judged dangerous to the peace and
safety of the United States, or suspected, on reasonable grounds, of
treasonable or secret machinations against our government. The Sedition
Law punished false, scandalous, and malicious writings against the
government, either House of Congress, or the President, if published
with intent to defame any of them, or to excite against them the hatred
of the people, or to stir up sedition or to excite resistance of law,
or to aid any hostile designs of any foreign nation against the United
States. The maximum penalty was a fine of two thousand dollars and two
years’ imprisonment. Truth was a defense, and the jury had power to
determine criminality as under Fox’s Libel Act. Despite the inclusion
of the two legal rules for which reformers had contended, and the
requirement of an actual intention to cause overt injury, the Sedition
Act was bitterly resented as invading the liberty of the press. Its
constitutionality was assailed on that ground by Jefferson, who
pardoned all prisoners when he became President, Congress eventually
repaid all the fines, and popular indignation at the Act and the
prosecutions wrecked the Federalist party. In those prosecutions words
were once more made punishable for their judicially supposed bad
tendency, and the judges reduced the test of intent to a fiction by
inferring the bad intent from this bad tendency.
[63] Act of June 25, 1798, 1 Stat. at L., 570; Act of July 14, 1798, 1
Stat. at L., 596. See Bibliography for other references on these Acts.
Whether or not the Sedition Act was unconstitutional, and on that
question Jefferson seems right, it surely defeated the fundamental
policy of the First Amendment, the open discussion of public affairs.
Like the British trials, the American sedition cases showed, as
Professor Schofield demonstrates,[64] “the great danger ... that men
will be fined and imprisoned, under the guise of being punished for
their bad motives, or bad intent and ends, simply because the powers
that be do not agree with their opinions, and spokesmen of minorities
may be terrorized and silenced when they are most needed by the
community and most useful to it, and when they stand most in need of
the protection of the law against a hostile, arrogant majority.” When
the Democrats got into power, a common-law prosecution for seditious
libel was brought in New York against a Federalist who had attacked
Jefferson. Hamilton conducted the defense in the name of the liberty of
the press.[65] This testimony from Jefferson and Hamilton, the leaders
of both parties, leaves the Blackstonian interpretation of free speech
in America without a leg to stand on. And the brief attempt of Congress
and the Federalist judges to revive the crime of sedition had proved so
disastrous that it was not repeated during the next century.
[64] Schofield, _op. cit._, 91, and 92 note.
[65] People _v._ Croswell, 3 Johns. Cas. 337 (1804). New York had then
no constitutional guarantee of liberty of the press, but Hamilton
urged that under that right at common law truth was a defense and the
jury could decide on criminality. He defined liberty of the press
as “The right to publish, with impunity, truth, with good motives,
for justifiable ends though reflecting on government, magistracy, or
individuals.” See Schofield, _op. cit._, 89 ff., for criticism of this
definition as not in the common law and as too narrow a definition of
the conception of free speech. However, it is embodied in many state
constitutions and statutes. Two out of four judges agreed with Hamilton.
The lesson of the prosecutions for sedition in Great Britain and the
United States during this revolutionary period, that the most essential
element of free speech is the rejection of bad tendency as the test
of a criminal utterance, was never more clearly recognized than in
Jefferson’s preamble to the Virginia Act for establishing Religious
Freedom.[66] His words about religious liberty hold good of political
and speculative freedom, and the portrayal of human life in every form
of art.
To suffer the civil Magistrate to intrude his powers into the
field of opinion, and to restrain the profession or propagation
of principles on supposition of their ill tendency, is a
dangerous fallacy, which at once destroys all religious liberty,
because he being of course judge of that tendency, will make
his opinions the rule of judgment, and approve or condemn the
sentiments of others only as they shall square with or differ
from his own.
[66] Act of December 26, 1785, 12 Hening’s _Statutes at Large of
Virginia_ (1823), c. 34, page 84. Another excellent argument against
the punishment of tendencies is found in Philip Furneaux, _Letters to
Blackstone_, 2 ed., 60–63, London, 1771; quoted in State _v._ Chandler,
2 Harr. (Del.) 553, 576 (1837), and in part by Schofield, _op. cit._,
77.
Although the free speech clauses were directed primarily against the
sedition prosecutions of the immediate past, it must not be thought
that they would permit unlimited previous restraint. They must also
be interpreted in the light of more remote history. The framers of
those clauses did not invent the conception of freedom of speech as a
result of their own experience of the last few years. The idea had been
gradually molded in men’s minds by centuries of conflict. It was the
product of a people of whom the framers were merely the mouthpiece. Its
significance was not fixed by their personality, but was the endless
expression of a civilization.[67] It was formed out of past resentment
against the royal control of the press under the Tudors, against the
Star Chamber and the pillory, against the Parliamentary censorship
which Milton condemned in his _Areopagitica_, by recollections of heavy
newspaper taxation, by hatred of the suppression of thought which
went on vigorously on the Continent during the eighteenth century.
Blackstone’s views also had undoubted influence to bar out previous
restraint. The censor is the most dangerous of all the enemies of
liberty of the press, and ought not to exist in this country unless
made necessary by extraordinary perils.
[67] 1 Kohler, _Lehrbuch des Bürgerlichen Rechts_, I, § 38.
Moreover, the meaning of the First Amendment did not crystallize in
1791. The framers would probably have been horrified at the thought of
protecting books by Darwin or Bernard Shaw, but “liberty of speech”
is no more confined to the speech they thought permissible than
“commerce” in another clause is limited to the sailing vessels and
horse-drawn vehicles of 1787. Into the making of the constitutional
conception of free speech have gone, not only men’s bitter experience
of the censorship and sedition prosecutions before 1791, but also the
subsequent development of the law of fair comment in civil defamation,
and the philosophical speculations of John Stuart Mill. Justice Holmes
phrases the thought with even more than his habitual felicity.[68] “The
provisions of the Constitution are not mathematical formulas having
their essence in their form; they are organic living institutions
transplanted from English soil.”
[68] Gompers _v._ United States, 233 U. S. 604, 610 (1914).
It is now clear that the First Amendment fixes limits upon the
power of Congress to restrict speech either by a censorship or by a
criminal statute, and if the Espionage Act exceeds those limits it
is unconstitutional. It is sometimes argued that the Constitution
gives Congress the power to declare war, raise armies, and support a
navy, that one provision of the Constitution cannot be used to break
down another provision, and consequently freedom of speech cannot
be invoked to break down the war power.[69] I would reply that the
First Amendment is just as much a part of the Constitution as the war
clauses, and that it is equally accurate to say that the war clauses
cannot be invoked to break down freedom of speech. The truth is that
all provisions of the Constitution must be construed together so as
to limit each other. In a war as in peace, this process of mutual
adjustment must include the Bill of Rights. There are those who
believe that the Bill of Rights can be set aside in war time at the
uncontrolled will of the government.[70] The first ten amendments were
drafted by men who had just been through a war. The Third and Fifth
Amendments expressly apply in war. A majority of the Supreme Court
declared the war power of Congress to be restricted by the Bill of
Rights in _Ex Parte_ Milligan,[71] which cannot be lightly brushed
aside, whether or not the majority went too far in thinking that the
Fifth Amendment would have prevented Congress from exercising the war
power under the particular circumstances of that case. If the First
Amendment is to mean anything, it must restrict powers which are
expressly granted by the Constitution to Congress, since Congress has
no other powers.[72] It must apply to those activities of government
which are most liable to interfere with free discussion, namely, the
postal service and the conduct of war.
[69] United States _v._ Marie Equi, Bull. Dept. Just., No. 172, 21
(Ore., 1918), Bean, J.
[70] Henry J. Fletcher, “The Civilian and the War Power,” 2 _Minn. L.
Rev._ 110, expresses this view. See also Ambrose Tighe, “The Legal
Theory of the Minnesota ‘Safety Commission’ Act,” 3 _Minn. L. Rev._ 1.
[71] 4 Wall. (U. S.) 2 (1866). The judges all agreed that Congress had
not authorized the trial of the petitioner by a military tribunal. The
majority, per Davis, J., took the ground that the government cannot
have recourse to extraordinary procedure until there are extraordinary
conditions to justify it and that under the Bill of Rights the decision
of Congress that such procedure is necessary can be reviewed by the
courts. The minority, per Chase, C. J., declared that Congress is sole
judge of the expediency of military measures in war time, and that
the war power is not abridged by any Amendment. The majority view on
this matter may be accepted by one who questions their opinion that
military tribunals are never justified outside the theater of active
military operations in a place where the civil courts are open. It may
be that military tribunals are necessary where the machinery of the
civil courts cannot adequately meet the situation (3 _Minn. L. Rev._
9), but the civil courts must eventually decide whether their machinery
was adequate or not. Otherwise, in any war, no matter how small or
how distant, Congress could put the whole country under military
dictatorship.
[72] United States Constitution, Art. I, § 1: “All legislative powers
herein granted shall be vested in a Congress.” Amendment X: “The powers
not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively or to the
people.”
“This government is acknowledged by all to be one of enumerated powers.
The principle that it can exercise only the powers granted to it, would
seem too apparent.”—Marshall, C. J., in McCulloch _v._ Maryland, 4
Wheat. (U. S.) 316, 405 (1819). See also Taney, C. J., in _Ex parte_
Merryman, Taney, 236, 260 (1861), and Brewer, J., in Kansas _v._
Colorado, 206 U. S. 46, 81 (1907).
The true meaning of freedom of speech seems to be this. One of the
most important purposes of society and government is the discovery
and spread of truth on subjects of general concern. This is possible
only through absolutely unlimited discussion, for, as Bagehot points
out, once force is thrown into the argument, it becomes a matter of
chance whether it is thrown on the false side or the true, and truth
loses all its natural advantage in the contest. Nevertheless, there are
other purposes of government, such as order, the training of the young,
protection against external aggression. Unlimited discussion sometimes
interferes with these purposes, which must then be balanced against
freedom of speech, but freedom of speech ought to weigh very heavily in
the scale. The First Amendment gives binding force to this principle of
political wisdom.
Or to put the matter another way, it is useless to define free speech
by talk about rights. The agitator asserts his constitutional right to
speak, the government asserts its constitutional right to wage war.
The result is a deadlock. Each side takes the position of the man who
was arrested for swinging his arms and hitting another in the nose,
and asked the judge if he did not have a right to swing his arms in a
free country. “Your right to swing your arms ends just where the other
man’s nose begins.” To find the boundary line of any right, we must get
behind rules of law to human facts. In our problem, we must regard the
desires and needs of the individual human being who wants to speak and
those of the great group of human beings among whom he speaks. That
is, in technical language, there are individual interests and social
interests, which must be balanced against each other, if they conflict,
in order to determine which interest shall be sacrificed under the
circumstances and which shall be protected and become the foundation of
a legal right.[73] It must never be forgotten that the balancing cannot
be properly done unless all the interests involved are adequately
ascertained, and the great evil of all this talk about rights is that
each side is so busy denying the other’s claim to rights that it
entirely overlooks the human desires and needs behind that claim.
[73] This distinction between rights and interests clarifies almost
any constitutional controversy. The distinction originated with von
Ihering. For presentation of it in English, see John Chipman Gray,
_Nature and Sources of the Law_, § 48 ff.; Roscoe Pound, “Interests of
Personality,” 28 _Harv. L. Rev._ 453.
The rights and powers of the Constitution, aside from the portions
which create the machinery of the federal system, are largely means
of protecting important individual and social interests, and because
of this necessity of balancing such interests the clauses cannot be
construed with absolute literalness. The Fourteenth Amendment and
the obligation of contracts clause, maintaining important individual
interests, are modified by the police power of the states, which
protects health and other social interests. The Thirteenth Amendment
is subject to many implied exceptions, so that temporary involuntary
servitude is permitted to secure social interests in the construction
of roads, the prevention of vagrancy, the training of the militia or
national army. It is common to rest these implied exceptions to the
Bill of Rights upon the ground that they existed in 1791 and long
before, but a less arbitrary explanation is desirable. Not everything
old is good. Thus the antiquity of peonage does not constitute it
an exception to the Thirteenth Amendment; it is not now demanded
by any strong social interest. It is significant that the social
interest in shipping which formerly required the compulsory labor
of articled sailors is no longer recognized in the United States as
sufficiently important to outweigh the individual interest in free
locomotion and choice of occupation. Even treaties providing for
the apprehension in our ports of deserting foreign seamen have been
abrogated by the La Follette Seamen’s Act. The Bill of Rights does not
crystallize antiquity. It seems better to say that long usage does
not create an exception to the absolute language of the Constitution,
but demonstrates the importance of the social interest behind the
exception.[74]
[74] This paragraph rests on Butler _v._ Perry, 240 U. S. 328 (1916);
Robertson _v._ Baldwin, 165 U. S. 275, 281 (1897); Bailey _v._ Alabama,
219 U. S. 219 (1911); Act of March 4, 1915, c. 153, § 16, U. S. Comp.
Stat., 1918, § 8382 _a_; Hurtado _v._ California, 110 U. S. 516 (1884).
The First Amendment protects two kinds of interests in free speech.
There is an individual interest, the need of many men to express their
opinions on matters vital to them if life is to be worth living, and a
social interest in the attainment of truth, so that the country may not
only adopt the wisest course of action but carry it out in the wisest
way. This social interest is especially important in war time. Even
after war has been declared there is bound to be a confused mixture
of good and bad arguments in its support, and a wide difference of
opinion as to its objects. Truth can be sifted out from falsehood only
if the government is vigorously and constantly cross-examined, so that
the fundamental issues of the struggle may be clearly defined, and the
war may not be diverted to improper ends, or conducted with an undue
sacrifice of life and liberty, or prolonged after its just purposes
are accomplished. Legal proceedings prove that an opponent makes the
best cross-examiner. Consequently it is a disastrous mistake to limit
criticism to those who favor the war. Men bitterly hostile to it may
point out evils in its management like the secret treaties, which
its supporters have been too busy to unearth. If a free canvassing
of the aims of the war by its opponents is crushed by the menace of
long imprisonment, such evils, even though made public in one or two
newspapers, may not come to the attention of those who had power to
counteract them until too late.[75]
[75] “Senator Borah—‘Then we had no knowledge of these secret treaties
so far as our Government was concerned until you reached Paris?’
“The President—‘Not unless there was information at the State
Department of which I knew nothing.’”—_N. Y. Times_, Aug. 20, 1919.
The history of the last five years shows how the objects of a war
may change completely during its progress, and it is well that those
objects should be steadily reformulated under the influence of open
discussion not only by those who demand a military victory, but by
pacifists who take a different view of the national welfare. Further
argument for the existence of this social interest becomes unnecessary
if we recall the national value of the opposition in former wars.
The great trouble with most judicial construction of the Espionage Act
is that this social interest has been ignored and free speech has been
regarded as merely an individual interest, which must readily give way
like other personal desires the moment it interferes with the social
interest in national safety. The judge who has done most to bring
social interests into legal thinking said years ago, “I think that the
judges themselves have failed adequately to recognize their duty of
weighing considerations of social advantage. The duty is inevitable,
and the result of the often proclaimed judicial aversion to deal with
such considerations is simply to leave the very ground and foundation
of judgments inarticulate and often unconscious.”[76] The failure
of the courts in the past to formulate any principle for drawing a
boundary line around the right of free speech has not only thrown the
judges into the difficult questions of the Espionage Act without any
well-considered standard of criminality, but has allowed some of them
to impose standards of their own and fix the line at a point which
makes all opposition to this or any future war impossible. For example:
No man should be permitted, by deliberate act, or even
unthinkingly, to do that which will in any way detract from the
efforts which the United States is putting forth or serve to
postpone for a single moment the early coming of the day when the
success of our arms shall be a fact.[77]
[76] Oliver Wendell Holmes, “The Path of the Law,” 10 _Harv. L. Rev._
457, 467.
[77] United States _v._ “The Spirit of ’76,” 252 Fed. 946. Another good
example is United States _v._ Schoberg, Bull. Dept. Just., No. 149.
The true boundary line of the First Amendment can be fixed only when
Congress and the courts realize that the principle on which speech is
classified as lawful or unlawful involves the balancing against each
other of two very important social interests, in public safety and
in the search for truth. Every reasonable attempt should be made to
maintain both interests unimpaired, and the great interest in free
speech should be sacrificed only when the interest in public safety
is really imperiled, and not, as most men believe, when it is barely
conceivable that it may be slightly affected. In war time, therefore,
speech should be unrestricted by the censorship or by punishment,
unless it is clearly liable to cause direct and dangerous interference
with the conduct of the war.
Thus our problem of locating the boundary line of free speech is
solved. It is fixed close to the point where words will give rise to
unlawful acts. We cannot define the right of free speech with the
precision of the Rule against Perpetuities or the Rule in Shelley’s
Case, because it involves national policies which are much more
flexible than private property, but we can establish a workable
principle of classification in this method of balancing and this
broad test of certain danger. There is a similar balancing in the
determination of what is “due process of law.” We can insist upon
various procedural safeguards which make it more probable that a
tribunal will give the value of open discussion its proper weight in
the balance. Fox’s Libel Act is such a safeguard, and others will be
considered in the next chapter. And we can with certitude declare that
the First Amendment forbids the punishment of words merely for their
injurious tendencies. The history of the Amendment and the political
function of free speech corroborate each other and make this conclusion
plain.
CHAPTER II
OPPOSITION TO THE WAR WITH GERMANY
Vital as is the necessity in time of war not to hamper acts of
the executive in the defense of the nation and in the prosecution
of the war, of equal and perhaps greater importance, is the
preservation of constitutional rights.—JUDGE MAYER, in _Ex parte_
Gilroy, 257 Fed. 110, 114 (1919).
On April 6, 1917, Congress declared war against Germany. On May 18
it enacted the Selective Service Act for raising a National Army.
The people, by an overwhelming majority, believed conscription to
be a necessary and just method of waging an unavoidable war, and
the machinery for enforcing the draft by civilian aid was admirably
planned. “The result,” says Attorney General Gregory,[78] “was that
the ultimate opposition to the draft by those liable was surprisingly
small, considering the persistent propaganda carried on against
the policy of the law and against its constitutionality.” And his
Assistant, Mr. John Lord O’Brian, adds, “No anti-draft propaganda had
the slightest chance of success.” The decision of the Supreme Court
sustaining the validity of the statute[79] merely fulfilled the general
expectation.
[78] Report of the Attorney General, 1917, p. 74. “Civil Liberty in
War Time,” John Lord O’Brian, 42 Rep. N. Y. Bar Assn. 275, 291 (1919),
cited hereafter as O’Brian.
[79] Selective Draft Law Cases, 245 U. S. 366 (1918).
Besides the military and civilian organization for reaching the men
who were liable to registration and subsequently called into service,
the government had at its disposal several criminal statutes enacted
during the Civil War, which it could and did use to punish conspiracies
to resist recruiting and conscription by riots[80] and other forcible
means, or seeking by speeches and publications to induce men to evade
the draft.[81] In some respects, however, these statutes were felt
to be incomplete. It was not a crime to persuade a man not to enlist
voluntarily, and an attempt by an isolated individual to obstruct the
draft, if unsuccessful, was beyond the reach of the law, unless his
conduct was sufficiently serious to amount to treason. The treason
statute, the only law on the books affecting the conduct of the
individual, was of little service,[82] since there was considerable
doubt whether it applied to utterances. Therefore, although it is
probable that under the circumstances the existing conspiracy statutes
would have met any serious danger to the prosecution of the war, new
legislation was demanded.
[80] Bryant _v._ U. S., 257 Fed. 378 (C. C. A., 1919); Orear _v._ U.
S., 261 Fed. 257 (C. C. A., 1919); U. S. _v._ Reeder, Bull. Dept.
Just., No. 161 (1918); Reports of the Attorney General, 1917, p. 75;
1918, p. 45.
[81] Emma Goldman _v._ U. S., 245 U. S. 474 (1918); Wells _v._ U.
S., 257 Fed. 605 (C. C. A., 1919); U. S. _v._ Phillips, Bull. Dept.
Just., No. 14 (1917); and other cases in the bulletins; Reports of the
Attorney General, _supra_.
[82] O’Brian, 277. Among the treason cases of the war were U. S. _v._
Werner, 247 Fed. 708 (1918), and Nelles, Espionage Act Cases, 4, cited
hereafter as Nelles; U. S. _v._ Robinson, 259 Fed. 685 (1919); U. S.
_v._ Fricke, 259 Fed. 673 (1919). See Bibliography, on treason.
If the government had been content to limit itself to meeting the
tangible needs just mentioned, the effect on discussion of the war
would probably have been very slight, for treason, conspiracies, and
attempts constitute a direct and dangerous interference with the war,
outside the protection of freedom of speech as defined in the preceding
chapter. Two additional factors, however, influenced the terms of the
new statutes, and even more the spirit in which they were enforced.
First, came the recollection of the opposition during the Civil War,
which was handled under martial law in so far as it was suppressed at
all, a matter which I shall take up later. Some persons, full of old
tales of Copperheads, were for stigmatizing all opponents of this war
as traitors. Senator Chamberlain of Oregon introduced a bill which made
the whole United States “a part of the zone of operations conducted by
the enemy,” and declared any person who endangered or interfered with
the successful operation of our forces by publishing anything to be
a spy subject to trial by court martial and the penalty of death. The
bill was dropped upon receipt of a letter from the President, in which
he attacked the constitutionality and advisability of the law.[83]
Whatever control was exercised over civilians should be through the
ordinary courts, and it was evident that the conspiracy statutes
did not make that possible on a large scale. The second factor was
the fear of German propaganda and the knowledge of legislation and
administrative regulations guarding against it in Great Britain[84]
and Canada.[85] Although we did not adopt the British administrative
control, which combined flexibility with possibilities of despotism, it
was easy to forget our own policy of non-interference with minorities
and put the United States also in a position to deal severely with
written and spoken opposition to the war.
[83] “Freedom of Speech and of the Press in War Time: the Espionage
Act,” Thomas F. Carroll, 17 _Mich. L. Rev._ 663 note; cited hereafter
as Carroll. Such a bill seems clearly unconstitutional in view of the
Fifth Amendment and _Ex parte_ Milligan. See note 71 in chapter I.
[84] The Defense of the Realm Consolidation Act, 1914, 5 Geo. 5, c.
8, § 1, gives His Majesty in Council power “to issue regulations.” A
very wide scope is given to this power by the House of Lords in Rex
_v._ Halliday (1917) A. C. 260, Lord Shaw of Dunfermline dissenting.
See 31 _Harv. L. Rev._ 296. Regulation 27 of the Orders in Council
makes various forms of speech, writing, etc., offenses. Regulation 51
A provides for the seizure of publications on warrant, and Regulation
56 (13) for the punishment of press offenses. See Pulling, _Defense
of the Realm Manual_, revised monthly. These regulations have been
construed in Norman _v._ Mathews, 32 T. L. R. 303, 369 (1915); Fox _v._
Spicer, 33 T. L. R. 172 (1917); Rex _v._ Bertrand Russell, _infra_,
note 114. The practical effect has been to establish an administrative
censorship. H. J. Laski, _Authority in the Modern State_, 101.
[85] Carroll, 17 _Mich. L. Rev._ 621 note.
I. _The Espionage Acts of 1917 and 1918_
The result of these various influences was the third section of Title
I of the Espionage Act. As originally enacted on June 15, 1917, this
section established three new offenses:[86]
(1) Whoever, when the United States is at war, shall willfully
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 (2) and whoever, when the United States is at war, shall
willfully cause or attempt to cause insubordination, disloyalty,
mutiny, or refusal of duty, in the military or naval forces of
the United States, (3) or shall willfully 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.
[86] Act of June 15, 1917, c. 30, Title I, § 3. The numerals are
inserted by me.
Although most of the Espionage Act deals with entirely different
subjects, like actual espionage, the protection of military secrets,
and the enforcement of neutrality in future conflicts between other
nations, the section just quoted is buttressed by four provisions.
Section 4 of the same Title punishes persons conspiring to violate
section 3, if any one of them does any act to effect the object of
the conspiracy. Section 5 imposes a penalty of $10,000 or two years’
imprisonment for harboring or concealing any person suspected of
committing or being about to commit any of the offenses already
mentioned. Title XI authorizes the issue of search-warrants for the
seizure of property used as the means of committing a felony, which
would include violations of the section just quoted. It was under
this provision that the moving-picture film was confiscated in the
_Spirit of ’76_ case, and raids were made on the offices of anti-war
organizations. Finally, Title XII made non-mailable any matter
violating the Act, or advocating treason, insurrection, or forcible
resistance to any law of the United States, directed that it should not
be conveyed or delivered, and imposed heavy penalties for attempting to
use the mails for its transmission.
Attorney General Gregory reports that, although this Act proved an
effective instrumentality against deliberate or organized disloyal
propaganda, it did not reach the individual casual or impulsive
disloyal utterances. Also some District Courts gave what he considered
a narrow construction of the word “obstruct” in clause (3), so that,
as he puts it, “most of the teeth which we tried to put in were taken
out.”[87]
These individual disloyal utterances, however, occurring with
considerable frequency throughout the country, naturally
irritated and angered the communities in which they occurred,
resulting sometimes in unfortunate violence and lawlessness and
everywhere in dissatisfaction with the inadequacy of the Federal
law to reach such cases. Consequently there was a popular demand
for such an amendment as would cover these cases.[88]
[87] 4 _Am. Bar Assoc. Journ._ 306.
[88] The history of the amendment is taken from Report of the Attorney
General of the United States (1918), 18; and O’Brian, 302. See _Montana
Laws_, 1918. sp., c. 11.
The history of what then happened in Congress is not without
interest. The Attorney General asked for a brief amendment of the
Act by the addition of attempts to obstruct the recruiting service,
and the punishment of efforts intentionally made for the purpose of
discrediting and interfering with the flotation of war loans. The
Senate Committee on the Judiciary, being thus stirred up, took the bit
in its teeth, and decided to stamp on all utterances of a disloyal
character. It went for a model of legislation affecting freedom of
discussion to a recent sedition statute of the state of Montana, and
borrowed a large number of its clauses for the new federal law. While
this measure was pending in Congress it was proposed to incorporate
a provision exempting anti-war utterances if made with good motives
and for justifiable ends. Mr. Gregory informed Congress that the
experience of his department had shown “that some of the most dangerous
types of propaganda were either made from good motives or else that
the traitorous motive was not provable,” and that the defense would
“in effect destroy the value of the Espionage Act as a weapon against
propaganda.” The bill became law without the proviso.
This amendment of May 16, 1918,[89] which is sometimes called the
Sedition Act, inserted “attempts to obstruct” in the third of
the original offenses, and added nine more offenses, as follows:
(4) saying or doing anything with intent to obstruct the sale of
United States bonds, except by way of bona fide and not disloyal
advice; (5) uttering, printing, writing, or publishing any disloyal,
profane, scurrilous, or abusive language, or language intended to
cause contempt, scorn, contumely or disrepute as regards the form of
government of the United States; (6) or the Constitution; (7) or the
flag; (8) or the uniform of the Army or Navy; (9) or any language
intended to incite resistance to the United States or promote the
cause of its enemies; (10) urging any curtailment of production of any
things necessary to the prosecution of the war with intent to hinder
its prosecution; (11) advocating, teaching, defending, or suggesting
the doing of any of these acts; and (12) words or acts supporting or
favoring the cause of any country at war with us, or opposing the cause
of the United States therein. Whoever commits any one of these offenses
in this or any future war is liable to the maximum penalty of the
original act, $10,000 fine or twenty years’ imprisonment, or both.
[89] The full text of this Amendment is in Appendix III.
The buttressing provisions of the Act of 1917 apply to this 1918
Act and the non-mailable provision is made still more severe. The
Postmaster General can now, if “on evidence satisfactory to _him_” he
thinks anything mailed constitutes any one of the twelve offenses of
the Sedition Act, prevent the sender from receiving any mail at all,
however innocent. Without any jury trial or hearing before a judge, the
citizen in question becomes for the post-office an outlaw.
The Espionage Act of 1918 has been defended on the ground that when
the public found that many obnoxious utterances were regarded by
United States District Attorneys as outside the simple Act of 1917,
loyal people would take matters into their own hands. Two lynchings
and many horsewhippings and tar-and-featherings had occurred, and
over two hundred miners, mostly members of the I.W.W., were forcibly
deported from their homes in Bisbee, Arizona, into the desert.[90]
Congress responded to this outcry by the passage of the Sedition Law.
Doubtless some governmental action was required to protect pacifists
and extreme radicals from mob violence, but incarceration for a period
of twenty years seems a very queer kind of protection. If Congress had
adopted some plan by which persons outside the existing conspiracy
statutes whose speeches and writings were really causing trouble could
be tried and confined until the actual emergency was passed, and in no
case beyond the termination of hostilities, this would have prevented
every danger to such men, and, what is more, every danger from them,
and would have accorded with the preventive but not punitive policy
pursued by Lincoln in the Civil War toward his most disloyal opponents.
Instead, many persons convicted under the Espionage Act remained out
on bail for months, often until the war was over, so that all the
preventive purposes of the statute were defeated, and then were sent to
prison for years.[91]
[90] See note 88. Many cases of mob violence are listed on pp. 5–13
of _War-time Prosecutions and Mob Violence_, N. Y., 1919. The Bisbee
deportations were held not to be a federal crime, U. S. _v._ Wheeler,
254 Fed. 611 (1918). State prosecutions are now pending.
[91] O’Brian, 311.
The chief importance of the new crimes created by the Espionage Act
of 1918 is in their effect on future wars, for the amendment came so
late in this war that all the big cases, except the Abrams prosecution,
turned on the meaning of the three original offenses of the 1917 Act or
on “attempts to obstruct.” As the Abrams case is reserved for a chapter
by itself, I shall hereafter in this chapter confine myself to those
three offenses except when I expressly refer to the statute of 1918.
II. _Masses Publishing Co._ _v._ _Patten_
The framers of the First Amendment knew that the right to
criticise might weaken the support of the Government in a time
of war. They appreciated the value of a united public opinion at
such a time. They were men who had experienced all those things
in the war of the Revolution, and yet they knew too that the
republic which they were founding could not live unless the right
of free speech, of freedom of the press was maintained at such a
time. They balanced these considerations and then wrote the First
Amendment.—JUDGE CHARLES F. AMIDON.
The Espionage Act of 1917 seems on its face constitutional under the
interpretation of the First Amendment reached in this book, but it
may have been construed so extremely as to violate the Amendment.
Furthermore, freedom of speech is not only a limit on Congressional
power, but a policy to be observed by the courts in applying
constitutional statutes to utterance. The scope of that policy is
determined by the same method of balancing social interests. The
boundary line of punishable speech under this Act was consequently
fixed at the point where words come close to injurious conduct by that
judge who during the war gave the fullest attention to the meaning of
free speech,—Judge Learned Hand, of the Southern District of New York.
In Masses Publishing Co. _v._ Patten[92] Judge Hand was asked to enjoin
the postmaster of New York from excluding from the mails the August
issue of _The Masses_, a monthly revolutionary journal, which contained
several articles, poems, and cartoons attacking the war. When notified
of the exclusion, the publisher had offered to delete any passages
pointed out by the postmaster, but was refused such information.
After suit was started, the postmaster, while objecting generally
that the whole purport of the number was unlawful, since it tended to
encourage the enemies of the United States and hamper the government
in the conduct of the war, specified four cartoons, entitled “Liberty
Bell,” “Conscription,” “Making the World Safe for Capitalism,” and
“Congress and Big Business”; also a poem, which declared Emma Goldman
and Alexander Berkman, who were in prison for conspiracy to resist the
draft, to be “elemental forces”—
Like the water that climbs down the rocks;
Like the wind in the leaves;
Like the gentle night that holds us.
He also objected to three articles admiring the “sacrifice” of
conscientious objectors, and praising Goldman and Berkman as “friends
of American freedom.”
[92] 244, Fed. 535 (S. D. N. Y., 1917).
The Espionage Act, it will be remembered, made non-mailable any
publication which violated the criminal provisions of the section
already quoted. One important issue was, therefore, whether the
postmaster was right in finding such a violation. The case did not
raise the constitutional question whether Congress could make criminal
any matter which tended to discourage the successful prosecution of
the war, but involved only the construction of the statute, whether
Congress had as yet gone so far. Judge Hand held that it had not and
granted the injunction. He refused to turn the original Act, which
obviously dealt only with interference with the conduct of military
affairs,[93] into a prohibition of all kinds of propaganda and a means
for suppressing all hostile criticism and all opinion except that which
encouraged and supported the existing policies of the war, or fell
within the range of temperate argument. As Cooley pointed out long
ago, you cannot limit free speech to polite criticism, because the
greater a grievance the more likely men are to get excited about it,
and the more urgent the need of hearing what they have to say.[94] The
normal test for the suppression of speech in a democratic government,
Judge Hand insists, is neither the justice of its substance nor the
decency and propriety of its temper, but the strong danger that it
will cause injurious acts. The Espionage Act should not be construed
to reverse this national policy of liberty of the press and silence
hostile criticism, unless Congress had given the clearest expression of
such an intention in the statute.
[93] The plain fact that the original Espionage Act is a military
statute and not a sedition statute is also recognized by United States
_v._ Fontana, Bull. Dept. Just., No. 148 (N. D. 1917), Amidon, J.;
United States _v._ Wishek, Bull. Dept. Just., No. 153 (N. D., 1917),
Amidon, J.; United States _v._ Henning, Bull. Dept. Just., No. 184
(Wis., 1917), Geiger, D. J.; and implied by other cases. The large
number of cases which ignore the clear meaning of the statute is
astounding in view of the rule that criminal statutes must be construed
strictly.
[94] Cooley, _Constitutional Limitations_, 7 ed., 613.
Congress had shown no such intention. Moreover, whether or not it
could create a personal censorship of the press under the war power,
it had not yet done so. Since the portions of _The Masses_ selected
by the postmaster did not actually advocate violence, he had no right
to suppress the magazine “on the doctrine that the general tenor and
animus of the paper were subversive to authority and seditious in
effect.”
The tradition of English-speaking freedom has depended in no
small part upon the merely procedural requirement that the state
point with exactness to just that conduct which violates the law.
It is difficult and often impossible to meet the charge that
one’s general ethos is treasonable.
Judge Hand places outside the limits of free speech one who counsels or
advises others to violate existing laws. Language is not always exempt
from punishment. “Words are not only the keys of persuasion, but the
triggers of action, and those which have no purport but to counsel
the violation of law cannot by any latitude of interpretation be a
part of that public opinion which is the final source of government
in a democratic state.” It is also true, he says, that any discussion
designed to show that existing laws are mistaken in means or unjust
in policy may result in their violation. Nevertheless, if one stops
short of urging upon others that it is their duty or their interest
to resist the law, he should not be held to have attempted to cause
illegal conduct. If this is not the test, the 1917 Act punishes every
political agitation which can be shown to be apt to create a seditious
temper. The language of the statute proves that Congress had no such
revolutionary purpose in view.
According to this view, criminality under the Espionage Act of 1917
would be determined by an objective test, the nature of the words
used. The jury could pass on this much better than on questions of
political and economic tendency. Moreover, the Act would have a meaning
easily understood by the opponents of the war. They could safely
engage in discussion of its merits and the justice of war policies,
so long as they refrained from urging violation of laws. The Act, thus
interpreted, does not go to the limits of Congressional power as I
have construed them. Under some circumstances an expression of opinion
which does not counsel any unlawful act may be highly dangerous. Even
Mill would punish a statement that grain-dealers are starvers of the
poor, or that private property is robbery, when delivered orally to
an excited mob assembled before the house of a grain-dealer.[95]
A scathing analysis of the incompetence of the commanding general
circulated among the troops on the eve of battle would be a direct
and dangerous interference with the war. But military law would deal
with this offense within the lines, and the law of illegal assembly
will come into play elsewhere, as in Mill’s case. There is no need to
make the expression of opinion in itself criminal. It has not been
so normally in this country, especially not under federal law, and
the Espionage Act of 1917 (unlike that of 1918) contains nothing to
indicate such an interference with the attainment and dissemination
of truth. That statute by its terms fills in the gap between the
treason and the conspiracy laws by reaching the individual who actually
attempts or incites interference with the war, whether by acts like
assaulting a recruiting officer or by words whose tenor shows that they
have very little to do with the social interest in truth, since they do
not discuss the merits of the war, but counsel immediate and injurious
acts. In other words, Congress was punishing dangerous acts and such
words as had all the effect of acts, because they could have no other
purpose but a direct and dangerous interference with the war.
[95] Mill, _Liberty_, opening of c. 3.
There was during the war no finer judicial statement of the right of
free speech than these words of Judge Hand:
Political agitation, by the passions it arouses or the
convictions it engenders, may in fact stimulate men to the
violation of law. Detestation of existing policies is easily
transformed into forcible resistance of the authority which puts
them in execution, and it would be folly to disregard the causal
relation between the two. Yet to assimilate agitation, legitimate
as such, with direct incitement to violent resistance, is to
disregard the tolerance of all methods of political agitation
which in normal times is a safeguard of free government. The
distinction is not a scholastic subterfuge, but a hard-bought
acquisition in the fight for freedom.
Look at the Espionage Act of 1917[96] with a post-armistice mind, and
it is clear that Judge Hand was right. There is not a word in it to
make criminal the expression of pacifist or pro-German opinions. It
punishes false statements and reports—necessarily limited to statements
of fact—but beyond that does not contain even a provision against the
use of language. It differs entirely from the Act of 1918, and from
state laws making utterances criminal for their own sake as nuisances
or breaches of the peace. Utterances (except false statements) are
punishable, if at all, because of their relation to specified acts.
Clauses (2) and (3) punish successful interference with military
affairs and attempts to interfere, which would probably include
incitement.[97] The tests of criminal attempt and incitement are well
settled.[98] The first requirement is the intention to bring about the
overt criminal act. But the law does not punish bad intention alone,
or even everything done with a bad intention. A statute against murder
will not be construed to apply to discharging a gun with the intention
to kill a man forty miles away. Writing a letter to a firm in San
Francisco requesting a shipment of liquor into Alaska is not an attempt
to import liquor into Alaska until it is brought near the borders,
headlands, or waters of that territory. Attempts and incitement to be
punishable must come dangerously near success, and bad intention is
merely one modifying factor in determining whether the actual conduct
is thus dangerous. A speaker is guilty of solicitation or incitement to
a crime only if he would have been indictable for the crime itself, had
it been committed, either as accessory or principal.[99] Of course his
liability when nothing really happens will not be greater than if his
conduct leads to actual crime. Now even in that event, at common law
the utterer of written or spoken words is not criminally liable merely
because he knows they will reach those who may find in them the excuse
for criminal acts. The assassin of President McKinley may have been
influenced by the denunciatory cartoons of “Willy and his Papa” in the
Hearst newspapers, but the artist was not an accessory to the murder.
[96] See page 42, _supra_, for text of the Act.
[97] Attempts do not ordinarily include solicitation, see Beale,
_infra_, 16 _Harv. L. Rev._ 491, 506 note 1; but attempts to commit
offenses under the 1917 Espionage Act would naturally be by incitement.
