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(40 Sup.Ct.) (251 U. S. 466)

Act, and each brings error. Judgment re SCHAEFER v. UNITED STATES. VOGEL versed as to Schaefer and Vogel, and affirmV. SAME. WERNER V. SAME. DAR

ed as to the other defendants. KOW V, SAME. LEMKE v. SAME.

For opinion below, see 254 Fed. 135. See, (Argued Oct. 21, 1919. Decided March 1, 1920.) also, 248 Fed. 290.

•467 Nos. 270-274.

*Messrs. Wm. A. Gray and H John Nel

son, both of Philadelphia, Pa., for plaintiffs in 1. JURY 84 STATUTE AUTHORIZING SEVER

error. AL DEFENDANTS TO BE TREATED AS ONE PAR

Mr. Assistant Attorney General Stewart, TY FOR PURPOSES OF CHALLENGES IS VALID,

for the United States. Act March 3, 1911, § 287 (Comp. St. § 1264), under which several defendants may be treated

•468 one party for the purpose of peremptory *Mr. Justice MCKENNA delivered the opinchallenges, is constitutional.

ion of the Court. 2. CRIMINAL LAW Cm 822(1)-INSTRUCTION AS Indictment in nine counts under the Es

TO RIGHT OF JURY TO CALL ON THEIR OWN pionage Act. Preliminary to indicating the FUND OF GENERAL INFORMATION NOT ERRONE- special offenses we may say that the indictOUS IN CONNECTION WITH OTHER PORTIONS | ment charges that at the dates mentioned OF THE CHARGE.

therein the Philadelphia Tageblatt and the Where the acts charged against defendants Philadelphia Sonntagsblatt were newspapers under the Espionage Act were the publication in newspapers printed and published in the printed and published in the German lanGerman language of dispatches, which they al. guage in Philadelphia by the Philadelphia tered so as to give them a meaning that they Tageblatt Association, a Pennsylvania corpodid not originally bear, a charge that, in pass- ration of which defendants were officers; Peing on the question of the falsity of the publica- ter Schaefer being president, Vogel treasurtion, and the question "whether we at er, Werner chief editor, Darkow managing war," and other questions which were in like editor, and Lemke business manager. manner a matter of public knowledge and gen

That on the dates mentioned in the indicteral information, the jury had a right to call upon their fund of general information, held ment the United States was at war with the not erroneous, in connection with other por

Imperial German government and the de tions of the charge.

fendants “knowingly, willfully, and unlaw

fully" "caused to be printed, published and 3. CONSTITUTIONAL LAW Ow90 — RIGHT OF circulated in and through” one or other of FREE SPEECH IS NOT ABSOLUTE. Free speech is not an absolute right under ments of certain news items or dispatches

those newspapers false reports and statethe Constitution.

purporting to be from foreign places, or oth4. CRIMINAL LAW Ow737(1)—JURY ALONE IS erwise violated the Espionage Act through

CHARGED WITH CONSIDERATION AND DECI. editorials or other published matter.
SION OF FACTS.

In count 1 the charge is that the intent While it is sometimes the duty of the court was “to promote the success of the enemies to take a case from the jury, the jury alone of the United States, to wit, the said Imperiis charged with the consideration and decision of the facts of the case, and its function has al German government.” as definite a sanction as that of the court.

In counts 2, 3, and 4 the charge is the ob

struction of the "recruiting and enlistment 5. WAR ARTICLES HELD

service of the United States, to the injury of CONVICTION UNDER ESPIONAGE ACT.

the United States." Articles and editorials, published by defend

In count 5 the purpose of publication is ants in newspapers printed and published in the German language, held to support convic-charged to be the making of false reports tions under the Espionage Act, as having a

and statements with intent to promote the tendency to accomplish the forbidden purposes. success of the enemies of the United States.

In counts 6, 7, and 8 there are charges of 6. WAR 4-PROOF AS TO EFFECT OF, OB PEB

intent to like purpose. SONS AFFECTED BY, ARTICLES NOT NECESSARY. Where articles and editorials published by

Count 9 charges a conspiracy entered into defendants had a tendency to accomplish the by defendants to be executed through the

.469 purposes forbidden by the Espionage Act, it was not necessary to show their effect or the per- agency of the two *newspapers for the pursons affected.

pose: (a) To make false reports and state

ments with intent to interfere with the miliMr. Justice Brandeis, Mr. Justice Holmes, and tary and naval operations and success of the Mr. Justice Clarke, dissenting.

