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has sent millions of her sons for its upbuilding. , a consequence of the war to turbulent resist. The sooner the American people come to their ance to it, and thus giving the article the senses and demand peace, the better and more character of the others, with a definite ilhonorable it will be for this country.”

lustration of the opposition to the war by a

Senator and his prophecy of a riotous protest The animus of the article and the effect by the people. It will be recalled that in expected of it need no comment to display. other articles the antagonism of the people It was followed, supplemented, we may say, to the war was declared, and in one of them and reinforced by another article July 7, it was said that the war was commenced “un1917. It (the latter) had for headlines the der Wilson's régime" and "without their (the words "Failure of Recruiting,” and recruiting people's) consent." failed, was its representation, notwithstand- In conclusion, we may add that there are ing an “advertising campaign was worked in the record what are called "intent" arat high pressure," and "all sorts of means ticles, which supplement and emphasize the were tried to stir up patriotism.” Its fur charges of the indictment, and, it is to be rether declaration was that

membered, that defendants were witnesses,

and had the opportunity of explanation, and “Germany was represented as a violator of all to preclude any misapprehension of the Gerhuman rights and all international law, yet ail in vain. Neither the resounding praises nor the And the jury could judge of the defendants

man originals or defect in their translation. obviously false accusations against Germany were of any avail. The recruits did not ma

by their presence. terialize."

*We have not deemed it necessary to con

sider the articles commented on with referThe cause was represented to be:

ence to the verdicts; the Abrams Case has

made it unnecessary. On any count of which “That the American who was not a coward"

any defendant was convicted he could have did "pot care to allow himself to be shot to satisfy British lust for the mastery of the been sentenced to 20 years' imprisonment. world,” and “the people instinctively recognized The highest sentence on any defendant was and felt” that “the pro-British policy of the five years. government is an error, which can bring nothing Further comment is unnecessary, and our but injury upon this country.”

conclusion is that the judgment must be af

firmed as to Werner, Darkow, and Lemke but It was then added that “the nation there-reversed as to Schaefer and Vogel; as to them fore” was doing the only thing it could still the case is remanded for further proceedings do, "since its desires were not consulted at

in accordance with this opinion.

So ordered. first.” It refused "to take part.”

The purpose is manifest, however the statements of the article may be estimated, wheth

Mr. Justice BRANDEIS delivered the foler as criminal means, violations of law, or the lowing [dissenting] opinion, in which Mr.

Justice HOLMES concurred: exercise of free speech and of the press, *and With the opinion and decision of this its statements were deliberate and willfully court, reversing the judgment against false; the purpose being to represent that the Schaefer and Vogel on the ground that there war was not demanded by the people but was was no evidence legally connecting them with the result of the machinations of executive the publication, I concur fully. But I am power, and thus to arouse resentment to it of opinion that the judgments against the and what it would demand of ardor and ef- other three defendants should also be reversfort. In final comment we may say that the ed, because either the demurrers to the serarticle in effect justified the German aggres- eral counts should have been sustained or a sions.

verdict should have been directed for each We do not deem it necessary to adduce the defendant on all of the counts. other charges of the indictment.

The extent to which Congress may, under however, refer to the plausibility of the ex- the Constitution, interfere with free speech, cuse of the alteration of Senator La Follette's was in Schenck v. United States, 249 U. S. speech, and remark that it disappears when 47, 52, 39 Sup. Ct. 247, 249 (63 L. Ed. 470), the speech is considered in connection with declared by à unanimous court to be this: the articles that preceded and followed it. The alterations were, it is true, of two words

“The question in every case is whether the

words only, but words of different import than and are of such a nature as to create a clear

are used in such circumstances those the Senator used. The Senator urged and present danger that they will bring about that the burden of taxation made necessary the substantive evils that Congress has a right by the war be imposed upon those who might to prevent. It is a question of proximity and profit by the war, in order to relieve those degree." who might suffer by it and be brought to "bread lines.” The article changed the words This is a rule of reason. Correctly apto "bread riots"; that is, changed the expres- plied, it will preserve the right of free speech sion of acceptance of what might come as both from suppression by tyrannous, well