[98] Joseph H. Beale, “Criminal Attempts,” 16 _Harv. L. Rev._ 491; U.
S. _v._ Stephens, 12 Fed. 52. See also 32 _Harv. L. Rev._ 417.
[99] See Beale, _supra_, 16 _Harv. L. Rev._ 491, 505. Under the federal
statutes he would be a principal. Rev. Stat. §§ 5323, 5427; March 4,
1909, c. 321, § 332; U. S. Comp. Stat., 1918, § 10506 (Crim. Code, §
332).
Wharton, a leading writer on criminal law, shows how wise the common
law was in refusing to establish any rule of indirect causation with
respect to utterances:
For we would be forced to admit, if we hold that solicitations
to criminality are generally indictable, that the propagandists,
even in conversation, of agrarian or communistic theories are
liable to criminal prosecutions; and hence the necessary freedom
of speech and of the press would be greatly infringed. It would
be hard, also, we must agree, if we maintain such general
responsibility, to defend, in prosecutions for soliciting crime,
the publishers of Byron’s _Don Juan_, of Rousseau’s _Émile_, or
of Goethe’s _Elective Affinities_. Lord Chesterfield, in his
letters to his son, directly advises the latter to form illicit
connections with married women; Lord Chesterfield, on the
reasoning here contested, would be indictable for solicitation
to adultery. Undoubtedly, when such solicitations are so
publicly and indecently made as to produce public scandal, they
are indictable as nuisances or as libels. But to make bare
solicitations or allurements indictable as _attempts_, not only
unduly and perilously extends the scope of penal adjudication,
but forces on the courts psychological questions which they are
incompetent to decide, and a branch of business which would make
them despots of every intellect in the land.[100]
[100] Wharton, _Criminal Law_, I (9 ed.), § 179.
On the contrary, the rule has always been that, to establish criminal
responsibility, the words uttered must constitute dangerous progress
toward the consummation of the independent offense attempted and
amount to procurement, counsel, or command to commit the forbidden
acts.[101] This standard can be applied, not only to attempts to cause
insubordination and obstruction of the draft, where the ultimate result
would be a crime, but also to the persuasion of men not to volunteer.
Their failure to enlist is not a crime, but is a serious injury to the
government. The speaker is interfering with the right of the army to a
free labor market, in a manner analogous to picketing and boycotting in
private business, which often constitute civil wrongs, compensated by
damages.[102] Such interference may justly be made criminal, but only
if it is direct and dangerous, for the measure of liability ought not
to be larger than for solicitation to a criminal result like evasion of
the draft.[103]
[101] 4 Blackstone’s _Commentaries_ 36.
[102] Gompers _v._ Bucks Stove and Range Co., 221 U. S. 418 (1911);
Vegelahn _v._ Guntner, 167 Mass. 92 (1896). The boycott may become a
crime under the Sherman Law, Loewe _v._ Lawlor (Danbury Hatters’ Case),
208 U. S. 274 (1908).
[103] See Hand in U. S. _v._ Nearing, 252 Fed. 223, 227 (1918). The
same principle applies to interference with Liberty Bond sales under
the 1918 Act.
Consequently, no one should have been held under clauses (2) and (3) of
the Espionage Act of 1917 who did not satisfy these tests of criminal
attempt and incitement. As Justice Holmes said in Commonwealth _v._
Peaslee,[104] “It is a question of degree.” We can suppose a series
of opinions, ranging from “This is an unwise war” up to “You ought to
refuse to go, no matter what they do to you,” or an audience varying
from an old women’s home to a group of drafted men just starting for
a training camp. Somewhere in such a range of circumstances is the
point where direct causation begins and speech becomes punishable as
incitement under the ordinary standards of statutory construction
and the ordinary policy of free speech, which Judge Hand applied.
Congress could push the test of criminality back beyond this point,
although eventually it would reach the extreme limit fixed by the First
Amendment, beyond which words cannot be restricted for their remote
tendency to hinder the war.[105] In other words, the ordinary tests
punish agitation just before it begins to boil over; Congress could
change those tests and punish it when it gets really hot, but it is
unconstitutional to interfere when it is merely warm. And there is not
a word in the 1917 Espionage Act to show that Congress did change the
ordinary tests or make any speech criminal except false statements
and incitement to overt acts. Every word used, “cause,” “attempt,”
“obstruct,” clearly involves proximate causation, a close and direct
relation to actual interference with the operations of the army and
navy, with enlistment and the draft. Finally, this is a penal statute
and ought to be construed strictly. Attorney General Gregory’s charge
that judges like Learned Hand “took the teeth” out of the 1917 Act[106]
is absurd, for the teeth the government wanted were never there until
other judges in an excess of patriotism put in false ones.
[104] 177 Mass. 267, 272 (1901). See also his opinion in Swift _v._
U. S., 196 U. S. 375, 396 (1905).
[105] See the quotation from Justice Brandeis, page 99, _infra_.
[106] See note 87, _supra_.
Nevertheless, Judge Hand was reversed[107] on a point of administrative
law, that the postmaster’s decision must stand unless clearly
wrong,[108] but the Circuit Court of Appeals thought it desirable to
reject his construction of the Espionage Act and substitute the view
that speech is punishable under the Act “if the natural and reasonable
effect of what is said is to encourage resistance to law, and the words
are used in an endeavor to persuade to resistance.” His objective
test of the nature of the words was considered unsound. Advice in
direct language was repudiated as a requisite of guilt. Judge Hough
used the Sermon on the Mount as a precedent for the government’s
war policy: “It is at least arguable whether there can be any more
direct incitement to action than to hold up to admiration those who do
act.... The Beatitudes have for some centuries been considered highly
hortatory, though they do not contain the injunction: ‘Go thou and do
likewise.’” It is possible that the Court of Appeals did not intend
to lay down a very different principle from Judge Hand, but chiefly
wished to insist that in determining whether there is incitement one
must look not only at the words themselves but also at the surrounding
circumstances which may have given the words a special meaning to their
hearers. Judge Hand agrees with this, and regards Mark Antony’s funeral
oration, for instance, as having counseled violence while it expressly
discountenanced it. However, the undoubted effect of the final decision
in Masses _v._ Patten was to establish the old-time doctrine of remote
bad tendency in the minds of district judges throughout the country. By
its rejection of the common-law test of incitement,[109] it deprived
us of the only standard of criminal speech there was, since there had
never been any well-considered discussion of the meaning of “freedom of
speech” in the First Amendment.
[107] Masses Pub. Co. _v._ Patten, 245 Fed. 102 (C. C. A. 2d, 1917),
Hough, J., stayed the injunction; _ibid._ 246, Fed. 24 (C. C. A. 2d,
1917), Ward, Rogers, and Mayer, JJ., reversed the order granting the
injunction.
[108] See for authorities against this proposition, 32 _Harv. L. Rev._
417, 420. See page 106, _infra_, VI. Censorship; also Chapter V.
[109] See the review of Masses _v._ Patten by Learned Hand, J., in U.
S. _v._ Nearing, 252 Fed. 223, 227 (1918). Judge Rogers may not have
realized he was rejecting it (246 Fed. 38), but the test of common-law
incitement has never been applied to the Act by a District Judge since.
As a result of this and similar decisions, the district judges ignored
entirely the first element of criminal attempt and solicitation,
that the effort, though unsuccessful, must approach dangerously near
success. They repudiated the test of guilt under the Act laid down by
Judge Hand, that the words must in themselves urge upon their readers
or hearers a duty or an interest to resist the law or the appeal for
volunteers, and substituted the test that the words need only have a
tendency to cause unrest among soldiers or to make recruiting more
difficult. The remaining element, intention to cause the bad overt
action, they retained. This new standard of guilt allowed conviction
for any words which had an indirect effect to discourage recruiting and
the war spirit, like the poem about Emma Goldman and the wind, if only
the intention to discourage existed. Intention thus became the crucial
test of guilt in any prosecution of opposition to the government’s war
policies, and this requirement of intention became a mere form since
it could be inferred from the existence of the indirect injurious
effect.[110] A few judges, notably Amidon of North Dakota, have stemmed
the tide, but of most Espionage Act decisions what Jefferson and
Stephen and Schofield said about the prosecutions under George III and
the Sedition Act of 1798 can be said once more, that men have been
punished without overt acts, with only a presumed intention to cause
overt acts, merely for the utterance of words which judge and jury
thought to have a tendency to injure the state. Judge Rogers was right
in saying[111] that the words of the Espionage Act of 1917 bear slight
resemblance to the Sedition Law of 1798, but the judicial construction
is much the same, except that under the Sedition Law truth was a
defense.
[110] Masses Pub. Co. _v._ Patten, 246 Fed. 24, 39 (1917), Ward, J.;
and Rogers, J.: “The court does not hesitate to say that, considering
the natural and reasonable effect of the publication, it was intended
willfully to obstruct recruiting.”
[111] _Ibid._ 29.
III. _The District Court Cases_
The effect of the prosecutions under this Act has, no doubt, been
beneficial in maintaining law and order.—Report of the Attorney
General, 1919.
The revival of the doctrines of bad tendency and constructive intent
always puts an end to genuine discussion of public matters. It is
unnecessary to review the two thousand Espionage Act prosecutions in
detail, but a few general results may be presented here. The courts
have treated opinions as statements of fact and then condemned them
as false because they differed from the President’s speech or the
resolution of Congress declaring war. Their construction of this first
clause of the Act will be considered in connection with the Supreme
Court decisions. Under the second and third clauses against causing
insubordination or obstructing recruiting, only a few persons have been
convicted for actually urging men to evade the draft or not to enlist.
Almost all the convictions have been for expressions of opinion about
the merits and conduct of the war. It became criminal to advocate
heavier taxation instead of bond issues, to state that conscription was
unconstitutional though the Supreme Court had not yet held it valid,
to say that the sinking of merchant vessels was legal, to urge that a
referendum should have preceded our declaration of war, to say that
war was contrary to the teachings of Christ. Men have been punished
for criticising the Red Cross and the Y.M.C.A., while under the
Minnesota Espionage Act it has been held a crime to discourage women
from knitting by the remark, “No soldier ever sees these socks.”[112]
It was in no way necessary that these expressions of opinion should
be addressed to soldiers or men on the point of enlisting or being
drafted. Most judges held it enough if the words might conceivably
reach such men. They have made it impossible for an opponent of the
war to write an article or even a letter in a newspaper of general
circulation because it will be read in some training camp where it
might cause insubordination or interfere with military success. He
cannot address a large audience because it is liable to include a
few men in uniform; and some judges have held him punishable if it
contains men between eighteen and forty-five, since they may be called
into the army eventually; some have emphasized the possible presence
of shipbuilders and munition-makers. All genuine discussion among
civilians of the justice and wisdom of continuing a war thus becomes
perilous.
[112] State _v._ Freerks, 140 Minn. 349 (1918). References to all cases
mentioned by name in succeeding paragraphs will be found indexed in
Appendix II. Among the many other cases illustrating the statements
of this paragraph may be mentioned the trials of Sandberg, Miller,
Nagler, Goldsmith, Kaufman, Weist, Kirchner, Shaffer, Albers, Krafft,
Boutin, Granzow, Hitchcock, Weinsberg, Denson, Von Bank, White (all in
Appendix II). A few of these convictions have been reversed, but this
does not excuse the conduct of the trial courts. See also the Supreme
Court cases discussed _infra_. See 32 _Harv. L. Rev._ 417, and other
references in Appendix I. The facts of many cases are in _War-time
Prosecutions and Mob Violence_.
Judge Van Valkenburgh, in United States _v._ Rose Pastor Stokes,
would even make it criminal to argue to women against a war, by the
words, “I am for the people and the government is for the profiteers,”
because what is said to mothers, sisters, and sweethearts may lessen
their enthusiasm for the war, and “our armies in the field and our
navies upon the seas can operate and succeed only so far as they
are supported and maintained by the folks at home.” The doctrine of
indirect causation never had better illustration than in his charge. It
shows how a very able judge of large experience can be swept from his
moorings by war passion. Furthermore, although Mrs. Stokes was indicted
only for writing a letter, the judge admitted her speeches to show her
intent, and then denounced the opinions expressed in those speeches
in the strongest language to the jury as destructive of the nation’s
welfare, so that she may very well have been convicted for the speeches
and not for the letter.
Just as Lord Kenyon, while trying a man who happened to sympathize with
the French Revolution, went out of his way to emphasize its massacres
as a consequence of theories like the defendant’s,[113] so Judge Van
Valkenburgh denounced the Russian Revolution as “the greatest betrayal
of the cause of democracy the world has ever seen,” and made use of
Mrs. Stokes’ declared sympathy with that Revolution, an offense not
punishable even under the Espionage Act, to show how dangerous it was
for her to talk about profiteers.
[113] Rex. _v._ Cuthell, 27 How. St. Tr. 642, 674 (1799).
Of course, the jury convicted Mrs. Stokes after such a charge. They
found that the words, “I am for the people, and the government is for
the profiteers,” were a false statement, known to be false and intended
and calculated to interfere with the success of our military and naval
forces, that they were an attempt to cause insubordination in those
forces, and that they obstructed recruiting. The judge sentenced her
to ten years in prison. The Circuit Court of Appeals set aside this
conviction in March, 1920, but it stood all during the war as a stern
example that it was a heinous crime to discuss profiteering, because of
“the possible, if not probable effect on our troops.”
A case in the Second Circuit makes it equally perilous to urge a wider
exemption for conscientious objectors because this tends to encourage
more such objectors, a close parallel to the English imprisonment of
Bertrand Russell.[114]
[114] Fraina _v._ United States, 255 Fed. 28 (C. C. A. 2d, 1918), for
conspiracy and not under the Espionage Act; Rex _v._ Bertrand Russell,
Littell’s _Living Age_, Feb. 15, 1919, p. 385.
Many men have been imprisoned for arguments or profanity used in the
heat of private altercation, on a railroad train, in a hotel lobby,
or at that battle-ground of disputation, a boarding-house table.[115]
In one case,[116] two strangers came to a farmhouse and asked the
owner if he could let them have some gasoline, saying that they had
been stranded out in the country. He not only gave them the gasoline,
but invited them to dinner. An argument arose during the meal, and
the farmer used scurrilous and presumably unpatriotic language in the
presence of his guests, two hired men, two nieces, and some children.
The guests reported his language, and he was convicted of a willful
attempt to cause disloyalty, insubordination, mutiny, and refusal
of duty in the military and naval forces of the United States. Even
unexpressed thoughts have been prosecuted through an ingenious method
of inquisition. A German-American who had not subscribed to Liberty
bonds was visited in his house by a committee who asked his reasons
and received a courteous reply that he did not wish either side to
win the war and could not conscientiously give it his aid. He was
thereupon arrested and held in confinement until released by a district
court.[117]
[115] For instance, Sandberg, Albers, Goldsmith, Denson. But Judge
Bourquin refused to let the jury pass on such evidence in the case of
V. Hall, involving “kitchen gossip and saloon debate.”
[116] U. S. _v._ Harshfield, 260 Fed. 659 (C. C. A., 8th, 1919),
reversing the conviction. In Schoberg _v._ U. S., 264 Fed. 1, under
1918 Act, three elderly German-Americans, hobnobbing together in
the cobbler’s shop of one of them and growling about the war, were
convicted by means of a dictagraph.
[117] United States _v._ Pape, 253 Fed. 270 (1918). State _v._
Ludemann, 172 N. W. (Minn.) 887 (1919), _acc._
A few concrete cases of convictions that have been upheld will show how
the Espionage Act operates to punish expressions of opinion.
J. P. Doe, son of the great Chief Justice of New Hampshire, while
living in Colorado because of bad health, mailed an “endless chain”
letter, to be sent “to friends of immediate peace,” which stated that
although the President and Secretary of State had said Germany had
broken her promise to end submarine warfare, Germany had made no such
promise, but had reserved in the _Sussex_ note complete liberty of
decision as to the future. Doe’s statement was a legitimate inference
from the note, whatever its bearing on the merits of our position—and
this he did not discuss. Yet he was convicted for it, the alleged
intent to obstruct recruiting being evidenced by passages from a long
personal letter to his sister. The Court of Appeals said it was a fair
construction of the circular that Doe intended to convey the idea
that the United States was wrong in relying on the alleged promise
as a cause of war; “such an argument would have a direct tendency to
obstruct the recruiting and enlistment service.” Doe was sentenced to
eighteen months in prison.
Robert Goldstein, who had been connected with D. W. Griffith in
producing “The Birth of a Nation,” a well-known moving-picture film of
the Civil War, planned a similar presentation of the Revolution in a
film called “The Spirit of ’76,” which contained such scenes as Patrick
Henry’s Speech, the Signing of the Declaration of Independence, and
Valley Forge. After a year and a half of work the picture was finished,
just before the outbreak of our war with Germany. The film was
displayed in Los Angeles to the usual audience, which was not shown to
contain either soldiers or sailors. The government thereupon indicted
Goldstein for presenting a play designed and intended to arouse
antagonism, hatred and enmity between the American people, particularly
the armed forces, and the people of Great Britain, particularly their
armed forces, when Great Britain was “an ally” of the United States,
because one scene, the Wyoming Massacre, portrayed British soldiers
bayoneting women and children and carrying away girls. The film was
seized, the business was thrown from prosperity into bankruptcy with
a loss of over $100,000, and Goldstein was convicted of attempting
to cause insubordination, etc., in the armed forces and sentenced to
ten years in the federal penitentiary at Steilacoom, Washington. His
punishment for depicting the origin of this nation has been commuted to
three years.[118]
[118] 258 Fed. 908; 252 Fed. 946. This conviction has been defended on
two grounds. (1) That Goldstein inserted the massacre at the public
performance, though he had omitted it at a preliminary representation
before officials. If they had no right to censor by previous restraint
any way (cf. Dailey _v._ Superior Court, 112 Cal. 94), this fact
seems immaterial. In any event it does not merit three years in jail.
(2) That he had attempted to finance the enterprise by appeal to the
anti-British sentiments of German-Americans. As this was before we
entered the war, it should have no bearing whatever even if true.
Rev. Clarence H. Waldron, of Windsor, Vermont, was charged with handing
to five persons, among whom were a woman, two men apparently above
military age, and another clergyman, a pamphlet to show where he
himself stood on the war. The judge in his charge quoted the following
statements from the pamphlet:
Surely, if Christians were forbidden to fight to preserve the
Person of their Lord and Master, they may not fight to preserve
themselves, or any city they should happen to dwell in. Christ
has no kingdom here. His servants must not fight.
The Christian may not go to “the front” to repel the foe—for
there he is required to kill men.
They (referring to the Twelve Apostles) knew the force of their
Lord’s example, and whether to save themselves or to save
others—never, never use the sword.
Better a thousand times to die than for a Christian to kill his
fellow.
I do not say that it is wrong for a nation to go to war to
preserve its interests, but it is wrong to the Christian,
absolutely, unutterably wrong.
Under no circumstances can I undertake any service that has for
its purpose the prosecution of war.
Mr. Waldron was convicted for causing insubordination and obstructing
recruiting, and sentenced to fifteen years in prison.[119]
[119] He was pardoned after a year in prison.
D. H. Wallace, an ex-British soldier, was sentenced to twenty years for
saying:
That when a soldier went away he was a hero and that when he
came back flirting with a hand organ he was a bum, and that
the asylums will be filled with them; that the soldiers were
giving their lives for the capitalists, that 40 per cent of the
ammunition of the allies or their guns was defective because of
graft.
Wallace went insane and died in jail.
D. T. Blodgett was given the same sentence by the same judge, Wade,
for circulating a pamphlet urging the voters of Iowa not to re-elect
the Congressmen who voted for conscription, and reprinting an argument
of Thomas E. Watson, of Georgia, against the constitutionality of the
Draft Act. This was before its validity had been upheld by the Supreme
Court. Judge Wade charged that the government had passed the Espionage
Act, “realizing that it must protect the feeling and spirit of the
American people against the work of those who defy authority; it was
not intended for ninety-five per cent of the American people, but
necessary for the few who will not heed the judgment of the ninety-five
per cent; who assume to know more than all the others put together. It
is not a harsh Act.” He recalled the draft riots of the Civil War, and
suggested that Blodgett had felt that a little mutiny might aid his
political cause. “Just look at this that he wants drafted men to buy:”
In Washington City it is a carnival, a wild extravagance; an
orgy of prodigal waste; a Bacchanalian revel of men who act as
though they were drunk on power and had lost every sense of
shame, duty and responsibility. The huge appropriations made will
accrue to the benefit of the classes. Great is the gathering of
the vultures at the National Capital, for never before has there
been such a carcase inviting them to the feast. Three thousand
millions of dollars in one appropriation, and the vultures
fiercely shrieking for more.
“There is no better way,” said the judge, “of unsettling the confidence
of the people and stirring their souls against the war than to paint it
as a war of capitalism, organized by capitalists and for capitalists,
and painting the officers of the government as representing willing
tools of Wall Street. There is no better way.”
Undoubtedly in all these cases, intention to cause insubordination
or obstruct recruiting was made a test of guilt. It may seem to many
persons that, so long as a speaker talks with such a purpose it makes
no difference whether he satisfies Judge Hand’s objective standard by
saying, “Don’t enlist, don’t register, shoot over the enemies’ heads,”
or whether he confines himself to statements about the horrors of a
modern battlefield and opinions about the legality of the German entry
into Belgium. Very likely the moral quality of the two methods is the
same; the tendency to prevent enlistment may be the same. But the
reason that makes it, if not unconstitutional, at least very unwise,
to punish the second type of utterance, the expression of fact or
opinion, is that it is only by absence of penalties for such utterances
that a self-governing people can learn and disseminate the truth on
public affairs. The first type of utterance, on the other hand, has
practically no value for such a purpose. When the public is interested,
bad motives ought not to deprive it of the benefit of what is said.
Opposition to governmental action through discussion, like opposition
to private action through law-suits, is the alternative to the use of
force. If the law should require litigants to have good motives, it
might as well shut up the courts. In the same way, truth is truth,
and just as valuable to the public, whether it comes from the most
enthusiastic supporter of the war or from a pro-German, and in order
to get the truth, conflicting views must be allowed. What a pacifist
says about the extravagance of Congress or bad camp conditions during
the influenza epidemic or the desire of France for the left bank of
the Rhine, may be worth hearing and acting on, and it will be just as
important, although he does it with the hope of hindering the war. If
disclosures like those made by Admiral Sims are true, they would have
been very valuable if made by some private citizen during the war,
and no less so if printed in Berger’s _Milwaukee Leader_. So long as
the speaker creates no great danger of losing the war, so long as the
discouraging effects of his utterances can be checked by the draft
organization, the four-minute men, and the general loyalty, it is wiser
to let him talk for the sake of possible good.
The last case reviewed, Judge Wade’s trial of Blodgett, brings out my
point clearly. Every one will admit that Congress may properly consider
ending a war. If so, the men to favor this must be elected, as many
of them were in 1864, and the election will be a poor expression of
the popular will unless it is preceded by discussion of the merits
of beginning and continuing the war. Once more, that discussion will
have little value for the formation of opinion if the presence of a
man within draft age brings it within the scope of the Espionage Act,
and if those who oppose the war vigorously are cowed into silence by
twenty-year sentences. It must never be forgotten that the Espionage
Act applies to all future wars, and the next one may be as questionable
as those of 1812 and 1846. The same considerations apply to the right
of petitioning Congress and high officials, which is expressly secured
by the First Amendment. Twenty-seven South Dakota farmers were opposed
to the draft and believed that an unduly high quota was exacted
from their county. They petitioned various state officers, asking a
new arrangement, a referendum on the war, payment of war expenses
from taxation and repudiation of war debts. As an alternative they
threatened defeat to the officers, their party, and the nation. Foolish
as this petition was, it stated a grievance which deserved inquiry.
Instead, the twenty-seven were sentenced to more than a year in prison.
This conviction, Attorney General Gregory declares to have been “one of
the greatest deterrents against the spread of hostile propaganda, and
particularly that class of propaganda which advanced and played upon
the theme that this was a capitalists’ war.” Yet after it had served
this suppressive purpose, and reached the Supreme Court, he confessed
that the conviction was erroneous.[120]
[120] Baltzer case; Report of Attorney General, 1918, 48. Jared Peck
was indicted under the Sedition Act of 1798 for circulating a petition
to Congress for the repeal of the Act.—Beveridge’s _Marshall_, III, 42
note.
In the same way, punishment of alleged evil tendency coupled with
unlawful intention limits the general influence of the press on
legislation and administrative policies, which is a recognized part
of American democracy. Undoubtedly, the statement that $640,000,000
had been spent on aeroplanes without a single machine in France had
as great a tendency to weaken the national morale as any event of the
war. The District Court test makes it criminal for an editor to mention
that fact with the purpose of turning public opinion against the war.
It is true that no prosecutions were brought on that account, but are
we any worse off without them? Was it not an advantage to have the fact
as widely known as possible so as to produce a complete alteration
of government methods? And so with respect to the territorial and
commercial aims of our associates in the war, which have caused us so
much concern since the armistice. In short, the truth may be told with
a bad purpose, but it is none the less truth; and the most dangerous
falsehoods (like the report of the premature armistice, which probably
cost a very great loss of production of munitions), may be committed
from motives of the highest patriotism. Even on the assumption, which
I shall soon show to be questionable, that all the persons convicted
under the Espionage Act intended to hinder the war, intention is a
very poor test of the truth and value of reports and opinions, and in
effect results in the punishment of men, not for any actual or probable
injury, but for their state of mind.
IV. _The Human Machinery of the Espionage Acts_
If there be a scintilla of real _evidence_ that seditious rags
are infecting the Native Army, nobody would refuse suppression.
Only you won’t forget that in moments of excitement, such
as this may become, people are uncommonly liable to confuse
suspicions and possibilities with certainty and reality.—MORLEY,
_Recollections_. Letter to the Viceroy of India.
A less obvious but not less vital objection to the District Court
test is its unfitness for practical administration. Even if we decide
that the man who makes discouraging utterances in war time with a bad
intention deserves punishment, we ought not to lay down a rule of law
to punish him, unless we can be sure that in its actual operation it
will catch him and let the man with good intention go. A rule is not
desirable simply because it reads well. It must also work well. The law
is not self-operating and it cannot pick out the bad man automatically.
It must discover him through human machinery, and the defects of this
machinery are the very greatest reason for preserving an immunity of
speech from prosecution far wider than the District Court test.
“We have to consider,” said Macaulay of a theory of criminal law very
similar to this test,[121] “not merely the goodness of the end, but
also the fitness of the means.... There is surely no contradiction in
saying that a certain section of the community may be quite competent
to protect the persons and property of the rest, yet quite unfit to
direct our opinions.”
[121] Essay on Southey’s _Colloquies_. The whole is worth re-reading
to-day, especially the warning against a Paul Pry government, declaring
what we shall think and what we shall drink.
Jefferson pointed out in the Virginia Toleration Statute, quoted in the
first chapter,[122] the unfitness of this machinery for discriminating
between utterances of good tendency and utterances of bad tendency.
Its unsuitability to separate good from bad intention is just as
great.[123] The trouble with the District Court test is, that in making
intention the crucial fact in criminality, it exposes all who discuss
heated questions to an inquiry before a jury as to their purposes. That
inquiry necessarily is of the widest scope and if the general attitude
of the person is singular and intransigeant, there is an insufficient
protection. You cannot tell a man’s intention by looking at his
forehead, you must look through it to the inside of his head, and no
judge and jury are capable of looking through the skull of a man who
has done nothing but talk, to see what goes on inside. It is true that
intention is material in other crimes, such as murder, but in dealing
with an overt criminal act the intention is evidenced by many other
acts, which are a kind of fact with which the jurymen are familiar
and capable of dealing. On the other hand, the intention in making
utterances is evidenced by inferences drawn from the supposed bad
tendency of the words themselves, and by other utterances, which will
also be viewed under the obnoxious test of bad tendency. For instance,
in the Stokes and Doe cases the judge admitted speeches or letters not
included in the indictment. In many cases opinions expressed before
the United States entered the war have also been admitted, opinions
which the defendants then shared with many persons who afterwards
supported the war. No matter how carefully the judge instructs the
jury to disregard such prior language except as evidence of intention,
there can be no doubt that it is human nature to lump together all
the utterances, inside and outside the indictment, and decide whether
or not the defendant deserves punishment for everything he said. The
Abrams case in the next chapter will bring this out very clearly.
[122] See page 31, _supra_.
[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.?”
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.
That these predictions of what will happen in a petty war are by no
means exaggerated is proved by what has been done under the Espionage
Act in a time when there is no war at all—except by a legal fiction.
First, the Attorney General, a year after the armistice, raided and
closed the office of the _Seattle Union-Record_, because it urged
the workers to kick the governing class into the discard at the next
election, and said that the Centralia shootings were the culmination of
a long series of illegal acts by ex-service men, pleading for law and
order by rich and poor alike.[191] Secondly, thirteen months after the
armistice, Mr. Burleson still kept the _New York Call_ from the mails,
and announced to the Supreme Court of the District of Columbia that
in view of the facts, his exercise of judgment was “not subject to be
reviewed, reversed, set aside, or controlled by a court of law.”[192]
Thirdly, fourteen months after all fighting had stopped three men were
tried in Syracuse for distributing circulars in the autumn of 1919,
describing ill-treatment of political prisoners, calling an amnesty
meeting, and requesting that letters be written to the President and
members of Congress. The leaflets quoted the First Amendment, _Ex
parte_ Milligan, and a speech by President Wilson. The defendants were
convicted and sentenced to eighteen months in prison for disloyal
language about our form of government and the military forces, language
designed to bring them and the Constitution into contempt, inciting
resistance to the United States, and obstruction of recruiting.[193]
[191] Anna Louise Strong, “A Newspaper Confiscated—and Returned,” 109
_Nation_ 738 (Dec. 13, 1919). Indictments of the editors for items
published during the year after the armistice were quashed in U.S. _v._
Strong, 263 Fed. 789; U.S. _v._ Listman, _ibid._ 798; U.S. _v._ Ault,
_ibid._ 800. For the other side, see Ole Hanson, _Americanism versus
Bolshevism_, N.Y., 1920.
[192] United States of America _ex rel._ The Workingmen’s Co-operative
Publishing Association _v._ Burleson, Supreme Court, Dist. Col., Oct.
Term, 1919, Law No. 63134. Answer of Respondent.
[193] 21 _New Republic_ 302 (Feb. 11, 1920); “Bringing the Constitution
into Disrepute,” 21 _ibid._ 330 (Feb. 18, 1920). U. S. _v._ Steene, 263
Fed. 130.
The Supreme Court has never passed squarely on these sections of
the Espionage Act of 1918, though some of them were involved in
the Abrams case, and it is to be hoped that they will be declared
unconstitutional. It would be better yet if they and the whole of
section 3 were repealed.
Whatever be decided as to constitutionality, the Espionage Act
prosecutions break with a great tradition in English and American
law. Only once before has the United States tried to punish political
crimes, and the Sedition Act of 1798 with its maximum of two years’
imprisonment wrecked the Federalist party. The Mexican War produced the
Biglow Papers, and every stanza in the opening poem would have violated
a separate clause of the Espionage Act of 1918, if the slaveholders had
drafted such a statute. We fought the Civil War with the enemy at our
gates and powerful secret societies in our midst without an Espionage
Act.
When the disloyal press was curbed by Burnside and his subordinates,
they received sharp telegrams of revocation from Lincoln. The
irritation produced by such acts was in his opinion “likely to do more
harm than the publication would do.”[194] Undoubtedly he permitted a
very large number of arbitrary arrests by Seward and Stanton, or under
martial law in the border states. “Must I shoot a simple soldier boy
who deserts, while I must not touch a hair of a wily agitator who
induces him to desert?” But Lincoln’s policy, apart from all questions
of its legality, was very different in nature from most of the
Espionage Act prosecutions and sentences. He was proceeding against men
who were so far within the test of direct and dangerous interference
with the war that they were actually causing desertions, and even then
he acted to prevent and not to punish. Vallandigham was sent through
into the Confederate lines, and left unmolested on his return. Lincoln
would not have allowed an old man, a Presidential opponent and the
choice of nine hundred thousand American citizens, to lie in prison for
sincere and harmless, even though misguided, words, over a year after
the last gun was fired.
[194] J. F. Rhodes, _History of the United States_, III, 553; IV,
223–253, 267 note, 467, 473; VI, 78, 96. For Lincoln’s refusal to allow
General Burnside and his subordinates to suppress the _Chicago Times_
and other newspapers of Copperhead tendencies in Illinois, Indiana, and
Ohio, see also Official Record of the Rebellion, Series II, Vol. V,
723, 741; Series III, Vol. III, 252. On number of arrests, Rhodes, IV,
230 note; Lincoln’s Proclamation suspending _habeas corpus_ for “aiders
or abettors of the enemy,” 13 Stat, at L. 734.
The case of _Ex parte_ Vallandigham, 1 Wall. (U. S.) 243 (1863), is
sometimes supposed to support the unlimited exercise of the war power
to restrict speech. See Ambrose Tighe in 3 _Minn. L. Rev._ 1 (1918).
The decision merely holds that the writ of _certiorari_ does not lie to
a military tribunal. Nothing is said as to the existence of some other
remedy such as _habeas corpus_, or an action for false imprisonment.
_Ex parte_ Vallandigham, 28 Fed. Cas. 874 (1863), lends support to Mr.
Tighe. The treatment of Vallandigham is considered illegal by Rhodes,
_op. cit._, IV, 245–252, and would seem so under _Ex parte_ Milligan.
On the South, Rhodes, V, 473, is contradicted by Edward A. Pollard,
Jefferson Davis, p. 316. As late as May 19, 1864, a resolution was
introduced in the Confederate Congress to inquire if legislation was
necessary to prevent press disclosures of military information. 4
Journ. C. S. A. Cong., p. 60.
If the North was a dictatorship, says Rhodes, the South was a
socialized state, which was much closer to the situation of all the
countries engaged in the World War. There the newspapers were probably
under closer control, but there were no prosecutions.
And so in England. Bright and Cobden in the Crimean War, Morley and
Lloyd George in the Boer War, were untouched. Even in this war, while
the terms of the Defense of the Realm Act are more sweeping than our
statute, the administration has been less severe. Those who enforced it
have allowed a wide range of discussion and imposed brief sentences,
though they sat within sound of the German guns. And of all the nations
at war, we alone, three thousand miles from the conflict, still refuse
a general amnesty to political prisoners.[195]
[195] This was granted in Italy on November 19, 1918, before the
signing of peace and in Germany before the armistice. The French
amnesty was October 24, 1919. Sentences under the British Defense of
the Realm Act have all expired, being very short; the longest, three
years, was commuted to one year. This note comprises only seditious
utterances in the war, not treasonable acts like the Bonnet Rouge
affair or Irish convictions since the armistice.
Undoubtedly some utterances had to be suppressed. We have passed
through a period of danger, and have reasonably supposed the danger
to be greater than it actually was, but the prosecutions in Great
Britain during a similar period of peril in the French Revolution
have not since been regarded with pride. Action in proportion to the
emergency was justified, but we have censored and punished speech
which was very far from direct and dangerous interference with the
conduct of the war. The chief responsibility for this must rest, not
upon Congress which was content for a long period with the moderate
language of the Espionage Act of 1917, but upon the officials of the
Department of Justice and the Post-office, who turned that statute into
a drag-net for pacifists, and upon the judges who upheld and approved
this distortion of law. It may be questioned too, how much has actually
been gained. Men have been imprisoned, but their words have not ceased
to spread.[196] The poetry in the _Masses_ was excluded from the mails
only to be given a far wider circulation in two issues of the _Federal
Reporter_. The mere publication of Mrs. Stokes’ statement in the
_Kansas City Star_, “I am for the people and the Government is for the
profiteers,” was considered so dangerous to the morale of the training
camps that she was sentenced to ten years in prison, and yet it was
repeated by every important newspaper in the country during the trial.
There is an unconscious irony in all suppression. It lurks behind Judge
Hough’s comparison of the _Masses_ to the Beatitudes,[197] and in the
words of Lord Justice Scrutton during this struggle against autocracy:
“It had been said that a war could not be conducted on the principles
of the Sermon on the Mount. It might also be said that a war could not
be carried on according to the principles of Magna Charta.”[198]
[196] _Cf._ a similar experience of the Emperor Tiberius: Tacitus,
_Annals_, IV, c. 35: “Punitis ingeniis, gliscit auctoritas.” “A man who
preaches in the stocks will always have hearers enough.”—Dr. Johnson.
[197] See page 55, _supra_.
[198] Ronnfeldt _v._ Phillips, 35 T. L. R. 46 (1918, C. A.).
Those who gave their lives for freedom would be the last to thank us
for throwing aside so lightly the great traditions of our race. Not
satisfied to have justice and almost all the people with our cause, we
insisted on an artificial unanimity of opinion behind the war. Keen
intellectual grasp of the President’s aims by the nation at large was
very difficult when the opponents of his idealism ranged unchecked
while the men who urged greater idealism went to prison. In our efforts
to silence those who advocated peace without victory we prevented at
the very start that vigorous threshing out of fundamentals which might
to-day have saved us from a victory without peace.
CHAPTER III
A CONTEMPORARY STATE TRIAL—THE UNITED STATES _VS._
JACOB ABRAMS _ET AL._
In this case sentences of twenty years imprisonment have been
imposed for the publishing of two leaflets that I believe the
defendants had as much right to publish as the Government has to
publish the Constitution of the United States now vainly invoked
by them.—JUSTICE HOLMES.
Shortly before eight o’clock, on the morning of August 23, 1918,[199]
several men and boys were loitering at the corner of Houston and Crosby
streets, in New York City, perched on sprinkler hydrants or standing
about in talk, while they waited for the day’s work to begin in the
manufacturing building close by. One or two happened to look up and saw
something being thrown from a window above and falling—the air was full
of leaflets. Nothing of the kind had ever happened there before, and
the workmen picked the papers up curiously from sidewalk and gutter.
Some circulars in Yiddish they could not make head or tail of, but they
read together others in English, which attacked the recent despatch of
troops to Russia.
[199] The sources for this case are in the Bibliography.
There has been so much misapprehension about the wording of these
two leaflets that their text ought to be given in full.[200] That in
English was as follows:
THE
HYPOCRISY
OF THE
UNITED STATES
AND HER ALLIES
“Our” President Wilson, with his beautiful phraseology, has
hypnotized the people of America to such an extent that they do
not see his hypocrisy.
Know, you people of America, that a frank enemy is always
preferable to a concealed friend. When we say the people of
America, we do not mean the few Kaisers of America, we mean the
“People of America.” You people of America were deceived by the
wonderful speeches of the masked President Wilson. His shameful,
cowardly silence about the intervention in Russia reveals the
hypocrisy of the plutocratic gang in Washington and vicinity.
The President was afraid to announce to the American people the
intervention in Russia. He is too much of a coward to come out
openly and say: “We capitalistic nations cannot afford to have a
proletarian republic in Russia.” Instead, he uttered beautiful
phrases about Russia, which, as you see, he did not mean, and
secretly, cowardly, sent troops to crush the Russian Revolution.
