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.

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.

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.

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.

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]

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.

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]

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”—

He also objected to three articles admiring the “sacrifice” of conscientious objectors, and praising Goldman and Berkman as “friends of American freedom.”

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.

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.

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.

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]

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]

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.

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.

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.

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.

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.

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]

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]

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]

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]

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]

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.”

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.

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]

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.

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.

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.

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.

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.

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.

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]

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.

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.”

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]

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.”

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.

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.

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]

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.

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.

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.

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?

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.

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.

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.

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.

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.

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]

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.

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.

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.