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(251 U. S. 466)

(40 Sup.Ct.)

SCHAEFER v. UNITED STATES. VOGEL
V. SAME. WERNER v. SAME. DAR-
KOW v. SAME. LEMKE v. SAME.
(Argued Oct. 21, 1919. Decided March 1, 1920.)

Nos. 270-274.

1. JURY 84 STATUTE AUTHORIZING SEVERAL DEFENDANTS TO BE TREATED AS ONE PARTY FOR PURPOSES OF CHALLENGES IS VALID.

Act March 3, 1911, § 287 (Comp. St. § 1264), under which several defendants may be treated as one party for the purpose of peremptory challenges, is constitutional.

2. CRIMINAL LAW 822(1)—INSTRUCTION AS
TO RIGHT OF JURY TO CALL ON THEIR OWN
FUND OF GENERAL INFORMATION NOT ERRONE-
OUS IN CONNECTION WITH OTHER PORTIONS

OF THE CHARGE.

Where the acts charged against defendants under the Espionage Act were the publication in newspapers printed and published in the German language of dispatches, which they al tered so as to give them a meaning that they did not originally bear, a charge that, in passing on the question of the falsity of the publication, and the question "whether we are at war," and other questions which were in like manner a matter of public knowledge and general information, the jury had a right to call upon their fund of general information, held not erroneous, in connection with other portions of the charge.

3. CONSTITUTIONAL LAW 90. RIGHT OF

FREE SPEECH IS NOT ABSOLUTE.

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*Mr. Justice MCKENNA delivered the opinion of the Court.

Indictment in nine counts under the Espionage Act. Preliminary to indicating the special offenses we may say that the indictment charges that at the dates mentioned therein the Philadelphia Tageblatt and the Philadelphia Sonntagsblatt were newspapers printed and published in the German language in Philadelphia by the Philadelphia Tageblatt Association, a Pennsylvania corporation of which defendants were officers; Peter Schaefer being president, Vogel treasurer, Werner chief editor, Darkow managing editor, and Lemke business manager.

That on the dates mentioned in the indict

ment the United States was at war with the Imperial German government and the defendants "knowingly, willfully, and unlawfully" "caused to be printed, published and circulated in and through" one or other of those newspapers false reports and statements of certain news items or dispatches purporting to be from foreign places, or oth4. CRIMINAL LAW 737(1)—JURY ALONE IS erwise violated the Espionage Act through CHARGED WITH CONSIDERATION AND DECI-editorials or other published matter. SION OF FACTS.

Free speech is not an absolute right under the Constitution.

While it is sometimes the duty of the court to take a case from the jury, the jury alone is charged with the consideration and decision of the facts of the case, and its function has as definite a sanction as that of the court. 5. WAR 4-ARTICLES HELD то SUPPORT CONVICTION UNDER ESPIONAGE ACT.

Articles and editorials, published by defendants in newspapers printed and published in the German language, held to support convictions under the Espionage Act, as having a tendency to accomplish the forbidden purposes. 6. WAR 4-PROOF AS TO EFFECT OF, OR PERSONS AFFECTED BY, ARTICLES NOT NECESSARY.

Where articles and editorials published by defendants had a tendency to accomplish the purposes forbidden by the Espionage Act, it was not necessary to show their effect or the per

sons affected.

Mr. Justice Brandeis, Mr. Justice Holmes, and Mr. Justice Clarke, dissenting.

In count 1 the charge is that the intent was "to promote the success of the enemies of the United States, to wit, the said Imperial German government."

In counts 2, 3, and 4 the charge is the obstruction of the "recruiting and enlistment service of the United States, to the injury of the United States."

In count 5 the purpose of publication is charged to be the making of false reports and statements with intent to promote the success of the enemies of the United States.

In counts 6, 7, and 8 there are charges of intent to like purpose.

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

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agency of the two newspapers for the purpose: (a) To make false reports and statements with intent to interfere with the military and naval operations and success of the United States and to promote the success of its enemies; (b) to cause insubordination, disloyalty, and mutiny in the military and 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.

In Error to the District Court of the United States for the District of Pennsylvania.

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

Demurrers were opposed to the indictment [ made in the indictment and that therefore which stated in detail the insufficiency of the indictment to constitute offenses. The demurrers were overruled; the court considering that the grounds of attack upon the indictment could be raised at the trial.

The defendants were then arraigned and pleaded not guilty and when called for trial moved for a severance urging as the reason that the courts had ruled that defendants when tried jointly must join in "their challenge to jurors." Counsel in effect said they contested the ruling and considered the statute upon which it was based to be "in derogation of the individual's rights, guaranteed to him by the Constitution."