Do you see how German militarism combined with allied capitalism
to crush the russian revolution?
This is not new. The tyrants of the world fight each other until
they see a common enemy—WORKING CLASS—ENLIGHTMENT as soon as they
find a common enemy, they combine to crush it.
In 1815 monarchic nations combined under the name of the “Holy
Alliance” to crush the French Revolution. Now militarism and
capitalism combined, though not openly, to crush the russian
revolution.
What have you to say about it?
Will you allow the Russian Revolution to be crushed? YOU: Yes, we
mean YOU the people of America!
THE RUSSIAN REVOLUTION CALLS TO THE WORKERS OF THE WORLD FOR HELP.
The Russian Revolution cries: “WORKERS OF THE WORLD! AWAKE! RISE!
PUT DOWN YOUR ENEMY AND MINE!”
Yes friends, there is only one enemy of the workers of the world
and that is CAPITALISM.
It is a crime, that workers of America, workers of Germany,
workers of Japan, etc., to fight THE WORKERS’ REPUBLIC OF RUSSIA.
AWAKE! AWAKE, YOU
WORKERS OF THE WORLD!
REVOLUTIONISTS
P. S. It is absurd to call us pro-German. We hate and despise
German militarism more than do your hypocritical tyrants. We have
more reasons for denouncing German militarism than has the coward
of the White House.
[200] The English pamphlet is Government’s Exhibit No. 1, _Record_, p.
245. Errors of punctuation, etc., are preserved. The translation of the
Yiddish pamphlet is Government’s Exhibit No. 2, _Record_, p. 247. Both
measure 12×4½ inches, one page, printed on one side.
The Yiddish leaflet has been translated. This translation was accepted
as correct by the government and the defense. Abrams, however,
suggested a few changes during his testimony. It would be interesting
to know how much stronger the Yiddish equivalent for “murder” at the
end of the fourth paragraph is than the word for “kill.”
WORKERS—WAKE UP.
The preparatory work for Russia’s emancipation is brought to an
end by his Majesty, Mr. Wilson, and the rest of the gang; dogs of
all colors!
America, together with the Allies, will march to Russia, not,
“God Forbid,” to interfere with the Russian affairs, but to help
the Czecho-Slovaks in their struggle against the Bolsheviki.
Oh, ugly hypocrites; this time they shall not succeed in fooling
the Russian emigrants and the friends of Russia in America. Too
visible is their audacious move.
Workers, Russian emigrants, you who had the least belief in the
honesty of our government must now throw away all confidence,
must spit in the face the false, hypocritic, military propaganda
which has fooled you so relentlessly, calling forth your
sympathy, your help, to the prosecution of the war. With the
money which you have loaned or are going to loan them, they will
make bullets not only for the Germans but also for the Workers
Soviets of Russia. Workers in the ammunition factories, you are
producing bullets, bayonets, cannon, to murder not only the
Germans, but also your dearest, best, who are in Russia and are
fighting for freedom.
You who emigrated from Russia, you who are friends of Russia,
will you carry on your conscience in cold blood the shame spot as
a helper to choke the Workers Soviets. Will you give your consent
to the inquisitionary expedition to Russia? Will you be calm
spectators to the fleecing blood from the hearts of the best sons
of Russia?
America and her Allies have betrayed (the workers). Their
robberish aims are clear to all men. The destruction of the
Russian Revolution, that is the politics of the march to Russia.
Workers, our reply to the barbaric intervention has to be a
general strike! An open challenge only will let the government
know that not only the Russian Worker fights for freedom, but
also here in America lives the spirit of revolution.
Do not let the government scare you with their wild punishment
in prisons, hanging and shooting. We must not and will not
betray the splendid fighters of Russia. Workers, up to fight.
Three hundred years had the Romanoff dynasty taught us how to
fight. Let all rulers remember this, from the smallest to the
biggest despot, that the hand of the revolution will not shiver
in a fight.
Woe unto those who will be in the way of progress. Let solidarity
live!
THE REBELS.
The Military Intelligence Police were notified, and sent two army
sergeants, who climbed from floor to floor of the manufacturing
building asking questions, until at a hat factory on the fourth story
they arrested Rosansky, a young Russian, who eventually confessed
that he had thrown out the circulars. Three men whom he had met at an
anarchistic meeting a fortnight previously had handed him a package
of leaflets the night before, and asked him to toss them from some
window where people were passing. As he had a rendezvous with the
same men that night, the Military Police with his aid captured six
other Russians,—five men and a girl. The oldest man, Abrams, was
twenty-nine, the youngest, Lipman, twenty-one, the same age as the
girl, Molly Steimer. The sergeants went with some of the prisoners
to their lodgings, three flights up a rear staircase on East 104th
Street. It was an apartment of six rooms,—a front room with a table
and some books, a cot, and a bookstand; two bedrooms, in one a bed,
in the other a mattress on the floor; a dining-room so-called which
had a catercornered closet containing a lot of books and papers and in
the center large boxes like packing-boxes, used apparently for desks,
and also some chairs and a long couch; a room that could be called a
kitchen because it had a sink; and a rear room used by Molly Steimer,
just a chair and some women’s clothes hanging on the door. Such was the
headquarters of the great conspiracy.
Shortly after midnight, Thomas J. Tunney, the Police Inspector who
had questioned Rosansky in the morning, and author of _Throttled_,
a book on bomb-plotters, examined the prisoners in the presence of
several army sergeants, and obtained statements which were taken down
stenographically. The prisoners refused to tell where the pamphlets
were printed, but some of the sergeants, after finding a bill for a
printing press and materials in Abrams’ papers, learned from the seller
that they had been sold to Abrams about July 15, partly on a chattel
mortgage, and had been delivered at the basement of 1582 Madison
Avenue. The Military Police entered the basement with a search-warrant
and discovered a motor driven press and a small hand press, bundles of
blank paper of the same size as the English and Yiddish pamphlets, and
English and Hebrew type of the style used in them. The side door of the
basement had been broken in, plates and type were thrown on the chairs,
torn pieces of both pamphlets had been set on fire in a pail and partly
burned. Misprinted pamphlets and corrected proof lay crumpled upon the
floor. Further investigation showed that Abrams had rented the basement
from the janitress in mid-July for eight dollars a month, and that she
had seen him and Lachowsky, another prisoner, working there together.
The prisoners, one of whom, Schwartz, died before trial, were indicted
for conspiracy to violate four clauses of the Espionage Act of
1918.[201] The case promised to be decisive for two reasons. It was the
only important prosecution for the new crimes created by the Espionage
Act of 1918, although one such crime had been incidentally involved in
the Debs trial. Consequently, the construction and constitutionality of
this Sedition Act of 1918 would very probably be called in question.
In the second place, the defendants were not prosecuted for pacifist
or pro-German utterances, as in the general run of Espionage Act
cases, but for agitation against the government’s Russian policy. The
Department of Justice had prevented several other prosecutions of
so-called Bolshevists for opposition to that policy, since no war had
been declared against Russia. For example, no trial was ever held upon
an indictment contemporaneous with that against the Abrams group which
was presented in New York against Abraham Shiplacoff for a speech at
a Socialist meeting, in which he compared the attitude of the Russian
toward the American troops to the sentiments of our revolutionary
patriots toward those “hired murderers,” the Hessians. The appeal of
the Abrams group to munition workers for a general strike was, however,
regarded as more serious, and since the prosecution had got under way
before the Department of Justice learned of it, it was allowed to
proceed.[202]
[201] The conspiracy section of the Espionage Act is Act of June 15,
1917, c. 30, Title I, § 4; U. S. Comp. Stat., 1918, § 10212d, § 3 and
the cases thereunder are in Appendix III. See page 44, _supra_.
[202] Testimony of Alfred Bettman, Hearings before the Committee on
Rules, 126.—_N. Y. Times_, Sept. 24, 1918.
I. _The District Court_
The trial of Abrams and his associates, except Schwartz, began on
October 10, 1918, in the United States Court House in New York City
before Judge Clayton of the Northern and Middle Districts of Alabama.
Henry De Lamar Clayton was then sixty-one years of age. Belonging to a
distinguished Alabama family he had graduated from the State University
and practised law in Montgomery. For eighteen years he represented
Alabama in Congress, serving eventually as Chairman of the Judiciary
Committee of the House and giving his name to the well-known Clayton
Act. In 1914 he was appointed to the United States bench. This was his
first prominent Espionage Act case.
There were in the Southern District of New York three judges with
extensive experience in the difficulties of war legislation. Judge
Learned Hand had heard the equity suit of the _Masses_ to obtain
admission to the mails, and the demurrer of Scott Nearing. Judge Julius
M. Mayer had sat on the Circuit Court of Appeals which reversed Judge
Hand’s decision in the _Masses_ case, and had also tried Goldman and
Phillips for opposing the draft. Judge Augustus N. Hand had presided
at the trial of Max Eastman. If two corporations were litigating the
validity of an important patent, they would be surprised to have the
matter heard by a judge who had little experience in patent cases,
especially if three judges trained in similar contests were available.
In the Abrams trail, six persons risked the best part of their lives
upon the decision of the perplexing problems of freedom of speech.
The position of the defendants could hardly be understood without
some acquaintance with the immigrant population of a great city, some
knowledge of the ardent thirst of the East Side Jew for the discussion
of international affairs. Yet because the New York dockets were crowded
the Abrams case was assigned to a judge who had tried no important
Espionage Act case, who was called in from a remote district where
people were of one mind about the war, where the working class is more
conspicuous for a submissive respect for law and order than for the
criticism of high officials, where Russians are scarce and Bolshevists
unknown.
The government was represented by Francis G. Caffey, United States
Attorney, with John M. Ryan and S. L. Miller, Assistant United States
Attorneys, of counsel. Harry Weinberger of New York appeared for the
defendants. The jury was duly empaneled and sworn on Monday, October
14, and the trial ended on Wednesday, October 23.
The overt acts were proved without contradiction. Soon after United
States troops were sent to Vladivostok, the group had begun meeting
in the bare “third floor-back” on East 104th Street, where most of
them lived, and decided to protest against the attack on the Russian
Revolution, with which as anarchists or Socialists they strongly
sympathized. Schwartz, the dead prisoner, had written the Yiddish
circular, and Lipman the English. Abrams, the oldest, bought the press.
After printing five thousand copies of each circular he stopped for
lack of funds. Lachowsky and Molly Steimer had distributed about nine
thousand pamphlets, throwing them in the streets where there were
the most working-people or passing them around at radical meetings.
Rosansky’s aid had been secured just before the arrests. There was no
evidence that one person was led to stop any kind of war work, or even
that the pamphlets reached a single munition worker.
The defense, besides contending that the Espionage Act was
unconstitutional, maintained that it was not violated, and in
particular that the criminal intent required by the express terms of
the statute did not exist. Each count of the indictment[203] covered a
conspiracy to violate one clause of the Act, as follows, according to
the language of the statute. Certain phrases in the indictment which
are not in the Act are enclosed in brackets.
[203] The indictment is in _Record_, 2–19.
Whoever, when the United States is at war, ... shall willfully
utter, print, write, or publish
(Count 1) any disloyal, ... scurrilous, or abusive language about
the form of government of the United States, ...
(Count 2) or any language intended to bring the form of
government of the United States ... into contempt, scorn,
contumely, or disrepute, ...
(Count 3) or ... any language intended to incite, provoke, or
encourage resistance to the United States [in said war with the
German Imperial Government], ...
(Count 4) or shall willfully by utterance, writing, printing,
publication, ... urge, incite, or advocate any curtailment of
production in this country of any thing or things, product or
products [to wit, ordnance and ammunition] necessary or essential
to the prosecution of the war in which the United States may be
engaged, [to wit, said war with the Imperial German Government],
with intent by such curtailment to cripple or hinder the United
States in the prosecution of the war, ...
shall be punished by a fine of not more than $10,000 or
imprisonment for not more than twenty years or both.
As to the first crime charged, the publication of “disloyal, ...
scurrilous, or abusive language” about our form of government, the
Espionage Act by its terms punishes the act of publication, without
any mention of intent. Although some district judges have considered
that there must be an evil or wicked intention,[204] it has been
contended with much force and on high authority[205] that the utterance
of the words is in itself criminal regardless of the state of mind. On
this view, all that is necessary is intention to publish. There need be
no intention to be abusive or disloyal about the form of government. If
so, the Espionage Act is in this respect much more rigorous than the
Sedition Act of 1798, which created the crime of “publishing any false,
scandalous and malicious writing against the government,” but required
intent to defame it or excite against it the hatred of the people or
stir up sedition. Also the penalty was only two years’ imprisonment,
and truth was a defense under that Act, whereas now a statement in
real or technical war time of the soundest truths about our form of
government is punishable by twenty years in prison if only those truths
are sufficiently damaging to be considered abusive or disloyal.
[204] United States _v._ Buessel, Bull. 131; United States _v._ Martin,
Bull. 157; United States _v._ Equi, Bull. 172.
[205] 33 _Harv. L. Rev._ 442, 443, citing Learned Hand, J., in United
States _v._ Curran, Bull. 140.
However this may be, intention to injure is certainly material on the
other three counts. Furthermore, the first and second counts may be
dismissed at this point from further discussion. First, these clauses
of the Espionage Act of 1918 punishing attacks on the Constitution and
our form of government seem clearly unconstitutional, as stated in the
preceding chapter. Also, even if they are constitutional, there was no
attack in the pamphlets on our form of government, but only upon those
who were administering that government. Surely the phrase “capitalistic
nation” does not constitute defamation of our political structure,
which is compatible with other types of economic organization, such as
national ownership of all industries. Although the heavy fines imposed
on the defendants under these two counts called for some decision on
their constitutionality or construction, the Supreme Court refused to
make it, and Justice Clarke contented himself with suggesting that the
distinction between abusing our form of government and abusing the
President and Congress, the agencies through which it must function
in time of war, might be only “technical.”[206] If so, these sections
of the Espionage Act must have been more frequently violated in Wall
Street than in Harlem.
[206] Abrams _v._ United States, 250 U. S. 616, 623.
The controversy about this case must be limited to the third and fourth
counts of the indictment. Aside from questions of constitutionality,
the government had to establish the specific criminal intent required
by the indictment and the Espionage Act. (1) It had to prove intention
to publish the pamphlets, because of the word “willfully” and on
general principles of the criminal law, which ordinarily requires
intention to do the prohibited act. This the government undoubtedly
did. (2) Under the fourth count it had to prove intention to produce
curtailment of munitions, because the words “urge, incite, advocate”
create an offense analogous to criminal solicitation, which involves a
specific intent to bring about the overt act. There are some sentences
in the Yiddish circular which show such an intention, although it is
open to question whether an incidental portion of a general protest
which is not shown to have come dangerously near success really
constitutes criminal solicitation or amounts to advocating. (3) At all
events, the main task of the government was to establish under both
counts an additional intention to interfere with the war with Germany,
and the question whether it proved anything more than an intention to
obstruct operations in Russia is the vital issue of fact in the case.
Since we had not declared war upon Russia, protests against our action
there could not be criminal unless they were also in opposition to the
war with Germany. There are two conceivable theories of guilt, which
might connect the circulars with the war. First, that the despatch of
troops to Siberia was “a strategic operation against the Germans on the
eastern battle front,” so that any interference with that expedition
hindered the whole war. The second theory is, that the circulars
intended to cause armed revolts and strikes and thus diminish the
supply of troops and munitions available against Germany on the regular
battle front.
Clearly the second theory is the only legitimate basis for conviction.
That opposition intended to hinder the armed occupation of neutral
territory and asserting it to be illegal should be _per se_ criminal
is so clearly a travesty on the defense of Belgium and a violation of
the right of freedom of speech that this view has been unanimously
rejected by the United States Supreme Court in the Abrams case, by the
government’s brief,[207] and by writers[208] who support the decision.
They have all adopted the second theory of guilt and have taken it
for granted that the jury followed the same course. They assume that
the convictions represent a finding of fact by the jury that the
defendants intended to interfere with operations against Germany itself
and to embarrass or defeat the military plans of our government in
Europe. Practically the whole of the discussion of the case has been
confined to the question whether such a finding that they encouraged
strikes and revolts justifies conviction. Nevertheless, I believe
that an examination of the record makes it highly probable that these
defendants were convicted on just the other theory for trying to hinder
the Russian expedition.
[207] Page 35 ff.
[208] Mr. Wigmore is a possible exception and may regard all Bolshevism
as within the Espionage Act.
As a state trial, this case cannot be understood without reference
to the atmosphere in which the defendants wrote the circulars and
the jury reached their verdict. I have no desire to venture into the
Serbonian bog of the Russian Revolution, but a few undisputed facts
must be recalled.[209] On January 8, 1918, two months after the
establishment of the Soviet Government, President Wilson declared as
the sixth of his Fourteen Points, that Russia must have “an unhampered
and unembarrassed opportunity for the independent determination of her
own political development,” and that the treatment accorded her by her
sister nations during the months to come would be “the acid test of
their good-will.” On March 11 he telegraphed the Pan-Soviet Congress,
“May I not take advantage of the meeting of the Congress of Soviets to
express the sincere sympathy” felt for the disastrous outcome of the
Brest-Litovsk negotiations, and again promised that Russia should be
secured “complete sovereignty and independence in her own affairs.”
Four months later a small body of American marines joined in the
occupation of Murmansk, and shortly afterwards American troops were
sent to Vladivostok. On August 3, an official statement from Washington
announced that military intervention in Russia would only add to
the confusion there and dissipate our forces on the western front.
Consequently, we would not interfere with the political sovereignty of
Russia or intervene in her local affairs, but would merely send a few
thousand men to Vladivostok in co-operation with Japan, who had given
a similar assurance. The only present object for which the American
troops would be employed would be to help the Czechoslovaks against
the armed German and Austrian prisoners who were attacking them, to
guard military stores, and render acceptable aid to the Russians in the
organization of their own self-defense; but we could not restrict the
actions or interfere with the independent judgment of our associates.
[209] The documents are in 7 _N. Y. Times Current History of the War_,
VII (part 2) 273; VIII (part 1) 49; VIII (part 2) 465, 470; IX (part I)
87. They are reprinted in _Russian-American Relations_, ed. Cumming and
Pettit, N. Y., 1920. See Charles Cheney Hyde, “The Recognition of the
Czechoslovaks as Belligerents,” 13 _Am. J. Int. L._ 93 (1919).
A few days later Abrams and his friends wrote and printed the leaflet
headed, “The Hypocrisy of the United States and her Allies.”
The Soviet government failed to distinguish between military
intervention and the arrival of foreign troops on Russian soil. The
diplomatic breach was complete. Soon afterwards the newspapers were
filled with accounts of Bolshevist atrocities. In September the United
States recognized the Czechoslovaks as a belligerent government
warring against Germany and Austria, with their capital in Washington
and their chief army in Siberia, so that the seacoast of Bohemia
was evidently the Pacific Ocean. On September 15 the United States
Committee on Public Information published nation-wide in the press
the documents[210] collected by its representative, Mr. Edgar Sisson,
which were stated to show that the present heads of the Bolshevist
government were merely hired German agents. No one who recalls the
widespread popular identification of the Soviet Government with Germany
in the summer and early autumn of 1918 can doubt that an October jury
would inevitably regard pro-Bolshevist activities as pro-German, and
consequently apply the first or Russian theory of guilt, besides having
a prejudice against the defendants as sympathizers with the Russian
Revolution, which could only be overcome by an exposition of the
Russian situation from sources which had as yet found no expression in
the newspapers.
[210] War Information Series, No. 20 (October, 1918); the documents,
without the historical report, are in _Bolshevik Propaganda_, etc.,
p. 1125. The documents appeared in the public press by installments,
beginning September 15, 1918. See the _New York Times_ of that
date. For criticism of their genuineness, see 16 _New Republic_ 209
(September 21, 1918), 107 _Nation_ 616 (November 23, 1918), and
the anti-Bolshevist book, E. H. Wilcox, _Russia’s Ruin_, New York,
1919. They are accepted as genuine by Étienne Antonelli, _La Russie
Bolcheviste_, Paris, 1919.
Early on Friday, October 18, the fifth day of the actual trial, the
government rested. Mr. Weinberger opened the case to the jury on behalf
of the defendants, and called to the witness stand Colonel Raymond
Robins. Mr. Robins had not abandoned without a struggle the retirement
in which he had lived since his return from Russia. He had tried to
avoid service of a subpœna, and the United States marshal was on the
point of breaking in the door of his apartment when it opened and
Mr. George W. Wickersham came out. As Mr. Robins’s personal counsel
he agreed to his testifying, but accompanied him to and from the
court-room and sat at the counsel table during his examination.[211]
[211] The summary of the Robins incident is taken from _Record_,
110–138; _New York Call_, October 19, 1918; conversation with Mr.
Weinberger.
After a dozen introductory questions, the United States attorney
objected to further examination, and the witness thereafter was obliged
to remain silent while the defendants’ counsel ran through a series of
thirty unanswered questions in order to get them on the record. This
was repeated with Albert Rhys Williams, and it was not considered worth
while to call Edgar Sisson at all. The admissibility of their evidence
raises problems that go to the heart of the case.
The first theory of guilt raised the complex question whether the
Russian expedition was a part of the war. If this is a political
question which must be answered in the affirmative on the mere
_ipse dixit_ of the government, the existence of a war enables the
government to withdraw the most remote and questionable policies
from the scope of ordinary discussion simply by labeling them a war
matter. The annexation of Mexico to prevent its becoming a base for
German operations, the use of American troops to put down strikes in
England or Sinn Fein in Ireland, are no more remotely connected with
the war with Germany than the Russian affair. On the other hand, if
the relation of such an expedition to the war is put in issue to be
decided by the jury, the defense ought to be able to call witnesses to
disprove it. On this account, in the Abrams case, Raymond Robins and
other eyewitnesses of Russian affairs were summoned to prove that the
Bolshevist and Czechoslovak situation was such that our intervention
was not anti-German; but this testimony and all questions of the
constitutionality of intervention were excluded by Judge Clayton with
the remark, “The flowers that bloom in the spring, tra la, have
nothing to do with the case.”[212]
[212] _Record_, pp. 120, 132.
This phase of the trial is very important for its demonstration of the
enormous difficulties of proof into which we have brought ourselves in
the United States by creating political crimes. Before the Espionage
Act our criminal law punished men almost entirely for acts which take
place in the tangible world and are proved by the evidence of our five
senses. This Act punishes men for words which cause no injury, but have
a supposedly bad tendency to harm the state, and also for intentions
which are regarded as evil. Now, bad tendency and bad intention cannot
be seen or heard or touched or tasted or smelled. They are, as we have
seen, a matter of inference from the complex and obscure background of
general conditions. Consequently, that background becomes, whether we
admit witnesses or not, an issue in the case. The rules of evidence
for the trial of overt criminal acts prove almost useless. Common
sense makes it plain that a knowledge of Russian affairs was essential
to a jury with the attitude of that moment, obliged to interpret the
repeated references to Russia in the circulars, and as we shall see,
told often by the judge that the defendants were guilty if their
pamphlets were issued for the purpose of preventing the government from
carrying on its operations in Russia.
All prosecutions for words will involve us in the same awkward dilemma
that was suggested in connection with the “false statements” clause
in the Pierce case. If we follow the logical course just indicated
and allow the alleged promoter of sedition to bring in a mass of
evidence from Russia or other dark and distant regions to show that
neither he nor his utterances are liable to cause even remote injury
to the national welfare, the prosecution is justly entitled to call
other witnesses to establish the evil character of the agitation.
Every sedition trial will be a rag-bag proceeding like the hearings
about Bolshevism before the Overman Committee of the Senate. As Judge
Clayton pointed out in the Abrams trial, the admission of Raymond
Robins’s testimony would open up a Pandora’s box. The district attorney
would offer on his side to prove that Trotsky had been bought by the
German Government.
To use a vulgar expression, it would be “swiping” them on the
other hand, and we would forget all about the issues in this
case, and we would find ourselves trying Lenine and Trotsky,
which is something I do not intend to do. I have enough trouble
trying these people here in the United States, and God knows I am
not going into Russia to try to try anybody there.[213]
[213] _Record_, 130, 131. For Pierce _v._ U. S., see page 101, _supra_.
On the other hand, if for the sake of speed and convenience we adopt
the policy of Judge Clayton and exclude general testimony as to bad
tendency, pinning the evidence down to the facts of publication and
the precise intention of the defendants, we shall often do a grave
injustice to the prisoners. The jury and even the judge may bring to
the trial preconceived views of the bad tendency and evil purpose
of utterances opposed to the existing economic and social order or
to war policies supported by the great mass of the population. If
no counter-evidence to show that the opinions of the defendants may
be reasonable or honest is admitted from third persons like Raymond
Robins, these presuppositions must inevitably remain. Even if a
defendant is allowed a wide scope in testifying in his own behalf, he
is often the sort of man whose arguments carry little weight. In other
words, in spite of the judge’s desire to exclude outside evidence
on either side as to bad tendency and bad intention from the case,
such evidence in favor of a bad tendency and a bad intention is often
automatically admitted the moment that the jury enter the box, and no
system of challenges can avoid it. During a war they have for months
been supplied with evidence by the government and the loyal press,
diametrically opposed to the utterances for which the prosecution is
brought. Unless something is done to tear the tribunal out of the
fabric of public sentiment, a conviction is almost certain to result
in prosecutions for political crimes, where the ordinary tests of the
five senses play no part and men are forced to judge of the opinions
and character of the prisoners by their own opinions and character
as formed in the furnace of war. What Mr. Robins has since said and
written makes it clear that his evidence would have been highly
valuable to the defense.
Despite the practical inconveniences of such testimony as his in
political prosecutions, it is the method pursued in countries where
political crimes have existed when unknown in the United States.
France, for instance, allows a “free defense,” as in the _Affaire
Dreyfus_. The defendant is not only allowed to say anything in his own
favor, but may bring forward any witnesses he pleases, who express
themselves fully and unhindered. Strange as it seems to us, the results
are said to be very satisfactory.[214] Consequently, if we are going
to continue to prosecute men for the bad political tendency of their
disloyal or anarchistic utterances, we may have to adopt a similar
wide-open policy in justice to the defendants.
[214] Robert Ferrari, “The Trial of Political Prisoners Here and
Abroad,” 66 _Dial_ 647 (June 28, 1919). The same method is pursued in
French murder cases where “the honor of the family” is a defense, and
perhaps instances like the Thaw trial show it is not wholly unknown
in this country. See Walter F. Angell, “A Providence Lawyer at the
Caillaux Trial,” _Providence Daily Journal_, August 21, 1914.
Better far to reject both horns of the dilemma and refuse altogether to
make tendency a test of criminality. If we are not willing to allow the
free defense, we ought to abolish political crimes by the repeal of the
Espionage Act and all other sedition statutes.
In the absence of any established technique for political crimes in
this country, the exclusion of the Robins testimony was correct, since
it did not bear directly on the only legitimate theory of guilt, but
this only made it all the more imperative that Judge Clayton should
repeatedly during the trial and in his charge insist to the jury that
opposition to our Russian policy was not in itself a crime. He ought
to have cleared Russia and Bolshevism out of the case for good and
all, and pounded home the proposition that the only issue under the
third and fourth counts (which alone should have gone to the jury, if
anything went at all) was whether the defendants intended by inducing
strikes in munition factories and other forms of protest to interfere
with the supply of munitions for use against Germany. No one who will
put himself back into the atmosphere of October, 1918, can doubt
that the jury would naturally regard pro-Bolshevist activities as
pro-German, and that it was the duty of Judge Clayton to warn them
explicitly against the Russian theory of guilt, and confine their
attention to the pro-German theory. There is no trace of such a warning
in the record. Instead, Judge Clayton himself repeatedly proclaimed the
unsound theory of guilt, that if the defendants intended to oppose the
government’s Russian policy, they had _ipso facto_ violated the law.
Before the defendants had put in any material testimony, he said:[215]
Now the charge in this case is, in its very nature, that
these defendants, by what they have done, conspired to go and
incite a revolt; in fact, one of the very papers is signed
‘Revolutionists,’ and it was for the purpose of avoiding—a
purpose expressed in the paper itself—the purposes of the
Government and raising a state of public opinion in this country
of hostility to the Government of the United States, so as to
prevent the Government from carrying on its operations and
prevent the Government from recognizing that faction of the
Government of Russia, which the Government has recognized, and
to force the Government of the United States to recognize that
faction of the Government in Russia to which these people were
friendly.
Now, they cannot do that. No man can do that, and that is the
theory that I have of this case, and we might as well have it out
in the beginning.
[215] _Record_, pp. 117, 118.
The court did tell the jury that this statement was not part of the
evidence and should be disregarded in passing on the issue of fact,
but the harm was done and he took no steps to present any concrete
alternative view. The second and legitimate theory of guilt was never
stated by him, and it is doubtful if he himself ever realized the
distinction or what really was in issue. Instead, he continued to apply
the Russian theory in his cross-examination of Lipman, for it is one of
the remarkable features of this case that most of the cross-examination
of the prisoners was not by the district attorney, but by the court,
who sometimes broke in upon the direct examination before half a dozen
questions had been asked.[216] Lipman was testifying in response to his
counsel that he had written the English pamphlet because the President
after sending the telegram of sympathy to the Soviets had a few weeks
later despatched a military expedition to Russia. Judge Clayton took
over the witness:[217]
“The President, you thought, and all that he was doing ought to
be stopped and broken up?” “I thought when I know he is elected
by the people they should protest against intervention.... I
did not want to break up. I called for a protest, which as I
understand it, from my knowledge of the Constitution, the people
of America had a right to protest.”...
“Did you not intend to incite or provoke or encourage
resistance to the Government of the United States?” “Not to the
Government—never did.”
“Who was acting for the Government if the President was not?”
“I thought it was the Congress and Senate that was supposed to
represent the people of America.”
“The President is the executive head.... You intended to incite
opposition to what the President did?” “I did not. I intended to
enlighten the people about the subject, for, as I stated, the
papers were afraid to state it, and I thought it was the right
time.”
“... The Government acts through the President, and you intended
to incite opposition to what he was doing?” “I intended to incite
opposition to every wrong act I understood to be wrong.”
“You had the specific intention to make public opinion and arouse
public opinion against intervention in Russia?” “Yes.”
[216] See the court’s cross-examination of Abrams, _Record_, p. 163.
The testimony not included in the _Record_ shows much more questioning
by the judge. See current issues of the _New York Times_ and _New York
Call_; Stenographer’s Notes.
[217] _Record_, pp. 201–203.
When the judge also kept saying that the defendants’ opinion of the
legality of the President’s action could not justify them in breaking
the law,[218] he made their anti-interventionist propaganda seem a
crime in itself, and there was no need for the jury to consider whether
they had any intention to prevent the shipment of munitions to the
western front. There is nothing in the charge about such an intention,
nothing to exclude Russian operations from the scope of the war.
Therefore, it is very probable that the defendants were convicted on an
erroneous theory of guilt, simply because they protested against the
despatch of armed forces to Russia.
[218] _Record_, pp. 115–121, 130–138, 167, 172, 173. See also
Stenographer’s Notes of Testimony, _passim_.
However, it is maintained that the defendants did intend to hinder
the fighting against Germany and so were properly convicted on the
second theory of guilt. There are three classes of evidence in the case
bearing on their intention.
First, the two pamphlets speak for themselves. Both plainly protest
against our Russian policy and not against the war. The English
circular emphatically repudiates the charge of pro-Germanism. It is
nearly all expository, but throws in a few general exhortations which
have been tossed about in every Socialistic hall and street-meeting
for seventy years since the Communist manifesto in 1848 until Justice
Clarke discovered in 1918 that it was a crime in war time to say,
“Workers of the World! Awake! Rise! Put down your enemy and mine....
Capitalism!”
“This,” he declares, “is clearly an appeal to the ‘workers’ of this
country to arise and put down by force the Government of the United
States.”[219]
[219] 250 U. S. @ 620 (1919).
If this be so, practically every Socialistic book or pamphlet violates
the Espionage Act, and the belief of American Socialists that the Act
was directed against their political existence as a party under the
pretext of war finds ample justification. Military imagery ought not
to be taken literally in radical propaganda, any more than in church
hymns. Nothing could show better than this sentence of Justice Clarke’s
how peace-time statutes which are limited in terms to the advocacy of
“force and violence” may be interpreted judicially to punish obnoxious
radical opinions which call for working-class action without a single
word to indicate that force is to be employed.
The Yiddish circular is more specific and calls for a general strike,
which can no more be kept out of a radical pamphlet than King Charles’s
head could be barred from Mr. Dick’s Memorial. We ought to hesitate
a long while before we decide that Congress made such shop-worn
exuberance criminal. Very likely, as Justice Clarke says, “This is
not an attempt to bring about a change of administration by candid
discussion,”[220]—but how much political discussion is candid? If
nothing but candid discussion is protected by the First Amendment, its
value for safeguarding popular review of official acts is _nil_. And
even if words like “fight” and “revolution” indicate violence, though
often used in a peaceable sense, the advocacy of strikes and violence
is not a crime under this indictment unless intended to resist and
hinder the war with Germany.
[220] _Ibid._ 622. Bagehot points out the danger of such a test: “The
effect of all legislative interference in controversies has ever been
to make an approximation to candor compulsory on one side but to
encourage on the other side violence, calumny, and bigotry.”—_Works_,
Longmans’ ed., X, 127.
The second group of evidence consists of two manuscripts which were
seized at the time of the arrests without a search-warrant.[221] One,
a yellow sheet of paper in handwriting, taken from Lipman, contains a
passage about keeping the allied armies busy at home in order to save
the Russian Revolution.[222] The other, some typewritten sheets found
in a closet in Abrams’ rooms on a pile of books and papers, urges at
its close a similar policy, so that there will be no armies to spare
for Russia, and adds that if arms are used against the Russian people,
“so will we use arms, and they shall never see the ruin of the Russian
Revolution.”[223] Very little attention was given to these manuscripts
in either brief on appeal, but Justice Clarke says, after quoting the
passages just mentioned:
These excerpts sufficiently show, that while the immediate
occasion for this particular outbreak of lawlessness, on the
part of the defendant alien anarchists, may have been resentment
caused by our government sending troops into Russia as a
strategic operation against the Germans on the eastern battle
front, yet the plain purpose of their propaganda was to excite,
at the supreme crisis of the war, disaffection, sedition, riots,
and, as they hoped, revolution, in this country for the purpose
of embarrassing and if possible defeating the military plans of
the Government in Europe.[224]
[221] A contest could have been made on this point. See Chapter VI.
[222] Government’s Exhibit 11, _Record_, pp. 250, 251. See also
_Record_, pp. 45, 103; also 78, where Lipman, under examination by the
military intelligence police, testified it meant soldiers were to be
kept busy preventing and stopping protest meetings.
[223] Government’s Exhibit 13, _Record_, pp. 252–255. See also
_Record_, pp. 55, 104. The significant passages from both manuscripts
are in 250 U. S. @ 622 (1919). Mr. Wigmore actually quotes these
passages as forming part of the Yiddish pamphlet. 14 _Ill. L. Rev._ 544.
[224] 250 U. S. @ 623 (1919).
These excerpts form a small part of two long discussions wholly
concerned with the wrong committed against Russia by both Germany and
ourselves. The clear and only purpose is to stop Russian intervention.
Much more important, these passages do not occur in the pamphlets for
which the defendants were indicted. They are in manuscripts which
were never printed. There is not the slightest testimony that any one
intended to print them, or indeed that the author, Lipman, ever showed
them to any one. What one man jots down and refrains from printing is
very weak proof of what several other men intended when they printed
something else. Finally, a comparison of the second or typewritten
manuscript with the English pamphlet shows that it is only a first
draft, and the omission in revision of all the passages on which
Justice Clarke relies furnishes decisive evidence that such language
did not express the actual intention of the defendants. All talk about
keeping soldiers busy and using arms was thrown out, and the postscript
denouncing German militarism was added. In other words, the one portion
of the draft which might conceivably be regarded as favorable to
Germany was deliberately dropped before printing, and a paragraph was
substituted hostile to Germany and repudiating pro-Germanism.
Thirdly, we have the testimony of the defendants on the vital issue,
whether they intended to defend the Russian Revolution by the methods
of impulsive youth or intended to hinder us in our war against German
militarism. All were born in Russia and had remained citizens of
that country during their few years in the United States. All were
anarchists except Lipman, and he was a Socialist. Nothing in the case
rebuts the natural inference that such persons were devoted to Russian
radicalism and bitterly hostile to Imperial Germany.
Abrams, under cross-examination by the district attorney, said that he
had offered his services to the President to go to Russia and fight
Germany, but permission had been refused.[225] Under cross-examination
by the court, he denied that he intended to obstruct and hinder the
government of the United States. His object was to help Russia. He did
not believe in governments and was a revolutionist, rebelling against
the conditions of life from twelve years of age, but that was only his
philosophy. It had nothing to do with the pamphlets, the purpose of
which was to protest against intervention.[226] On direct examination
he testified that this was his sole purpose; that every Russian
revolutionist was in favor of America’s crushing German militarism;
that he would go to Russia to fight it any time he had a chance;
that he would help send propaganda from Russia to Germany to start a
revolution there, as he had done on the border of Austria and was sent
to Siberia for it. As to the appeal for strikes, he called upon the
workers here not to produce bayonets to be used against the workers in
Russia.
“I say it is absurd I should be called a pro-German, because in
my heart I feel it is about time the black spot of Europe should
be wiped out.”
“You are opposed to German militarism in every form?”
“Absolutely.”
“You would overthrow it and help overthrow it if you could?”
“First chance.”[227]
[225] _Record_, pp. 197.
[226] _Record_, pp. 163, 164, 196.
[227] _Record_, pp. 182, 183; and see also 168, 180, 190.
The other defendants testified to the same effect, even Molly Steimer,
the most inflexible, who says that if she ever had a doubt whether
people ought to be governed by one another it has vanished since she
came in contact with those who rule, and now refuses to apply for a
pardon because she ought not to be released so long as thousands of
other political prisoners are languishing in American jails. She stated
her intention thus: “The war between the United States and Germany does
not concern me, because I wish to see militarism throughout the entire
world crushed by the workers.... I thought, and I do think it now, that
the workers of the United States who are working in munition factories
ought to stop producing munitions which are used for the killing of
Russians. I care nothing about interfering with the war with Germany,
because it does not matter to me.”
There is not a word in the whole _Record_ to show that any prisoner
was opposed to the war with Germany or had any intention except an
absorbing desire to protest against intervention in Russia.[228]
[228] Lipman, page 138, _supra_, _Record_, pp. 77, 200, 203, 206;
Lachowsky, _Record_, pp. 223; Steimer, _Record_, pp. 82, 216, 221, 222.
It is hard to see how the jury could have convicted on this evidence
if they had been instructed that a specific intent to hinder the war
with Germany was necessary, but the charge contains nothing on this
point except a mere repetition of the words of the statute. There is no
comment on those words, no attempt to distinguish between a general
intention to publish and the required specific intent. Instead, the
judge charged, “People who have circulars to distribute, and they
intend no wrong, go up and down the streets circulating them.”[229]
During the trial, although the defendants’ counsel reminded him that
Russian meetings in New York had been broken up, Judge Clayton said he
would leave it to the jury whether throwing pamphlets out of windows
squared with good, honest intention, and whether being anarchists and
wanting to break up all government squared with honesty and sincerity
of purpose. Soon afterward he stated:
If it were a case where the defendant was indicted for homicide,
and he was charged with having taken a pistol and put it to the
head of another man and fired the pistol and killed the man, you
might say that he did not intend to do that.