United States and to promote the success of In Error to the District Court of the Unit- its enemies; (b) to cause insubordination,

disloyalty, and mutiny in the military and ed States for the District of Pennsylvania.

naval forces of the United States; (c) to obPeter Schaefer, Paul Vogel, Louis Werner, struct the recruiting and enlistment service Martin Darkow, and Herman Lemke were of the United States. And there were specificonvicted of offenses, under the Espionage } cations in support of the charges.

TO

SUPPORT

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

•471

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Demurrers were opposed to the indictments made in the indictment and that therefore which stated in detail the insufficiency of the the court erred in refusing to instruct the indictment to constitute offenses. The de jury to acquit upon the counts charging the murrers were overruled; the court consider- offense. (2) “In passing upon the question ing that the grounds of attack upon the in- of falsity of the dispatches as published by dictment could be raised at the trial.

appellants and in passing upon any other The defendants were then arraigned and questions which are a matter of public pleaded not guilty and when called for trial knowledge and general information" the moved for a severance urging as the reason court erred in instructing the jury that "they that the courts had ruled that defendants had a right to call upon the fund of knowl. when tried jointly must join in "their chal- edge which was in their keeping." (3) The lenge to jurors." Counsel in effect said they court erred in refusing to instruct the jury contested the ruling and considered the stat. to render a verdict of not guilty upon all of ute upon which it was based to be “in dero- the counts in case of each of the defendants. gation of the individual's rights, guaranteed Assignments 1 and 3 may be considered toto him by the Constitution."

gether. They both depend upon an apprecia. Other grounds for severance were urged, but the court denied the motion, and to the tion of the evidence, *although assignment i ruling each of the defendants excepted. In

is more particular as to the offense charged. fortification of the motion for severance, at But neither can be discussed without a rethe selection of the jury, counsel, in succes

view of the evidence and a detailed estimasion for each defendant, challenged particu- tion of its strength, direct and inferential

. lar jurors peremptorily, expressing at the That, however, is impossible, as the evidence same time the acceptance by the other de- occupies over 300 pages of the record and fendants of the challenged jurors. After 10 counsel have not given us an analysis or comsuch challenges had been made counsel in- pendium of it, but have thrust upon us a terposed a peremptory challenge to other ju- transcript of the stenographer's notes of the rors in behalf of all of the defendants, stat- trial, which counsel for the government aptly ing as reasons that they “collectively” were says “presents” of the case “a picture of a not "bound by what their codefendants may

certain sort, but it is a picture which is conhave done with respect to any particular ju- stantly out of focus, being either larger than ror, and that, therefore, they are still within the reality or smaller.” However, we have their rights." The court denied the chal- accepted the labor it imposed, and have conlenge, ruling that under the provisions of the sidered the parts of the evidence in their act of Congress "all the defendants will be proper proportions and relation, and brought

them to an intelligible focus, and are of .470 deemed a single party, *and 10 challenges opinion that the court rightfully refused the having been exercised in the aggregate, the requested instructions, except as to the de right of challenge is exhausted.”

fendants Schaefer and Vogel. As to them Defendants excepted and the trial proceed we do not think that there was substantial ed resulting in a verdict as follows: Schaef-evidence to sustain the conviction. They er and Vogel guilty on count 9 only; Werner were acquitted, we have seen, of all the inon counts 1, 2, 4, and 9; Darkow on 1, 3, 5, dividual and active offenses, and found guil6, and 9; Lemke on count 9 only.

ty only on the ninth count-the charge of Motions for arrest of judgment and for a

conspiracy. new trial were made and overruled, and de

[2] The second assignment of error is somefendants were sentenced to various terms of what confusedly expressed. It, however, pre imprisonment.

sents an exception to the charge of the court The case is here upon writ of error directo as to what the jurors were entitled to conly to the District Court as involving consti- sider as matters of public knowledge and tutional questions.

general information. Counsel apparently [1] It is conceded that the constitutionality urge against the charge that it submitted all of the Espionage Act has been sustained (Su- the accusations of the indictment to the proot garman v. United States, 249 U. S. 182, 39 of the public knowledge and general informaSup. Ct. 191, 63 L Ed. 550), but the constitu- tion that the jurors possessed. The charge is tionality of the act of March 3, 1911, c. 231, is precluded except through a consideration

not open to the contention, and as discussion 8 287 (Comp. St. $ 1264), by which several defendants may be treated as one party for the of the instructions in their entirety, we anpurpose of peremptory challenges, is attack- swer the contention by a simple declaration ed. Its constitutionality is established by

of dissent from it based, howerer, we may Stilson v. United States, 250 U. S. 583, 40 say, on a consideration of the instructions as Sup. Ct. 28, 63 L. Ed. 1154, decided November

a whole not in fragments detached and iso

lated from their explanations and qualifica10, 1919.