.481

We may,

•483

In my

•486

(40 Sup.Ct.) meaning majorities, and from abuse by ir-y of these four were deemed by it of special responsible, fanatical minorities. Like many importance is shown by the fact that each other rules for human conduct, it can be of the three was made the subject of a sepa

rate count. applied correctly only by the *exercise of good

First. There were convictions on three judgment; and to the exercise of good judg-counts of willfully obstructing the recruiting ment calmness is, in times of deep feeling and enlistment service. The conviction of and on subjects which excite passion, as essential as fearlessness and honesty. The ly upon his having inserted the following re

the news editor of so obstructing rested wholquestion whether in a particular instance print from a Berlin paper in the Tageblatt: the words spoken or written fall within the permissible curtailment of free speech is, un

Yankee Bluff. der the rule enunciated by this court, one of degree; and because it is a question of degree “Professor Jenny Does Not Take the American the field in which the jury may exercise its

'Preparations for War Seriously. judgment is necessarily a wide one. But its “Ambassador Paige Assures England That We field is not unlimited. The trial provided for

Will Send Ten Million Men. is one by judge and jury, and the judge may "London, Aug. 5.- Ambassador Paige followed not abdicate his function. If the words were Lloyd George at Guild Hall in Plymouth, with of such a nature and were used under such a great speech. He declared there that the difcircumstances that men, judging in calmness, ferences between England and the United States could not reasonably say that they created a

in former times were only of a superficial naclear and present danger that they would ture, and that both peoples are now united inbring about the evil which Congress sought separably, to fight for freedom and against the and had a right to prevent, then it is the that the United States is ready for all sacrifices

He assures his hearers

Hydra of militarism. duty of the trial judge to withdraw the case

in order to end the war victoriously, and that, from the consideration of the jury; and, if if necessary, it will send 10,000,000 men to he fails to do so, it is the duty of the ap- France." pellate court to correct the error.

"Berlin, Aug. 5.-In the "Täglishe Rundschau,' opinion, no jury acting in calmness could rea- Professor Jenny writes under the title 'Amerisonably say that any of the publications set forth in the indictment was of such a char- canism' as *follows: Americans think in ex

Even acter or was made under such circumstances aggerations and talk in superlatives. as to create a clear and present danger, Ambassador Andrew White in his Memoirs falls

into superlatives in comparatively insignificant either that they would obstruct recruiting or

cases. He speaks of them as the most important that they would promote the success of the events of his life, and maintains that certain enemies of the United States. That they people have made an indelible impression on could have interfered with the military or him, whom others consider to be ordinary, avernaval forces of the United States or have age men. caused insubordination, disloyalty, mutiny, "The army of 10,000,000 men has dwindled to or refusal of duty in its military or naval a voluntary army of 120,000; while the new services was not even suggested; and there conscripted army of 565,000 will not even be was no evidence of conspiracy, except the ready to begin drilling for the front in six

months. The 100,000 air ships were reduced to co-operation of editors and business manager 20,000, and then to 3,000, which the Ameriin issuing the publications complained of.

cans hope to have ready for next summer, if The nature and possible effect of a writ- they find the right model for them. As for the ing cannot be properly determined by cull-thousands of ships that were to be sent across ing here and there a sentence and present. the ocean, America, six months after the decing it separated from the context. In mak- | laration of war, has not yet decided whether ing such determination, it should be read as they are to be wood or steel ships; so far not a whole; at least, if it is short, like these

even the keel of one ship has been laid. It

amounts to this: That now, when the Amernews items and editorials. Some*times it

icans can scrape some tonnage together, the is necessary to consider, in connection with

troops are not ready, and when they have the

troops ready, the tonnage will not be available. it, other evidence which may enlarge or