But I would have very little respect for a jury that would come
in with a verdict that he didn’t have any intent.[230]
[229] _Record_, pp. 237, 238.
[230] _Record_, pp. 159–161.
Plainly these rulings of Judge Clayton ignore absolutely the specific
intent to oppose or hinder the war with Germany, as demanded by the
statute, and authorize the jury to convict the defendants for intention
to publish the pamphlets and a generally bad mind.
The verdict against Abrams, Lipman, Lachowsky, Rosansky, and Molly
Steimer was guilty on all four counts. The sixth prisoner, Prober, was
acquitted, for insufficient evidence of connection with the leaflets.
The district attorney’s office, which thought he had distributed
leaflets at radical meetings, cites his acquittal as evidence of the
fairness of the jury.
There is little of the heroic about these defendants and much that is
repellent. Their beliefs were, as Justice Holmes called them, “the
creed of ignorance and immaturity.” Abrams was a sufficiently prominent
radical to preside at a meeting in New York where Trotsky spoke. He
and Lipman, who were subject to the draft as citizens of a nation
still technically associated with ours in the war although our troops
were fighting the compatriots of these men, have been indicted on
strong evidence for stealing and forging draft cards. Two defendants,
while out on bail after conviction, tried to escape as stowaways from
New Orleans to Yucatan. Molly Steimer used her temporary freedom to
distribute anarchistic leaflets in the New York streets, and was sent
to Blackwell’s Island, where she was regarded as incorrigible. Yet all
this, bad as it is, in no way justifies their conviction under the
Espionage Act. It is a fundamental principle of our law that men must
not be punished in one case for other crimes, especially if not yet
proved. If these prisoners are guilty of other offenses, they can be
prosecuted for them. Such guilt and all their undesirable qualities
cannot take the place of the essential and absent intention to hinder
the war with Germany, and do not lessen the bad effects of this case as
a precedent for the suppression of public protests against governmental
action on the ground of its illegality.
Two features of the trial demand a passing notice. The method by which
confessions were obtained from the defendants after arrest was not
raised on appeal, since the overt acts were proved in other ways,
but their testimony, if it can be believed, throws a significant
light on the question, important to criminologists, of the treatment
which political prisoners may expect in this country, especially if
they be obscure aliens. The deportation raids prove that abuses are
possible, but such a conclusion cannot be reached in the Abrams case
without a detailed investigation of the conflicting evidence. The
army sergeants deny threats and force.[231] The assistant district
attorney, who showed much consideration toward the prisoners, noticed
no traces of violence on the morning after the arrest, and is convinced
that none was used. On the other hand, the charges of brutality seem
disquietingly specific and sincere.[232] The defendants and their
counsel also insisted, though the influenza epidemic and the long
interval since the arrest render it improbable, that Schwartz’s fatal
illness was caused by the violence of one soldier, whom Judge Clayton
relieved from the necessity of telling whether or not he was called by
his associates, “The Tiger.” The court observed, “There is no evidence
as to who killed Schwartz any more than there was any evidence as to
who killed cock robin.”[233]
[231] _Record_, pp. 70, 75, 85. Stenographer’s Notes, 742 ff., 752 ff.
[232] Stenographer’s Notes, 471 ff., 587, 613, 660 ff., 709 ff., 716
ff., 722; and the pamphlet, _Sentenced to Twenty Years Prison_, passim.
[233] Stenographer’s notes, 665.
Legal historians have always taken interest in the criminal judge who
jests with the lives of men.[234]
“You keep talking about producers,” said Judge Clayton to Abrams.
“Now may I ask why you don’t go out and do some producing? There
is plenty of untilled land needing attention in this country.”
... The witness said that he was an anarchist and added that
Christ was an anarchist.
“Our Lord is not on trial here. You are....”[235]
[234] The judge’s words are taken _verbatim_ from the _New York Times_,
October 22, 1918, which was so far from being prejudiced against
him that on October 28 it said editorially, “Judge Henry D. Clayton
deserves the thanks of the city and of the country for the way in which
he conducted the trial,” and praised his “half-humorous” methods.
[235] Braxfield replied to a similar comparison, “Muckle he made o’
that; he was hanget.” See the account of how he tried Muir for sedition
in R. L. Stevenson, _Some Portraits by Raeburn_, and Philip A. Brown,
_The French Revolution in English History_, London, 1918, 95–99.
At another point the witness began some remarks about John D.
Rockefeller.
“Now,” said Judge Clayton, “suppose we eliminate Mr. Rockefeller.
He is not on trial. However, I will say that it is quite true
that Mr. Rockefeller is a man of considerable wealth and he has
done a great deal of good. He has eliminated the hook-worm, which
was the curse of childhood in large sections of our country; he
has established and maintained a great research hospital, and
in other ways used his wealth to better the condition of his
fellows. We will now proceed with the case.”
“We will now,” said Mr. Weinberger, “ask the witness about his
other writings. The Holy Alliance——”
“Cut out the Holy Alliance. That is not in the issue....”
“When our forefathers of the American Revolution——” the witness
began, but that was as far as he got.
“Your what?” asked Judge Clayton.
“My forefathers,” replied the defendant.
“Do you mean to refer to the fathers of this nation as your
forefathers? Well, I guess we can leave that out, too, for
Washington and the others are not on trial here.”
Abrams explained he called them that because, “I have respect
for them. We all are a big human family, and I say ‘our
forefathers.’... Those that stand for the people, I call them
father.”[236]
[236] Abrams’ reply is in _Record_, p. 194.
The day after conviction the prisoners were called before Judge Clayton
for sentence. The court said:[237]
“I am not going to permit anybody to start anything to-day. The
only matter before this court is the sentencing of these persons.
There will be no propaganda started in this court, the purpose of
which is to give aid and comfort to soap-box orators and to such
as these miserable defendants who stand convicted before the bar
of justice.”
When Lipman, the socialist, stepped forward to address the court
and started to harangue about democracy, “You don’t know anything
about democracy,” said Judge Clayton, “and the only thing you
understand is the hellishness of anarchy.”...
“These defendants took the stand. They talked about capitalists
and producers, and I tried to figure out what a capitalist and
what a producer is as contemplated by them. After listening
carefully to all they had to say, I came to the conclusion that a
capitalist is a man with a decent suit of clothes, a minimum of
$1.25 in his pocket, and a good character.
“And when I tried to find out what the prisoners had produced, I
was unable to find out anything at all. So far as I can learn,
not one of them ever produced so much as a single potato.[238]
The only thing they know how to raise is hell, and to direct it
against the government of the United States....
“But we are not going to help carry out the plans mapped out by
the Imperial German Government, and which are being carried out
by Lenine and Trotsky. I have heard of the reported fate of the
poor little daughters of the Czar, but I won’t talk about that
now. I might get mad. I will now sentence the prisoners.”
[237] _New York Times_, October 26, 1918.
[238] Abrams and Lachowsky bound books, Lipman produced furs,
Rosansky produced hats, Molly Steimer produced shirtwaists.
Rosansky was given three years in prison, Molly Steimer fifteen
years and $500 fine, Lipman, Lachowsky, and Abrams twenty years (the
maximum), and $1,000 on each count. If they had actually conspired to
tie up every munition plant in the country and succeeded the punishment
could not have been more.[239]
“I did not expect anything better,” said Lipman.
“And may I add,” replied the judge, “that you do not deserve
anything better.”[240]
[239] It would not be treason for lack of overt acts. See Chapter VI.
Therefore, they would be punishable only under the Espionage Act. The
general statute on conspiracy to destroy by force the government of
the United States imposes only six years. _Crim. Code_, § 6, U. S.
Comp. Stat., 1918, § 10170. Conspiracies to limit the production of
necessaries are punishable under the Lever Act by two years. Act of
August 10, 1917, c. 53, § 9, 40 Stat. at L. 279, U. S. Comp. Stat.,
§3115⅛ i.
[240] _New York Times_, supra. _Record_, p. 243, says, “I do not think
you deserve anything less. Now, the next one.”
II. _The Supreme Court_
Seven judges of the Supreme Court were for affirmance of these
convictions, Justice Clarke delivering the majority opinion. Justice
Holmes read a dissenting opinion, in which Justice Brandeis concurred.
The Supreme Court had only a limited power to correct any errors that
may have occurred at the trial. It could not revise the sentences.[241]
It could not set aside the verdict because its judges would have found
differently on the facts themselves, but only if there was so little
evidence of the required guilty intent that a reasonable jury could
not have convicted. It would be very unlikely to grant a new trial for
misdirection and failure to place properly before the jury the vital
issue of specific intent to hinder the war, since no objection on this
ground is noted in the bill of exceptions,[242] although as I have
tried to show, the trial judge did nothing to enlighten the jury on
the issues of specific intent and did much to becloud that difficult
question, so that they very probably reached a verdict on entirely
inadequate grounds,—the existence of intention to publish and to oppose
Russian intervention. Only two real questions were before the court:
the existence of the requisite evidence of specific intent under the
third and fourth counts, the other two being disregarded, and whether
the Espionage Act could constitutionally be interpreted to apply to
this case.
[241] That excessive sentences may possibly constitute “cruel and
unusual punishment” under the Eighth Amendment, see Weems _v._ United
States, 217 U. S. 349 (1910), per McKenna, J., White and Holmes, JJ.,
dissenting.
[242] The Supreme Court has granted a new trial for unexcepted
misdirection imperiling liberty. Wiborg _v._ U. S., 163 U. S. 632, 659
(1896). Accord, Skuy _v._ U. S., 261 Fed. 316 (C. C. A. 8th, 1919).
See August _v._ United States, 257 Fed. 388 (C. C. A. 8th, 1919),
which holds that Act of February 26, 1919, c. 48, amending Judicial
Code, § 269, now authorizes an appellate court to look to the entire
record and render judgment without regard to the technicality of want
of exceptions. It is doubtful, however, if this statute does more than
prevent reversals for non-prejudicial errors.
The required specific intent to hinder the war with Germany is worked
out by Justice Clarke in this way: “It will not do to say ... that the
only intent of these defendants was to prevent injury to the Russian
cause.” They intended a general strike of munition workers, _i.e._,
a curtailment of production. This plan necessarily involved, before
it could be realized, the paralysis and defeat of the war program
of the United States. Therefore, the defendants intended such an
interference with the war, since “men must be held to have intended,
and to be accountable for, the effects which their acts were likely to
produce.”[243]
[243] 250 U. S. @ 621.
The “unfortunate maxim” propounded by the Justice is a pure
fiction.[244] Obviously our acts result in many probable consequences
which we do not intend. If he means that the defendants were liable
for such consequences even if they did not in fact intend them, he
states a principle of law which is applicable to some crimes, but not
to those in which the law requires a specific intent, as in the case
at bar. In those crimes the defendant must actually have the defined
state of mind.[245] Thus a man who broke into a barn at night and cut
the sinews of a horse’s leg to prevent his winning a race is not guilty
of burglary with intent to kill a horse, even though in consequence of
the injury the horse died.[246] It is needless to multiply examples.
Even recklessness does not take the place of the state of mind demanded
by the statute.[247] On the other hand, if he means that the jury may
permissibly infer as a matter of fact from the doing of an act that
the actor intends its ordinary consequences, this is true enough,[248]
but such an inference is worthless if there is overwhelming express
evidence that the defendant had an entirely different intention. That
is the situation in the Abrams case, where the pamphlets and the
defendants’ testimony show that they intended to help Russia.
[244] Jeremiah Smith, “Surviving Fictions,” 27 _Yale L. J._ 147, 156
(1917).
[245] May, _Criminal Law_, 3 ed., § 34; 1 Bishop, _New Criminal Law_,
8 ed., § 335; Roberts _v._ People, 19 Mich. 401, 415 (1870); Ogletree
_v._ State, 28 Ala. 693, 701 (1856).
[246] Dobbs’ Case, 2 East P. C. 513 (1770).
[247] United States _v._ Moore, 2 Lowell (U. S.) 232 (1873).
[248] Jeremiah Smith, _op. cit._; People _v._ Scott, 6 Mich. 287, 296
(1859).
The majority opinion must rest on the first sentence quoted from
Justice Clarke, that aiding Russia was not the only intent of these
defendants. It is argued that they had two intents: (1) to help
Russia, (2) to hinder the war by curtailment of production in order
to accomplish that object; that it is immaterial which intent was
principal and which subordinate, so long as both existed.[249] Thus
if I throw a brick at a man behind a plate-glass window, my principal
desire may be to hit him, but if that necessarily involves breaking
the window and I know this fact, I have a secondary intention to break
it and am guilty of intentional destruction of property, even though
I would much rather not have broken the glass.[250] When a man was
indicted for assault on another with intent to disfigure him by biting
off his ear, it was useless for him to argue that he only intended to
injure but not to disfigure, since the disfigurement was a necessary
and obviously a known consequence of the intended act.[251]
[249] 1 Bishop, _New Criminal Law_, 8 ed., § 339; Rex _v._ Gillow, 1
Moody C. C. 85 (1825).
[250] _Cf._ Rex _v._ Pembliton, 12 Cox C. C. 607 (1874). A shooting
analogy is given in 33 _Harv. L. Rev._ 444 note.
[251] State _v._ Clark, 69 Iowa 196 (1886).
There are several answers to this argument that one who intends a
curtailment of munitions for any purpose must know that fewer munitions
will hinder the war and therefore must _ipso facto_ intend to hinder
the war. First, the analogy of the throwing and biting cases just
stated is too simple to have any application to the Abrams case. There
is no such obvious and mechanical chain of cause and effect in complex
social conditions, and the obscure factors involved are entirely
beyond the capacity of a jury to decide. The argument supposes (1)
that the hindrance of the war is inevitable, (2) that this inevitable
consequence must have been in the defendants’ minds. Both steps are
very questionable, and the opinion of a jury on either step should
have no weight with an appellate court. Of the first Justice Holmes
says, “An intent to prevent interference with the Revolution in Russia
might have been satisfied without any hindrance to carrying on the war
in which we were engaged.”[252] Thus a very short strike that stopped
intervention would have caused a very small loss in munitions for
shipment to France, which would have been enormously offset by the
release of troops and equipment previously diverted to Russia, and a
different Russian policy might have created greater liberal enthusiasm
in this country and elsewhere for the President’s war aims. The second
step ignores the belief of the defendants that a friendly Soviet
Government would render valuable aid in attacking Imperial Germany by
war, or at least by propaganda, whose effectiveness was proved within a
fortnight after the conviction of Abrams and his friends.
[252] 250 U. S. @ 628 (1919).
Secondly, if every curtailment of munitions, whatever its purpose, is
necessarily criminal under this Act, because of its alleged obvious and
inevitable effect on the war, why does the Espionage Act take pains
to limit the crime to “curtailment ... _with intent ... to cripple or
hinder the United States in the prosecution of the war_”?[253] This
clause is superfluous and meaningless, if every advocacy of curtailment
involves such an intent. This clause about intent must add something
to the rest of the definition of this crime. “Intent to hinder the
war” clearly means more than the artificial lawyer-made intention to
obstruct the war conjured up from any threat of a strike. The word
“intent” in a very severe criminal statute and especially a statute
limiting popular discussion must mean what any layman who wished to
urge a strike in war time lawfully would assume it to mean, that
interference with the war must not be the object of his exhortation,
the purpose at which he aims. Such a man would be entrapped if “intent”
means an incidental, undesired, and at the most a vaguely considered
consequence of his utterances.[254] Strikes are not ordinarily
illegal, and it would be startling if Congress intended to prohibit
all incitement to them in war. Naturally the statute confined itself
to strikes and similar measures that were specifically planned to
interfere with the war.
[253] It is significant that Justice Clarke omits this clause in
quoting the indictment, and possibly he overlooked it altogether and
assumed that intent to advocate curtailment of war essentials was the
only intent specified in the Act.
[254] _Ibid._, Holmes, J.: “When words are used exactly a deed is not
done with intent to produce a consequence unless that consequence is
the aim of the deed—unless the aim to produce it is the proximate
motive of the specific act ...” The Sabotage Act punishes defective
manufacture of war essentials only if there is intent to interfere with
the war or reason to believe that the act will interfere with it. Act
of April 20, 1918.
This is not, as has been charged, a confusion of intent and
motive.[255] It is absurd to say that “interference with the war
was palpably the _direct_ and desired effect which these appeals
were intended to produce” and aid to Russia only a motive. Justice
Clarke expressly recognizes that the “primary intent” was to help
Russia.[256] The defendants intended to produce certain tangible
results, notably protest meetings, which in turn were intended to
produce another tangible result, the end of intervention. Their motive
was love for Russia. Possibly they also intended as part of their
machinery of protest to produce a general strike, if intent can exist
without any expectation of success. Interference with the war was at
the most an incidental consequence of the strikes, entirely subordinate
to the longed for consequence of all this agitation, withdrawal from
Russia. It is wholly unsound to label the conjectural war consequence
intent and the absorbing Russian consequence motive.
[255] “Justice Holmes’ Dissent,” 1 _Review_ 636 (December 6, 1919).
This article also censures Justice Holmes for not quoting the passage
about keeping the armies at home. I hope I have shown reasons why it
should never have been quoted by any judge.
[256] 250 U. S. @ 621.
Finally, this argument of inevitable hindrance proves too much. If
these defendants were guilty under the fourth count, so was every other
person who advocated curtailment in the production of war essentials,
no matter what his purpose. The machinists in Bridgeport who struck in
defiance of the arbitration of the National War Labor Board violated
the Espionage Act, although they intended to obtain higher wages.
The Smith and Wesson Company violated it in refusing to continue to
manufacture pistols under another arbitration, although they intended
to retain an open shop.[257] The coal miners last autumn violated that
Act in calling a strike. The government should have threatened all
these people with the twenty-year penalty of the Espionage Act instead
of acting under its general war statutes or imposing the milder rigors
of the Lever Act and an injunction.[258]
[257] See these two cases in Report of the Activities of the War
Department in the Field of Industrial Relations During the War
(Washington, 1919), 32–35.
[258] I have not troubled to apply similar reasoning to the third count
of the indictment, because for reasons already stated I do not consider
the pamphlets contained any advocacy of resistance to the United
States. Consequently, that count should be disregarded like the first
two. Holmes, J., says: “Resistance to the United States means some
forcible act of opposition to some proceeding of the United States in
pursuance of the war.... There is no hint at resistance to the United
States as I construe the phrase.” 250 U. S. @ 629 (1919).
In other words, the Supreme Court was construing not only a criminal
statute which must be applied in a fashion which the laymen who
are menaced by it will readily understand, but a statute limiting
discussion and hence to be interpreted in the light of the First
Amendment. It ought not to be assumed that Congress meant to make all
discussion of any governmental measure criminal in war time simply
because of an incidental interference with the war. The danger of
the majority view is that it allows the government, once there is a
war, to embark on the most dubious enterprises, and gag all but very
discreet protests against these non-war activities. To give extreme
concrete examples: Irish munition workers could not have been urged to
strike had our government been sending arms to Dublin Castle, because
this would have lessened munitions for France, since a machinist could
not be sure that any particular shell or gun was going to Ireland.
Incitement to armed resistance to an executive edict nationalizing
women would be opposition that might paralyze the war, and therefore
easily suppressed under this Act.
The majority opinion dismisses this matter of constitutionality in two
sentences, citing decisions on the Espionage Act of 1917 to establish
the validity of the far more objectionable provisions of the Act of
1918.[259] Furthermore, the court did not have to declare the clauses
involved in the third and fourth counts void. Indeed, it cannot
reasonably be doubted that they are constitutional when construed
in accordance with the First Amendment. It is the same situation
that Judge Hand pointed out in Masses _v._ Patten:[260] it is not a
question of judicial refusal to enforce legislation, but of giving
it a construction which will not limit discussion beyond the express
terms of the Act. The words of the statute requiring a specific intent
were presumably not meant by Congress to bear a meaning which would
curb political agitation on matters unrelated to the war. The statute
uses the ordinary language of criminal solicitation and attempt, and
does not expressly demand the punishment of words in the absence
of immediate danger or a determined purpose in itself dangerous to
cause actual obstruction of the war. Therefore, it was erroneous for
the court to construe it so as to make the remote bad tendency and
possible incidental consequences of these pamphlets a valid basis for
conviction. And even if all advocacy of curtailment of munitions be
considered dangerous, the intent clause limits the crime and should
not have been ignored. While the decision of the majority has done a
lasting injustice to the defendants, its effect on the legal conception
of freedom of speech should be temporary in view of its meager
discussion of the subject and the enduring qualities of the reasoning
of Justice Holmes.
[259] 250 U. S. @ 619.
[260] 244 Fed. 535, 538 (1917). See p. 48, _supra_.
Although a dissenting opinion, it must carry great weight as an
interpretation of the First Amendment, because it is only an
elaboration of the principle of “clear and present danger” laid down
by him with the backing of a unanimous court in Schenck _v._ United
States. Since that case is reaffirmed by Justice Clarke this principle
still remains law, greatly strengthened since the Abrams case by
Justice Holmes’s magnificent exposition of the philosophic basis of
this article of our Constitution:
Persecution for the expression of opinions seems to me perfectly
logical. If you have no doubt of your premises or your power
and want a certain result with all your heart you naturally
express your wishes in law and sweep away all opposition. To
allow opposition by speech seems to indicate that you think the
speech impotent, as when a man says that he has squared the
circle, or that you do not care whole-heartedly for the result,
or that you doubt either your power or your premises. But when
men have realized that time has upset many fighting faiths,
they may come to believe even more than they believe the very
foundations of their own conduct that the ultimate good desired
is better reached by free trade in ideas—that the best test of
truth is the power of the thought to get itself accepted in the
competition of the market, and that truth is the only ground
upon which their wishes safely can be carried out. That at any
rate is the theory of our Constitution. It is an experiment, as
all life is an experiment. Every year if not every day we have
to wager our salvation upon some prophecy based upon imperfect
knowledge. While that experiment is part of our system I think
that we should be eternally vigilant against attempts to check
the expression of opinions that we loathe and believe to be
fraught with death, unless they so imminently threaten immediate
interference with the lawful and pressing purposes of the law
that an immediate check is required to save the country....
Only the emergency that makes it immediately dangerous to leave
the correction of evil counsels to time warrants making any
exception to the sweeping command, “Congress shall make no law
abridging the freedom of speech.” Of course I am speaking only of
expressions of opinion and exhortations, which were all that were
uttered here, but I regret that I cannot put into more impressive
words my belief that in their conviction upon this indictment the
defendants were deprived of their rights under the Constitution
of the United States.
The preceding chapters have been written in support of this danger-test
as marking the true limit of governmental interference with speech and
writing under our constitutions, but an able and thoughtful criticism
of Justice Holmes’ dissent[261] makes it imperative to say something
more on the subject. In the first place, the First Amendment is very
much more than “an expression of political faith.” It was demanded by
several states as a condition of their ratification of the Federal
Constitution, and is as definitely a prohibition upon Congress as
any other article in the Bill of Rights. The policy behind it is the
attainment and spread of truth, not merely as an abstraction, but as
the basis of political and social progress. “Freedom of speech and of
the press” is to be unabridged because it is the only means of testing
out the truth. The Constitution does not pare down this freedom to
political affairs only or to the opinions which are held by a majority
of the people in opposition to the government. A freedom which does
not extend to a minority, however small, and which affords them no
protection when the majority are on the side of the government would
be a very partial affair, enabling the majority to dig themselves in
for an indefinite future. The narrow view that the amendment does not
protect a few of the people against the force of public opinion throws
us back to the English trials during the French Revolution, and the
Sedition Law of 1798, for which the United States through many years
showed its repentance by pardoning all prisoners and repaying to them
the fines imposed. These were none the less injurious to the cause of
truth because they had the sanction of the majority.
[261] “The Espionage Act and the Limits of Legal Toleration,” 33 _Harv.
L. Rev._ 442 (January, 1920), by Day Kimball.
Undoubtedly, although we are not infallible, we must assume certain
opinions to be true for purposes of action; but this does not make it
right or desirable to assume that they are true for the purpose of
crushing those who hold a contrary doctrine.
There is the greatest difference between presuming an opinion to
be true, because, with every opportunity for contesting it, it
has not been refuted, and assuming its truth for the purpose of
not permitting its refutation.[262]
[262] Mill, _Liberty_, c. II.
The vote of the majority of the electorate or the legislature is the
best way to decide what beliefs shall be translated into immediate
action, and the government must resist if its opponents begin to carry
on the conflict of opinions by breaking heads instead of counting
them. But it is equally inadvisable for the government to seek to
end a contest of ideas by imprisoning or exiling its intellectual
adversaries. Force seems like force to its victim, whether or not it
has the sanction of law. No one will question that the government must
resist a revolt, however Utopian in purposes, but the inference that
logically it must also condemn all utterances “aimed at such subversion
or tending solely thither” ignores the difference of degree emphasized
by the First Amendment. It is the unfailing argument of persecutors.
The opinions to which they object are always conceived to aim at
revolution, violence, and nothing else, although such utterances are
usually in large part the exposition of political and economic views.
The advocates of parliamentary reform in England were condemned on
just such reasoning. To throw overboard the danger-test, and permit
“the suppression, whenever reasonably necessary, of utterances whose
aims render them a menace to the existence of the state,” inevitably
substitutes jail for argument, since the determination of the
vague test of “menace” depends on the tribunal’s abhorrence of the
defendant’s views. It is no answer that this tribunal (outside of the
crushing powers of the post-office and of the immigration officials
in deportation cases) is a jury. A fitness to apply a common-sense
standard to alleged criminal acts bears no resemblance to a capacity to
appraise the bad political and social tendency of unfamiliar economic
doctrines during panic. The Abrams case shows the capacity of a judge
to decide such a question. The only tribunal which can pass properly on
the menace of ideas is time.
We must fight for some of our beliefs, but there are many ways of
fighting. The state must meet violence with violence, since there is no
other method, but against opinions, agitation, bombastic threats, it
has another weapon,—language. Words as such should be fought with their
own kind, and force called in against them only to head off violence
when that is sure to follow the utterances before there is a chance for
counter-argument. To justify the suppression of the Abrams agitation
because the government could not trust truth to win out against “the
monstrous and debauching power of the organized lie” overlooks the
possibility that in the absence of free discussion organized lies may
have bred unchecked among those who upheld the course of the government
in Russia.
The lesson of United States _v._ Abrams is that Congress alone can
effectively safeguard minority opinion in times of excitement. Once
a sedition statute is on the books, bad tendency becomes the test of
criminality. Trial judges will be found to adopt a free construction
of the act so as to reach objectionable doctrines, and the Supreme
Court will probably be unable to afford relief.
Most of the discussion of the Abrams case has turned on the question
whether the decision of the United States Supreme Court affirming these
convictions was right or wrong. It seems to me much more important to
consider the case as a whole, and ask how the trial and its outcome
accord with a just administration of the criminal law.
The systematic arrest of civilians by soldiers on the streets of New
York City was unprecedented, the seizure of papers was illegal, and
the charges of brutality at Police Headquarters are very sinister. The
trial judge ignored the fundamental issues of fact, took charge of the
cross-examination of the prisoners, and allowed the jury to convict
them for their Russian sympathies and their anarchistic views. The
maximum sentence available against a formidable pro-German plot was
meted out by him to the silly futile circulars of five obscure and
isolated young aliens, misguided by their loyalty to their endangered
country and ideals, who hatched their wild scheme in a garret, and
carried it out in a cellar. “The most nominal punishment” was all
that could possibly be inflicted, in Justice Holmes’s opinion,[263]
unless Judge Clayton was putting them in prison, not for their conduct,
but for their creed. Yet they are condemned for their harmless
folly to spend the best years of their lives in American jails.
The injustice[264] is none the less because our highest court felt
powerless to wipe it out. The responsibility is simply shifted to the
pardoning authorities, who except for the release of the unlucky dupe
Rosansky have as yet done nothing to remedy the injustice, and to
Congress which can change or abolish the Espionage Act of 1918, so that
in future wars such a trial and such sentences for the intemperate
criticism of questionable official action[265] shall never again occur
in these United States.
[263] 250 U. S. @ 629 (1919).
[264] See Morley’s indignation at the “thundering sentences” for
sedition in India. 2 _Recollections_ 269.
[265] On armed intervention without Congressional authority, see
the state papers of Seward and Fish in J. B. Moore, _Digest of
International Law_, VI, 23 ff., and Moorfield Storey, “A Plea for
Honesty,” 7 _Yale Rev._ 260 (1918): “If any nation were to do any of
these things to the United States, we should not doubt that it was
making war on us.”
CHAPTER IV
LEGISLATION AGAINST SEDITION AND ANARCHY
If there be any among us who wish to dissolve this union, or
to change its republican form, let them stand undisturbed, as
monuments of the safety with which error of opinion may be
tolerated where reason is left free to combat it. I know indeed
that some honest men have feared that a republican government
cannot be strong; that this government is not strong enough.
But would the honest patriot, in the full tide of successful
experiment, abandon a government which has so far kept us
free and firm on the theoretic and visionary fear that this
government, the world’s best hope, may, by possibility, want
energy to preserve itself? I trust not. I believe this, on the
contrary, the strongest government on earth.—JEFFERSON’S _First
Inaugural_.
Long before the armistice it became clear that the problem of freedom
of speech would not end with the war, but would be raised for us in
a different aspect and with added difficulties by the unaccustomed
prevalence and outspoken expression of radical ideas. Despite my own
adherence to traditional political and economic views, I believe that
this phenomenon was bound to result from the war. The routine of the
day’s work ordinarily holds in check the eternal antagonism of the
“have-nots” to the “haves,” but habits of mechanical obedience and
adjustment to the prevailing scheme of life were suddenly destroyed
for many by the rapid shift to new scenes and occupations and a
novel conviction of the power of unskilled labor. The immense amount
of thought and discussion caused by the war during the three years
preceding our entry has been often remarked. Such an overhauling
directed popular attention to the part played by economic factors
in the origin and conduct of the war. Many extreme radicals claimed
therefrom fresh proof of the economic interpretation of history
and the class struggle. The official emphasis on democracy against
autocracy inevitably stimulated discussion of those two concepts
and their application to industrial and other non-political fields.
Labor programs in England and France crossed the ocean. Then came one
of the earthquakes of history, from whose remote influence it was
as impossible for us to escape as from the French Revolution which
produced the Alien and Sedition Laws of 1798. Jefferson’s _First
Inaugural_ states the controversy of to-day.
During the throes and convulsions of the antient world, dur^g
the agonis^d spasms of infuriat^d man, seeking through blood
& slaughter his long lost liberty, it was not wonderful that
the agitation of the billows should reach even this distant &
peaceful shore: that y^s sh^d be more felt & fear^d by some, &
less by others, & sh^d divide opinions as to measures of safety.
Much of this radicalism had identified itself with the opposition to
the war, and thereby been involved in prosecutions under the Espionage
Act and the state laws. A few members of the Non-Partisan League were
tried in the federal courts, and its leaders and several of the rank
and file were convicted in Minnesota. Much use was made against Debs,
Berger, and Mrs. O’Hare of the St. Louis Socialist platform, with its
declaration for “continuous, active, and public opposition to the war,
through demonstrations, mass petitions, and all other means within our
power.” The Industrial Workers of the World had taken advantage of the
nation’s hour of need to withhold assistance which they felt under no
obligation to give. Their position was stated to Carleton Parker in
plain language by one of their chiefs.
You ask me why the I.W.W. is not patriotic to the United States.
If you were a bum without a blanket; if you had left your wife
and kids when you went West for a job, and had never located
them since; if your job never kept you long enough in a place to
qualify you to vote; if you slept in a lousy, sour bunk-house,
and ate food just as rotten as they could give you and get by
with it; if deputy sheriffs shot your cooking cans full of holes
and spilled your grub on the ground; if your wages were lowered
on you when the bosses thought they had you down; if there was
one law for Ford, Suhr, and Mooney, and another for Harry Thaw;
if every person who represented law and order and the nation beat
you up, railroaded you to jail, and the good Christian people
cheered and told them to go to it, how in hell do you expect a
man to be patriotic? This war is a business man’s war and we
don’t see why we should go out and get shot in order to save the
lovely state of affairs that we now enjoy.
Parker, Colonel Disque, and the President’s Mediation Commission had
striven with much success to bring these irreconcilables into the great
stream of national effort. Others thought coercion a better method to
end the dangerous menace of sabotage and the recurrent strike. W. D.
Haywood and one hundred more members of the I.W.W. were convicted and
imprisoned under long sentences for threats and designs of tangible
obstruction to war work.
This union of hostility to the war with strange economic and political
doctrines set its mark on the later war legislation. The amended
Espionage Act of 1918 included the clauses about defamation of our
form of government and curtailment of production which played such a
prominent part in the Abrams case. A federal Sabotage Act was enacted.
States punished the advocacy of syndicalism and sabotage in their war
statutes or more often by separate acts. Much of this legislation
extended automatically to peace-time utterances, and when it did not,
it was easy and natural to adapt it for that purpose by the omission of
a few military phrases. In the legislative sessions which followed the
armistice, emergency laws against anarchy and criminal syndicalism were
adopted by state after state with a coincidence of time and phraseology
which proved either a uniform danger throughout the country or the
operation of M. Tarde’s Laws of Imitation.
This coercive legislation was held by its supporters to have
unanswerable justification in the succeeding outrages of 1919. A large
number of bombs addressed to federal officials and judges were seized
in the mails, and the houses of Attorney General Palmer and several
other individuals prominent in sedition prosecutions and legislation
were wrecked by explosions, one of which caused loss of life. There was
much street fighting at May Day Parades in Boston and Cleveland, and a
clash of very obscure origin between the I.W.W. and the American Legion
in Centralia, Washington, resulted in the death of five ex-service
men, four shot and one lynched. Meanwhile, the Department of Justice
and a special Senate Committee to investigate Bolshevism accumulated a
mass of evidence on the large number of revolutionary periodicals and
publications in the United States.
The presence in our midst of new forces that make for disorder and
violence renders it desirable to review the resources of our law for
dealing with insurrection, bombs, and assassination, and to examine
calmly recent and pending legislation to prevent the promotion
of anarchy. The disruption of our social and economic fabric by
revolution, or even the continual recurrence of local outrages, would
be so disastrous that they ought to be prevented in the wisest and most
effective manner. Many persons take it for granted that any statute
which is directed against those evils must be beneficial. That does
not necessarily follow. If an emergency really exists, it behooves
us all to keep cool, and consider with great care any new laws, and
particularly the bills lately introduced in Congress, to see whether
they are actually needed to combat the danger, whether they will really
meet it, and whether in the haste and excitement of the moment our
legislators may not be going much too far.
This country has been able without any anarchy acts to cope with
several insurrections like Shay’s Rebellion and the Dorr War, a
considerable amount of anarchy, and a great many turbulent strikes. May
it not be that a wise and vigorous enforcement of the ordinary criminal
law will meet most, if not all, of the present danger?
I. _The Normal Law Against Violence and Revolution_
As far as state prosecutions are concerned, there has been very little
need of specific legislation against anarchy and criminal syndicalism.
Actual violence against government, life, and property is punishable
everywhere. Those who plan or counsel such violence are liable even if
they do not actively participate. When several policemen were killed by
a bomb at the Haymarket in Chicago in 1886, Spies and other anarchists
were convicted and executed though it was clear that some one else
threw the bomb. Nor is it necessary that any criminal act shall take
place. An unsuccessful attempt at a serious crime or a definite
solicitation of another to commit it is punishable under the general
criminal law. Chief Justice Morton of Massachusetts said in 1883,
while upholding the sentence of one Flagg for urging another without
success to burn down a barn: “It is an indictable offense at common law
to counsel and solicit another to commit a felony or other aggravated
offense, although the solicitation is of no effect, and the crime
counseled is not in fact committed.” Consequently the normal law of the
states and the District of Columbia, apart from any legislation against
anarchy, enables the police and the courts to deal vigorously with
actual or threatened insurrection, explosions, or assassination.[266]
The persons of the President and other federal officials are protected
by these laws in the District and the various states. Thus the assassin
of President McKinley was convicted in New York. If it is felt to
be safer that crimes against such men should also be subject to
prosecution in the federal courts, it may be that Congress has power
so to provide, since any injury to them would seriously impede the
operation of the national government, although this is a question
which requires subsequent consideration. If such a statute can be
constitutionally enacted, it should punish not only actual injuries to
officials, but also unsuccessful attempts and incitement of others to
commit such injuries, for such abortive conduct would not be criminal
in the United States courts unless expressly made so.[267]
[266] For purposes of illustration I have added in Appendix IV
references to the normal law of four jurisdictions which have lately
been alarmed over anarchy. If the law of any other state is incomplete,
a definite provision as to criminal attempt or solicitation will meet
the need far more wisely than the enactment of a vague and sweeping act
against anarchy.
[267] Section 332 of the U. S. Criminal Code punishes one who “aids,
abets, counsels, commands, induces or procures” a crime; but this
section has only been applied to men who have aided in a crime which
has actually been committed. It probably can not be used against
unsuccessful incitement. U. S. _v._ Rogers, 226 Fed. 512, so holds,
though there is a suggestion that the crime need not be committed
in Billingsley _v._ U. S., 249 Fed. 331. Section 4 raises the same
question.
No Congressional legislation is needed to make criminal any scheme to
overthrow the United States Government by bombs or any other means.
A glance at the first eight sections of the Federal Criminal Code
suffices to prove this.[268] Levying war against the United States is
treason punishable with death, and recruiting or enlisting for armed
hostility against the United States is a serious crime. Conduct short
of insurrection is penalized in section 6. “If two or more persons ...
conspire to overthrow, put down, or to destroy by force the Government
of the United States, or to levy war against them, or to oppose by
force the authority thereof, or by force to prevent, hinder, or delay
the execution of any law of the United States,” they are each liable
to six years in prison or $5,000 fine or both. It is of course well
settled that conspiracy does not have to succeed to be punishable.
All that is required is a common design to commit a crime, and some
overt act in pursuance of the design. The act may be entirely innocent
in itself, and may consist in speech or publication. If any further
protection against threatened revolution is needed, it is furnished
by section 37 of the Criminal Code, which punishes with severity
conspiracy “to commit any offense against the United States.”[269]
[268] U. S. Comp. Stat, 1918, §§ 10165–10172.
[269] _Ibid._, § 10201.