•472 The other assignments of error are: (1) tions. Counsel at the trial attempted *to asThe government failed to prove the charge of sign to the charge the generality they now making false statements as the same was assert and it was rejected.

2

(40 Sup. Ct.) It is difficult to reach or consider the par- The charge itself refutes such sweeping ticulars of counsel's contention, the founda- | characterization. Nor is it justified.

The tion of which seems to be that the indictment court said: charged the falsification of the “dispatches,"

“The real offense with which these defendants and that, therefore, the government must

are charged is in putting out these false stateprove the falsification of them. What coun- ments. They received them from a source. sel mean by "falsification," is not easy to That source purported to be the report of a represent, they conceding there was proof dispatch, and the evidence in this case would that “the articles which were published differ seem to direct your minds in at least some of from the articles in the papers from which these instances, perhaps in many of them, to they were copied,” but contending that no ev- just where the report of the dispatch appeared. idence was offered of what was contained in the charge is, in plain words, that they garbled

They took that report as it came to them, and the original dispatches of which the publica- it, sometimes by adding something to it, and tions purported to be copies. And again sometimes by leaving things out, and sometimes counsel say:

by a change of words. But the substantial thing “The falsity, as it has been called, which which you are to pass upon is: Was the report

or statement that they put out false ? Was was proven against the defendants was that the it willfully and knowingly false ? Was it put articles which were published differ from the

out thus falsified with the intent to promote the articles in the papers from which they were

success of the enemies of the United States." copied."

In other words, the minds of the jurors The charge and proof, therefore, were of

were directed to the gist of the case, which alterations-giving the “dispatches" by a

was dispatches received and then changed to change or characterization a meaning that they did not originally bear-a meaning that express falsehood, to the detriment of the weakened the spirit of recruiting and de- and effect of change the jurors might judge

success of the United States, and the fact stroyed or lessened that zeal and animation of from the testimony as presented and necessary or helpful to raise and operate our "from the fund of information which was armies in the then pending war. And there in” their “keeping"; that is, from the fact could be no more powerful or effective in

•474 struments of evil than two German newspa- of the source *from which the dispatches were pers organized and conducted as these papers received, from the fact of war and what was were organized and conducted.

necessary for its spirit and effective conduct, Such being the situation, and the defend- and how far a false cast to the dispatches ants having testified in their own behalf, received was depressing or detrimental to and having opportunity of explanation of the patriotic ardor. See Stilson United changes they made of the articles which they States, supra. copied, the court instructed the jury as fol- This disposes of the case on the exceptions lows:

which are argued. Exceptions 1 and 2 are

Ex"In passing upon this question of falsity and specific, and we have discussed them. in passing upon this question of intent and inception 3 is general, and involves, not only passing upon, of course, the question of whether the points we have discussed and selected by or not we are at war, you are permitted to use counsel for discussion, but involves, besides, your general knowledge. I will withdraw the every other objection to the instructions and reference to the intent, but in passing upon the sufficiency of the evidence, in all the asthe question of the falsity of these publications, pects they can be viewed and estimated. in passing upon the ques* tion whether we are at

And as being within its comprehension we war, and in passing upon any other questions are confronted with a contention that the inwhich are in like manner a matter of public dictment and conviction are violative of the knowledge and of general information you have freedom of speech and of the press protected the right to call upon the fund of general in- by the Constitution of the United States. formation which is in your keeping."

The contention is a serious one, and, in its

justification, it is urged that the power of The criticism counsel make of the charge Congress to interfere with the freedom of is that

speech and of the press must be judged by "Without any proof whatsoever he [the judge) an exercise of reason on the circumstances. permitted them (the jury] to apply their general Therefore, in justice to the tribunal below, knowledge in determining whether the dispatch- indeed to ourselves, we must give attention es published by the defendants contained false to the contention. statements."

[3] It is not very susceptible of measure

ment. It is difficult to separate, in view of Indeed, counsel go further, and insist the contentions that are made, a judgment of that

the law from a judgment of conviction under “The charge gave to the jury án unlimited the law, and keep free from confusing conright to use any general information at their siderations. Free speech is not an absolute disposal in reaching their verdict."

right, and when it or any right becomes

V.