Other grounds for severance were urged, but the court denied the motion, and to the ruling each of the defendants excepted. In fortification of the motion for severance, at the selection of the jury, counsel, in succession for each defendant, challenged particular jurors peremptorily, expressing at the same time the acceptance by the other defendants of the challenged jurors. After 10 such challenges had been made counsel interposed a peremptory challenge to other jurors in behalf of all of the defendants, stating as reasons that they "collectively" were not "bound by what their codefendants may have done with respect to any particular juror, and that, therefore, they are still within their rights." The court denied the challenge, ruling that under the provisions of the act of Congress "all the defendants will be

*470

deemed a single party, and 10 challenges having been exercised in the aggregate, the right of challenge is exhausted."

Defendants excepted and the trial proceeded resulting in a verdict as follows: Schaefer and Vogel guilty on count 9 only; Werner on counts 1, 2, 4, and 9; Darkow on 1, 3, 5, 6, and 9; Lemke on count 9 only.

Motions for arrest of judgment and for a new trial were made and overruled, and defendants were sentenced to various terms of imprisonment.

The case is here upon writ of error directly to the District Court as involving constitutional questions.

the court erred in refusing to instruct the jury to acquit upon the counts charging the offense. (2) "In passing upon the question of falsity of the dispatches as published by appellants and in passing upon any other questions which are a matter of public knowledge and general information" the court erred in instructing the jury that "they had a right to call upon the fund of knowl edge which was in their keeping." (3) The court erred in refusing to instruct the jury to render a verdict of not guilty upon all of the counts in case of each of the defendants. Assignments 1 and 3 may be considered together. They both depend upon an appreciation of the evidence, although assignment 1 471 is more particular as to the offense charged. But neither can be discussed without a re

view of the evidence and a detailed estima. tion of its strength, direct and inferential.

That, however, is impossible, as the evidence occupies over 300 pages of the record and counsel have not given us an analysis or compendium of it, but have thrust upon us a transcript of the stenographer's notes of the trial, which counsel for the government aptly certain sort, but it is a picture which is consays "presents" of the case "a picture of a stantly out of focus, being either larger than the reality or smaller." However, we have accepted the labor it imposed, and have considered the parts of the evidence in their proper proportions and relation, and brought them to an intelligible focus, and are of opinion that the court rightfully refused the requested instructions, except as to the defendants Schaefer and Vogel. As to them we do not think that there was substantial evidence to sustain the conviction. They were acquitted, we have seen, of all the individual and active offenses, and found guilty only on the ninth count-the charge of conspiracy.

[2] The second assignment of error is somewhat confusedly expressed. It, however, presents an exception to the charge of the court as to what the jurors were entitled to consider as matters of public knowledge and general information. Counsel apparently urge against the charge that it submitted all the accusations of the indictment to the proof of the public knowledge and general informa tion that the jurors possessed. The charge is not open to the contention, and as discussion

[1] It is conceded that the constitutionality of the Espionage Act has been sustained (Sugarman v. United States, 249 U. S. 182, 39 Sup. Ct. 191, 63 L. Ed. 550), but the constitutionality of the Act of March 3, 1911, c. 231, § 287 (Comp. St. § 1264), by which several defendants may be treated as one party for the purpose of peremptory challenges, is attack-swer the contention by a simple declaration

ed.

Its constitutionality is established by Stilson v. United States, 250 U. S. 583, 40 Sup. Ct. 28, 63 L. Ed. 1154, decided November

10, 1919.

The other assignments of error are: (1) The government failed to prove the charge of making false statements as the same was

is precluded except through a consideration of the instructions in their entirety, we an

of dissent from it based, however, we may say, on a consideration of the instructions as lated from their explanations and qualificaa whole not in fragments detached and iso

⚫472

tions. Counsel at the trial attempted to as sign to the charge the generality they now assert and it was rejected.

(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," and that, therefore, the government must prove the falsification of them. What counsel mean by "falsification," is not easy to represent, they conceding there was proof that "the articles which were published differ from the articles in the papers from which they were copied," but contending that no evidence was offered of what was contained in the original dispatches of which the publications purported to be copies. And again counsel say:

“The falsity, as it has been called, which was proven against the defendants was that the articles which were published differ from the articles in the papers from which they were copied."

The charge and proof, therefore, were of alterations-giving the "dispatches" by a change or characterization a meaning that they did not originally bear—a meaning that weakened the spirit of recruiting and destroyed or lessened that zeal and animation necessary or helpful to raise and operate our armies in the then pending war. And there could be no more powerful or effective instruments of evil than two German newspapers organized and conducted as these papers were organized and conducted.