Section 6 of the Criminal Code was enacted during the Civil War and was
thought adequate to meet the real dangers of the Reconstruction Period
in the South. However, Attorney General Palmer, in asking Congress for
a new sedition law, alleges two defects in this section, which in his
opinion destroy its usefulness in dealing with the present radical
situation.[270] First, the section is limited to conspiracies and
does not reach the isolated individual who threatens to overthrow the
government. It may be a breach of the peace under state law but it is
not now a federal crime if one man, all by himself, goes and hires a
hall and tells his audience to start a revolution. This solitary talker
was frequently held up at recent Congressional hearings as an example
of existing danger to the country, until Mr. Alfred Bettman answered
out of his long experience with sedition prosecutions during war
service in the Department of Justice:[271]
This man does it all by himself. Nobody encourages him. No
organization supports or inspires him. He thinks up a rebellion
all by himself. He hires a hall all by himself. Nobody helps him
pay for it. He makes his speech all by himself. Nobody introduces
him. He makes his speech. And nothing happens. That is your case.
_Nothing happens._ Well, nothing happens.
[270] Investigation Activities of the Department of Justice, 6.
[271] 21 _New Republic_ 314 (February 11, 1920).
Mr. Palmer’s second objection grows out of a test case, in which Judge
Hazel dismissed a prosecution under section 6 against three members
of the El Ariete Society, a Buffalo anarchistic organization, for the
circulation of a Spanish manifesto. The Attorney General states that
this manifesto “clearly constitutes an appeal to the proletariat to
arise and destroy the government of the United States by force and
substitute Bolshevism or anarchy in place thereof”; and consequently
that the failure of the prosecution shows that new legislation is
necessary to meet such publications. The case cited does not justify
any such conclusion.[272] (1) The defendants were not proved to have
any substantial connection with the manifesto, so that the judge could
not do anything but discharge them even if its language violated every
section of the Criminal Code. (2) Judge Hazel expressly found that the
manifesto does not advocate the overthrow of the government by force.
Undoubtedly it abuses the form of our government and its officials,
advocates the organization of soviets, anarchy, and the destruction of
the institutions of society, “but there is nothing contained in it that
advocates the destruction of society by the use of violence, and it is
open to the construction that it was designed to be sent out for the
purpose of bringing about a change in the government by propaganda—by
written documents.”
[272] The opinion of Judge Hazel in this case (U. S. _v._ Aso)
should be read in full on pp. 15–22, Investigation Activities of the
Department of Justice.
A circular which is part of any actual plot to overthrow the government
by unlawful acts would be punishable under section 6. This is plainly
shown, not only by Judge Hazel’s reasoning, but also by another
decision affirming a conviction under this section for a conspiracy
to circulate pamphlets advocating resistance to the execution by
conscription of the war resolution of Congress.[273] On the other
hand, a statute applying to the Ariete manifesto would necessarily
make it criminal to express economic views and aims different from
those which now prevail. Whether such legislation is desirable will
soon be discussed, but clearly it is not needed to meet any present
danger of revolution. If there is any real revolutionary plot to-day by
Bolshevists, anarchists, or any one else, they can be tried, convicted,
and sentenced to six years in prison under section 6 of the Criminal
Code, and if this is not time enough a simple amendment of this section
can make it longer.
[273] Wells _v._ U. S., 257 Fed. 605 (C. C. A., 1919). See Chapter II,
note 81.
One other feature of the existing federal law deserves attention. The
chief danger from anarchists arises through the use of explosives, and
if these are kept under federal control the country will be reasonably
safe from bombs and dynamite. On October 6, 1917, Congress passed an
elaborate statute making it unlawful, when the United States is at
war, to manufacture, distribute, store, use, or possess explosives,
fuses, detonators, etc., except under specified regulations which
include a requirement for a government license given only after full
information. This law was used during the war to impose sentences of
eighteen months on bomb plotters who were shipping explosives without a
license.[274] The statute is automatically suspended during peace, but
Congress would do well to continue it, and could, it seems, accomplish
this constitutionally under its powers to regulate interstate and
foreign commerce and to conserve material needed for army and navy use.
Under this statute it would be practically impossible for unauthorized
persons to secure enough explosives to cause extensive damage.
[274] U. S. Comp. Stat., 1918, §§ 3115¼ a, ff.; Inspector Thomas J.
Tunney, in _Bolshevik Propaganda_, 28.
With these suggested amendments to the federal statutes to protect
the lives and persons of United States officials and regulate the use
of explosives in peace, the normal law will be entirely adequate to
guard us against dangerous anarchy. Violence, direct and dangerous
provocation to violence, and conspiracies to bring about violence will
be severely punished, and the instruments of outrage will be removed.
II. _The Normal Criminal Law of Words_
I have dwelt at such length upon the ordinary law in order to make
it clear that the so-called anarchy acts, insofar as they are not
unnecessary duplication of that law, go far beyond it and impose an
entirely different test of criminality. To restate the matter in
accordance with the reasoning in the first chapter, the normal criminal
law is interested in preventing crimes and certain non-criminal
interferences with governmental functions like refusals to enlist or to
subscribe to bonds. It is directed primarily against actual injuries.
Such injuries are usually committed by acts, but the law also punishes
a few classes of words like obscenity, profanity, and gross libels upon
individuals, because the very utterance of such words is considered to
inflict a present injury upon listeners, readers, or those defamed, or
else to render highly probable an immediate breach of the peace. This
is a very different matter from punishing words because they express
ideas which are thought to cause a future danger to the State.
Undoubtedly, the existence of these verbal peace-time crimes subjects
the argument of my first chapter to an acid test. They are too
well-recognized to question their constitutionality, but I believe that
if they are properly limited they fall outside the protection of the
free speech clauses as I have defined them. My reason is not that they
existed at common law before the constitutions, for a similar argument
would apply to the crime of sedition, which was abolished by the First
Amendment. The existence of a verbal crime at common law shows the
presence of a social interest which must be weighed in the balance,
but the free speech guaranties, as I have argued at length, enact a
countervailing social interest in the attainment and dissemination of
truth, which was insufficiently recognized by the common law. Nor do
I base my conclusion on the historical fact that the framers of the
constitutions wanted to safeguard political discussion, because their
own statements of freedom of speech in the address to the people of
Quebec, the Virginia Toleration Statute, and the opening clause of
the First Amendment itself, prove that they also wanted to safeguard
scientific and religious freedom, both of which would be greatly
restricted by a sweeping application of the common law of obscenity and
blasphemy. The true explanation is, that profanity and indecent talk
and pictures, which do not form an essential part of any exposition of
ideas, have a very slight social value as a step toward truth, which
is clearly outweighed by the social interests in order, morality,
the training of the young, and the peace of mind of those who hear
and see. Words of this type offer little opportunity for the usual
process of counter-argument. The harm is done as soon as they are
communicated, or is liable to follow almost immediately in the form of
retaliatory violence. The only sound explanation of the punishment of
obscenity and profanity is that the words are criminal, not because of
the ideas they communicate, but like acts because of their immediate
consequences to the five senses. The man who swears in a street car is
as much of a nuisance as the man who smokes there. Insults are punished
like a threatening gesture, since they are liable to provoke a fight.
Adulterated candy is no more poisonous to children than some books.
Grossly unpatriotic language may be punished for the same reasons. The
man who talks scurriously about the flag commits a crime, not because
the implications of his ideas tend to weaken the Federal Government,
but because the effect resembles that of an injurious act such as
trampling on the flag, which would be a public nuisance and a breach
of the peace. This is a state but not a federal crime, for the United
States has no criminal jurisdiction over offenses against order and
good manners, although Congress may possibly have power to regulate the
use of the national emblem. It is altogether different from sedition.
The absurd and unjust holdings in some of these prosecutions for
the use of indecent or otherwise objectionable language furnish a
sharp warning against any creation of new verbal crimes. Thus, the
test of obscenity is very vague, and many decisions have utterly
failed to distinguish nasty talk or the sale of unsuitable books
to the young from the serious discussion of topics of great social
significance. The white slave traffic was first exposed by W. T. Stead
in a magazine article, “The Maiden Tribute.” The English law did
absolutely nothing to the profiteers in vice, but put Stead in prison
for a year for writing about an indecent subject.[275] When the law
supplies no definite standard of criminality, a judge in deciding
what is indecent or profane may consciously disregard the sound test
of present injury, and proceeding upon an entirely different theory
may condemn the defendant because his words express ideas which
are thought liable to cause bad future consequences. Thus musical
comedies enjoy almost unbridled license, while a problem play is often
forbidden because opposed to our views of marriage. In the same way,
the law of blasphemy has been used against Shelley’s _Queen Mab_, and
the decorous promulgation of pantheistic ideas, on the ground that
to attack religion is to loosen the bonds of society and endanger
the state.[276] This is simply a roundabout modern method to make
heterodoxy in sex matters and even in religion a crime. A Washington
decision punishing a man for a newspaper article tending to defame
George Washington is a serious restriction on historical writing.[277]
Furthermore, the breach of the peace theory is peculiarly liable to
abuse. It makes a man a criminal simply because his neighbors have
no self-control and cannot refrain from violence. The _reductio ad
absurdum_ of this theory was the imprisonment of Joseph Palmer, one
of Bronson Alcott’s fellow-settlers at “Fruitlands,” not because he
was a communist, but because he persisted in wearing such a long beard
that people kept mobbing him, until law and order were maintained by
shutting him up.[278] A man does not become a criminal because some one
else assaults him unless his own conduct is in itself illegal or may be
reasonably considered a direct provocation to violence.[279] Thus all
these crimes of injurious words must be kept within very narrow limits
if they are not to give excessive opportunities for outlawing heterodox
ideas.
[275] For a division among judges whether a book was indecent, see
People _v._ Eastman, 188 N. Y. 478 (1907). The Bibliography contains
references on this class of crime.
[276] Austin W. Scott, “The Legality of Atheism,” 31 _Harv. L. Rev._
289 (1917).
[277] People _v._ Haffer, 94 Wash. 136 (1916), under statute. Even such
a conservative as Dr. Johnson opposed liability for defamation of the
dead.
[278] Clara E. Sears, _Bronson Alcott’s Fruitlands_, c. IV.
[279] See the subsequent discussion of the right of assembly.
Besides these special classes of words which cause present injury, the
normal law punishes speech which falls short of injury as an attempt or
solicitation, but the first chapter has shown that this is only when
the words come somewhere near success and render the commission of
actual crime or other tangible obstruction of state activities probable
unless the state steps in at once and penalizes the conduct before it
ripens into injury. The law of attempts and solicitation is directed
not against the words but against acts, and the words are punished only
because that is the necessary way to avoid harmful acts. When A urges B
to kill C and tells him how he can do it, this has nothing to do with
the attainment and dissemination of truth, and besides there is genuine
danger that the murder will take place long before discussion will
prove it to be a mistaken scheme.
The two conspiracy cases mentioned in connection with the federal
Criminal Code bring out neatly the boundary of the normal criminal
law. The anti-draft pamphlets fell within its range because of the
danger created by their language and the surrounding circumstances,
and although unlike solicitations to murder they served a social
interest in criticising the policies of the war, this was outweighed
by the pressing peril to the social interest in the enforcement of
war legislation. On the other hand, the Ariete manifesto was simply
intemperate discussion of fundamental economic and political questions,
and even if it had a remote tendency to injure the country by causing a
revolution some day there was obviously plenty of time to present the
other side before the revolution arrived.
III. _The Difference Between the Normal Law and the New Legislation_
We have seen and heard of revolutions in other States. Were they
owing to the freedom of popular opinions? Were they owing to the
facility of popular meetings? No, sir, they were owing to the
reverse of these; and therefore, I say, if we wish to avoid the
danger of such revolutions, we should put ourselves in a state as
different from them as possible.—CHARLES JAMES FOX, 1795.
The existing law protects us from dangerous anarchy, but the anarchy
acts reach out to the futile soap-box orator who advocates violence
and in most cases to the Ariete manifesto which does not. These
statutes are not directed against those who commit or actually plan
violence, but against those who express or even hold opinions which
are distasteful to the substantial majority of citizens. Some of them
are so sweeping as to suppress agitation which is neither dangerous
nor anarchistic. The people may be led to accept such statutes because
they fear anarchy, but they will soon find that all sorts of radical
and even liberal views have thereby become crimes. These acts have been
drafted by men who are so anxious to avoid any disturbance of law and
order that they have punished by long prison terms and heavy fines not
only provocation to the use of force, but also the promulgation of any
ideas which might possibly if accepted cause some one to use force.
In the past the American law has shown little sensitiveness to
revolutionary utterances in time of peace, and has wisely treated
most fulminations against the social fabric like a pot-shot at a
man ten miles away. However, as Judge Hand pointed out,[280] all
vigorous criticism of the form of government or the economic system
or particular laws may by arousing passion or engendering conviction
of the iniquity of existing conditions lead indirectly to violence.
Even an ardent oration urging the repeal of a statute may lead hearers
to disobey it. We are always tempted to apprehend such results from
opinions to which we are opposed. It is easy to believe that doctrines
very different from our own are so objectionable that they could
only come into operation through force, so that their advocates must
necessarily favor criminal acts. The difference between the expression
of radical views and direct provocation to revolution is only a
difference of degree, but it is a difference which the normal criminal
law regards as all-important.
[280] See p. 50, _supra_.
There are always men who want the law to go much farther and nip
opinions in the bud before they become dangerous because they may
eventually be dangerous. Thus, when Colley Cibber produced his
adaptation of “Richard III,” the Master of the Revels expunged the
whole first act, fearing that the distresses of Henry VI would put
weak people too much in mind of James II, also exiled in France.[281]
Such an attitude is particularly common in a period of unrest
like the present, especially during a foreign revolution or after
assassinations, when coercion and violence follow each other in a
vicious circle. We have seen how George III’s judges transported men
who wanted to abolish rotten boroughs and the limited franchise,
because if the people of Great Britain possessed the same privileges as
the French they might destroy the Constitution and imitate the Reign
of Terror. Restoration France, after the assassination of the Duc de
Berri, passed a law to suppress any journal “if the spirit resulting
from a succession of articles would be of a nature to cause injury to
the public peace and the stability of constitutional institutions.”
It was only with the disappearance of these _procès de tendance_
that the press once more became free, and under the Republic one can
urge a change in the form of government to monarchy or empire with
impunity.[282]
[281] 3 Johnson’s _Lives of the Poets_ (ed. G. B. Hill), 292 note.
[282] A. Esmein, _Éléments de Droit Constitutionnel_, 6 ed., 1145,
1149; Ernst Freund in 19 _New Republic_ 14 (May 3, 1919). In the same
way the New York post-office objected to the general tenor and animus
of the _Masses_ as seditious without specifying any particular portion
as objectionable, although the periodical offered to excerpt any matter
so pointed out. Masses Pub. Co. _v._ Patten, 244 Fed. 535, 536, 543
(1917).
Abolition of slavery could never be mentioned in the antebellum South
because it might cause a negro uprising. A similar sensitiveness
to possible bad results led to the prohibition of “Mrs. Warren’s
Profession” and “September Morn.” Since almost any opinion has some
dangerous tendencies, it is obvious that its suppression on that
account puts an end to thorough discussion. Writings which do not
actually urge illegal acts should never be made criminal except perhaps
in great emergencies like war or revolt when the mere statement of the
author’s view creates a clear and present danger of injurious acts.
In time of peace the limitation of the punishment of speech to direct
provocation to crime is the essential element of the freedom of the
press.
The normal criminal law is willing to run risks for the sake of open
discussion, believing that truth will prevail over falsehood if both
are given a fair field, and that argument and counter-argument are the
best method which man has devised for ascertaining the right course of
action for individuals or a nation. It holds that error is its own cure
in the end, and the worse the error, the sooner it will be rejected.
Attorney General Gregory has defended the Espionage Act on the ground
that propaganda is especially dangerous in a country governed by public
opinion.[283] I believe this to be wholly wrong. Free discussion will
expose the lies and fallacies of propaganda, while in a country where
opinion is suppressed propaganda finds subterranean channels where it
cannot be attacked by its opponents.
[283] Report of the Attorney General, 1918, 21.
Russia under the Czar took no risks. It was afraid to wait for a clear
and present danger of violence. It put the ax to the root of the tree.
Five powerful methods were developed to reach anarchy and revolution in
their earliest stages. The government censored and suppressed books and
periodicals; it raided houses and seized men and their papers without
process; it prosecuted them for their expression of opinions and for
their membership in radical societies; it deported them to Siberia or
abroad; it devised ingenious methods of weeding them out of the Duma.
These are not American methods. During the whole of the nineteenth
century, not one of them was used against radicals in the United
States. It is the American habit to take a chance on queer and
objectionable opinions. Roger Williams did it when he discarded
religious qualifications for office and citizenship, which even
England was afraid to abandon wholly for another two hundred and fifty
years. It is easy for us to forget now what a tremendous risk the
founder of Rhode Island was thought to run and did run in those days of
wild beliefs. The “livelie experiment” of religious freedom described
in the Charter, which it was much on his heart to hold forth, was a
very lively experiment indeed in its early years. And in the past the
same courage has marked our policy toward radicalism. Anarchy and
communism are nothing new in this country,—we have had them in all
varieties, foreign and domestic, since the days of Brook Farm until we
lived safely through thirty-four years of Emma Goldman. The normal law,
which refrains from punishing words for their bad political tendency,
has carried us through far worse crises than the present. In the midst
of the great railroad strikes of 1877, when unemployment was larger
than ever before or since, a big communist meeting was permitted in
New York. The Seventh Regiment was kept in a conspicuous readiness
to put down any actual disorder, but there was no interference with
anything that was said. The speakers indulged in the wildest kind of
talk, but it fell flat on the meeting just because there was no chance
for a row.[284] Arthur Woods used the same wise policy when he became
police commissioner of New York City during the hard times of the
summer of 1914. Under his predecessor the police had been breaking up
anarchistic meetings in Union Square every Saturday afternoon and the
feeling was excited, defiant, and bitter. Threats were not disguised
that since the police had “acted like agents of the capitalists,” the
crowds would come next time prepared to answer clubs and revolvers with
bombs. Mr. Woods took office, and told the police to interfere in any
actual disturbance, but not otherwise. Next Saturday, a large force of
police was held within available distance, and a hundred plain-clothes
men were scattered singly through the meeting, on the watch for signs
of violence so that they could nip any attempt in the bud, but beyond
that they were only to try to maintain an atmosphere of quiet and calm
and radiate good nature. Mr. Woods says:
The change of method was almost unbelievably successful. There
was no disorder; the crowd was very large but very well behaved,
and at the end of the meeting when everything was over and many
had gone home, three cheers were proposed and given for the
police.[285]
[284] J. F. Rhodes, _History of the United States_, VIII, 41.
[285] Arthur Woods, _Policeman and Public_, 73–78. Equally typical of
American methods is his account of the meeting in Bowling Green Park.
This courage, this tolerance, this friendly co-operation between
government and people, with its visible creation of loyalty, this is
the true Americanism. And the issue before us to-day is whether in a
period of prosperity and tremendous demand for labor we shall throw
overboard the American laws and the American methods which carried
us safely through the turbulent early years of our history, through
Reconstruction, through panics and Populism with its widespread
agitation among the native-born population, and shall now shaking and
shivering in every wind of doctrine that blows from Bolshevist Russia
imitate even in part any of the five methods with which Czarist Russia
fought radicalism up to the day of her stupendous ruin.
To this issue in its various aspects I shall devote the remainder of my
book.
The interpretation of freedom of speech which I have endeavored to
establish in the opening chapter applies in peace as in war. The
various interests, individual and social, must once more be balanced
against one another with full regard to the social interests in
progress and the attainment and dissemination of truth. The resultant
boundary line of permissible speech is drawn back of the point where
overt acts of injury to the state occur but not far from that point.
The test laid down by the United States Supreme Court in the Schenck
case still holds good:
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 (or the state legislature) has a right to
prevent.
The power of the government to restrict discussion is undoubtedly
less in time of peace than in time of war because war opens dangers
that do not exist at other times. The strength of the state in war
time is chiefly occupied in fighting the enemy. In a great war the
chances of success are uncertain, and a slight set-back due to hostile
opinion at home may cause defeat. It is hard enough for the government
to resist the human desire not to enlist and not to fight, without
outside incitement from adverse views of the war. Thus, there are
very plausible reasons for limiting the social interest for which
I earnestly contend, the need of continuous contact with the facts
and with sound conclusions. In peace, however, the social interest
mainly affected by discussion is not the sorely-beset endeavor to
save the country from a powerful enemy, but the interest in order.
With this interest the mass of the population earnestly sympathizes.
It is protected by an enormous body of otherwise unoccupied police
and soldiers, who are now available to check any actual violence.
This interest in order is not opposed by troops and guns from abroad
but only by words, which it can afford to tolerate, confident in
the support of public opinion. In war an evil and wholly unfounded
opposition at home may upset the state. In peace, those who love
disorder for its own sake are so few that a revolution is improbable
unless there are very strong reasons for discontent. If the agitation
is without merit the state can afford to ignore it. If it has merit the
state cannot afford to suppress it without a hearing. Consequently, in
peace governmental interference should be delayed as in the New York
meeting of 1877 until the last possible moment before violence occurs.
Sometimes in peace other social interests besides order come into
play and strengthen the case for restriction. Thus, the interest in
morals is concerned with moving-picture plays and books for the young.
Street meetings may interfere with the public traffic besides causing
a greater probability of violence than do books. Once more, it is a
question of balancing the interests, and it may be worth while to
arrange for meetings in less-used side streets in the noon-hour or in
specified public parks, even at some sacrifice of traffic. After all, a
democracy may wisely refuse to regard the streets only as a place where
people exercise and go out to make money. Parades and soap-box orators
and big meetings make them an open-air school, which prepares directly
for citizenship.
The anarchy acts are the first break with the American tradition. Most
of them are not willing to run any risks as to opinions generally
considered objectionable, but make opinions in themselves and for
their own sake a crime, although there is no direct and dangerous
interference with order and only a remote possibility that violence
will ensue. The first chapter has shown the evils of bad political
tendency as a test of criminality. These statutes in large part revive
that test, and are not directed against bad acts, but are designed to
protect the minds of grown men and women from bad talk and bad thoughts.
IV. _Radical Meetings and the Red Flag_
There are several types of anarchy acts.[286] The simplest is the
red flag law, recently adopted by twenty-five states. The New York
statute[287] makes it a misdemeanor to display the banner “in any
public assembly or parade as a symbol or emblem of any organization
or association, or in furtherance of any political, social, or
economic principle, doctrine or propaganda.” Other states go much
further and forbid the display of the red flag anywhere. Some
shrewdly guard against the wearing of red neckties or buttons or the
evasive adoption of a green flag[288] by punishing the use of any
emblem of any hue if it is “distinctive of bolshevism, anarchism,
or radical socialism”;[289] or is “suggestive of any organized or
unorganized group of persons who by their rules, creeds, purposes,
practices, or efforts, espouse any theory or principle antagonistic
to or subversive of the constitution or its mandates”;[290] or if it
is employed with some other revolutionary intent. In West Virginia
imprisonment for a year (five years for the second offense) may be
imposed for the possession of any red or black flag, or the display
of “any emblem of any nature whatever indicating sympathy or support
of ideals, institutions, or forms of government, hostile, inimical,
or antagonistic to the form or spirit of the constitution, laws,
ideals, and institutions of this state or of the United States.”[291]
It is plain to any lawyer that when a vague and very wide range of
commonplace and harmless conduct is made criminal merely on the
basis of a bad intention, a man is condemned for his thoughts and
nothing else. He may never have expressed those thoughts until they
were brought out under cross-examination in a sedition trial. He is
convicted simply by the jury’s guess at the inside of his head. Men
should be punished for what they do and not for what they think.
[286] All the state legislation mentioned in this chapter is listed in
Appendix V.
[287] N. Y., Laws, 1919, c. 409.
[288] Testimony of Inspector Tunney and Raymond Robins, in _Bolshevik
Propaganda_, 11, 838.
[289] Kans., Laws, 1919, c. 184.
[290] Wash., Laws, 1919, c. 181.
[291] W. Va., Laws, 1919, c. 24.
The way in which the red flag causes disorder is explained by Inspector
Thomas J. Tunney, who played such a prominent part in the Abrams case
and certainly cannot be considered unduly favorable to radicals:[292]
Senator OVERMAN. What effect does that red flag have on a crowd?
Mr. TUNNEY. It has the effect of creating a feeling on the part
of Americans that they would like to assassinate everybody
carrying the red flag; or at least, a large number of them feel
that way.
Senator OVERMAN. What effect does it have on the people who are
in sympathy with carrying the red flag?
Mr. TUNNEY. It simply enthuses them, and they indulge in cheering
and waving it in the air.
[292] _Bolshevik Propaganda_, 10, 11.
The Roxbury Riot of last May[293] is a practical demonstration of his
statements and also illustrates some interesting points in the law of
assembly. An unprejudiced account in the _Boston Herald_ relates that
the trouble was caused by the appearance of a red flag carried at the
head of a large group of members of the Lettish Workmen’s Association,
who were marching from one meeting to another in a different hall.
If this was a parade, it was illegal, for they had no permit, but
no red flag law was in force. The account continues: “Everywhere in
Roxbury small groups of men and boys were to be seen strolling along
the streets armed with clubs and pieces of iron bar and pipe. It was
difficult for the police to cope with every group for as fast as one
would be dispersed another would gather. Nearly everybody with a facial
indication of being a Lett or a Russian was attacked. It was useless
for them to offer excuses for none were listened to.... As soon as it
became generally known that the presence of a red flag was the cause
of all the trouble soldiers and sailors began taking a hand. Each
group carried at least one sailor or soldier and they inflicted severe
punishment on the men in the parade or those discovered hiding in
stores and houses afterwards.”
[293] _Boston Herald_, May 2, 1919; trials in _ibid._, May 6, 8, 14;
letter of adverse comment, _ibid._, May 16. Convictions upheld, Comm.
_v._ Frishman, 126 N. E. (Mass.) 838 (1920).
Either just before the attack on the marchers began or soon afterwards,
it is hard to tell which from the tumultuous testimony, the police
demanded a permit and ordered the parade to disperse. They replied with
cat-calls, and in the three-cornered disturbance that followed between
radicals, patriots, and police, two policemen were injured. A large
number of marchers received sentences of six to eighteen months in the
Municipal Court for participating in a riot or assaulting the police,
and several of them have since been convicted by juries, but so far as
I can ascertain none of their assailants was even tried.
These cases raise several questions of general interest as to the
legality of radical meetings.[294] The radicals took the position
that no permit was necessary to enable men to walk from one place
to another, but only for an organized parade. Of course, the social
interest in traffic already mentioned gives the city power to forbid
unlicensed processions, but there is some question whether this
particular body of people was not itself a part of traffic, without
need for a permit. For example, is a license required for collegians to
march from the stadium to the yard after a football victory with a red
flag at their head? These are questions of fact for the jury. However,
even if this gathering of Roxbury radicals had not been held illegal
by the Massachusetts Supreme Court for want of a permit, it may well
be that the order to disperse was valid on other grounds. Three such
grounds have been suggested.
[294] See Dicey, _Law of the Constitution_, c. VII, “The Right of
Public Meeting,” also my Bibliography. The Salvation Army case is
Beatty _v._ Gillbanks, 9 Q. B. D. 308 (1882). German opera riots, Star
Opera _v._ Hylan, 109 N. Y. Misc. 132 (1919). Opposed to my view of red
flag riots, P. _v._ Burman, 154 Mich. 150 (1908).
(1) Since any gathering of radicals is likely to be attacked, the
easiest way to preserve the peace is to forbid and break up such
gatherings. Therefore, it may be contended that a meeting which is not
otherwise illegal may become so solely because it will excite violent
and unlawful opposition. This is the doctrine of the long-beard case
over again. Let us see how it works out with respect to meetings.
The Salvation Army holds a service in a public place, knowing that a
mock-organization called the Skeleton Army intends to molest it. The
Skeleton Army appears, and begins to throw stones. The members of the
Salvation Army are arrested by the police for holding an unlawful
assembly. Obviously they must be released. Their guilt cannot be
determined by the intolerance of wrong-doers. Apart from the question
of permits, and special regulation by ordinances and statutes, the
police cannot treat a meeting as unlawful simply because it may
probably or naturally lead others to attack it. And if a permit is
refused on that ground alone, a small number of intolerant men by
passing the word around that they intend to start a riot can prevent
any kind of meeting, not only of radicals who want a revolution, but
of socialists, of moderates like the Committee of ’48, of negroes, of
novel religious sects, of free-masons in an anti-masonic community.
Indeed, on any such theory a gathering which expressed the sentiment of
a majority of law-abiding citizens would become illegal because a small
gang of hoodlums threatened to invade the hall. The proper remedy for
these emergencies is police protection, to which men are entitled in
public places, whether they are there singly or in groups.
(2) There is, however, a well-recognized exception to this principle.
If the meeting is going to cause trouble, not just because of the
unpopularity of its views but because it expresses them in offensive
ways, it may be unlawful _per se_. This is an analogy to the verbal
crimes already discussed. For example, the “Pillars of Fire” were not
allowed by the Mayor of Plainfield, New Jersey, to hold street meetings
for abusing Roman Catholics. They must hire a hall where no one would
be forced to listen to them. It is sometimes supposed that a parade
displaying the red flag is illegal at common law for the same reason
that it would be if it carried an abusive caricature of the Pope, but
the situations are not truly parallel. The red flag is not offensive in
itself. Nobody minds it at an auction sale or a railroad crossing. The
onslaught is not on an object but on the unpopular ideas of those who
carry it, because most of us consider that such ideas have a tendency
to produce injury in the future. This only brings us back to the
first point, that a meeting is not illegal just for unpopularity. Bad
tendency must not be a test of criminality. Thus, the Roxbury marchers
were not violating the law because of the red flag. On the other hand,
their loud cries of, “To Hell with the Police! Hurrah Bolsheviki! To
Hell with the American flag!” were so provocative of disorder as to
render the parade unlawful even if a permit had been issued.
(3) Finally, after the order to disperse was given the gathering was
undoubtedly illegal. That order was valid under a second exception
to the general principle that unpopular meetings are not illegal
meetings. Where a meeting which is originally lawful and inoffensive
has in spite of this produced a disturbance, so that the only way to
restore the peace is to put an end to the meeting, then there is a
clear and present danger which justifies the suppression of ideas on
this occasion. By the time the police arrived in the Roxbury affair,
it was evident that the parade could not continue without a riot.
Consequently, those who resisted or refused to obey the order thereby
broke the law.
One more lesson of general application may be drawn from this incident,
the danger that men of peculiar views who are charged with definite
tangible crimes may be condemned in reality not for what they do but
for what they think. Three clear offenses were possibly committed
by the defendants, parading without a permit, assaulting policemen,
and remaining in the parade after the order to disperse. Every one
of these issues is a pure question of fact, on which the opinions
of the defendants had not the slightest bearing. Yet the Municipal
Court Judge, instead of limiting the examination of the prisoners to
the question, “Did you do this on May 1?” himself inquired at length
whether they believed in God, approved of soviets, or agreed with what
the American flag stands for. In the same way, when the cases came
before a jury in the autumn, the district attorney gave the impression
that he was trying the prisoners, not for what they did in May, but for
what they thought in October. And in the Municipal Court, the red flag,
although it violated no statute, was clearly treated as an offense. The
judge said: “The red flag means revolution, nothing else, and the day
for the red flag is past in America. It means bloodshed; it cannot be
interpreted otherwise.... Waving a red flag is a breach of the peace.”
The policy behind even the mildest form of the red flag legislation
resembles the rule of the British Government that the Uganda
tribes must not wear war-paint except on the chief’s birthday. If
Americans cannot be trusted any more than African natives to avoid
the psychological effects of color, well and good. So far, the exact
meaning of the red flag seems rather obscure. Some say it stands for
bloody revolution,[295] and others, the brotherhood of workingmen
throughout the world.[296] It might be desirable to find out which is
right before we forbid it. There is no doubt that its display on May
Day, 1919, was accompanied by much lawlessness—chiefly on the part
of the supporters of law and order. Until the opponents of force can
restrain themselves from mobbing any parade which carries a red flag,
it may be wise to prohibit its use. We ought to remember, however, that
if it is made a forbidden symbol its emotional appeal when displayed in
secret is immeasurably heightened. The resentment caused by such laws,
which assert any suggestion of revolutionary action to be a heinous
offense, will not be lessened by the recent respect paid by mayors,
governors, and legislators to an acknowledged banner of revolution, the
green, white, and yellow of Ireland. Once we admit that violence may be
a justifiable mode of political action in another country which has the
ballot and representative government, we cannot consistently make men
outlaws merely for holding a similar theory in this country, however
much we disagree with them. Massachusetts once had a law prohibiting
a red or black flag. This was declared constitutional,[297] and then
repealed because it made the Harvard crimson illegal. It is to be hoped
that other portions of this land of the brave will also be willing
to face valiantly a piece of cloth. There is much merit in the North
Dakotan remark that the only animal that is afraid of a red flag has a
fence around him.
[295] Besides quotation above, see Rugg, C. J., in Comm. _v._ Karvonen,
219 Mass. 30 (1914).
[296] This is the explanation of all radicals whom I have questioned.
See testimony of William Sidis in _Boston Herald_, May 14, 1919. This
is confirmed by the expert and conservative opinion of Professor Samuel
N. Harper, _Bolshevik Propaganda_, 101: “I think it is little more than
a tradition ... representing this mental protest ... against what they
consider the injustices of the present organization of society.”
[297] Comm. _v._ Karvonen, _supra_.
The man who insists on waving the red flag on all occasions has just
as little common sense. Those who want to remake society on a basis
of fellowship and mutual agreement may fairly be asked to begin by
yielding something to the wishes of their neighbors. It is an undoubted
fact that most people do dislike seeing the red flag in a parade or
over a building, but if the Stars and Stripes are beside it nearly all
their objection vanishes. A decent respect for the opinions of mankind
ought to lead the radical to do this much for the happiness of others.
Even if he is so thoroughly a man without a country that he has no
attachment for the government which guards his home and educates his
children, at least like a foreign vessel in our ports he might out of
courtesy raise our banner beside his own. I do not believe that a man
should be arrested for carrying a solitary red flag in the street any
more than for wearing a sweater at a dance, but ordinary politeness
ought to keep him from doing either. Surely, it is worth while for the
radical to take the conciliatory step I suggest, and thus produce a
friendlier atmosphere in the mass of the population, which may gain
converts for his views and will certainly induce many thoughtful men to
co-operate with him in the more moderate of his schemes for a better
world.
V. _Criminal Anarchy and Criminal Syndicalism_
A much more important group of statutes takes its origin from the
New York Anarchy Act of 1902, which was enacted soon after the
assassination of President McKinley.[298] Criminal anarchy is
there defined as “the doctrine that organized government should be
overthrown by force or violence, or by assassination ..., or by any
unlawful means.” It is a felony to advocate this doctrine by speech
or writing, and to join any society or any meeting for teaching or
advocating it. The act can be rigorously enforced, because the owner
or person in charge of any room or building who knowingly permits a
meeting therein is severely punished, and the editor or proprietor of
a periodical or publisher of a book which contains anarchistic matter
is liable unless it was printed without his knowledge and authority
and disavowed immediately. This statute lay idle for nearly twenty
years,[299] but there have been several prosecutions in the last few
months. Especially significant is the sentence of Benjamin Gitlow, a
former Socialist member of the New York Assembly, to an imprisonment of
five to ten years, under a ruling of Justice Weeks that the advocacy
of a general strike without any direct reference to force, violence,
or unlawful means is criminal anarchy, because it is camouflaged
revolution.[300] The Washington statute of 1909 is very similar, but
also makes it criminal to circulate any document having a tendency to
encourage the commission of any breach of the peace or disrespect for
law or any court. The ridiculous possibilities of such legislation are
proved by the conviction of one Fox for encouraging disrespect for
law by an article, “The Nude and the Prudes,” declaring bathing suits
superfluous. Justice Holmes found nothing unconstitutional in the
prosecution, but caustically remarked, “Of course, we have nothing to
do with the wisdom of the defendant, the prosecution, or the act.”[301]
The first danger to be avoided in legislation against anarchy is the
imposition of heavy penalties for slight offenses. Such penalties
create that very hatred of our system of laws which it is our object to
avoid.
[298] N. Y. Penal Law, 1918, §§ 160–166.
[299] The only case is a slander suit, in which “anarchist” was held a
charge of crime. Von Gerichten _v._ Seitz, 94 App. Div. 130 (1904).
[300] _Boston Transcript_, February 17, 1920. House Judiciary Hearings,
155.
[301] Wash. Laws, 1909, c. 249, § 312; State _v._ Fox, 71 Wash. 185
(1912); Fox _v._ Washington, 236 U. S. 273 (1915).
Another pre-war statute, in New Jersey, punishing the advocacy of
unlawful destruction of property or injury to persons, is much more
restricted in its scope, and has been construed to enact the common
law of criminal solicitation with an increased penalty. It was used to
punish labor leaders in Paterson who urged clubbing strike-breakers
out of the silk mills and using chemicals and other devices to make
the product unmerchantable.[302] The recent Massachusetts anti-anarchy
act of 1919 is very similar; it specifically penalizes the advocacy
of killing, destruction of property, or violent revolution.[303]
This Massachusetts act was reduced to its present form by repeated
protests from liberals. Instead of legislating against anarchy and
other radical doctrines as opinions, the Massachusetts and New Jersey
statutes prohibit incitement to definite serious criminal acts.
Such codifications of the common law serve the desirable purpose of
letting speakers and writers know what they must not do. If these
statutes are construed strictly like other penal statutes and applied
with common sense and a realization, as Justice Hughes puts it,
that “Hyde Park meetings and soap-box oratory constitute the most
efficient safety-valve against resort by the discontented to physical
force,”[304] then they will enable New Jersey and Massachusetts to deal
vigorously with any real danger of lawlessness without at the same time
turning revolutionary opinions into crimes. Any state which considers
legislation of this type necessary ought to turn to these two statutes
as model anti-anarchy acts.
[302] N. J. Laws, 1908, c. 278; the cases construing it are given in
Appendix V. The possibilities of the misapplication of even such a
narrow statute are shown by State _v._ Scott, reversing a conviction
for an intemperate newspaper attack on the brutality of the Paterson
police; and by the dissenting opinion in State _v._ Quinlan because
the defendant was prejudiced by the elaborate inquiry at the trial
into the doctrines of the I.W.W. For the comment of an I.W.W. on these
cases, see the quotation from E. G. Flynn in Herbert E. Cory’s _The
Intellectuals and the Wage Workers_, N. Y., 1919, p. 208.
[303] Mass. Laws, 1919, c. 191.
[304] Brief for N. Y. Socialist Assemblymen, p. 41 (see Chapter VI).
Most of the legislation since 1917 has, however, been far more
extensive. About one-third of the states have applied the New York
statutory scheme to the new crime of criminal syndicalism, “the
doctrine which advocates crime, physical violence, arson, destruction
of property, sabotage, or other unlawful acts or methods as a means
of accomplishing or effecting industrial or political ends, or ...
industrial or political revolution, or for profit.” The advocacy
of any unlawful act for such ends and the circulation of any book
affirmatively suggesting criminal syndicalism or any unlawful act for
such ends are among the offenses punishable by imprisonment from one to
ten years. These acts are almost uniform in phraseology, Idaho having
apparently supplied the original model. Some states depart from type
into much vaguer phraseology. Thus, Arizona in an act which Governor
Hunt allowed to become law without being willing to put his name to it
makes it criminal to advocate the violation of “the constitutional or
statutory rights of another as a means of accomplishing industrial or
political ends.”[305] Montana punishes in peace all the non-military
crimes mentioned in the federal Espionage Act of 1918 as well as
“any language calculated to incite or inflame resistance to any duly
constituted state authority.”[306] West Virginia makes criminal any
teachings in sympathy with or favor of “ideals hostile to those now or
henceforth existing under the constitution and laws of this state.”[307]
[305] Ariz. Laws, 1918, sp., c. 13.