“The army of 10,000,000 and the 100,000 airotherwise control its meaning, or which may ships which were to annihilate Germany have show that it was circulated under circum- proved to be American boasts, which will not stances which gave it a peculiar significance stand washing. It is worthy to note how much or effect. But no such evidence was intro- the Yankees can yell their throats out without duced by the government. The writings here spraining their mouths. This is in accord with in question must speak for themselves. Fif-their spiritual quality. They enjoy a capacity teen publications were set forth in the indict-able degree a lack of thought behind a super

for lying, which is able to conceal to a remarkment; and others were introduced in evi- fluity of words. dence. To reproduce all of them would un

"But some fine day, if they do not stop their duly prolong this opinion. Four are select- boasting and blufling, it might happen to them ed which will illustrate the several conten- that they get the lockjaw, for which there is tions of the government. That at least three

no better relief than a good box on the ear,

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zur

nun

von

aus

nicht

es,

Moreover, it is not to be assumed that the three items following illustrates a different Americans are really in earnest with the war. method by which the variation was effected: No one would be surprised if they found a

I. The publication for which the news thousand and one excuses for taking no active editor was convicted on the fifth count by part in the European War."

reason of an addition to the item copied: .486

(The translation of (The original Tage *It is not apparent on a reading of this the Tageblatt item as blatt item as set forth article which is not unlike many reprints set forth in the indict- in the indictment:) from the press of Germany to which our ment:) patriotic societies gave circulation in order to arouse the American fighting spirit-how

"Further Economies. Weitere Einschränk

"Amsterdam, it could rationally be held to tend even re

ungen, Septem

ber 2.-It has been remotely or indirectly to obstruct recruiting. ported here that permis- Es wird hier gemeldet,

Amsterdam, 2. Sept.But as this court has declared, and as Pro- sion to export the wheat dasz der Export von Welfessor Chafee has shown in his "Freedom of and flour on the ships zen und Mehl auf den in Speech in War Time,” 32 Harvard Law Re- held in New York has New York zurückgebalt

been refused. Informa- enen Schiffen verweigert view, 932, 963, the test to be applied—as tion to this effect is con- wurde. Eine diesbezügin the case of criminal attempts and incite- tained in an official proc- liche Mittheilung ist in ments—is not the remote or possible effect.

lamation of the latest einer amtlichen ErklärThere must be the clear and present danger. of the need for economy tionen-Verringerung und

cut in bread rations and ung der jüngsten BrotraCertainly men, judging in calmness and with which has reached the der Aufforderung this test presented to them, could not rea

civil authorities: This Einschränkung enthalten, sonably have said that this coarse and heavy know now with certainty hörden zuging. In der

document says: 'We welche den Gemeindebehumor immediately threatened the success of that we cannot count up- selben beiszt es: "Wir recruiting. Compare United States v. Hall, on the import of bread- wissen

bestimmt, (D. C.) 248 Fed. 150; United States v. stuffs from America and dasz wir auf die Einfubr

that we must strive to Schutte (D. C.) 252 Fed. 212; Von Bank v.

Brotgetreide make our own provisions Amerika

rechnen United States, 253 Fed. 641, 165 C. C. A. suffice. In initiated cir- können, und dasz wir uns 267; Balbas v. United States, 257 Fed. 17, cles it is said that under bemühen müssen, mit den 168 C. C. A. 229; Sandberg V. United

no conditions can the new eigenen Vorrätben auszu

American proposal be ac- kommen."-In eingeweihStates, 257 Fed. 643, 168 C. C. A. 593; Kam- cepted, and that the food- ten Kreisen beiszt man v. United States (C. O. A.) 259 Fed. 192; stuffs may rot before the dasz man auf den neuen Wolf v. United States (C. C. A.) 259 Fed. 388, ships will be unloaded.'" Vorschlag Amerikas un

ter keinen Umständen 391, 392.

eingehen und das GeSecond. There were convictions on three

treide eher verfaulen lascounts of willfully conveying false reports

sen wird, als die Schiffe and statements with intent to promote the

auszuladen. success of the enemies of the United States.