Such being the situation, and the defendants having testified in their own behalf, and having opportunity of explanation of the changes they made of the articles which they copied, the court instructed the jury as follows:

"In passing upon this question of falsity and in passing upon this question of intent and in passing upon, of course, the question of whether or not we are at war, you are permitted to use your general knowledge. I will withdraw the reference to the 'intent,' but in passing upon the question of the falsity of these publications,

*473

in passing upon the question whether we are at war, and in passing upon any other questions which are in like manner a matter of public knowledge and of general information you have the right to call upon the fund of general information which is in your keeping."

"The real offense with which these defendants are charged is in putting out these false statements. They received them from a source. That source purported to be the report of a dispatch, and the evidence in this case would seem to direct your minds in at least some of these instances, perhaps in many of them, to just where the report of the dispatch appeared. the charge is, in plain words, that they garbled They took that report as it came to them, and it, sometimes by adding something to it, and sometimes by leaving things out, and sometimes by a change of words. But the substantial thing

which you are to pass upon is: Was the report or statement that they put out false? Was it willfully and knowingly false? Was it put out thus falsified with the intent to promote the success of the enemies of the United States."

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Ex

This disposes of the case on the exceptions which are argued. Exceptions 1 and 2 are specific, and we have discussed them. ception 3 is general, and involves, not only the points we have discussed and selected by counsel for discussion, but involves, besides, every other objection to the instructions and the sufficiency of the evidence, in all the aspects they can be viewed and estimated.

And as being within its comprehension we are confronted with a contention that the indictment and conviction are violative of the freedom of speech and of the press protected by the Constitution of the United States. 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

"Without any proof whatsoever he [the judge] permitted them [the jury] to apply their general knowledge in determining whether the dispatches published by the defendants contained false statements."

speech and of the press must be judged by an exercise of reason on the circumstances. Therefore, in justice to the tribunal below, indeed to ourselves, we must give attention to the contention.

[3] It is not very susceptible of measurement. It is difficult to separate, in view of

Indeed, counsel go further, and insist the contentions that are made, a judgment of that

"The charge gave to the jury an unlimited right to use any general information at their disposal in reaching their verdict."

the law from a judgment of conviction under the law, and keep free from confusing considerations. Free speech is not an absolute right, and when it or any right becomes

wrong by excess is somewhat elusive of definition. However, some admissions may be made. That freedom of speech and of the press are elements of liberty all will acclaim. Indeed, they are so intimate to liberty in every one's convictions-we may say feelings -that there is an instinctive and instant revolt from any limitation of them, either by law or a charge under the law, and judgment must be summoned against the impulse that

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might condemn a limitation without consideration of its propriety. But, notwithstanding this instant jealousy of any limitation of speech or of the press, there is adduced an instance of oppression by the government, and, it is said, to hold that publications such as those in this case

"can be suppressed as false reports, subjects to new perils the constitutional liberty of the press, already seriously curtailed in practice under powers assumed to have been conferred upon the postal authorities."

If there be such practice, this case is not concerned with it. The assertion of its existence, therefore, we are not called upon to consider, as there is nothing before us to justify it. Therefore, putting it aside, and keeping free from exaggerations and alarms prompted by an imagination of improbable conditions, we bring this case, as it should be brought, like other criminal cases, to no other scrutiny or submission than to the sedate and guiding principles of criminal justice. And this was the effort of the trial court, and was impressed on the jury.

mated, have taken the case from the jury? To do so is sometimes the duty of a court, but it is to be remembered a jury is a tribunal constituted by law, as the court is, its function has as definite sanction as that of the court, and it alone is charged with the consideration and decision of the facts of a case. And the duty is of such value as to have been considered worthy of constitutional provision and safeguard. See Traction Co. v. Hof, 174 U. S. 1, 19 Sup. Ct. 580, 43 L. Ed. 873.

If it be said this comment is but the expression of commonplaces, we reply that commonplaces are sometimes necessary to be brought forward, lest earnestness or interest disregard them, and urge too far the supervising power of the court, which, we repeat, is subordinate to that of the jury on questions of fact, and certainly "a rule of reason" cannot be asserted for it upon a mere difference in judgment. All the principles and practices of the law are the other way. May such rule be urged in an appellate court against the concurrence of court and jury in the trial court, or if there be division in the appellate court, for which view may a satisfaction of the rule be asserted? Passing by presumptions that may be challenged, an answer in this case may be left to the facts. But first as to the law.

The indictment is based on the Espionage Act, and that was addressed to the condition of war, and its restraints are not excessive We need not enumerate nor ambiguous.1

477 *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

"override the obligation of the other call, which is to make sure that no man is found guilty of a crime, unless the evidence points to his guilt with the degree of certainty which the law requires."