[306] Mont. Laws, 1919, c. 77.
[307] See note 291.
These are but brief extracts from the legislation which has been
enacted or invoked in almost every state during the last few
years.[308] In addition, Mayor Hylan of New York wanted an ordinance
to punish owners of buildings permitting an assemblage advocating
“policies tending to incite the minds of people to a proposition
likely to breed a disregard for law,” and a Boston ordinance to forbid
the display of anything that was sacrilegious or tended to promote
immorality was also unsuccessful, but the Mayor of Toledo is said to
have prohibited any meeting anywhere in the city “where it is suspected
a man of radical tendencies will speak.”
[308] For harsh applications of these statutes, see Clare Shipman,
“The Conviction of Anita Whitney,” 110 _Nation_ 365 (March 20,
1920), California; “The Most Brainiest Man,” _ibid._ 510 (April 17),
Connecticut.
These statutes and regulations are, for the most part, different
from the normal criminal law in three ways: (1) they label opinions
as objectionable and punish them for their own sake because of
supposedly bad tendencies without any consideration of the probability
of criminal acts; (2) they impose severe penalties for the advocacy
of small offenses as much as for serious crimes; (3) they establish
a practical censorship of the press _ex post facto_. These statutes
are no dead-letter. In particular, the Illinois law has been enforced
by wholesale arrests in Chicago. Furthermore, the governors of other
states are already granting the extradition of accused persons to
Illinois. Under this policy, a state with a drastic sedition law like
Montana will be able to hunt a man down in the most liberal part of
the nation, and there will be practically no chance for a review by
the United States Supreme Court. The United States has always refused
to allow the extradition of persons charged by other countries with
political crimes, even if the charge (as often happened with Russians)
involved the advocacy of violence and revolution.[309] Since state
governors under the Constitution cannot be compelled to permit
extradition,[310] it is to be hoped that in future they will follow the
wise policy of the national government.
[309] See the state papers in 4 _Moore’s Digest of International
Law_ 332 ff. The possible exception of anarchists who actually
cause explosions (_ibid._ 354) may be disregarded, since we are
dealing at most with unsuccessful incitement to anarchy, and in
general with the expression of revolutionary views and membership in
revolutionary organizations, which would clearly be political crimes
and unextraditable.
[310] Kentucky _v._ Dennison, 24 How. (U. S.) 66 (1860).
The state anarchy acts are constitutional under the test laid down
by the United States Supreme Court in the Schenck case, insofar as
they are employed to meet a “clear and present danger” of unlawful
conduct. It is probable that the open advocacy of sabotage and the
doctrines of revolutionary syndicalism, against which most of these
statutes are directed, does present a sufficient danger to bring
such speech within the range of legislative discretion, and a few
decisions have already so held.[311] On the other hand, the clauses
of these statutes which make it criminal _ipso facto_ to belong to
organizations like the Industrial Workers of the World, although the
accused has never expressed any agreement with the violent portions of
its economic theory, raise serious difficulties. This is not punishing
a man for what he does, or even for what he says, but for what some
one else says, which he may possibly not approve. There are so many
reasons why a workman is led to join the labor union to which his
fellows belong, that the law should hesitate to attribute to him an
active support of every plank in its platform. Apart from questions of
constitutionality, it is dubious policy to make membership in a labor
union a crime no matter how much we may disagree as I do with its aims
and methods. That was the policy of the English Combination Acts of
the early nineteenth century. The attempt to break up trade unions by
imprisonment was defended because of the violence which had accompanied
some of their activities, but the imposition of severe penalties on
men who had taken no part in that violence simply strengthened the
unions and increased their bitterness. My own hope is that eventually
the state may provide an impartial tribunal for the settlement of
industrial disputes,[312] just as it formerly brought blood-feuds and
quarrels over boundaries into the King’s courts. Until that time comes,
although my own sympathies and direct interests are on the side of the
employers, I believe it to be a grave error for the state to intervene
against the workingmen until immediate violence is threatened. The
parties should be left to contend by economic methods. I know that many
who would believe in such a policy as regards the American Federation
of Labor will not approve its extension to the revolutionary unions.
Nevertheless, those who investigated the I.W.W. on behalf of the
government during the war found that the causes for its existence were
deep-rooted economic factors,[313] and not any widespread desire for
political changes or violence for its own sake. Until those factors
are dealt with directly, the use of the tremendous power of the state
on behalf of the employers and the conservative unions, while it may
produce a superficial weakening of revolutionary unionism, is sure to
intensify its hostility to the state and the belief that government is
only the organ of capital. For instance, the men who have been enjoined
by a judge at Spokane “from continuing as members of the I.W.W.”[314]
will not thereby be turned into enthusiastic supporters of the
country’s laws or alter their economic views. Indeed, careful observers
already report a rapid shift of members of the I.W.W. into the A. F. of
L., where they are safe from prosecution, and can do infinitely more
damage than when they were in the open.[315]
[311] State _v._ Boyd, 86 N. J. L. 75; State _v._ Moilen, 140 Minn.
112. But see 20 _Colum. L. Rev._ 232 (February, 1920); _Ex parte_
Meckel, 220 S. W. 81 (Tex. 1920); dissent in State _v._ Tachin, 108
Atl. 318 (N. J. 1919).
[312] Henry B. Higgins, “A New Province for Law and Order,” 29 _Harv.
L. Rev._ 13, 32, _ibid._ 189, summarizes the Australian experience.
[313] The Bibliography lists material on the I.W.W.
[314] 109 _Nation_ 843 (January 3, 1920).
[315] John Graham Brooks, _Labor’s Challenge to the Social Order_, c.
XX; Roger Baldwin, conversations; from a different angle, Ole Hanson,
_Americanism versus Bolshevism_, c. XII.
When the anarchy acts go still farther and punish discussions of the
general strike, or condemn words and symbols, which are inoffensive in
themselves, for their bad social, economic, or political tendencies,
they clearly infringe the danger-test and ought to be declared void.
But I do not think we ought to let the discussion of the state and
federal sedition laws turn on the controversy whether they are
unconstitutional. The free speech clauses, as I said at the outset of
this book, are a declaration of American policy as well as an extreme
limit upon legislative power. The most difficult questions are raised
by the application of the anarchy acts to the advocacy of “force
and violence,” when no immediate violence is liable to take place.
Although I do not feel sure that such speech can constitutionally be
punished when there is no danger of immediate violence, still both
Justice Holmes and Judge Learned Hand would agree that the nature of
the words used is an essential factor, apart from the surrounding
circumstances, in deciding whether the danger does exist, and the
common law cases on solicitation support this view. But even if the
statute is constitutional, the most important questions still remain,
whether it is expedient and in accord with American traditions, and how
it shall be construed. On these points what I have already said of the
syndicalism statutes has bearing, but it is upon this ground of sound
policy that every thoughtful American ought to consider the proposed
federal Sedition Law.
VI. _The Federal Sedition Bills_
Nothing less than a very great national danger should lead us to
abandon the American policy of courage and tolerance and re-enact the
first Sedition Act in time of peace since the disaster of 1798. The
burden of proof rests fairly on those who advocate such a doubtful
step. It has already been shown that it is not called for by any
immediate danger of revolution, since the Criminal Code will deal with
that, and indeed what has been said of the enormously exaggerated
accounts of pro-German plots during the war ought to show that “the Red
menace” is probably a similar panic.[316] It is of course impossible
for a private citizen to assert that no danger exists to justify the
officials in their statement that this legislation is necessary, but
he may properly assume that the documents in which they set forth that
statement embody the principal facts on which it is based. If they
have not yet supplied the vital facts, they ought to do so, and not
ask this country to reverse its policy of six-score years at a mere
trumpet-blast of danger.
[316] See page 70, _supra_, and the speech of George W. Anderson at the
Harvard Liberal Club, reported in “The Red Hysteria,” 21 _New Republic_
250 (January 28, 1920); and _Boston Herald_, January 13, 1920.
The main documents in the case are furnished by the most distinguished
supporter of sedition legislation, Mr. A. Mitchell Palmer. In an
official Report,[317] he has asked Congress not only to enact an
unprecedented statute, but for fear this may not be enough he has also
suggested that Congress recommend the passage of similar legislation
by all the states. The seditious writer will then be run to earth by
the five hundred agents of the Department of Justice, with the aid
of twelve thousand policemen and fifty prosecuting attorneys in New
York City, and a multitude of others throughout the land. Thus, we can
meet “the present intolerable situation.” Why is it intolerable? The
Attorney General says that he needs the legislation because of four
facts: (1) the presence of “60,000 radically inclined individuals”
whose histories have been compiled by his agents; (2) the circulation
of 471 “radical newspapers” besides other publications, all of which
are “one of the most potent and far-reaching influences in stirring
up discontent, race prejudice, and class hatred in this country” and
“more than any other one thing, perhaps, are responsible for the spread
of the Bolshevik, revolutionary, and extreme radical doctrines”; (3)
the fact that the Trading with the Enemy Act, which requires that the
local postmaster shall receive a translation of every publication in
a foreign language criticising the policies of any government before
distribution of any sort expires with the war, and the lapse of this
censorship will create a difficult problem in dealing with “radical
propaganda of a more violent character”; (4) “practically all of the
radical organizations have endeavored to enlist negroes on their side.”
[317] Investigation Activities of the Dept. of Justice, Sen. Doc. No.
53 (66th Cong., 1st Sess.), Wash., 1919. See also his evidence in House
Judiciary Hearings and Palmer Deportations Testimony.
If the Attorney General had limited himself to a statute punishing
successful and unsuccessful attacks upon federal officials and
property, he would have performed a real service in filling gaps in
the federal law against violence. Legislation against his hypothetical
man who approaches the Chief Justice with a bomb in his hand would not
affect freedom of speech. But it should be clearly understood that Mr.
Palmer asked much more than this when he sought to legislate out of
existence the four kinds of propaganda just mentioned on the ground
that these theories and doctrines might conceivably lead to future
assaults and revolutions.
In a circular letter sent to the editors of leading magazines,[318] Mr.
Palmer shows even more plainly that he is seeking to use the power of
the government, not against actual or threatened violence, but against
bad ideas. After submitting copies of various publications of the
Soviet Government, he states that these documents alone demonstrate:
(1) “that the present aim of the Russian Government and its officers is
to foment and incite discontent, aiming towards a revolution in this
country; (2) that the entire movement is a dishonest and criminal one,
in other words, an organized campaign to acquire the wealth and power
of all countries for the few agitators and their criminal associates.”
Among other qualities of Bolshevism: “It advocates the destruction of
all ownership in property, the destruction of all religion and belief
in God.... The sabotizing of public thought is an essential of this
movement.”
[318] Reprinted in 110 _Nation_ 190 (February 14, 1920). See also
Palmer Deportations Testimony, for emphasis on the atheism of prominent
radicals as an argument for their deportation.
The Department, as far as existing laws allow, intends to keep up
an unflinching war against this movement no matter how cloaked
or dissembled. We are determined that this movement will not be
permitted to go far enough in this country to disturb our peace
or create any widespread distrust of the people’s government.
There is a menace in this country. It may not be the menace of
revolution.... My one desire is to acquaint people like you with
the real menace of evil-thinking which is the foundation of the
Red movement.
That a Quaker should employ prison and exile to counteract
evil-thinking is one of the saddest ironies of our time, and
particularly that he should justify this by the religious heresy of his
opponents. After all that Milton and Bagehot and Mill have said of the
unwisdom of influencing the mind by temporal punishments and burdens,
after Justice Holmes’s warning against attempts to check by force
“the expression of opinions that we loathe and believe to be fraught
with death,” even those who disagree with Bolshevism, anarchism, and
revolutionary syndicalism as strongly as I do myself will need no
further argument to realize that as theories they must be defeated in
some other way. To conduct arguments by violence, even if that violence
is employed by government officials under the guise of law, is contrary
to sound political policy and to the constitutional guaranties of
freedom of speech.
Besides the draft Sedition Act recommended by the Attorney General,
which goes so far as to punish writings which “tend to indicate
sedition,” Congress has under consideration about seventy similar
bills, of which three have attracted public notice.[319] These are
the Overman Bill, a peace-time replica of the sedition section of the
Espionage Act of 1918, reported in 1919 by the Senate sub-committee
to investigate Bolshevism, as the fruit of its labors; the Sterling
Bill, the best drawn of the four, passed by the Senate in January,
1920; and the Graham Bill, a very drastic measure with a death penalty
and a sweeping postal censorship, which the House Judiciary Committee
substituted for the Sterling Bill and recommended for immediate
enactment. Its reasons were the attack on Mr. Palmer’s house, the
shooting of soldiers at Centralia, “numerous other instances of outrage
aimed at the existence of our institutions,” and the vigor and extent
of anarchistic teachings as revealed by recent investigations. The
Committee does not show why the existing law is not adequate to deal
with all these facts except the presence of pernicious and dangerous
ideas. Attorney General Palmer refused to support the Graham Bill, and
the House Rules Committee decided after several hearings that it was
too unsatisfactory to be given any priority in the order of business.
Some of these bills impose a maximum sentence of twenty years for
unlawful discussion, and in addition aliens are to be deported and
naturalized citizens are to be denaturalized and turned loose on the
world as men without a country. Indeed, Senator McKellar of Tennessee
wanted to go one step farther and deport native-born Americans to a
penal colony in Guam, so that we also might have our Devil’s Island or
Siberia.[320]
[319] S. 1686; S. 3317; H. R. 11430; Investigation Activities of the
Dept. of Justice, 14; see also Report No. 542, H. R. (66th Cong., 2d
Sess.). Congress adjourned, June, 1920, without any enactment.
[320] Amendment offered to S. 3317, December 4, 1919.
Energetic opposition to all four bills by the American Federation
of Labor and many kinds of other organizations and by the most
conservative newspapers and periodicals, makes it improbable that any
of them will become law. At all events the kaleidoscopic state of
sedition legislation in Congress induces me to avoid going into the
details of any pending bill. Instead, I am going to assume for purposes
of discussion that Congress may eventually have before it a very
simple measure, from which all the obviously objectionable features of
the four bills mentioned will be eliminated. This hypothetical bill
is limited by its terms to the advocacy of assassination of federal
officials, and the use of “force or violence” for the overthrow of our
government or all governments, or the attainment of changes in our
Constitution and laws. It punishes the individual who urges such “force
or violence” orally or in writing, and also any one who imports from
abroad or transports from state to state any book or other printed
matter which advocates such “force or violence.”
It is improbable that power will be given to the Postmaster General
to exclude such material from the mails, for the strongest hostility
to the pending bills was directed to such a power. Even if it be said
that the Blackstonian test does not forbid the government to control
the use of its own machinery, the post-office, it is clear to every
newspaper that its exclusion from the mails is equivalent to an
absolute censorship. If Mr. Burleson or his successor can exercise the
same power in peace that he had during the war to suppress political
discussion which he deems objectionable, he has at hand a much more
powerful weapon than the Sedition Act of 1798. A newspaper editor
fears being put out of business by the administrative denial of the
second-class mailing privilege much more than the prospect of prison
subject to a jury trial. Even if the periodical is given the right
of judicial review, this is of little practical value because of the
ruin of circulation during the delay before a court hearing. The same
considerations apply to a censorship of the foreign language press,
although this presents special problems and dangers. Consequently, the
bill before us for discussion imposes no previous restraint, but makes
the advocacy of “force or violence” a crime, punishable by a long term
in prison and a heavy fine.
Two questions are raised. (A) How far is such a measure constitutional?
(B) How far is it wise and expedient?
VII. _The Constitutionality of a Federal Sedition Law_
The constitutional problem involves three points, affirmative power to
punish, the treason clause, and the free speech clause.[321]
[321] For a full discussion with citation of cases, see H. W. Biklé,
“The Jurisdiction of the United States over Seditious Libel,” 41 _Am.
L. Reg._ (N. S.) 1 (1902). His conclusions as to the First Amendment
differ very much from mine.
1. What clause in the Constitution gives the United States power to
punish seditious utterances? The states face no such difficulty, for
they possess all power that is not expressly denied to them by their
constitutions, and can reach objectionable writings under their general
police power and criminal jurisdiction. The United States Government,
on the other hand, has only the powers which are expressly granted to
it by its organic document. Most of the discussion in 1787–88 over the
need of a free speech clause in the federal Constitution and most of
the controversy over the constitutionality of the Sedition Act of 1798
turned on this point. Much has happened since, however, to indicate
that the United States has this power to punish verbal opposition
unless prohibited by some negative clause in the Constitution. The
epoch-making decisions of Marshall show that the government does not
have to rely on any one specific grant of power. The Constitution
as a whole creates a nation with officers and functions and in
Article I, Section 8, gives to Congress the right “to make all laws
which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Constitution in
the government of the United States, or in any department or officer
thereof.” Consequently, no express provision is required to enable
the government to operate one or more national banks, or exclude
aliens from its shores. Its courts can punish contempts committed
against them. The United States Supreme Court has already decided in
the Neagle case that the Federal Government has power to protect the
lives of its judges engaged in the discharge of judicial duties and in
other decisions that it can safeguard even prisoners in its custody.
The same principle applies to the President or any other official
and it seems immaterial whether they are at the moment occupied with
business. Their work may be hindered by threats and other utterances
as well as by acts. Similarly words which interfere with express
functions of the government like the war power fall within its criminal
jurisdiction. The conviction of Emma Goldman for issuing pamphlets
urging disobedience to the draft, and all the Espionage Act cases
prove this beyond question. It is of course true that revolutionary
speeches do not affect any specific function of the government, but
they do affect its existence, the most important result of the
Constitution. Therefore, on this point I conclude that the United
States has affirmative power to protect its own life and the lives of
its officers, not only from revolution and assassination, but also from
attempts and solicitation directed toward these ends, and even from
discussion which might have a remote tendency to produce such evils,
unless that power is restricted by either the treason clause or the
First Amendment.
2. Section 3 of Article III, which relates to the judicial power of
the United States, provides: “Treason against the United States shall
consist only in levying war against them, or in adhering to their
enemies, giving them aid and comfort. No person shall be convicted of
treason unless on the testimony of two witnesses to the same overt
act, or on confession in open court. The Congress shall have power to
declare the punishment of treason, but no attainder of treason shall
work corruption of blood, or forfeiture except during the life of the
person attainted.”
We shall in discussing the Berger case return to the question of what
is treason in war when there are “enemies,” but in peace, treason is
narrowly limited in this country to “levying war,” and Chief Justice
Marshall decided in the case of Aaron Burr that that crime requires an
actual assemblage of forces. Consequently, the conduct we have in mind
is not punishable as treason under our Constitution. Does this prevent
it from being punishable otherwise? Under the English treason statute
of 25 Edw. III, c. 2, very many kinds of action which interfered with
the state were defined as treason. The courts construed these clauses
very widely to reach as “constructive treasons,” conduct very remote
from the defined crimes.[322] This practice became so notorious that
the framers of the Constitution wisely prevented it by rejecting
most of the English categories and narrowly restricting the evidence
on which conviction can be secured. Can Congress accomplish these
undesired results by calling the same conduct, not treason but sedition
or something else?
[322] 2 Stephen, _History of the Criminal Law_, c. 23 on High Treason.
For example, under the English statute it was treason to “compass
or imagine the death of our lord the king.” This was interpreted
to include threats against him. By analogy, it would be treason
to threaten the life of the President, if our Constitution had
not definitely provided otherwise. Congress in 1917 created the
crime of threats against the President.[323] Is such a statute an
unconstitutional evasion of the treason clause?
[323] U. S. _Comp. Stat._, § 10200 a, Act of February 14, 1917, c. 64.
See 32 _Harv. L. Rev._ 724.
Again, if the _Biglow Papers_ were not “aid and comfort to the enemy”—a
problem to which I shall return in the sixth chapter—could Congress
treat them as severely as if they were treasonable by creating the
crime of seditious libel with a punishment of death? A similar question
was put to the counsel for the United States in the Abrams case by
Justice Brandeis, who got the reply, “Of course, we wouldn’t go that
far.” But if Congress and the Department of Justice have power to go
that far, the value of the treason clause is considerably weakened. All
the acts which were constructive treasons under the English law could
be made criminal without even the security of two witnesses or the
provisions against corruption of the blood and forfeiture.
On the other hand, it is argued that the treason clause is not placed
among the restrictions on Congress. It simply prevents the courts
from construing the word “treason” in a statute to extend beyond
the constitutional definition, even if the statute gives it a wider
definition. Congress is not prohibited from punishing on other grounds
and under other names crimes which were treason in England, if these
are within the federal criminal jurisdiction. The same act might be
both treason and something else. Thus killing the king was treason
and murder. Congress can punish the murder of the President but not
the treason. Or rather, it can punish it not as murder, but as an
interference with an express function of the government. It is settled
that the United States can prevent assaults on federal judges though
that is analogous to treason in England. Counterfeiting money was
treason there and is expressly punishable under the Constitution.
This argument seems to me more satisfactory when applied to active
interferences with specific functions of the government, than when
extended to utterances which have a tendency to weaken the sovereignty
of the state as a whole. Are they treason in England plus something
else? Was it not this tendency to weaken which made them constructive
treason, and when they cannot be criminal on that account, does not all
ground of jurisdiction fail?
This is a problem somewhat foreign to my province, so that I prefer not
to state a definite conclusion, which can only be reached after more
judicial interpretation of the treason clause.
3. The First Amendment seems clearly to be violated by many clauses in
pending federal sedition bills, which punish words merely for their
assumed tendency to produce bad consequences in the remote future, for
instance, that section of the Graham Bill which excludes from the mails
under heavy penalty “printed matter ... whereby the use of force ... is
... defended ... as a means towards the accomplishment of industrial,
economic, social, or political change, or whereby an appeal is made to
racial prejudice the intended or probable result of which appeal is to
cause rioting or the resort to force and violence within the United
States....” The first clause would affect every history of the American
Revolution, Macaulay’s _History of England_, and W. R. Thayer’s _Life
of Cavour_. The second would suppress all but the most carefully
guarded presentations of the wrongs of the negro.[324] This attempt to
enlist popular support for attacks on radicalism by uniting fear of
the blacks to fear of the reds has become a favorite device of late.
Attorney General Palmer hints that negroes must not be allowed to join
radical organizations. The Lusk Committee seizes an unanswered letter
to the Rand School suggesting the spread of socialism among the negroes
(without a word about violence) and presents it as a menacing scheme
adopted _by_ the School “for the spreading of Bolshevist propaganda
among negroes in the South,” so that the _New York Times_ runs
front-page headlines: “Moves to Close the Rand School—District Attorney
Takes Steps Toward Revoking Radical Institution’s Charter—Planned Negro
Uprising.”[325]
[324] Ho. Cal. No. 129, § 6. For restrictions of race-irritation in
moving-picture films, see W. Va. Laws, 1919, c. 117.
[325] _New York Times_, June 28, 1919; see also July 9.
The Sedition Act of 1798 was also a violation of the First Amendment,
especially as it included criticism of the President and Congress,
which was very remotely injurious to the United States.[326]
[326] See page 29, _supra_. Biklé admits it was probably invalid for
the reason stated above.
If, however, we consider a federal bill such as I have suggested,
which, like the Massachusetts and New Jersey Anti-Anarchy Acts,
eliminates all clauses obviously punishing bad tendency and penalizes
only the advocacy of force and violence, much more difficult questions
of constitutionality arise. It may be helpful to examine various
kinds of utterances successively. If one directly incites another to
murder an official and the murder takes place, the speaker is, of
course, punishable. The same holds good, even if the incitement proves
unsuccessful. If the speaker does not solicit any particular person,
but eloquently appeals to a large audience for some new Charlotte
Corday, or if naming no specific victim he urges the assassination of
an indefinite number of men from some hated group, the case is not
altered. Even if he alleges the loftiest motives, the social interest
in truth and progress is far outweighed by the interest in order, and
there is a direct interference with the safety of life. When he does
not ask for any future killing, but merely glorifies such an event
in the past, the danger lessens and the power to punish becomes more
uncertain.[327] The time elapsed is perhaps an element. A distinction
might be drawn between praise of the assassin of McKinley, and “Cæsar
had his Brutus, Charles I. his Cromwell.” Yet even Patrick Henry’s
speech might be held advocacy of force and within the hypothetical
Sedition Law. A further step is the discussion of tyrannicide as an
abstract proposition of morality. Mill was willing to allow the fullest
liberty even for this,[328] but it is probable that assassination is
so easily carried out that there is always a sufficiently clear and
present danger of its occurrence to bring such discussions within the
range of legislative discretion.
[327] For opposing views on the question whether praise of a criminal
can be considered incitement to crime, see Masses Pub. Co. _v._ Patten,
244 Fed. 535; 245 Fed. 102.
[328] Mill, _Liberty_, note at opening of c. II.
Advocacy of revolution is much less dangerous except in extraordinary
times of great tension. The chances of success are so infinitesimal
that the probability of any serious attempt following the utterances
seems too slight to make them punishable by the Federal Government.
This is especially true if the speaker urges revolution at some future
day, so that no immediate check is required to save the country. Even
if several men talk like this with very bad intentions, they should
not be held guilty of conspiracy under section 6 of the United States
Criminal Code unless the danger-test is satisfied. There is no “clear
and present danger” in a revolution announced for 1948.
The Federal Government has nothing to do with the question whether
such discussion is a public nuisance or a breach of the peace under
state law. Johann Most was convicted on both sides of the Atlantic
for advocacy of assassination,[329] but those decisions are based on
present injury to the peace and not on danger to the rulers. When,
however, the audience joins in the speaker’s inflammatory utterances
the assembly becomes unlawful, and may possibly constitute a conspiracy
under the federal Criminal Code. Thus, Most at a New York meeting
on the morrow of the Spies executions doomed to an early death the
prosecuting attorney; the trial judge; the Supreme Court of Illinois;
“the highest murderers in the land, the Supreme Court of the United
States”; and the Governor of Illinois. His hearers exhibited warm
approval, and when he said, “The day of revolution is not far distant,”
one of the audience rose and said excitedly: “Why not to-night, for
we are ready and prepared?” The address by itself appears to have
been deemed insufficient to support a criminal prosecution, but he
was convicted of participating in an unlawful assembly.[330] Possibly
there was also a conspiracy within the United States Criminal Code, but
the absence of any real danger to the Federal Government makes this
improbable.
[329] Reg. _v._ Most, 7 Q. B. D. 244 (1881); P. _v._ Most, 171 N. Y.
423 (1902).
[330] P. _v._ Most, 128 N. Y. 108 (1891); see Freund on the Police
Power, § 477.
This case shows how much the danger of utterances is affected by
surrounding circumstances as well as by the words used. A soap-box
orator on a street-corner shouting to casual passers-by is far less
perilous than if he delivers the same address in a hall overcrowded
with sympathetic listeners. A pamphlet is less dangerous than any
speech, a book than a pamphlet. A threat of revolution over the family
tea-table is innocuous. Every one will admit that these considerations
affect the wise drafting and enforcement of sedition legislation, and
some at least hold that they may decrease the danger from objectionable
utterances until they sink below the minimum limit of Congressional
power. Thus, Freund says:[331]
The doctrine that crime may under given conditions become
justifiable or that it may have a tendency to arouse the public
conscience should not in itself be held to constitute a crime. It
is clear that an exposition of social wrong or injustice must be
allowed, nor can the necessary liberty of agitation be said to be
overstepped by appeals to sentiment rather than to reason; and
if it is said that appeal to sentiment is appeal to passion and
must lead to disorder and violence, it must be answered that this
was always the plea upon which political agitation was formerly
suppressed. Not even the fact that an adherent of the doctrine
commits a crime is conclusive that the teaching of the doctrine
amounts to incitement; for the crime may as well have been
induced by a morbid brooding over conditions which are the cause
of social discontent.... The constitutional guaranty of freedom
of speech and press and assembly demands the right to oppose all
government and to argue that the overthrow of government cannot
be accomplished otherwise than by force.... It is probably true
to say ... that it is impossible to strike at anarchism as a
doctrine without jeopardizing valuable constitutional rights.
[331] _Op. cit._, §§ 476, 478.
Nevertheless, the Abrams and Schaefer decisions in the Supreme Court
should deter any one from predicting unconstitutionality under the
First Amendment for the Threats against the President Act, or the
Sterling Bill, or the hypothetical statute I have been considering,
which is carefully limited to “force and violence.” The “nature of
the words used” may be held to create sufficient danger to support
the restriction on freedom of speech. Moreover, the real issues of
constitutional law, as in Masses _v._ Patten and the Abrams trial, are
likely to arise from a loose construction of the statute, even if its
wording is valid. Therefore, I consider it a much more fertile subject
of discussion to turn to the wisdom and policy of a federal sedition
law against the advocacy of “force and violence.”
VIII. _The Wisdom and Expediency of a Federal Sedition Law_
No one knows what blasphemy is or what sedition is, but all know
that they are vague words which can be fitted to any meaning that
shall please the ruling powers.—WALTER BAGEHOT.
“No man,” says Attorney General Palmer, “can go further than I will
go in his earnestness to protect the people in the guaranty of free
speech.” Nevertheless, he insists that there must be a dead-line, and
this he finds it easy to draw at the place where there is a threat
or promise or necessary implication of the use of physical force or
violence.[332] So long as Congress does no more than punish this sort
of language, how can any one reasonably object? The public seems at
first sight to get no benefit from such talk, and clearly the speaker
has no claim to encouragement. Men may well inquire how the interest of
society in the attainment of truth and progress is served by threats to
kill officials, blow up buildings, and bring in the dictatorship of the
proletariat with a holocaust of vengeance. Consequently, the question
whether a law against the advocacy of force and violence is wise may be
thought to admit only of an affirmative answer.
[332] Testimony before House Judiciary Committee, _New York Times_,
February 5, 1920. House Judiciary Hearings, 21.
I believe, however, that the problem is far less simple than it seems.
Although the opponent of the proposed legislation apparently occupies
a very bad position, that of standing up for force and violence, yet
it may be possible to show that such legislation is dangerous, far
more dangerous than the agitation it expects to suppress. If a federal
law against violent talk and writings which create no immediate danger
of injurious action is not only constitutional but highly desirable
and necessary, why is it that we have had only one such law in the
past, and that one a stupendous failure? Even the state laws against
inflammatory utterances as breaches of the peace have been used very
sparingly against soap-box orators and revolutionary literature. We
have refused to make arrests unless there was a real danger that the
lawlessness which was advocated would immediately take place. Surely,
there is nothing to be ashamed of in urging a continuance of this
traditional American policy.
Most of us believe that our Constitution makes it possible to change
all bad laws through political action. We ought to disagree vehemently
with those who urge violent methods, and whenever necessary take
energetic steps to prevent them from putting such methods into
execution. This is a very different matter from holding that all
discussion of the desirability of resorting to violence for political
purposes should be ruthlessly stamped out. There is not one among us
who would not join a revolution if the reason for it be made strong
enough. Californians would take up arms against an amendment passed by
Congress and the other state legislatures for the cession of California
to an Oriental power. And talk about violence is far more common.
Tobacco will not follow alcohol into oblivion without some murmurs of a
fight from the most peaceable citizens.
The United States is the last place on earth where mere talk about
resistance and revolution ought to be treated as inherently vicious and
intolerable. The founders of the colonies broke the religious laws of
England before they came here and some of them engaged in a large-sized
rebellion. The founders of the United States urged the destruction
of property by the destruction of tea and the burning of stamped
paper. They went further. They advocated the overthrow of this or any
other government by force and violence when they adopted a well-known
document which reads, “That whenever any form of government becomes
destructive of these ends, it is the right of the people to alter and
abolish it.”
If a federal statute against the advocacy of force and violence had
been enacted in the Abolition period, several distinguished citizens
of Massachusetts would have been criminals. Wendell Phillips advocated
opposition to the Fugitive Slave Law, and his statue is in the Public
Gardens of Boston. William Lloyd Garrison did so, and his statue is on
Commonwealth Avenue. The Overseers of Harvard College dismissed a law
teacher, Edward G. Loring, because he carried out his oath of office
as United States Commissioner by enforcing that law, and for the same
reason both houses of the Massachusetts legislature requested the
Governor to remove him from a probate judgeship, and he was removed.
Theodore Parker, George L. Stearns, Thomas Wentworth Higginson, and
Frank B. Sanborn contributed funds to send John Brown to Harper’s
Ferry to use force and violence.
These men believed that some bad laws are so powerfully supported
that the only way to obtain their repeal is to violate them. They
believed that no decent man could sit silent and inactive while the
Fugitive Slave Law was enforced. Perhaps they were all of them wrong.
Some of them were clearly liable as accessories to criminal acts. I
insist that such acts must be punished, however noble the motive. But
we cannot honor and praise these men for their courageous onslaughts
on established evils, and at the same time pronounce it a heinous
crime for any one to-day to urge the removal of wrongs by force.
Above all, we cannot draw a distinction between those days and ours
on the ground that the government was bad then and is now good. I
believe that to be true, but time alone will prove which is right, the
left-wing Socialist or I. We must not forget how Braxfield justified
his ferocious sentences by saying that the British Constitution of 1794
was the best in the world. The law and order men of 1774 and 1854 did
not consider their governments and laws bad. They would have been glad
to incarcerate Otis and Adams, Garrison and Sumner, if they had had Mr.
Palmer’s bill in force. Yet the advocates of repression in those days
were not a race of tyrants. They were respectable citizens just like
ourselves. They were merely mistaken. Can we be any more sure of our
infallibility than of theirs? And how do we know that we are infallible
until we hear the men on the other side, however excitable and given to
threats?
This is not indifferentism. We must take our stand for private property
if we believe in it, put our backs to the wall, and fight for it with
all our strength. Nevertheless, there are many ways of fighting. The
American policy is to meet force by force, and talk by talk.
Furthermore, as soon as the danger-test is abandoned, bad tendency
inevitably becomes the standard of criminality. Any attempt to
distinguish between liberty and license will break down in
administration for sheer vagueness, and sooner or later officials will
swing toward the view of Lord Holt in 1704:[333]
If men should not be called to account for possessing the people
with an ill opinion of the government, no government can subsist;
for it is very necessary for every government, that the people
should have a good opinion of it. And nothing can be worse to any
government, than to endeavor to produce animosities as to the
management of it. This has always been looked upon as a crime,
and no government can be safe unless it be punished.
[333] Tuchin’s Case, Holt 424 (1704).
England in the eighteenth century and Russia in the nineteenth[334]
applied this test of bad tendency. The United States has hitherto
preferred to follow the principle of Madison:[335]
Some degree of abuse is inseparable from the proper use of
everything; and in no instance is this more true, than in that of
the press.
[334] See the summary of Russian law in Freund, _op. cit._, § 471 note.
[335] Report on the Virginia Resolutions, 4 Elliot’s Deb. (2 ed.), 598.
Marshall told Talleyrand the same truth, Beveridge, II, 329.
Consequently, the President’s Message is attempting the impossible
when it supports Mr. Palmer’s sedition bill on this high ground:[336]
“With the free expression of opinion and with the advocacy of political
change, however fundamental, there must be no interference, but toward
passion and malevolence tending to incite crime and insurrection under
guise of political evolution there should be no leniency.” No one has
yet invented a gun which will kill a wolf in sheep’s clothing and will
not hit a sheep. We should all be glad to have a law, “Bad men shall
be imprisoned,” if it would work, but we know that it would not. A law
against “passion and malevolence” is just as bad. Far wiser is the
statement of the former Democratic President, just quoted, far wiser
the language in a later part of Mr. Wilson’s own Message, which seems
so inconsistent with the endorsement of the Sedition Bill that it might
almost be the work of another man:
The only way to keep men from agitating against grievances is to
remove the grievances. An unwillingness even to discuss these
matters produces only dissatisfaction and gives comfort to
the extreme elements in our country which endeavor to stir up
disturbances in order to provoke Governments to embark upon a
course of retaliation and repression. The seed of revolution is
repression.
[336] _New York Times_, December 3, 1919.
Most acts of violence urged as a reason for sedition legislation, the
Gimbel bombs, the May explosions, the Centralia shooting, followed
immediately on some act of suppression,—the Debs decision, the Roxbury
Riot sentences, the Massachusetts Anti-Anarchy Act, raids on I.W.W.
offices and statutes against Syndicalism. The men responsible for these
outbreaks should be tried and severely punished if found guilty, as
much as the Southern lynchers and the Omaha mob that nearly hanged the
mayor. It is an altogether different matter to make these affairs the
basis of further suppression. The advocates of such a policy are doing
their best to get this country into the vicious circle of outrages,
coercion,—coercion, outrages, from which John Morley spent his whole
official career vainly trying to extricate Ireland and India.[337]
[337] See especially the fine letter on the Phœnix Park murders, in his
_Recollections_, I, 178.
Contrast the American policy of punishing acts and letting talk run to
waste. We have stuck by the schoolboy maxim, “Sticks and stones will
break my bones, but words will never hurt me.” Recent riots which have
nothing to do with radicalism show that our criminal machinery is very
unsuccessfully dealing with acts of violence. That is its absorbing
task. It has no more time than it ever had to bother with the men
who merely talk. If there is any immediate danger of revolution, the
Attorney General should be employing the Criminal Code instead of
asking for a sedition law. If there is not, as he himself admits, then,
much as every one of us dislikes the advocate of force and violence, we
shall be wise if we seek remedial and not punitive methods to make his
talk of no effect. In particular, let me mention three concrete reasons
why a sedition law will fail to accomplish its purpose of getting the
really bad man and leaving valuable discussion untouched.
In the first place, simple as a law against incitement to force and
violence appears on its face, it will be a very difficult statute to
construe, unless the courts adhere closely to the ordinary rules of
criminal attempt. Of course, the man who shouts, “We want to kill the
President and blow up the Capitol,” presents no difficulties, and he is
the man whom most people who discuss the proposed statute suppose it is
meant to reach. These few plain cases, which are almost labeled “force
and violence,” will form only a very small part of the prosecutions.
For instance, the Attorney General wants to imprison the editors of
radical newspapers who have, he says, “a subtle way” of placing their
propaganda for the overthrow of the government before their readers,
but the reader understands what is meant.[338] The question is whether
he or any one else can draft a statute which makes it possible for
fallible human beings to distinguish good attacks on the government
from bad attacks which sound as if they were good. Jeffreys, Braxfield,
and Kenyon, thought they were punishing “passion and malevolence,” but
posterity has condemned them for interfering with the “advocacy of
orderly political change.”
[338] Investigation Activities of the Dept. of Justice, 11.