.488 The Tageblatt, like many of the smaller

*The falsification charged is said to consist newspapers, was without a foreign or a na in having added to the dispatch which was tional news service of any kind, and did not copied from the Staatszeitung the words: purport to have any. It took such news usually from items appearing in some other

"In initiated circles it is said that under no paper theretofore published in the German conditions can the new American proposal be or the English language. It did not in any accepted, and that the foodstuffs may rot beway indicate the source of its news.

fore the ships will be unloaded."

The item, if taken from the English press, was of course translated. Sometimes it was

But it is obvious, upon comparing the Eng. copied in full, sometimes in part only, and lish translation with the German original, sometimes it was rewritten, or editorial com

that the defendant did no such thing. What ment was added. The government did not occurred was this: The sentence referred to attempt to prove that any statement made was not made a part of the dispatch in the in any of the news items published in the Tageblatt. It followed the dispatch; it was Tageblatt was false in fact Its evidence, not within the quotation marks, and was sep*487

arated from it by a dash-a usual method of *under each count, was limited to showing indicating that what follows is comment or that the item as published therein varied in an addition made by the editor. In the Eng. some particular from the item as it appear- lish translation, as set forth in the indicted in the paper from which it had been ment, this sentence, through some inadvert. copied; and no attempt was made to prove ence of the government's translator or draftsthe original dispatch to the latter paper. man, was included as part of the dispatch The government contended that solely be- and brought with the quotation therein. Evi. cause of variation from the item copied it dently both the jury and the trial judge failwas a false report, although the item in the ed to examine the German original.

Tageblatt did not purport

to reproduce an 2. One of the publications for which the

item from another paper, and in no way in- news editor was convicted on the first count dicated the source of the news. Each of the I because of an omission from the item copied:

.489

(40 Sup.Ct.) "Ready for the Fray?

the consequences would be that next winter "St. Petersburg, September 7th. The Russian bread riots could be expected in the big cities. Baltic Fleet will defend Kronstadt and Reval, He recommended the acceptance of amendments and through them the Russian capital itself. by which further taxation of large incomes and The commanders of the two fortresses bave big war profits would be effected, which would made this report to the provisional government. bring the total amount of the bill to about A large part of the Baltic fleet was under con

$3,500,000,000. trol of the Maximalists, who hitherto have on

“Senator La Follette declared that wealth had posed Kerensky. The commanders of Sveaborg never, in any war, offered itself on the altar of and Helsingfors have also telegraphed their as- patriotism. He attacked the proposed issue of surance to the government that the Baltic fleet bonds and prophesied that the Liberty Bonds has expressed its willingness to offer desperate would eventually find their way into the bands resistance, in case the Germans should make of the rich, if they had not already done so. a naval attack upon the strongholds between 'But, he continued, this is not all, for war, Riga and the capital.

and principally the sale of bonds, leads inevi

tably to inflation. This raises prices and through “Investigation of the Fall of Riga.

that the cost of living for the great mass of “The Russians devastated the land through people is raised. Reason and experience teach

us that the policy of financing a war for the which they *retreated from Riga, in order to im- most part by borrowing the necessary money, pede the German advance. Roads were broken is in itself one of the worst financial burdens up, bridges destroyed and provisions burned. that war imposes upon men. But wealth is alA special commission has been set up by Pre ways a powerful factor in the Government. It mier Kerensky to investigate the fall of Riga. fattens on war loans and war contracts as well As far as reports have so far been permitted to

as on speculation, which is not wanting in appear, it is established that only two regi- time of war. Upon these grounds the rich are ments gave up their positions without fighting, always in favor of war, and when they have sucand the others offered the attacking Germans ceeded in bringing on a war, they are often powbold resistance. The retreat was carried out in erful enough with ministers of war and parliaan orderly manner, in spite of pursuit by the ments and congresses to force the maximum of German armies. The first of these, advancing loans and to reduce taxation to a minimum by along the coast in the region of Dunaburg, is every possible intrigue and argument. apparently endeavoring to reach Berna, on the