•473

•475

wrong by excess is somewhat elusive of defi- , mated, have taken the case from the jury? nition. However, some admissions may be To do so is sometimes the duty of a court, made. That freedom of speech and of the but it is to be remembered a jury is a tribupress are elements of liberty all will acclaim. nal constituted by law, as the court is, its Indeed, they are so intimate to liberty in function has as definite sanction as that of every one's convictions—we may say feelings the court, and it alone is charged with the —that there is an instinctive and instant re- consideration and decision of the facts of a volt from any limitation of them, either by case. And the duty is of such value as to law or a charge under the law, and judgment have been considered worthy of constitutionmust be summoned against the impulse that al provision and safeguard. See Traction Co.

v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. might cond*emn a limitation without consid- Ed. 873. eration of its propriety. But, notwithstand

If it be said this comment is but the exing this instant jealousy of any limitation of pression of commonplaces, we reply that comspeech or of the press, there is adduced an ionplaces are sometimes necessary to be instance of oppression by the government, brought forward, lest earnestness or interest and, it is said, to hold that publications such disregard them, and urge too far the superas those in this case

vising power of the court, which, we repeat, "can be suppressed as false reports, subjects to is subordinate to that of the jury on quesnew perils the constitutional liberty of the press, tions of fact, and certainly "a rule of reason" already seriously curtailed in practice under cannot be asserted for it upon a mere differpowers assumed to have been conferred upon ence in judgment. All the principles and the postal authorities.”

practices of the law are the other way. May If there be such practice, this case is not such rule be urged in an appellate court concerned with it. The assertion of its ex- against the concurrence of court and jury in istence, therefore, we are not called upon to the trial court, or if there be division in the consider, as there is nothing before us to appellate court, for which view may a satjustify it. Therefore, putting it aside, and isfaction of the rule be asserted? Passing keeping free from exaggerations and alarms by presumptions that may be challenged, an prompted by an imagination of improbable answer in this case may be left to the facts. conditions, we bring this case, as it should be But first as to the law. brought, like other criminal cases, to no oth

The indictment is based on the Espionage er scrutiny or submission than to the sedate Act, and that was addressed to the condition and guiding principles of criminal justice. of war, and its restraints are not excessive And this was the effort of the trial court, and

nor ambiguous. 1 We need not enumerate

.477 was impressed on the jury.

*them. There were directed against conduct The court drew the attention of the jury speech or writings—that was designed to to "the features which gave importance” to obstruct the recruitment or enlistment servthe case, but admonished it that they brought ice, or to weaken or debase the spirit of our a challenge to a sense of duty and a sense of armies, causing them, it might be, to operate justice, and that while the enforcement of to defeat and the immeasurable horror and any law made a "strong call” upon court and

calamity of it. jury, it could not

But simple as the law is, perilous to the "override the obligation of the other call, which country as disobedience to it was, offenders is to make sure that no man is found guilty of developed, and when it was exerted against a crime, unless the evidence points to bis guilt them challenged it to decision as a violation with the degree of certainty which the law requires."

of the right of free speech assured by the

Constitution of the United States. A curious Again, and we quote the words of the spectacle was presented. That great ordi. court:

nance of government and orderly liberty was “No people is fit to be self-governed whose invoked to justify the activities of anarchy juries, chosen from among the great body of the or of the enemies of the United States, and people, cannot give due consideration to cases by a strange perversion of its precepts it was of this kind, and who cannot give to any de-adduced against itself. In other words and fendant a fair and impartial trial, and render explicitly, though it empowered Congress to a just verdict. I know of no greater service an American citizen can perform for his country 1 “Sec. 3. Whoever, when the United States is at than to manifest by his attitude in cases of this war, shall willfully make or convey false reports or

false statements with intent to interfere with the kind that we are a people who *are governed operation or success of the military or naval forces by law, and who follow unswervingly that sense of the United States or to promote the success of of justice which we should follow. Calling up its enemies and whoever, when the United States just that spirit of justice, and breathing its is at war shall willfully cause or attempt to cause very atmosphere, let us go to a consideration of duty, in the military or naval forces of the United

insubordination, disloyalty, mutiny, or refusal of the real merits of this case."