Whatever law is passed will be used to prosecute speeches and books
full of general language. The question whether such language is
advocacy of force and violence must of course be determined by a judge
and jury. Such men are trained to decide about overt acts, but problems
of “subtle” propaganda are an entirely different matter. The normal
law of criminal attempt offers to this tribunal a considerable amount
of tangible fact. There is, of course, a mental element, the intention
of the defendant to bring about the criminal act, but in addition the
jury must find a clear and present danger to society in view of the
nature of the words _and the surrounding circumstances_. Now, unless
the proposed sedition law practically codifies the ordinary rules of
attempt, the most tangible factor of the crime disappears; the jury can
disregard the absence of danger in the external situation, and look
merely at the intention of the prisoner and the nature of his words.
This must be so, for the federal act is expressly intended to prevent
the remote possibility of revolution and punish violent language for
its own sake. Consequently, the jury are cut loose entirely from overt
acts and the world of the five senses. They are adrift on a sea of
speculation.
At the very outset the same controversy will arise as in Masses _v._
Patten. It is the old question of Mark Antony’s funeral oration. Does
a man advocate force and violence when he uses comparatively innocent
words with the intention of producing assassination and revolution? Or
must the statute be confined to words which taken by themselves are
directly provocative of assassination and revolution?
Even this latter and narrower view involves great difficulties of
application. This is evident from the experience of the courts with
existing federal legislation based on the same “force and violence”
principle. The statute making “matter of a character tending to incite
arson, murder, or assassination” indecent and non-mailable, has not
yet been much construed,[339] but abundant litigation has been caused
by the statute which imposes imprisonment of five years maximum upon
any one who knowingly and willfully makes a threat to take the life of
the President or inflict bodily harm upon him.[340] The threat need
not be communicated to the President, and if in a letter it need not
be seen by any one except officials, so that the element of dangerous
circumstances is eliminated. Already it has proved very hard to decide
what words constitute a threat, and some of the practical effects of
the statute should discourage imitation. A Syracuse woman of German
descent, exasperated by her fellow employees who continually picked
on her and called her the Kaiser, finally burst out that she would
poison the President if she had him there. She pleaded guilty before
Judge Ray, and was fined $300, “not because the court regarded her as
a dangerous person, but to show all quick-tempered or alien-minded
persons that they must not threaten to do the President bodily harm or
utter unpatriotic sentiments in such times as these.”[341] In another
case, the words were, “I wish Wilson was in hell, and if I had the
power I would put him there.” The judges held this revolting language
to be a threat to kill the President, because how could he be in hell
unless he were dead?[342]
[339] U. S. Comp. Stat., 1918, § 10381; Magon _v._ U. S., 248 Fed. 201
(C. C. A., 1918).
[340] U. S. Comp. Stat., 1918, § 10200 a; see 32 _Harv. L. Rev._ 724.
[341] A Memorandum concerning Political Prisoners within the
Jurisdiction of the Dept. of Justice in 1919, 22, (in Harv. Law School
Library).
[342] U. S. _v._ Clark, Bull. Dept. Just., No. 101; affd., 250 Fed. 449
(C. C. A., 1918).
The kind of language which will be held to advocate force and violence
under a peace-time Sedition Law may be clearly foreshadowed by the
construction which the Supreme Court in the Abrams decision put upon
the exhortation:
Workers of the World! Awake! Rise! Put down your enemy and mine!
Yes, friends, there is only one enemy of the workers of the world
and that is Capitalism.
Here is not a word to indicate violence or negative the use of
political and economic pressure, but Justice Clarke declares:
This is clearly an appeal to the workers of this country to arise
and put down by force the Government of the United States.
If he is right, the traditional language of socialism becomes advocacy
of “force or violence,” as has already been held of the general strike
under the similar terms of the New York Anarchy Act. If Justice Clarke
is wrong, lesser judges may err. In either case, the Sedition Law will
become a drag-net for every form of radicalism.
So far I have assumed that the nature of the words will determine
criminality, and that if a man uses the ordinary language of political
agitation with intent to produce a revolution, he will not be
punishable. I doubt very much if the Act will receive any such narrow
construction. When Judge Hand held in Masses _v._ Patten that the
equally simple terms of the Espionage Act of 1917 would not be violated
if the speaker stopped short of urging upon others that it was their
duty or their interest to resist the law, he was reversed, and the
upper court said that if the defendant is endeavoring to persuade to
resistance, it is not necessary that the incitement to crime shall be
direct. Enough “if the natural and reasonable effect of what is said is
to encourage resistance.”[343] The majority of the Supreme Court took
the same position in the Schaefer case. In short, of the three elements
of criminal attempt, (1) bad intention, (2) dangerous words, and (3)
dangerous external circumstances, the third vanishes entirely, the
second is whittled down to require only words of a bad tendency, and
the first alone remains intact. And since the judges who construed the
Espionage Act of 1917 will also construe the Sedition Law, they will
probably interpret it in much the same way. We have traveled very far
from the realm of overt acts.
[343] 244 Fed. @ 540; 246 Fed. @ 38.
It is unnecessary to repeat the argument of the first chapter and the
experience of the eighteenth century in England, that the risk of the
suppression of opinion is very great when the bad political tendency
of words and the bad intention of the defendant become the only tests
of criminality. Furthermore, we must not forget that we can never be
sure that the tendency is bad or the intention evil. These are not
visible facts. We have to depend on the opinions of the judge and
jury as to the merits of the tendency and the morality of what they
can guess about the inside of a man’s head. Of course, one evidence
and often the main evidence of bad intention will be the supposed bad
tendency of the language he employs. In short, any peace-time Sedition
Law is open to exactly the objections which Jefferson stated in the
Virginia Toleration Act,[344] that when the expression of opinion is
made criminal, the tribunal will acquit or convict accordingly as the
sentiments of the prisoner square with or differ from its own.
[344] Page 31, _supra_.
To recapitulate, we began to discuss the Sedition Law with the
assumption that it would punish only the man who talks out-and-out
revolution and whom we know to intend out-and-out revolution. Such
a man seems entitled to no protection. Now we see that we are not
dealing with such a man at all. We must encounter much vaguer language
and we can never be sure that a man’s mind is bad. In its actual
application the law must necessarily convict any man whom the judge
and jury consider to be using language of bad political tendency
with a bad intention, whether or not the judge and jury are right.
The desirability of the statute ought to depend very largely on the
question whether human beings are likely to be right in forming such a
judgment. The answer is that history shows they are very liable to be
wrong.
Without the slightest imputation of corruption or malice, we can all
agree that a juryman’s judgment of the remote political and economic
effects of a book or speech is inevitably warped by his own views to
a much greater degree than if he is determining the path of a bullet
or the value of a house or even the effect of a lie on a woman’s
reputation. And the moral quality of another’s mind is even more
difficult to determine fairly when there is no criminal act, as in
ordinary crimes, to check it up by. A bad intention is easily inferred
from what we consider bad opinions. The consequence of such vague
standards is that objectionable men and doctrines are easily decided
to be advocating violence. Thus, a Winnipeg strike leader has just
been prosecuted for sedition, solely on the ground in one count of
the indictment that he “seditiously” published two verses of Isaiah,
beginning, “Woe unto them that decree unrighteous decrees.”[345]
Intention, that is, presumed intention, becomes the essence of the
crime, and the thing actually done immaterial. Once more, the prisoner
is convicted, not for what he does but for what he thinks.
[345] “Quoting Isaiah in Winnipeg,” A. V. Thomas, 109 _Nation_ 850
(January 3, 1920). The case was afterwards dropped. 110 _ibid._ 292.
Whether we believe that the Espionage Act decisions were necessary in
time of war or not, we ought to hesitate to enact in peace a statute
which is sure to be construed as widely as the simple words of the 1917
Act, and to subject all adverse criticism of the government to the risk
of suppression so forcibly presented by Justice Brandeis in a recent
Espionage Act case:[346]
The jury which found men guilty for publishing news items or
editorials like those here in question must have supposed it to
be within their province to condemn men not merely for disloyal
acts but for a disloyal heart; provided only that the disloyal
heart was evidenced by some utterance. To prosecute men for
such publications reminds of the days when men were hanged for
constructive treason. 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. To hold that such publications
can be suppressed as false reports, subjects to new perils the
constitutional liberty of the press, already seriously curtailed
in practice under powers assumed to have been conferred upon
the postal authorities. Nor will this grave danger end with the
passing of the war. The constitutional right of free speech has
been declared to be the same in peace and in war. In peace, too,
men may differ widely as to what loyalty to our country demands;
and an intolerant majority, swayed by passion or by fear, may be
prone in the future, as it has often been in the past, to stamp
as disloyal opinions with which it disagrees. Convictions such as
these, besides abridging freedom of speech, threaten freedom of
thought and of belief.
[346] Schaefer _v._ U. S., 251 U. S. 466, 493 (1920), dissenting
opinion.
Secondly, men who use revolutionary language should not be suppressed
in the absence of very serious and pressing danger, because they almost
always have a grievance. Very few people want to smash things for the
fun of it like small boys breaking windows. Whether the grievance is
well founded or not, the defenders of the existing order ought to know
about it so that they may correct it or show by counter-argument that
it does not exist. The agitator would be much wiser and more effective
if he expressed his case calmly without threats, but we ought not to
punish him for this mistake. He is not an educated man, he is not a
lawyer, he is not accustomed to weighing his words carefully, and he is
only too apt in a heated argument to let himself go. And on the whole,
society gains if he is free to do so. The worse the grievance, the
more likely the victim is to get angry and urge violent measures. Yet
that is the grievance which most needs removal.[347] Reformers who get
excited are pretty sure to take the position that force is justifiable
if peaceful methods fail to gain what they consider right. Even the
supporters of existing institutions have been known to lose their
tempers and suggest lamp-posts and ropes. In the past we have felt it
wiser to let the opponents of the government talk than to cause much
greater bitterness in them and in their friends by throwing them into
prison. Nor will this treatment silence those who are really dangerous.
A friend of mine wants all “Bolshevists” shut up till the jails are
so crowded that their feet hang out of the windows, but the daily
letters from political prisoners in the radical newspapers show that
their tongues hang out too. Putting radicals to death is the only way
to get rid of them, and for that we have lost our nerve. Anything less
only increases their power for harm. If they can say, “This government
of capitalists denies us a decent life and now it won’t even let us
tell our wrongs,” the natural conclusion is, “If it will not let us
talk, our only resort is to fight.” The passage last quoted from the
President’s Message hammers this truth home.
[347] See the thoughtful statement by Judge Cooley in his
_Constitutional Limitations_ (7 ed.) 613, of the great danger of a rule
against intemperate discussion, ending: “If they exceed all the proper
bounds of moderation, the consolation must be, that the evil likely
to spring from the violent discussion will probably be less, and its
correction by public sentiment more speedy, than if the terrors of the
law were brought to bear to prevent the discussion.” Mill adds very
strong arguments against the same rule at the close of c. 2 of his
_Liberty_.
Thirdly, a Sedition Act will suppress much discussion which is not
within its terms. Men assume that such a law affects only a speech or
a book which devotes itself entirely to the advocacy of violence. This
is not so. For instance, any small conservative group in the community
which wants to prevent radical agitators from bringing disagreeable
facts to public attention will be enabled by such a statute to go
through their speeches and pamphlets with a fine-tooth comb and
probably find a sentence here or there which can be interpreted (in the
light of the Abrams decision) as advocating revolution. Thus, it will
be possible to imprison almost any radical agitator in the absence of
any real danger of revolution. Of course, trivial offenses will not
be punished in ordinary times, but during the excitement of a great
strike or some other widespread unrest the partisans of law and order
will hardly be able to resist the temptation to make use of this law to
bottle up labor leaders and other agitators whom they fear and dislike.
Witness the sentences of ten, fifteen, twenty years imposed upon
leading Socialists under the Espionage Act, so that further activity on
their part is conveniently prevented during the time they are likely to
live. And in a government of laws and not of men, no one human being
ought to be entrusted with the power to give or withhold the heavy
sentences of a Sedition Law for the light offenses included within its
provisions.
The effect of a Sedition Law upon books is even more injurious. An
_ex post facto_ censorship of the press is created by the provision
that a book which advocates force and violence must not be sold or
imported from abroad or transported from state to state. It may be
asked, why should any one honestly want to possess a book which urges
revolution or even the violation of law? Why should we allow such books
to come into the country or be put on sale? It must be remembered that
a book falls under the penalties of the law if only a part of it is
revolutionary. There are many books and pamphlets which for the most
part contain elaborate discussions of social and economic questions,
which it is very desirable to read. Here and there the writer is so
impressed with the hopelessness of legal change in the present system
that he advocates resort to force if nothing else serves. That alone
will render circulation of the whole book a heinous crime under this
Act. Many of the classics of modern economics will be put on this
new Index Expurgatorius. The law will prevent a loyal citizen from
obtaining from abroad or another state the works of Marx, Proudhon,
Bakunin, or Stirner, and will make it criminal for a loyal bookseller
to buy these books for him.
One particular instance will show the evil of such a statute. Harvard
University is now planning to collect in its library all books,
pamphlets, posters, and other material relating to the Russian
Revolution. After the French Revolution nothing of the sort was
attempted for many years, and in consequence all collections of
documents of that period are very imperfect. It is the intention of
the Harvard Library to avoid such a loss in the case of the Russian
Revolution, which everybody, no matter what his opinion of it may be,
recognizes as one of the great events in the history of the world. Most
of the pending sedition bills would make it a crime to import a large
part of this material from Russia or even transport it from New York to
Cambridge.
Furthermore, if any one who obtains this revolutionary material runs
the risk of long imprisonment, sober men who would read and refute
it will leave it alone, and it will still fall into the hands of
agitators who are willing to take chances. The bulk of the people
will be virtually ignorant of what the left-wing radicals are really
planning. One of the most effective weapons against anarchy was an
exhaustive article in the _New York Times_[348] translating anarchistic
passages from the foreign language press. It warned the American people
of the thought which we ought to seek to counteract by education,
Americanization, constructive propaganda, and the cure of grievances.
Such an article would be criminal under most of the proposed
legislation. The Attorney General’s Report to the Senate could not
be distributed because of its extracts from the revolutionary press.
Prosecutions of radical newspaper editors cannot be fully reported in
the daily press, so that the public cannot know what men are convicted
for, and it will be possible for the government under cover of such
a practice to withhold from the people knowledge of punishment for
legitimate political discussion. Even officials cannot lawfully import
revolutionary literature under these bills, and an exception in their
favor would be an insult to the citizens of the United States. This law
is a kindergarten measure which assumes that the American people are so
stupid and so untrustworthy that it is unsafe to let them read anything
about anarchy and criminal syndicalism because they would immediately
become converted. Above all, we shall not be able to meet this great
danger of lawlessness if we refuse to look the enemy in the face. The
habits of the ostrich are instinctive in many human beings, but they
have not been conspicuous for success.
[348] June 8, 1919.
Even if we could wisely dispense with these left-wing books, much less
radical publications will become criminal if advocacy of revolution
by force and violence is punished. For example, one of the sanest
discussions of contemporary thought, which has had a large sale in this
country, is Bertrand Russell’s _Proposed Roads to Freedom_. Further
distribution will become a crime because of its extracts from the
Communist Manifesto of 1848: “The Communists disdain to conceal their
views and aims. They openly declare that their ends can be attained
only by the forcible overthrow of all existing social conditions. Let
the ruling classes tremble at a Communistic revolution.”
Or take his quotation from an anarchist song:
Si tu veux être heureux,
Nom de Dieu!
Pends ton propriétaire.[349]
[349] Russell, _op. cit._, 17, 53.
Of course, any anti-socialistic book which gives an adequate historical
account of its opponents will fall under the same condemnation.
And we shall have some surprises nearer home. It is advocacy of
revolution by force and violence to write: “I hold a little rebellion
now and then is a good thing, and as necessary in the political world
as storms in the physical.”[350] Out go the works of Thomas Jefferson.
It is advocacy of change of government by assassination to say, “The
right of a nation to kill a tyrant in cases of necessity can no more
be doubted than to hang a robber, or kill a flea.”[351] Jefferson
is followed by his old antagonist, John Adams, the author of the
Sedition Law of 1798. The Declaration of Independence will be barred
in this country as it was once upon a time in the Philippines, since
it is a most eloquent advocate of change in the form of government by
force without stint or limit. And the censorship can hardly overlook
Lincoln’s First Inaugural:
This country with its institutions belongs to the people who
inhabit it. Whenever they shall grow weary of the existing
government, they can exercise their constitutional right of
amending it, or their revolutionary right to dismember or
overthrow it.
[350] Writings of Jefferson, ed. P. L. Ford, IV, 362; see also 370 and
467.
[351] Works of John Adams, ed. C. F. Adams, VI, 130.
It may be objected that of course no one will be prosecuted for
selling such books. Perhaps not, but do we as a fair-minded people
want a statute under which the very ideas which will be immune when
cloth-bound in a respectable book store will constitute a penitentiary
offense in a Yiddish hand-bill?
If this legislation is to be enforced with any impartiality, it must
necessarily cut us off from our own revolutionary heritage and from
the economic and political thought of Europe in our own time. During
the last five years this nation has entered into the affairs of the
world for the realization of noble aims. It cannot do this and at the
same time propose to pass its existence for the next score of years
like some Lady of Shalott, shut off from the turbulent life of European
mankind.
Much more could be said, but I hope it is now clear that the really bad
man is only an incidental victim of any federal Sedition Law in time of
peace. Indeed, it is only too probable that he will be ingenious enough
to hide his tracks and escape. Meanwhile, the law will suppress the
discussion of public questions at point after point.
During the war the advocates of strong measures assured those who
thought our traditional freedom of speech in peril, that suppression
would disappear when the fighting stopped, and remarked with Lincoln
that a man could not contract so strong an appetite for emetics
during temporary illness as to persist in feeding upon them during
the remainder of his healthful life.[352] The war is over, actually
if not technically, the Espionage Act has suspended any widespread
operation till the next conflict, but nearly every state in the Union
has proceeded to make the expression of certain opinions criminal, and
Congress is now considering a much more rigorous Espionage Act for
times of peace. The truth is that persecution of unpopular doctrines is
not an emetic at all, but a drug. A nation cannot indulge in an orgy
of intolerance and console itself like Rip Van Winkle with the thought
that “This time doesn’t count!” Nobody enjoyed gasless Sundays or
sugarless coffee so much that we are likely to continue them in peace,
but the pleasure of being able to silence the pro-Germans and pacifists
and Socialists who had irritated us in 1915 and 1916 was so agreeable
in 1917 and 1918 that it will be abandoned with extreme reluctance, and
we long for more suppression to satisfy the appetite which has been
created contrary to our former national tradition of open political
discussion.
[352] Letter to Erastus Corning and others (June 12, 1863), _Works of
Lincoln_, ed. Nicolay and Hay, VIII, 309.
Consequently we ought to cross-question acutely our present conviction
that the repression of ideas is essential to the public safety, and
ask ourselves how far that conviction results from the mood of the
moment. Indeed, it may be conjectured that just as some soldiers were
given ether to make them go “over the top” better, so a nation cannot
enter whole-heartedly into the horrors of a war without some benumbing
of its reasoning powers, from which it may not yet have recovered. Is
it not psychologically probable that our minds have been so shaken by
excitement, fear, and hatred, so stretched to one absorbing purpose,
that they are slow to return to normal, and that we still crave
something to fear and hate, some exceptional cause for which we can
continue to evoke enthusiasm?
A very serious situation confronts us. For three years the government
has pursued the policy advocated by Judge Van Valkenburgh when he tried
Rose Pastor Stokes for her denunciation of profiteering:[353] “The
President could not stop in the face of the enemy and effect domestic
reforms. We do not ordinarily clean house and hang out the bedding
when there is a thunderstorm on. We wait until it is over, go dirty a
little longer.” A good deal of soiled linen has accumulated, and the
consequences are far from agreeable. The discussion of the radicals is
bound to be doubly violent because it was postponed, and now it can be
postponed no longer unless we mean to suppress it altogether. By doing
that we shall not end it, but only drive it underground.
[353] Bull. Dept. Just., No. 106, p. 18.
A Sedition Law is not the proper way to deal with anarchy. Outside of
a few intellectuals, anarchy is the creation of discontent, and this
law will increase discontent. Nothing adds more to men’s hatred for
government than its refusal to let them talk, especially if they are
the type of person anarchists are, to whom talking a little wildly is
the greatest joy of life. Besides, suppression of their mere words
shows a fear of them, which only encourages them to greater activity in
secret. A widespread belief is aroused that the government would not
be so anxious to silence its critics unless what they have been saying
is true. A wise and salutary neglect of talk, coupled with vigorous
measures against plans for actual violence and a general endeavor to
end discontent, is the best legal policy toward anarchy and criminal
syndicalism.
To quote from an extra-judicial decision of Justice Holmes:[354]
With effervescing opinions, as with the not yet forgotten
champagnes, the quickest way to let them get flat is to let them
get exposed to the air.
[354] Letter to the Harvard Liberal Club, reprinted in 21 _New
Republic_ 250, and _Boston Herald_, January 13, 1920.
Undoubtedly, there are elements in our population, small in number,
but reckless and aggressive, who are ready to act on incitement to
revolution, but the real danger lies in the existence of large masses
of unthinking radicals. This danger cannot be met directly by clubbing
such men into loyalty. We must first understand the causes of their
discontent, studying with open minds all the existing information, and
then take constructive steps to end that discontent and substitute
positive ideals for those we want to drive out. To modernize an old
illustration from Herbert Spencer, any one who has watched a tinsmith
mend a crumpled mud-guard on an automobile will observe that he never
pounds the protuberant spot. To do so would either be ineffective or
would simply raise a hump at some other place. Instead, he begins at a
distance and hammers all around the critical point, gradually drawing
the metal away from it until all is symmetrical as before.
If we have taken reasonable precautions against violence, we should
not be disappointed at not securing absolute unanimity among our
population on political and economic matters. If Americanism means
anything concrete, it certainly means tolerance for opinions widely
different from our own, however objectionable they seem to us. Such is
the tradition handed down to us by Roger Williams and Thomas Jefferson.
In the past we have been proud to believe that the arguments for law
and order, the common sense of the American people, including those
who have come from Europe to help build our industries, and the noble
qualities of our institutions, would win out over any revolutionary
talk or writing. The proposed Sedition Bills show a serious distrust
in these three great stabilizing forces of American life. Not for the
sake of the radicals, but for our own sake, should we oppose this
unprecedented legislation, whose enforcement will let loose a horde
of spies and informers, official and unofficial, swarming into our
private life, stirring up suspicion without end, making all attacks on
government either impotent or unsafe. The supporters of this gag-law
assume that our patriotism and our institutions are so weak as to
crumble away at any talk of revolution. Surely that time has not come,
will never come. Let us put an end once for all to this cowardice, and
take to heart the words of a great English Liberal:[355]
We talk much—and think a great deal too much—of the wisdom of our
ancestors. I wish we could imitate the courage of our ancestors.
They were not ready to lay their liberties at the feet of the
Government upon every vain or imaginary alarm.
[355] Lord John Russell, quoted in G. W. E. Russell, _Prime Ministers_,
N. Y., 1919, 21.
There should be no legislation against sedition and anarchy. We must
legislate and enforce the laws against the use of force, but protect
ourselves against bad thinking and speaking by the strength of argument
and a confidence in American common sense and American institutions,
including that most characteristic of all, which stands at the head of
the Bill of Rights, freedom of thought.
CHAPTER V
THE DEPORTATIONS
That imprisonment should continue an hour longer than it ought
by law, or that there should be constraint of limb or voice that
the law does not allow, is ever a consideration that should call
off courts of justice from the ordinary deliberations on matters
of property, however great, until this question be determined and
this great wrong, if it be one, be redressed.—WILLIAM M. EVARTS,
_Argument in the Lemmon Slave Case_.
As long as Congress refuses to follow the disastrous precedent of 1798
and enact a peace-time Sedition Law, the government cannot do much to
suppress “evil-thinking” among citizens of the United States. It is
not entirely powerless, for violent anarchistic books and periodicals
can be excluded from the mails, and the Espionage Act will remain in
force as long as we are at war with Germany; in other words, for an
indefinite future. As we have seen, Mr. Burleson has not scrupled to
use it in his effort to wreck the _New York Call_, and Mr. Palmer,
while professing to limit the Act to “acts and utterances which tended
to weaken the waging of actual hostilities,”[356] prosecuted and
convicted Socialists for requesting an amnesty for political prisoners
months after the armistice, and closed up the _Seattle Union-Record_ a
year after the last shot was fired. The outcry which these high-handed
acts have drawn from even the conservative press has deterred the
Attorney General from much independent action, though his agents are
frequently reported as co-operating with state officials in raids under
local anarchy acts on radical headquarters.
[356] Investigation Activities of the Department of Justice, 6.
In the absence of a new Sedition Law against radical citizens,
the government has seized upon the new Alien Law and used it with
relentless vigor. The first conspicuous event was the sailing of
the transport “Buford” on December 21, 1919, with two hundred and
forty-nine Russians. This was followed in January by a carefully
prepared round-up in all parts of the country in which over four
thousand persons were arrested under deportation charges.
While the right of the Federal Government to punish sedition is open
to serious doubt, there can be no question of its affirmative power to
exclude aliens from this country or to deport them even though they
are admitted. Although no clause in the Constitution expressly gives
this power, it has been held by the United States Supreme Court in the
Chinese Exclusion Cases to be an incident of the sovereignty and right
of self-preservation necessarily conferred by the Constitution upon the
government it created.[357]
[357] Nishimura Ekiu _v._ U. S., 142 U. S. 651, 659 (1892); see other
cases in 1 Willoughby on the Constitution, 251 ff.
I. _The Statute as to Deportable Radicals_
Various classes of aliens besides the Chinese have long been subject to
exclusion and expulsion for such obvious objections as conviction of
crime, insanity, pauperism, etc., but it was not until 1903 that the
possession or expression of opinions was first made a disqualification.
In consequence of the death of President McKinley, Congress refused
entry to the United States to anarchists, persons advocating the
forcible overthrow of our government or all government, or the
assassination of public officials, as well as persons disbelieving in
or opposed to all organized government or belonging to organizations
teaching such disbelief or opposition.[358] Other types of extreme
radicals were added by subsequent legislation.[359] The present
statute, enacted toward the close of the war, specifies the following
proscribed classes:[360]
Aliens who are anarchists; aliens who believe in or advocate the
overthrow by force or violence of the Government of the United
States or of all forms of law; aliens who disbelieve in or are
opposed to all organized government; aliens who advocate or
teach the assassination of public officials; aliens who advocate
or teach the unlawful destruction of property; aliens who are
members of or affiliated with any organization that entertains
a belief in, teaches, or advocates the overthrow by force or
violence of the Government of the United States or of all forms
of law, or that entertains or teaches disbelief in or opposition
to all organized government, or that advocates the duty,
necessity, or propriety of the unlawful assaulting or killing of
any officer or officers, either of specific individuals or of
officers generally, of the Government of the United States or of
any other organized government, because of his or their official
character, or that advocates or teaches the unlawful destruction
of property.
[358] Act, March 3, 1903, e. 1012, §§ 2, 38.
[359] Act, February 20, 1907, c. 1134, §§ 2, 38; Act, February 5, 1917,
c. 29, in U. S. Comp. Stat., 1918, §§ 4289¼ b and jj.
[360] Act of October 16, 1918, c. 186; U. S. Comp. Stat., 1919 Supp.,
§ 4289¼ b. This has been amended since the events narrated in this
chapter to include aliens convicted under the Espionage Act and other
war statutes (Act, May 10, 1920, No. 197), or advocating sabotage, or
injury to property, or assaults on officials for any reason; giving or
lending money is proof of advocacy or membership (Act, June 5, 1920,
No. 262). On the last statute, see John Lord O’Brian, “The Menace of
Administrative Law,” address to Maryland Bar Association, June 25, 1920.
Such aliens are not only refused admission and put out if they
succeed in getting in, but if they acquire these views or join these
associations after their entry into this country, they are to be
deported without any time limit, no matter how long before 1918 they
came to the United States.
Like the federal “force and violence” bills discussed in the preceding
chapter, this statute at first sight seems to apply to really bad men,
and to effect nothing but desirable results. Once again, however, we
ought to defer judgment until we have examined the actual operation
of the statute. The life of a law is not in its words, but in its
enforcement. In this case we do not have to rely on inference and
argument with respect to the future, for the deportation laws have been
in existence long enough to provide us with abundant data from past
experience, upon which we may base our decision as to the wisdom and
justice of this national course of action.
II. _The Administrative Machinery for Deporting Radicals_
“I’ll be judge, I’ll be jury,”
Said cunning old Fury;
“I’ll try the whole cause,
And condemn you to death.”—_Alice in Wonderland._
The most important question with any legislation which affects human
happiness is, what kind of men administer its provisions? Are they an
impartial judge and jury, a government official, a secret council,
a star chamber? The answer to this question in our problem is the
following sentence:[361]
In every case where any person is ordered deported from the
United States under the provisions of this Act, or by any law or
treaty, the decision of the Secretary of Labor shall be _final_.
[361] U. S. Comp. Stat., 1918, § 4289¼ jj. Italics mine.
No judge or jury passes on the important question whether an alien who
has lived here for many years actually holds or has expressed any of
the objectionable views specified as grounds for deportation. No judge
or jury decides whether he belongs to an objectionable organization
or whether it really is objectionable. All these vital issues of
fact are determined by the Secretary of Labor, or more often by his
subordinates, the immigration officials. And there is for all practical
purposes no appeal from those officials to any court, not even to the
Supreme Court of the United States. The law takes the position that
deportation is not a criminal proceeding and involves no punishment.
It is simply an exercise of the right of every sovereign state to
determine who shall reside within its borders. Therefore, the foreigner
who is expelled without a hearing in court, no matter how long he
has lived in the United States, no matter if he must leave a house
and other cherished possessions behind him, is not deprived of life,
liberty, or property without due process of law.
Such wide powers have not been acquired by the executive branch of our
government all at once or without a struggle.[362] The doctrine that
administrative decisions on questions of fact may be made conclusive
without any judicial review originated in our law in controversies
growing out of the distribution of public property. When the government
is giving away money which it has acquired under a treaty or is making
free grants of public land, it may justly annex whatever conditions
it pleases to its gifts and delegate to anybody it selects the
power to say how and where those gifts shall go. The recipients of
its generosity cannot complain if they must dispense with judicial
proceedings and abide by the decision of some administrative body like
the Land Department. If they are denied relief by such officials, they
lose nothing which they had before.
[362] The leading cases are in 2 Willoughby on the Constitution,
c. LXIV. A very valuable article by the Assistant Secretary of
Labor, Louis F. Post, is “Administrative Decisions in Connection
with Immigration,” 10 _Pol. Sci. Rev._ 251 (1916). This supports
my conclusions. The same volume contains several other articles on
administrative decisions. See the Bibliography for further references
on the Post-office.
Similar powers were soon accorded from obvious necessity to tax
officials. The collection of the public revenues would become
impossible if every dispute of fact over the value of an imported scarf
or the size of an income could be carried by the disgruntled taxpayer
into the courts. The complexity of the business and the requirement
of speed make it very desirable that administrative officers should
execute any valid tax law without interruption so long as no issue of
law is involved; on the other hand, their decisions do not affect the
liberty of the citizen or interfere with the normal activities of his
life.
When the doctrine was extended to exclusion from the mails, its effect
became much more serious. The business man who wishes to communicate
with prospective buyers and sources of supply is not a recipient of
public bounty like the occupant of free land. While he does make use
of governmental machinery, he pays for what he gets, and in substance
the transaction is like buying municipal water or riding on a national
railway. The opportunity to obtain essential services is a condition
of earning a livelihood and very possibly of life itself. If a city
cuts off a man’s water, he cannot dig a well; if he is kept off the
trains, he cannot walk; and in the same way the factory or newspaper
which is excluded from the mails is denied any other practicable means
of systematic intercourse. The decision virtually ruins its business.
All questions of constitutionality aside, Congress ought to consider
the advisability of continuing to place such a destructive power in the
Postmaster General instead of in an impartial tribunal which would not
be both judge and prosecuting attorney. Questions of the weight and
contents of letters are administrative like tariff valuations, but the
tax department does not furnish an analogy for exclusion orders in the
post-office for fraud and other reasons, because such controversies
are comparatively few and similar in nature to those which courts are
accustomed to settle, besides being far-reaching in their consequences
to the community as well as to the prohibited periodical. The cases
I have already discussed of exclusion from the mails for alleged
indecency or disloyalty show the possibilities of danger when the
attainment and dissemination of truth are regulated by the arbitrary
will of one man.
All these considerations apply _à fortiori_ to deportation, and
especially deportation for opinions. Exclusion of a newly arrived alien
by administrative fiat is not a serious hardship, for he simply returns
to his old life and takes up the threads where he recently dropped
them, but expulsion after long residence is another affair. The matter
at stake here is not a gift from the government, or the payment of a
tax which leaves substantial property untouched, or even the existence
of a business. Liberty itself, long-established associations, the home,
are at the mercy of a bureaucracy. Although technically Justice Gray
was right in saying that it is not a punishment to deport an alien who
has been domiciled here many years, but only a method of removing him
to his own country because he has not complied with the conditions for
residence imposed by our government,[363] nevertheless, practically it
is nothing but a punishment, which, as Justice Field pointed out, is
“beyond all reason in its severity.”
[363] Fong Yue Ting _v._ U. S., 149 U. S. 698, 730 (1892).
As to its cruelty nothing can exceed a forcible deportation from
a country of one’s residence, and the breaking up of all the
relations of friendship, family, and business there contracted.
The laborer may be seized at a distance from his home, his
family, and his business and taken before the judge [now the
immigration inspector] for his condemnation, without permission
to visit his home, see his family, or complete any unfinished
business.[364]
[364] Dissenting opinion in same case, 759.
This power to tear a man up by the roots is now conferred upon
officials of the government, the same officials who prefer charges
against him, and is extended from such definite facts as the race and
birth of a Chinaman to such vague facts as the opinions and political
affiliations of a European. Whatever the constitutional powers of the
government, it ought not to deprive a man of liberty and happiness
without being sure after a thorough and impartial investigation,
such as a judge and jury in open court would afford, that the alien
actually falls within a proscribed class. It is popular to defend the
present arbitrary methods on the ground that he is only an alien; if
he wants to acquire a home here, why does he not become naturalized?
He cannot be naturalized for five years, and even after that time his
omission ought not to make him an outlaw. He should not be dragooned
into citizenship, and incidentally citizens acquired through pressure
are not always desirable. A foreigner often has honest and even
praiseworthy motives for retaining his old loyalties. He may desire
to return to his birthplace in his old age after he has saved a
competence by building roads and railways for us, or as in the case of
most Russians in our midst before 1917, he may be waiting here with
the hope that a tyranny at home will be overthrown. Surely, we do not
reproach Americans who spend their lives in England or France without
renouncing their allegiance. Why should we regard similar conduct by
foreigners in this country as worse than crime, for even criminals
would not receive such harsh and summary treatment? We have no business
to act and talk as if we owed absolutely nothing to our unnaturalized
immigrants. Most of them were brought in at the earnest desire of the
very persons and corporations that are now loudly calling for more
deportations. For years these foreigners have done our dirty work, and
we might at least give them a jury trial before we throw them out neck
and heels. Have we no confidence in our own institution? Every alien
must expect to be expelled, if he furnishes legal cause, just as he
must expect to be punished for an offense, but in each case we should
be proud as citizens of a free land to furnish him the best legal
machinery we can devise to ascertain whether or not the ground for
governmental action really exists.
Let us now look more closely at the method which we actually employ
to determine the political and economic views of an alien. Is it
equivalent to a jury trial? Even that, I have tried to show, is a
hazardous means for the investigation of another man’s words and
opinions, and often liable to err, but it is the best practicable
means if we are going to inquire into those facts at all. What are the
chances of error in the present deportation tribunals?
This can be best determined from a consideration of the actual practice
as described by Judge Holt of the United States District Court for
Southern New York:[365]
There are a number of officers called inspectors of immigration,
connected with the office of the commissioner. Complaint that an
alien is in this country in violation of law is usually made by
one of these inspectors. The information upon which he bases the
charge may have been obtained by himself upon investigation,
or may have been furnished to him by others. Frequently such
information is furnished by the city police, or by enemies of
the person charged, acting through malice or revenge. Affidavits
are obtained and are sent by the inspector to the Secretary at
Washington, who, if he thinks a proper case is made out, issues
a warrant for the arrest of the persons charged. This warrant is
usually intrusted for execution to the inspector who has made
the charge, and he subsequently usually takes entire charge of
the case. After the aliens have been taken to Ellis Island,
they are held in seclusion and not permitted to consult counsel
until they are first examined by the inspector, under oath, and
their answers taken by a stenographer. After this preliminary
inquisition has proceeded as far as the inspector wishes, the
aliens are then informed that they are entitled to have counsel,
and to give any evidence they wish in respect to the charge.
Thereafter a further hearing is had before the inspector, at
which further evidence may be given by him, and the aliens may
appear by counsel and offer evidence in their own behalf. The
inspector thereupon reports whether in his opinion guilt has been
established, and the evidence taken and the inspector’s finding
are sent to the Secretary of Commerce and Labor at Washington,
who thereupon makes an order either for the deportation or the
release of the aliens. It is, of course, obvious that such a
method of procedure disregards almost every fundamental principle
established in England and this country for the protection of
persons charged with an offense. The person arrested does not
necessarily know who instigated the prosecution. He is held in
seclusion, and is not permitted to consult counsel until he has
been privately examined under oath. The whole proceeding is
usually substantially in the control of one of the inspectors,
who acts in it as informer, arresting officer, inquisitor, and
judge. The Secretary who issues the order of arrest and the order
of deportation is an administrative officer who sits hundreds of
miles away, and never sees or hears the person proceeded against
or the witnesses.
[365] Bosny _v._ Williams, 185 Fed. 598 (1911); see also Immigration
Rules of May 1, 1917, Rule 22.
The proceedings are in secret. The public is excluded, so is the press,
so are the alien’s wife and children. His inability to speak English
and the inspector’s frequent inability to speak anything else make the
record unsatisfactory, but the Secretary of Labor sees nothing else.
Furthermore, this record is often made by the inspector himself, and he
may stop it whenever he wishes, after a good case is made out. Like a
policeman, like a district attorney, it is his business to get results.
Unless the alien is represented by counsel there is some chance that
matter in defense will not get on the record.[366] While he has a right
to ask for counsel at such stage in the proceedings as the inspector
shall deem proper, being defenseless until then, he is not, like a
criminal, entitled to receive counsel at the expense of the government.
Furthermore, the alien who does not speak English and is shut up on
an island, often ignorant and out of funds, does not readily obtain a
lawyer on his own initiative. Thus he may be rigorously cross-examined
in the absence of counsel, not only on what he did and said, but on
what he thinks. The proceedings are rarely reported in the newspapers,
not being open, so that public opinion cannot easily be focussed on an
unjust case. Once the alien is deported, all mistakes and wrongs are
covered by the intervening ocean.
[366] Low Wah Suey _v._ Backus, 225 U. S. 460 (1912), holds valid the
rule denying counsel until after the preliminary hearing.