* *And that is the case with us in this war. Gulf of Riga. The second German army is Within thirty days after the declaration of war pressing along the Pskoff road to execute a wealth had precipitated us into bond issues of turning movement, while the third is energet- unheard of size. Morgan came to the city, the ically pushing in a northeasterly direction

•491 against Ostroff. The Germans are showing press urged it, the administration *commanded signs of nervousness in advancing through this it, and Congress authorized the issue of five bilmarshy lake-strewn country, which are increas- lions of untaxable Government bonds and two ed by the Russian resistance.'

billions of interest bearing Treasury notes.'

“Senator La Follette attacked the program of The falsification here is said to consist in the administration under which a new tax measthe omission from the end of the first para- ure will be introduced next winter. 'Of what graph of the following sentence which ap- terest is served if taxes on incomes and war

use is the postponement?' he asked, 'Whose inpeared in the paper from which the item was profits are kept down and the masses are detaken:

livered over to the money lenders as security for "From this it can be concluded that the fall an enormous and wickedly disproportionate isof Riga has united the opposing political fac- sue of bonds?' He insisted that the policy of tions in Russia."

financing the war should at once be decided

upon. 3. The publication for which the news edi- " 'To-day the way is clear,' he explained, 'hestor was convicted on the sixth count, because itation to provide now for heavy taxes would of the change of a word in the item copied: not be a mistake, it would be something worse.'

“Senator La Follette reviewed the financial War of the Rich.

history of previous American wars. We must “Senator La Follette Thinks They Ought Not not repeat such mistakes,' he said, “it would be to Make a Cent of Profit.

blind madness if we did not learn from the mis

takes that were made in previous wars. A mis"Hot Fight in the Senate Over Increased

take that we make now may be fatal. It would Taxation of War Profits.

certainly cost us untold millions of dollars and “Washington, August 21.-Taxation of riches thousands upon thousands of lives, as by it we in such a measure that the burdens of the cost would prolong the war unnecessarily. of the war will be taken from the shoulders of “ 'As long as one man can be found who the poor man was recommended today in the makes war profits, I am in favor of taking Senate by Senator La Follette in a long speech. away in taxes such part of those profits as the

Government requires, and the Government needs He declared that the proposed two billion *dol- the whole of such profits before adding a penny lar bill as drawn up in the Senate's Committee to the taxation of people who are already stagon Financial Affairs is impractical because it gering under heavy burdens by reason of the covers less than seventeen per cent, of the war higher prices occasioned by the war. This Axpenses of the first year and from this would may be a new principle in war financing, but result the necessity of issuing bonds for bil- it is the least that one can do for the mass of lions of dollars. Bonds, however, mean the the people, and it is considerably less than simsame as an increased cost of living, and one of ple justice would demand for them.

.490

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“'The great mass of the people bear the costs, the third, if it can be deemed a false report, of war, although they may not be directly taxed obviously could not have promoted the suc. one dollar. The great mass of the people pay

cess of our enemies. The other publications in higher prices and pro-longed hours of labor. set out in the indictment were likewise imThey pay in service, not alone on the battle potent to produce the evil against which the field, but whenever men and women work hard statute aimed. all day long. But more than all this, they pay Darkow, the news editor, and Werner, the the cost of war with their blood, and their editor, were each sentenced to five years in lives, and what is the greatest sacrifice of all, the penitentiary; Lemke, the business manawith the blood and lives of their loved ones. 'If bread lines are a familiar sight in every

ger, to two years. The jury which found city in the land, as they undoubtedly will be if