States, or shall willfully obstruct the recruiting or [4] Did the admonition fulfill the duty of jury of the service or of the United States, shall be

enlistment service of the United States, to the inthe court, or should the court, as it is inti-l punished.

40 Stat. 219.

.476

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(40 Sup.Ct.) declare war, and war is waged with armies, and in hopelessness relax energy both in their formation (recruiting or enlisting) could preparation and action. If it and the other be prevented or impeded, and the morale of articles, which we shall presently refer to, the armies when formed could be weakened or

•479 debased by question or calumny of the motives *had not that purpose, what purpose had of authority, and this could not be made a

they? Were they the mere expression of crime—that it was an impregnable attribute peevish discontent, aimless, vapid, and innocof free speech, upon which no curb could be

uous? We cannot so conclude. We must put. Verdicts and judgments of conviction take them at their word, as the jury did, and were the reply to the challenge, and when ascribe to them a more active and sinister they were brought here our response to it was

purpose. They were the publications of a unhesitating and direct. We did more than newspaper, deliberately prepared, systematic, reject the contention; we forestalled all always of the same trend, more specific in shades of repetition of it, including that in some instances, it may be, than in others. the case at bar. Schenck v. United States, Their effect or the persons affected could 249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. 470; not be shown, nor was it necessary. The Frohwerk v. United States, 249 U. S. 204, tendency of the articles and their efficacy 39 Sup. Ct. 249, 63 L. Ed. 561 ; Debs v. United were enough for offense—their "intent" and States, 249 U. S. 211, 39 Sup. Ct. 252, 63 L. Ed. “attempt,” for those are the words of the 566; Abrams v. United States, 250 U. S. 616, law—and to have required more would have 40 Sup. Ct. 17, 63 L. Ed. 1173, decided No- made the law useless. It was passed in prevember 10, 1919. That, however, though caution. The incidence of its violation might .478

not be immediately seen, evil appearing only in some respects retrospect, *is a pertinent in- | in disaster, the result of the disloyalty entroduction to the facts of the pending case. gendered and the spirit of mutiny.

[5, 6] The charges of the indictment were The article was preceded by one July 4, against certain articles or editorials in the 1917, headed “For the Fourth of July," in newspapers published by defendants in Ger- which it was declared that, man and intended to be circulated in families and read by persons who understood that long been an empty formality, will this year

"The Fourth of July celebration, which has language. The articles were adapted to the become a miserable farce.” situation, and, we may say, allusion and innuendo could be as effective as direct charge,

England was represented as the enemy of and “coarse or heavy humor," when accom- the United States, carrying a hostility watchpanied by sneering headlines and derision of ful of opportunity from the time of the RevAmerica's efforts, could have evil influence. Solution through all crises, until the United And such was the character of the article up- States “had become so strong that nothing on which count 3 of the indictment was bas- could be undertaken against her.” And fured. It had the following headlines:

ther: "Yankee Bluff."

“The ruling classes of England have always

despised and hated the United States, and to“Professor Jenny Does Not Take the American day, while they flatter them, they still cherish Preparations for War Seriously."

the same feeling toward them.” "Ambassador Page Assures England That We Will Send Ten Million Men."

The emphasis of a paragraph was given to

the statement thatThe following, with some other comments, was in the body of the article:

"Under Wilson's régime the United States"

had “sprung to the side of England as its savior “The army of ten million and the hundred in time of need. They provided it with means thousand airships, which were to annihilate to carry on the war, and, when that wasn't Germany, have proved to be American boasts, enough, they sprang into the war themselves. wbich will not stand washing. It was worthy | History will some time pronounce its judgment of note how much the Yankees can yell their upon this.” throats out without spraining their mouths. This is in accord with their spiritual quality. They enjoy a capacity for lying, which is able

The aid so asserted to have been rendered to conceal to a remarkable degree a lack of to England by President Wilson was repre. thought behind a superfluity of words."

sented to have been in *opposition to the wish

es of the people, expressedCoarse indeed, this was, and vulgar to us; but it was expected to produce, and it may be "by the unwillingness of their [the United did produce, a different effect upon its read- States) young men to offer themselves as voluners. To them its derisive contempt may have The call for peace will come from the masses,

teers for the war. But it will not rest there. been truly descriptive of American feebleness and will demand to be heard. And the sooner and inability to combat Germany's prowess, the better. No blood has been shed yet, no hate and thereby chill and check the ardency of

or bitterness has yet arisen against Germany, patriotism and make it despair of success, who has never done this country any harm, but

.480

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