“If this,” said Justice Brewer,[367] “be not a star chamber proceeding
of the most stringent sort, what more is necessary to make it one?”
[367] U. S. _v._ Ju Toy, 198 U. S. 253, 268 (1905).
The alien has two slight possibilities of relief from a wrong decision
of the inspector. The review by the Secretary of Labor has already been
shown by Judge Holt to be inadequate, because the Secretary never sees
the alien or the witnesses, but only the record, which was made up by
the very person whose finding is attacked. Moreover, the Secretary of
Labor determines and enforces the policy of the government in respect
to deportations. Congress should refuse in so serious a matter to make
a man final judge in his own cause. Secondly, the alien may in rare
instances obtain a writ of _habeas corpus_, which will bring his case
before a United States judge. This remedy is very limited, for the
conclusions and orders of the immigration officials can be attacked by
judicial proceedings only if it is shown “that the proceedings were
manifestly unfair, that the action of the executive officers was
such as to prevent a fair investigation, or that there was a manifest
abuse of the discretion committed to them by the statute;”[368] or if
there was an error of law, for instance, in construing the statutory
definition of some deportable class. In the absence of fraud, a finding
of fact will be reversed only when there is a complete absence of
evidence to justify it. So long as there is any evidence at all in
its support, no matter how overwhelmingly this is outweighed by the
testimony on behalf of the alien, a court cannot interfere.
[368] Low Wah Suey _v._ Backus, _supra_, 468; Gegiow _v._ Uhl, 239 U.
S. 3.
The risks of grave injustice under this system are shown by a recent
case.[369] A Canadian woman in northern New York, who had always earned
her own living and owned several hundred dollars, part of it in local
real estate, beside having well-to-do relatives, was ordered to be
deported as a person “likely to become a public charge.” The evidence
showed that the alien had excited the jealousy of a married woman by
receiving from her husband lessons in bicycle riding evenings, and it
was suggested that the wife might sue this woman for alienation of his
affections, and might in this suit take all her property and leave
her without means of support. Also the woman might be prosecuted on
a criminal charge, and eventually imprisoned at public expense. On
these facts the immigration inspector arrested her and ordered her
deportation, and his decision was affirmed by the Secretary of Labor.
Obviously the whole case was framed up by a personal enemy, as many
cases against radicals may have been framed up during this past winter.
In this instance the alien was released by the court, because there
was not a single fact to support the finding, but if there had been a
scintilla of evidence the judge could have done nothing. Injustice of
this kind may easily occur without any corruption on the part of the
inspector if he is zealous in enforcing the deportation law and anxious
to gratify the eagerness of his superior officers and satisfy the
incessant demand of influential newspapers and organizations[370] for a
high record of expulsions.
[369] _Ex parte_ Mitchell, 256 Fed. 229 (1919). See Post, Deportations
Testimony, 80, 247, for other framed-up cases.
[370] See, for instance, the constant complaints that deportations
are few, in the weekly letter issued by the President of the National
Founders’ Association, who has suggested that the entire administration
of the law be transferred from the Secretary of Labor to the Attorney
General. Such a transfer would probably involve sweeping changes in
personnel among immigration inspectors.
“In the administration of preventive justice,” wrote James
Madison, “the following principles have been held sacred: that
some probable ground of suspicion be exhibited before some
judicial authority, that it be supported by oath or affirmation;
that the party may avoid being thrown into confinement, by
finding pledges or sureties for his legal conduct sufficient in
the judgment of some judicial authority, that he may have the
benefit of a writ of habeas corpus, and thus obtain his release
if wrongfully confined; and that he may at any time be discharged
from his recognizance, or his confinement, and restored to his
former liberty and rights, on the order of the proper judicial
authority.”
All these principles he declared to be violated by the Alien Act of
1798.[371] They are violated even more by the Alien Act of 1918. The
hated statute of 1798 was a temporary measure called forth by impending
war, and provided that the foreigner should first be served with a
notice and given time to depart voluntarily. Only if he failed to do so
was he arrested. Of this statute Madison said, “If a banishment of this
sort be not a punishment, and among the severest of punishments, it
will be difficult to imagine a doom to which the name can be applied.”
The Act of 1918 is a permanent measure, and provides for immediate
arrest, confinement, and expulsion, without notice, or opportunity
to close up one’s affairs and embark freely. Even if such procedure
has been declared constitutional, it is nevertheless dangerous that
it can be inflicted with practically no judicial safeguards, “on mere
suspicion, by the single will of an executive magistrate, on persons
convicted of no prison offense against the laws of the land.”
[371] Act of June 25, 1798, c. 63; Madison’s Report on the Virginia
Resolutions, 4 Ell. Deb. (2 ed.) 581, 582.
III. _The Raids of January, 1920_
You may take my word for it, my dear Viceroy, that if we do not
use this harsh weapon with the utmost care and scruple—_always,
where the material is dubious, giving the suspected man the
benefit of the doubt_—you may depend upon it, I say, that both
you and I will be called to severe account, even by the people
who are now applauding us (quite rightly) for vigor.—MORLEY, to
Lord Minto, on deportation from India.
Such is the machinery which Attorney General Palmer has set in motion
to bring thousands of radicals within the provisions of the Alien Act
of 1918. Powerful as this machinery is, it is subjected by the law to
three limitations in the interest of liberty. (1) The Act provides
that arrest must be on a warrant signed by the Secretary of Labor, and
the issue of the warrant is carefully regulated by the Immigration
Rules.[372] (2) A house or a meeting-hall cannot be searched, and
papers or other property cannot be seized, even with a search-warrant,
for there is no law which authorizes the issue of a search-warrant
in deportation proceedings.[373] (3) The alien must be given a
fair administrative trial, in accordance with the Rules. (4) The
deportation laws apply only to aliens.
[372] Immigration Rules, 1917, Rule 22, Subd. 3. “_Application for
warrant of arrest._ The application must state facts showing prima
facie that the alien comes within one or more of the classes subject
to deportation after entry, and ... should be accompanied by some
substantial supporting evidence.... If based upon statements of persons
not sworn officers of the Government ... the application should be
accompanied by the affidavit of the person.... Telegraph application
may be resorted to only in case of necessity, or when some substantial
interest of the Government would be subserved thereby, and must state
(a) that the usual written application is being forwarded by mail, and
(b) the substance of the facts and proof therein contained....”
[373] The subject of unreasonable searches and seizures will be
discussed in the next chapter. There are some statements that the
Fourth Amendment does not apply to deportation proceedings, Fong Yue
Ting _v._ U. S., 149 U. S. 698, 730 (1893); _Re_ Chin Wah, 182 Fed.
256 (1910), but the contrary has been held in a much cited case, U. S.
_v._ Wong Quong Wong, 94 Fed. 832 (1899). See also Moy Wing Sun _v._
Prentis, 234 Fed. 24 (C. C. A. 1916). In Weeks _v._ U. S., 232 U. S.
392 (1914), Day, J., said of the Fourth Amendment: “This protection
reaches all alike, whether accused of crime or not”; and in _Ex parte_
Jackson, 96 U. S. 727 (1877), it was applied to administrative opening
of the mails. It is inconceivable that the Amendment has no application
to non-criminal proceedings though of course the test of what is
reasonable is different. _In re_ Pacific Ry. Com’n, 32 Fed. 241, 251
(1887); I. C. C. _v._ Brimson, 154 U. S. 447, 478 (1894).
Moreover, searches and seizures without search-warrant violate the “due
process” clause of the Fifth Amendment, except a few special cases like
searching the _person_ only of a man arrested for a _crime_. A warrant
of arrest does not authorize search. And the Secretary of Labor has
no power to issue search-warrants in immigration proceedings under
any Act of Congress. Only a warrant issued by a court (under U. S.
Comp. Stat., 1918, § 1239; Stern _v._ Remick, 164 Fed. 781) can make
legal searches and seizures of the property of an alien not charged
with crime, and no statute authorizes immigration officials to obtain
a judicial search-warrant in the absence of judicial proceedings.
No lawful search can be made in immigration proceedings with or
without a search-warrant. Therefore, it seems probable that all the
evidence seized in the recent raids cannot be used by the government,
Silverthorne Lumber Co. _v._ U. S., 40 Sup. Ct. 182 (1920); and that
actions for damages can be brought. Illegal searches and seizures were
a ground for the release of an I.W.W. in _Ex parte_ Jackson, 263 Fed.
110 (1920), and of Communists in the Colyer case.
It is also some mitigation of the drastic features of this machinery
that it has been entrusted by Congress, not to the Department of
Justice which is engaged in the prosecution of crime, but to that
Department which was created “to foster, promote, and develop the
welfare of the wage earners of the United States,” and is daily
concerned with aiding millions of human beings, many of them poor,
comparatively helpless, and unacquainted with our language and
institutions. The Department of Justice may furnish legal advice or
lend its agents for use under the control of the Department of Labor,
but it has no more legal right or power to deal with the expulsion of
aliens than has the Department of the Interior.
The raids of January, 1920, have been fully described in the opinion of
Judge George W. Anderson in the Colyer case. This book will therefore
only discuss briefly the extent to which the four principles of
personal liberty just stated have been observed and the relative shares
which the Departments of Justice and Labor have taken in these raids.
My discussion is not based upon the evidence of aliens or journalists,
however credible, but upon the statements of sworn officials of the
United States, and so far as possible upon the testimony of Attorney
General Palmer.[374]
[374] Palmer Deportations Testimony; Post Deportations Testimony;
testimony and instructions of government officials in Report upon
the Illegal Practices of the United States Department of Justice, by
12 lawyers, Natl. Popular Govt. League, Wash., May, 1920; opinion of
Judge G. W. Anderson in Colyer and Katzeff _v._ Skeffington, 265 Fed.
17 (cited hereafter as Colyer opinion). The only sentence based on an
unofficial source is that on Detroit conditions.
“Appreciating,” he says, “that the criminal laws of the United States
were not adequate to properly handle the radical situation, the
Department of Justice held several conferences with the officials of
the Department of Labor and came to an agreeable arrangement for the
carrying out of the ‘deportation statute.’” Whether the Secretary of
Labor, William B. Wilson, and the Assistant Secretary, Louis F. Post,
were informed of the “plans laid by the Department of Justice for the
apprehension of members of the Communist Party and the Communist Labor
Party,” he does not state. The officials with whom he was in close
co-operation were the third ranking officer, Mr. J. W. Abercrombie, a
member of Mr. Palmer’s Department detailed to serve as solicitor to the
Department of Labor and vested with the powers of Acting Secretary when
his superiors were absent or otherwise occupied, and Mr. A. Caminetti,
the Commissioner General of Immigration, whose relations with Mr. Post
have long been strained. Mr. Abercrombie signed 3,000 warrants for
the arrest of persons alleged by affidavits of Mr. Palmer’s agents to
be members of the two Communist parties. Mr. Caminetti instructed the
immigration officials that the aliens covered by the warrants would be
arrested simultaneously by the Department of Justice and “held on local
charges” until the officials had served the warrants that night or the
following day. The agents would assist in serving warrants, perfecting
detention arrangements, and providing evidence, but they could not
legally conduct the deportation hearings, since this duty was delegated
by statute to the immigration inspectors.
The character of the raids is best shown by the Instructions issued
by Mr. Palmer’s Bureau of Investigation to his Secret Service men
throughout the country. Those in New England are reproduced in Judge
Anderson’s opinion. A slightly different form is reprinted on the front
page of the _New York Times_, January 3, 1920:
INSTRUCTIONS
Our activities will be directed against the radical
organizations, known as the Communist Party of America and the
Communist Labor Party of America, also known as Communists.
The strike will be made promptly and simultaneously at 8:30 P.M.
in all districts. The meeting places of the Communists in your
territory, and the names and addresses of the officers and heads
that you are to arrest, are on the attached lists.
You will also arrest all active members where found.
Particular efforts should be made to apprehend all the
officers, irrespective of where they may be, and with respect
to such officers, their residence should be searched and in
every instance all literature, membership cards, records and
correspondence are to be taken.
When a citizen is arrested as a communist, he must be present
with the officers searching his home at the time of the search.
Meeting rooms should be thoroughly searched.
Locate and obtain the charter. All records, if not found in
the meeting rooms, will probably be found in the home of the
recording secretary or financial secretary, but in every
instance, if possible, records should be found and taken.
All literature, books, papers, pictures on the walls of the
meeting places, should be gathered together and tagged with tags
which will be supplied you, with the name and address of the
person by whom obtained and where obtained.
In searching meeting places, a thorough search should be made and
the walls sounded.
It is an order of the Government that violence to those
apprehended should be scrupulously avoided.
Immediately upon the apprehension of the alien, or citizen,
search him thoroughly. If found in groups in a meeting room, they
should be lined up against the wall and searched. Particular
efforts should be made to obtain membership cards on the persons
who are taken.
Make an absolute search of the individual. No valuables, such as
jewelry and monies, to be taken away from those arrested.
After a search has been made of the person arrested you will
take all the evidence you have obtained from his person and place
it in an envelope, which will be furnished you, placing the name,
address, contents of the envelope, by whom taken and where on the
outside of the envelope and deliver to me with the alien.
Everybody will remain on duty until relieved, without exception.
Flashlights, string, tags and envelopes should be carried, as per
instructions.
In searching rooms of an alien pay particular attention to
everything in the room and make a thorough search thereof.
You are also warned to take notice “that no violence is to be
used.”
You will communicate with me by telephone from your several
districts, the number of the telephone herewith given.
Attached you will find a list of those to be apprehended in your
district and you will also apprehend all those found arrested
with these names at the time of the arrest, whom you find to be
active members of the Communist party.
You are also instructed to use reasonable care and good judgment.
It is too early to write an account of the methods in which Mr.
Palmer’s agents carried out his Instructions, but I give the following
authenticated facts.
First, aliens and citizens found in a Communist hall on the night of
raids, whether they were members of the organization or not, were
seized without any warrant whatever. In New England alone a hundred
such persons were imprisoned for several days while the officials
telegraphed for warrants to cover them, and hundreds more were not
released for many hours. The Attorney General testifies on the
nation-wide situation:
Where the aliens were assembled at their meeting places and an
actual meeting of the Communist Party was in progress the agents
of the Department of Justice did take into custody all aliens
attending that meeting. It is quite likely that warrants had not
been obtained for all such persons, but it is sufficient, it
seems to me, that when an alien is apprehended in the commission
of the unlawful act that the action of the government officer
taking him into custody is warranted. Certainly it could be
claimed that if the government officers had visited a meeting
place and had permitted aliens found there for whom warrants
had not been previously obtained to depart, that they had been
derelict in their duty.
The Attorney General also states that when persons applied at the
Hartford jail to see their friends who had been arrested at a Communist
meeting, the visitors were properly arrested and locked up in the jail;
for their coming to inquire was _prima facie_ evidence of affiliation
with the Communist Party.[375]
[375] Palmer Deportations Testimony, 69, 76, 115.
Mr. Palmer’s contention is that his agents faced the same situation
as a policeman who witnesses a robbery. If he goes to the station
house for a warrant the offender will vanish. His agents “did the safe
thing” in arresting every alien apparently a Communist. This analogy is
clearly unsound. For many crimes a warrant is necessary to arrest, and
a deportable alien is not a criminal at all. Neither he nor a citizen
can be deprived of his liberty upon considerations of expediency
which are not the law of the land. Congress makes that law, and has
explicitly required that the alien shall be taken into custody “upon
the warrant of the Secretary of Labor.”
Secondly, the prisoners’ property was overhauled and seized without
search-warrants. The Chief of the Bureau of Investigation did direct
his subordinates to apply to the local authorities for warrants “if you
find it is absolutely necessary”; and the Attorney General states, “In
every instance where practicable search-warrants were procured from
either city authorities or the United States commissioner.” He points
to no law authorizing such warrants for papers, and none existed except
possibly in states where Communists fall within anti-anarchy acts. Of
course, warrants for the seizure of concealed weapons give no right to
seize papers. No proof has been given by the government in the Colyer
case or elsewhere that search-warrants were obtained in these raids.
Mr. Palmer also says, “In no instance can it be shown that any person
or place was searched over the objection of the individual.” Naturally
an ignorant alien confronted by a posse of detectives at night would
hesitate to object to anything. Moreover, Mr. Palmer’s statement that
consent was a prerequisite to search is contradicted by the peremptory
language of the Instructions and the testimony of his agents. Except in
the case of educated English-speaking aliens like the Colyers, there is
no evidence that the agents paused before ransacking halls and houses
for documentary evidence connected with Communism.
The justification urged is that this valuable evidence of membership
would have been destroyed if not seized. Of course, no government
has ever made an illegal search unless it expected to find something
useful. If searches in deportation proceedings, with or without
warrant, are necessary, they must be authorized by Congress and not by
the Attorney General.
Thirdly, the hearings by the immigration inspectors were often unfair.
This was in large measure due, not to the fault of the inspectors,
but to the unprecedented pressure of work and the absence of adequate
protection for the rights of the alien. For nearly a year before the
raids aliens had been entitled to counsel throughout the deportation
hearings. The old procedure described in this chapter, which deprived
them of counsel during the important preliminary hearings, while not
unconstitutional, was considered so harsh by Secretary Wilson that he
abolished it. On December 29, 1919, just four days before the raids
and during the Secretary’s illness, the old harsh rule was revived.
The Attorney General does not deny that this change was made through
the efforts of the Department of Justice, and defends it on the ground
that the examination of an alien, when under the advice of counsel,
“got us nowhere.” The fact remains that the Secretary of Labor had
thought counsel desirable, and it was for him and not the Attorney
General to fix the Immigration Rules. As soon as Mr. Wilson and
Mr. Abercrombie (who had inadvertently approved the change without
appreciating its effect) realized what was happening, they restored
the right to counsel, but this was not until January 27, after most
of the examinations were completed. Meanwhile, until the hearings
were practically closed, the inspectors heard the evidence without
the help of counsel for the defense, and on the other hand, for the
first time in the experience of immigration officials (at least in
New England), an agent of the Department of Justice was present
through every hearing. The alien stood alone before an administrative
official, confronted by a member of the force of detectives who had
sworn out the warrant against him and accomplished his arrest. Thus
the government after issuing warrants for the arrest of 3,000 persons
suddenly repealed a rule so as to affect those specific persons and
deprive them of rights which were guaranteed to them, not indeed by the
Constitution, but by the existing law of the land.
The value of the evidence obtained in this way was also materially
affected by the treatment which the aliens underwent before and during
their trials. The police dragged many men out of their homes in the
dead of night. The aliens, none of them under any criminal charge and
many of them held without warrants, were taken on trains and through
the streets in handcuffs and chains.[376] The prisoners were herded in
vastly overcrowded quarters without sufficient clothing and food. For
instance, the Mayor of Detroit described as “intolerable in a civilized
city” conditions in the police “bull pen,” a room 24 by 30 feet, where
over a hundred men were kept for a week. Bail was often fixed at very
high amounts; for instance, $10,000, although $500 is the normal sum
specified in the Immigration Rules. The men arrested were separated
for days from their wives and children, who were left without support
by the government. Instead, they were, Mr. Palmer assures us,[377]
“looked after by the most prominent charitable organization of their
own creed in their locality. It is no part of the Attorney General’s
duty to look after the families of the violators of our laws.” The
Supreme Court has declared repeatedly that aliens held for expulsion
are not criminals.[378] This apology recalls the British General Dyer,
the hero of Amritsar, who found shooting into a crowd a still more
satisfactory way to get rid of sedition, and remarked that picking up
the wounded was no affair of his—that was the business of the hospitals.
[376] Palmer Deportations Testimony, 115. On Detroit, Barkley, _infra_,
note 382. On Boston, Colyer opinion.
[377] See his circular letter in 110 _Nation_ 190 (February 14, 1920).
[378] _E.g._, Fong Yue Ting _v._ U. S., 149 U. S. 730 (1893).
The men deported on the “Buford” were torn from their families, who
still remain in America.
The public approval of these raids rests on a belief that all the
thousands of men arrested were dangerous foreigners who advocated
violence. Yet the daily press shows the eventual release for want of
evidence of over a third of those seized. And a cursory glance at Mr.
Palmer’s Instructions shows that the character of an individual had
absolutely nothing whatever to do with his arrest. The most harmless
person was to be seized if suspected of membership in the specified
political parties. And although there was no law authorizing the arrest
of citizens, these instructions direct that all Communists shall be
seized, expressly including citizens. Elsewhere it is ordered that if
citizens are arrested “through error,” they shall be referred to the
local authorities. Thus United States officials would arrest American
citizens for prosecution under the harsh state anti-anarchy acts.
That the President of the United States can have authorized these
measures seems impossible. It is astonishing that the Attorney General
and the Acting Secretary of Labor should have carried through the
greatest executive restriction of personal liberty in the history
of this country during the President’s illness. Even so the British
Cabinet took advantage of the illness of their head, Lord Chatham,
to make one of the worst onslaughts on freedom in modern England, the
expulsion of Wilkes from the House of Commons in 1768. Macaulay’s
Second Essay on Chatham gives the facts.
His colleagues for a time continued to entertain the expectation
that his health would soon be restored, and that he would emerge
from his retirement. But month followed month, and still he
remained in mysterious seclusion.... They at length ceased to
hope or to fear anything from him; and, though he was still
nominally Prime Minister, took without scruple steps which they
knew to be diametrically opposed to all his opinions and feelings.
The sequel to the raids made it plain that hardly a single alien
then arrested by the Department of Justice would be deported. In the
absence of the President, a sharp conflict between Mr. Palmer and the
Department of Labor soon developed. Secretary Wilson released all the
aliens imprisoned as members of the Communist Labor Party, holding
that organization not to be within the deportation statute. Many of
those arrested as members of the Communist Party were released by
Assistant Secretary Post because their membership was not proved, and
Judge Anderson in the Colyer case decided after an exhaustive survey
of the New England raids that (1) many of the aliens who were ordered
deported must be discharged for want of a fair trial; (2) even those
who had a fair trial must be discharged because the Communist Party
does not advocate “force and violence.” If his decision is affirmed by
the Supreme Court, nobody can be deported merely because of membership
in either party. Consequently every alien seized in the raids must be
released except the few who personally advocated the overthrow of the
government by violence.
Meanwhile, when Mr. Abercrombie went away, Mr. Post had taken charge
of deportation matters. He soon became convinced that many of the
recommendations of the immigration inspectors and Mr. Caminetti for
the deportation of aliens were not in accordance with the evidence
obtained at the hearings, and therefore canceled the warrants of
arrest in these cases. This action aroused the indignation of Mr.
Palmer and several members of the Immigration Committee of the House
of Representatives. A House Resolution looking toward impeachment was
referred to the Rules Committee, which heard the testimony of both Mr.
Post and Mr. Palmer, but took no action before Congress adjourned.
Mr. Post pointed out that the power to determine whether an alien
should be deported was vested by law in the Secretary of Labor and
his deputies, and not in the Commissioner General of Immigration. The
belief that the aliens discharged were dangerous revolutionists was
derived from Mr. Caminetti’s summaries, which were merely advisory,
and not from the actual records of the hearings, which were often very
different. It was Mr. Post’s duty to decide each case upon the evidence
and he had done so. When there was doubt as to the alien’s guilt, the
humanity of the situation might properly enter into his decision.
Although deportation proceedings are not criminal in nature, he had
drawn from the criminal law those principles which recognize the rights
of the individual and especially his right to a fair decision whether
or not he is guilty. The issue is, not whether those aliens who violate
the law shall be deported, for he is deporting them, but whether those
who have not violated the law shall be deported.
Mr. Palmer’s position is this. While he has not “the slightest fear
that any revolutionary movement can succeed in this country, even to
the extent of seriously menacing our institutions,” there was in 1919
a great deal of revolutionary agitation which led to several attacks
on federal officials and other violence, and might easily have led
to more. The best way to keep order was to attack the spreaders of
agitation by means of the deportation statute. The raids caused a
marked cessation of revolutionary activities, and the two organizations
affected were completely broken by the Department of Justice. Now this
same agitation has taken a new lease of life because of the decisions
of Secretary Wilson and Mr. Post, which in Mr. Palmer’s opinion are
“neither based upon fact nor upon law.”
Upon this position, which I have tried to state with absolute fairness,
three comments may be made. First, it raises the fundamental issue
discussed in the preceding chapter, how far violent acts can wisely
be prevented by the suppression of violent talk. Secondly, the
particular method of suppression used by the Attorney General was
placed by law under the control of another Department, but the facts
of the raids leave no doubt that the deportation machinery during
the arrests and the hearings was very substantially directed and
operated by the Department of Justice. If the Department of Labor has
not properly administered the law, the duty to “care that the laws
be faithfully executed” is vested, not in the Attorney General, but
in the President. Finally, although it is undoubtedly true that the
laws requiring warrants for arrest, forbidding searches, and allowing
counsel make deportation more difficult, even in the case of dangerous
revolutionists, every rule in the interest of personal liberty
necessarily diminishes the efficiency of government. Mr. Palmer adopted
the attitude of the men he denounced. Because the law hindered the
result he wished to accomplish and thought desirable, he disregarded
the law.
IV. _The Arrest of American Citizens for Deportation_
The American people ought to be startled out of their complacent
acquiescence in these raids by the confinement of hundreds of their
fellow-citizens in jails, without the slightest charge of crime or
possibility of such charge under any law of the United States. The
government actually contends that it has the right to issue so-called
alien warrants, which state no evidence or facts whatever beyond a
perfunctory repetition of clauses of the Deportation Act, and yet are
the only substitute for an indictment in these proceedings, against any
individuals, whether aliens or naturalized citizens or native-born
citizens, arresting them whenever and wherever found, and holding
them in custody until the question of citizenship is decided by the
immigration authorities. It contends that a court has no jurisdiction
to release an American citizen who has never been out of his native
country from Deer Island or Ellis Island, or any other deportation
jail, until the immigration official and the Secretary of Labor on
appeal have denied his citizenship. Experience in the Chinese cases
shows that these proceedings frequently last for many months. “It
follows that on the theory now urged the right of native-born citizens
to liberty, perhaps for months, lies at the mercy of the immigration
authorities,” and that even after the order of deportation is finally
issued against the citizen, he cannot obtain the right from a court to
remain in this country unless the proceedings were manifestly unfair or
otherwise illegal.[379]
[379] Peter Frank _v._ Henry J. Skeffington, Commissioner, unreported
opinion of G. W. Anderson, J., (D. Mass., January 27, 1920).
The case of Peter Frank, an American citizen of Swampscott,
Massachusetts, is typical. The warrant of arrest, which he never saw,
began, “Whereas from evidence submitted to me, it appears that the
alien, Peter Frank, who landed at an unknown port on or about the
1st day of January, 1919,” and went on to charge membership in the
stereotyped words of the statute in six kinds of violent organizations,
without naming a single one or describing it concretely. All the Boston
warrants were in just this form. It was impossible for him to tell
from it with what he was really charged. Moreover, no address or other
identification of Frank was given, so that there was nothing to show
that another man of the same name in another city was not intended. In
his petition for _habeas corpus_, which was verified by the evidence,
Frank states that he was born in Ohio and was always a citizen; that
four days previously immigration officers broke into his house at one
o’clock in the morning, arrested him, searched his house and carried
off papers, confined him in the Lynn police station and on Deer
Island, refused to allow friends or counsel to visit him, and ejected
from the immigration office the man who started judicial proceedings
in his behalf. Nevertheless, Commissioner Skeffington still contended
that Frank was an alien, and that the burden of proof was on him to
establish citizenship. The only evidence which was offered to justify
his confinement was a questionnaire, on which Frank had answered that
he was born in Cincinnati and was not a member of either the Communist
or Socialist party or any other organization, but the Shoe Workers’
Union. At the end of this paper the government had stencilled, “I,
the under-signed, not a citizen of the United States, on oath depose,
etc.,” and Frank had hastily signed without crossing out the “not.” On
this flimsy fact the immigration officials kept him five days in jail
until against their will he was discharged by Judge George W. Anderson.
The Departments of Justice and Labor were baffled in this case, where
there was absolutely no evidence that the prisoner was an alien, but
they have not abandoned their main contention that the Secretary of
Labor has absolute power, where citizenship turns upon a disputed
fact like marriage, parentage, or place of birth, to confine a man
who really is a citizen for months and then order him deported on a
finding that he is not a citizen. And they are right that Congress has
actually conferred this power, and that it makes no difference under
the statute if the Secretary of Labor makes a mistake and classifies
a man as an alien who is actually a citizen, for “the decision of
the Secretary of Labor shall be final.” The citizen is forbidden by
Congress to appeal to the courts to correct the mistake of fact and
prevent his banishment into places beyond the seas. It is, of course,
possible that such a construction of this sentence would be held by
the Supreme Court to conflict with the “due process” clause of the
Constitution. It would seem that since the Constitution forbids an
administrative official to deport any one but an alien without judicial
proceedings, the Secretary is simply hauling himself up by his
bootstraps when he decides that a citizen is within his jurisdiction
and deportable. Nevertheless, the Supreme Court has already allowed
him to make almost the same sort of decision under similar statutory
language in United States _v._ Ju Toy.[380] That case permitted the
Secretary to deport a Mongolian on a finding of fact that he was born
in China, regardless of the decision of a court on _habeas corpus_ that
he was a native-born American citizen returning from a trip to China.
On citizenship as on other questions, the Secretary can be reversed
only if there is error of law or an absolute lack of evidence, or if
the person to be deported does not receive a fair hearing.[381] It may
be that the Ju Toy case will be limited not to apply to deportation
after entry, but this cannot be predicted with any confidence. Enough
has been said to indicate the possibility, under the present statutory
and administrative machinery of deportation, of prolonged vexations for
American citizens and even permanent exile.
[380] 198 U. S. 253 (1905).
[381] _E.g._, Chin Yow _v._ U. S., 208 U. S. 8 (1908). The Ju Toy case
was held not to apply to deportations, Moy Suey _v._ U. S., 147 Fed.
697 (C. C. A., 1906); U. S. _v._ Low Hong, 261 Fed. 73 (C. C. A., 1919).
It is all very well to say that only Communist citizens run this
risk anyway, and that they and Chinese citizens have “no rights that
a white man is bound to respect.” The Frank case shows that the
government officials were ready enough to confine a citizen who is not
a Communist, and he was only one out of many in the recent raids.[382]
Moreover, there is nothing in the Deportation Act of 1918 to limit
the Secretary to Communists. As I shall show shortly, he may begin to
break up other organizations by wholesale deportation of their members,
both aliens and citizens whose citizenship is officially denied. Some
native-born members of the American Federation of Labor may find a
future Secretary of Labor ruling (1) that their association advocates
the overthrow of the government by force and violence and (2) that they
are aliens. So long as there is any evidence, however much outweighed,
to support these two findings, the statute is plain, and allows them no
remedy.
[382] F. R. Barkley, “Jailing Radicals in Detroit,” 110 _Nation_ 136
(January 31, 1920); Palmer Deportations Testimony, 109, 111; Colyer
opinion.
V. _A Review of the Actual Cases of Radicals Held for Deportation_
The public is therefore in error in assuming that only foreigners
have been seized for deportation. It is also wrong in thinking that
the aliens who have been arrested are all dangerous characters. Some
of those expelled to Europe have undoubtedly been turbulent persons
like Emma Goldman, but not all the persons who are held to come within
the Deportation Act of 1918 are of the same sort. In order to make it
plain just what kind of men the government wants to deport, I shall
review the actual decisions relating to three types of radical aliens,
Communists, Industrial Workers of the World, and anarchists.
(1) Communists—Guilt by Association and Government Spies
The Communist Labor Party and the Communist Party, which were the
chief objective of the recent raids, seceded from the Socialist
Party in September, 1919, taking with them several state Socialist
organizations, and a very large number of left-wing Socialists.[383]
Mr. Gordon Watkins, of the University of Illinois, reports the
following estimates of the size of the three parties: Socialist
Party after the secession, 39,000; Communist Labor Party, 10,000 to
30,000; Communist Party, 30,000 to 60,000, of whom 25,000 belong to
foreign language federations which are predominantly Russian in their
constituency. The Secretary of Labor has ruled that all the aliens in
the Communist Party are _ipso facto_ liable to deportation under the
Act of 1918, as members of or affiliated with an “organization that
entertains a belief in, teaches or advocates the overthrow by force or
violence of the government of the United States.”[384] The Attorney
General’s Instructions evidently take the same view of the Communist
Labor Party. Consequently, a card from either party found on any alien
furnished the immigration officials with what they called “a perfect
case.” Nevertheless, Secretary Wilson took a different view of the
Communist Labor Party in the Carl Miller case, and Mr. Post in the
Truss case ruled that a card was not conclusive proof of membership.
Judge Anderson in the Colyer case went still farther, and held that the
Communist Party was not an organization within the Act of 1918.
[383] Gordon S. Watkins, “The Present Status of Socialism in the United
States,” 124 _Atlantic Monthly_ 821 (December, 1919).
[384] _In re_ Engelbert Preis, January 24, 1920, House Judiciary
Hearings, 17. All the important administrative decisions are reprinted
in House Immigration Hearings.
These various decisions raise two questions: (_a_) When does an
organization advocate force and violence? (_b_) if it does so, can all
its members be justly subjected to painful consequences?
(_a_) The difficulties of the first question have already been pointed
out in the preceding chapter, and the Program of the Communist Party
affords a practical illustration thereof. Although this Program, which
is reprinted in the _American Labor Year-Book_ for 1919–20,[385]
plainly intends that the proletariat shall “conquer and destroy
the bourgeois parliamentary state” and substitute a very different
political and economic system, there is not a word which expressly
says that the conquest is to be by force and violence. Mr. Wilson,
admitting that such a violent purpose is essential to bring the
organization within the scope of the Act, finds it inferentially in
various passages, which I give below with the omission of two that
parallel the first. In the first place he relies on such statements
as, “Participation in parliamentary campaigns, which in the general
struggle of the proletariat is of secondary importance, is for the
purpose of revolutionary propaganda only.” The context, which he does
not quote, qualifies the meaning of “revolutionary”:
Parliamentary representatives of the Communist Party shall not
introduce or support reform measures. Parliaments and political
democracy shall be utilized to assist in organizing the
working class against capitalism and the state. Parliamentary
representatives shall consistently expose the oppressive class
character of the capitalist state, using the legislative forum
to interpret and emphasize the class struggle; they shall make
clear how parliamentarism and parliamentary democracy deceive
the workers; and they shall analyze the capitalist legislative
proposals and reform palliatives as evasions of the issue and as
of no fundamental significance to the working class.
[385] Edited by Alexander Trachtenberg, published by Rand School of
Social Science, N. Y., pp. 416–419. Also in House Judiciary Hearings,
78–80, which contains many other important documents relating to the
two Communist parties.
The vital issue is plainly to determine what is the primary method
which is meant to supersede political processes. Is it violence or
is there some other alternative? The Program gives the answer, “The
Communist Party shall make the great industrial struggle of the working
class its major campaigns.” Yet the Secretary decides that this primary
method is violence, on the basis of the following extracts from the
Party Manifesto:
The conquest of the power of the state is accomplished by the
mass power of the proletariat. Political mass strikes are a vital
factor in developing this mass power, preparing the working class
for the conquest of capitalism. The power of the proletariat
lies fundamentally in its control of the industrial process. The
mobilizing of this control against capitalism means the initial
form of the revolutionary mass action that will conquer the power
of the state.
Mass action is industrial in its origin but it acquires political
character as it develops fuller forms. Mass action, in the form
of general political strikes and demonstrations, unites the
energy and forces of the proletariat, brings proletarian mass
pressure upon the bourgeois state. The more general and conscious
mass action becomes, the more it antagonizes the bourgeois
state, the more it becomes political mass action. Mass action is
responsive to life itself, the form of aggressive proletarian
struggle under imperialism. Out of this struggle develops
revolutionary mass action, the means for the proletarian conquest
of power.
And then, making this violent purpose still more clear in his eyes, he
gives this passage from the Manifesto of the Communist International,
which the Communist Party is said to accept as a part of its policy:
The revolutionary era compels the proletariat to make use of
the means of battle which will concentrate its entire energies,
namely, mass action, with its logical resultant, direct conflict
with the governmental machinery in open combat. All other
methods, such as revolutionary use of bourgeois parliamentarism,
will be of only secondary significance.
From these quotations and numerous other statements which he does not
quote (and certainly nothing in the organic documents is more favorable
to his view than the extracts reprinted by me):
“It is apparent,” he says, “that the Communist party is not
merely a political party seeking the control of affairs of
state, but a revolutionary party seeking to conquer and destroy
the state in open combat. And the only conclusion is that the
Communist Party of America is an organization that believes in,
teaches, and advocates the overthrow by force or violence of the
government of the United States.”
The last sentence is a complete _non sequitur_. The passages he
quotes and the whole Program show that the combat is to be through
the proletarian control over industry, which is to be used not
merely to secure economic advantages but to put the government in
such an uncomfortable position that it will give way to a new kind
of government. He lays too much emphasis on the exact wording of the
International Manifesto, for although applicants for membership in the
Communist Party declare their adherence to the principles and tactics
of the Communist International, they are not required to read its
manifesto and so cannot be supposed to approve every word. And even
if they do, “direct conflict with the governmental machinery in open
combat” means lawlessness but not necessarily violent lawlessness. A
continuation of the recent coal strike after the injunction would have
been just such a conflict without any violence at all. The jargon of
Socialism has always been full of such militant phraseology, which
does not imply anything more than political and economic effort.
“Revolutionary class struggle,” “mass power,” “mass action,” mean
big strikes for political ends. Such strikes like any strike might
lead to violence, but Secretary Wilson as a former labor leader can
hardly hold that advocacy of a strike is _per se_ advocacy of force
and violence. Objectionable as the purposes of the Communist Party are
to all who have faith in our system of representative government and
the possibility of progress through public opinion and the ballot,
those purposes are not within the Deportation Act of 1918, for they
are altogether compatible with the absence of force and violence. The
general strike may be more effective against a government than an armed
rebellion, and Congress can if it wants make advocacy of the general
strike a ground for deportation, but it is not such a ground now.
Secretary Wilson is wrong in assuming that non-political methods of
overturning a government are necessarily criminal and violent methods.
Francis Place, the tailor, overturned the government of England in 1832
and precipitated a revolution which the vote of the electorate had
failed to accomplish, simply by posting placards urging the people to
start a run on the banks. There is a middle method of political change
between the ballot and the bomb, namely economic pressure, and that,
however unwise or injurious in nature, is the method of the Communist
Party. It advocates the overthrow of our government, but not by force
or violence.
Undoubtedly there are men in the Communist Party who would use force
to get rid of their opponents. Every party has such men. Billy Sunday
preaches, “If I had my way with these ornery wild-eyed Socialists and
I.W.W.’s, I would stand them up before a firing squad and save space
on our ships.” Guy Empey tells his hearers to get rid of Bolsheviks;
“the necessary implements can be obtained at any hardware store.”
The Republican Secretary of the State of Massachusetts would shoot
Bolshevists and traitors every morning, at least in war time, and the
next morning he would have a trial to see if they were guilty. But such
men do not turn their party into a party of force and violence.