men guilty for publishing news items or edithe present prices of the most necessary sup-torials like those here in question must have plies for living hold firm during the coming supposed it to be within their province to winter, if cold and hunger become daily guests condemn men, not merely for disloyal acts, with thousands of families, who, until now, but for a disloyal heart: provided only that have only known comfort, a condition which is the disloyal heart was evidenced by some certain to come about during the coming winter months, if no help against the present level of utterance. To prosecute men for such publiprices can be found, then it is my opinion that cations reminds of the days when men were the members of this Congress will do little hanged for constructive treason. And, inenough if they come to realize that they are deed, the jury may well have believed from adding tò the privations and pains of the mass the charge that the Espionage Act had in of the people if they hesitate to place even a effect restored the crime of constructive treafairly moderate portion of the financial burden upon the rich.'»

son.2 To hold that such harmless addi*tions Falsification is charged solely because the to or omissions from news items, and such word "Brot-riots" (translated as "bread

impotent expressions of editorial opinion, as

were shown here, can afford the basis even riots") was used in the eleventh line of the

of a prosecution, will doubtless discourage article, instead of the word "Brodreihen" (translated as "bread-lines").

criticism of the policies of the government. The act punishes the willful making and

The presiding judge in charging the jury said conveying of "false reports and false state of the act:

Its general purpose is to proments with intent to interfere with the op- tect our military strength and efficiency to proeration or success of the military or naval tect ourselves against anything which would pro

mote the success of our enemies by undermining forces of the United States or to promote the our morale, lessening our will to win; or as it is success of its enemies." Congress sought generally expressed, our will to conquer, thereby to protect the American people from creating divisions among our people.

"These acts which are prohibited are treasonable being willfully misled to the detriment of in the sense in which that word is used, in the their cause by one actuated by the intention common speech of the people. Indeed, they may to further the cause of the enemy. Willfully constituto legal treason as defined in some jurisuntrue statements which might mislead the United States, for the simple reason that there is

dictions, but they are treason against the people as to the financial condition of the

a provision in our Constitution (which of course, government and thereby embarrass it; as to the acts of Congress follow), that treason against the adequacy of the preparations for war or

the United States--you will observe that it does not the support of the forces; as to the suffisay treason generally,' but treason against the

United States, shall consist only in making war ciency of the food supply; or willfully un- upon them, or in adhering to their enemies, giving true statements or reports of military opera-them aid and comfort, and there is another provi

sion to the effect that no person shall be convicted tions *which might mislead public opinion as

of the crime of treason unless there are two wit

nesses to the same overt act, making, as you will to the competency of the army and navy or

see, it perfectly clear that mere words, whether its leader (see "The Relation Between the published or not, as long as they are mere words, Army and the Press in War Time," War Col- do not constitute the crime of treason, but they lege Publication, 1916); or willfully untrue circumstances as to become deeds or acts in them

must be words uttered and published under such statements or reports which might mislead selves, as 'words' may be. So that words, unless officials in the execution of the law, or mili- there is something to which they may attach and tary authorities in the disposition of the unless the direct, natural, and reasonably to be forces—such is the kind of false statement, enemy, do not constitute the crime of treason.

expected consequences of them would be to aid the and the only kind, which, under any rational Every man will observe, however, that even mere construction, is made criminal by the act. words may be fraught with consequences which Could the military and naval forces of the

although too

to constitute the crime of treason,

nevertheless words which are United States conceivably have been inter- fraught

awful consequences, fered with, or the success of the enemy con- and that therefore it is properly within the prorceivably have been promoted by, any of the ince of the law to prohibit .. and make it three publications set forth above? Surely, what the law does.

a crime even to utter them. This is in substance

Congress could not call some neither the addition to the first nor the omis- mere words treason, because the Constitution prosion from the second constituted the making hibits it, but there is no constitutional limitation of a false statement or report. The mis

on the power of Congress to declare those things

& crime against the law which Congress has done translation of "breadlines" in one passage of in this act.

not

•493

remote
may
with most

be

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