But simple as the law is, perilous to the country as disobedience to it was, offenders developed, and when it was exerted against them challenged it to decision as a violation 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 ordicourt:

"No people is fit to be self-governed whose juries, chosen from among the great body of the people, cannot give due consideration to cases of this kind, and who cannot give to any defendant a fair and impartial trial, and render a just verdict. I know of no greater service an American citizen can perform for his country than to manifest by his attitude in cases of this *476

kind that we are a people who are governed by law, and who follow unswervingly that sense of justice which we should follow. Calling up just that spirit of justice, and breathing its very atmosphere, let us go to a consideration of the real merits of this case."

[4] Did the admonition fulfill the duty of the court, or should the court, as it is inti

nance of government and orderly liberty was invoked to justify the activities of anarchy or of the enemies of the United States, and by a strange perversion of its precepts it was adduced against itself. In other words and explicitly, though it empowered Congress to

1 "Sec. 3. 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 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, or shall willfully obstruct the recruiting or enlistment service of the United States, to the in

jury of the service or of the United States, shall be punished. ⚫

40 Stat. 219.

(40 Sup.Ct.)

declare war, and war is waged with armies, their formation (recruiting or enlisting) could be prevented or impeded, and the morale of the armies when formed could be weakened or

debased by question or calumny of the motives of authority, and this could not be made a crime that it was an impregnable attribute of free speech, upon which no curb could be put. Verdicts and judgments of conviction were the reply to the challenge, and when they were brought here our response to it was unhesitating and direct. We did more than reject the contention; we forestalled all shades of repetition of it, including that in the case at bar. Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. 470; Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. 249, 63 L. Ed. 561; Debs v. United States, 249 U. S. 211, 39 Sup. Ct. 252, 63 L. Ed. 566; Abrams v. United States, 250 U. S. 616, 40 Sup. Ct. 17, 63 L. Ed. 1173, decided November 10, 1919. That, however, though *478

in some respects retrospect, *is a pertinent introduction to the facts of the pending case. [5, 6] The charges of the indictment were against certain articles or editorials in the newspapers published by defendants in German and intended to be circulated in families

and read by persons who understood that language. The articles were adapted to the situation, and, we may say, allusion and innuendo could be as effective as direct charge, and "coarse or heavy humor," when accompanied by sneering headlines and derision of America's efforts, could have evil influence. And such was the character of the article upon which count 3 of the indictment was based. It had the following headlines:

"Yankee Bluff."

"Professor Jenny Does Not Take the American Preparations for War Seriously."

"Ambassador Page Assures England That We Will Send Ten Million Men."

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

"The army of ten million and the hundred thousand airships, which were to annihilate Germany, have proved to be American boasts, which will not stand washing. It was worthy of note how much the Yankees can yell their throats out without spraining their mouths. This is in accord with their spiritual quality. They enjoy a capacity for lying, which is able to conceal to a remarkable degree a lack of thought behind a superfluity of words."

and in hopelessness relax energy both in preparation and action. If it and the other articles, which we shall presently refer to,

⚫479

*had not that purpose, what purpose had they? Were they the mere expression of peevish discontent, aimless, vapid, and innocuous? We cannot so conclude. We must take them at their word, as the jury did, and ascribe to them a more active and sinister purpose. They were the publications of a newspaper, deliberately prepared, systematic, always of the same trend, more specific in some instances, it may be, than in others. Their effect or the persons affected could not be shown, nor was it necessary. The tendency of the articles and their efficacy were enough for offense-their "intent" and "attempt," for those are the words of the law-and to have required more would have made the law useless. It was passed in precaution. The incidence of its violation might not be immediately seen, evil appearing only in disaster, the result of the disloyalty engendered and the spirit of mutiny.

The article was preceded by one July 4, 1917, headed "For the Fourth of July," in which it was declared that

long been an empty formality, will this year "The Fourth of July celebration, which has become a miserable farce."

England was represented as the enemy of the United States, carrying a hostility watchful of opportunity from the time of the Revolution through all crises, until the United States "had become so strong that nothing could be undertaken against her." And fur

ther:

"The ruling classes of England have always despised and hated the United States, and today, while they flatter them, they still cherish the same feeling toward them."

The emphasis of a paragraph was given to the statement that

"Under Wilson's régime the United States" had "sprung to the side of England as its savior in time of need. They provided it with means to carry on the war, and, when that wasn't enough, they sprang into the war themselves. History will some time pronounce its judgment upon this."

The aid so asserted to have been rendered to England by President Wilson was repre*480 sented to have been in opposition to the wishes 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

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