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has sent millions of her sons for its upbuilding. ¡ a consequence of the war to turbulent resistThe sooner the American people come to their senses and demand peace, the better and more honorable it will be for this country."

The animus of the article and the effect expected of it need no comment to display. It was followed, supplemented, we may say, and reinforced by another article July 7, 1917. It (the latter) had for headlines the words "Failure of Recruiting," and recruiting failed, was its representation, notwithstanding an "advertising campaign was worked at high pressure," and "all sorts of means were tried to stir up patriotism." Its further declaration was that

"Germany was represented as a violator of all human rights and all international law, yet all

in vain. Neither the resounding praises nor the obviously false accusations against Germany were of any avail. The recruits did not materialize."

The cause was represented to be:

"That the American who was not a coward" did "pot care to allow himself to be shot to satisfy British lust for the mastery of the world," and "the people instinctively recognized and felt" that "the pro-British policy of the government is an error, which can bring nothing but injury upon this country."

It was then added that "the nation therefore" was doing the only thing it could still do, "since its desires were not consulted at first." It refused "to take part."

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

er as criminal means, violations of law, or the

*481

ance to it, and thus giving the article the character of the others, with a definite illustration of the opposition to the war by a Senator and his prophecy of a riotous protest by the people. It will be recalled that in other articles the antagonism of the people to the war was declared, and in one of them it was said that the war was commenced "under Wilson's régime" and "without their [the people's] consent."

In conclusion, we may add that there are in the record what are called "intent" articles, which supplement and emphasize the charges of the indictment, and, it is to be remembered, that defendants were witnesses, and had the opportunity of explanation, and to preclude any misapprehension of the German originals or defect in their translation. And the jury could judge of the defendants by their presence.

482

*We have not deemed it necessary to consider the articles commented on with reference to the verdicts; the Abrams Case has made it unnecessary. On any count of which any defendant was convicted he could have been sentenced to 20 years' imprisonment. The highest sentence on any defendant was five years.

Further comment is unnecessary, and our conclusion is that the judgment must be affirmed as to Werner, Darkow, and Lemke but reversed as to Schaefer and Vogel; as to them the case is remanded for further proceedings in accordance with this opinion. So ordered.

Mr. Justice BRANDEIS delivered the fol

lowing [dissenting] opinion, in which Mr.

Justice HOLMES concurred:

With the opinion and decision of this court, reversing the judgment against Schaefer and Vogel on the ground that there was no evidence legally connecting them with the publication, I concur fully. But I am of opinion that the judgments against the other three defendants should also be reversed, because either the demurrers to the sev

exercise of free speech and of the press, *and its statements were deliberate and willfully false; the purpose being to represent that the war was not demanded by the people but was the result of the machinations of executive power, and thus to arouse resentment to it and what it would demand of ardor and effort. In final comment we may say that the article in effect justified the German aggres-eral counts should have been sustained or a sions.

verdict should have been directed for each defendant on all of the counts.

The extent to which Congress may, under the Constitution, interfere with free speech, was in Schenck v. United States, 249 U. S. 47, 52, 39 Sup. Ct. 247, 249 (63 L. Ed. 470), declared by a unanimous court to be this: "The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear

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We do not deem it necessary to adduce the other charges of the indictment. We may, however, refer to the plausibility of the excuse of the alteration of Senator La Follette's speech, and remark that it disappears when the speech is considered in connection with the articles that preceded and followed it. The alterations were, it is true, of two words only, but words of different import than those the Senator used. The Senator urged that the burden of taxation made necessary by the war be imposed upon those who might profit by the war, in order to relieve those who might suffer by it and be brought to "bread lines." The article changed the words to "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

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."

This is a rule of reason.

Correctly ap

(40 Sup.Ct.)

meaning majorities, and from abuse by irresponsible, fanatical minorities. Like many other rules for human conduct, it can be

*483

of these four were deemed by it of special importance is shown by the fact that each of the three was made the subject of a separate count.

First. There were convictions on three counts of willfully obstructing the recruiting and enlistment service. The conviction of the news editor of so obstructing rested wholly upon his having inserted the following reprint from a Berlin paper in the Tageblatt:

Yankee Bluff.

"Professor Jenny Does Not Take the American
'Preparations for War Seriously.
"Ambassador Paige Assures England That We
Will Send Ten Million Men.

"London, Aug. 5.-Ambassador Paige followed Lloyd George at Guild Hall in Plymouth, with a great speech. He declared there that the differences between England and the United States in former times were only of a superficial nature, and that both peoples are now united inseparably, to fight for freedom and against the Hydra of militarism. He assures his hearers that the United States is ready for all sacrifices in order to end the war victoriously, and that, if necessary, it will send 10,000,000 men to

applied correctly only by the *exercise of good
judgment; and to the exercise of good judg-
ment calmness is, in times of deep feeling
and on subjects which excite passion, as
essential as fearlessness and honesty. The
question whether in a particular instance
the words spoken or written fall within the
permissible curtailment of free speech is, un-
der the rule enunciated by this court, one of
degree; and because it is a question of degree
the field in which the jury may exercise its
judgment is necessarily a wide one. But its
field is not unlimited. The trial provided for
is one by judge and jury, and the judge may
not abdicate his function. If the words were
of such a nature and were used under such
circumstances that men, judging in calmness,
could not reasonably say that they created a
clear and present danger that they would
bring about the evil which Congress sought
and had a right to prevent, then it is the
duty of the trial judge to withdraw the case
from the consideration of the jury; and, if
he fails to do so, it is the duty of the ap-France."
pellate court to correct the error.
In my
opinion, no jury acting in calmness could rea-
sonably say that any of the publications set
forth in the indictment was of such a char-
acter or was made under such circumstances
as to create a clear and present danger,
either that they would obstruct recruiting or
that they would promote the success of the
enemies of the United States. That they
could have interfered with the military or
naval forces of the United States or have
caused insubordination, disloyalty, mutiny,
or refusal of duty in its military or naval
services was not even suggested; and there
was no evidence of conspiracy, except the
co-operation of editors and business manager
in issuing the publications complained of.

The nature and possible effect of a writing cannot be properly determined by culling here and there a sentence and presenting it separated from the context. In making such determination, it should be read as a whole; at least, if it is short, like these #484

news items and editorials. Sometimes it is necessary to consider, in connection with it, other evidence which may enlarge or otherwise control its meaning, or which may show that it was circulated under circumstances which gave it a peculiar significance or effect. But no such evidence was introduced by the government. The writings here in question must speak for themselves. Fifteen publications were set forth in the indictment; and others were introduced in evidence. To reproduce all of them would unduly prolong this opinion. Four are selected which will illustrate the several contentions of the government. That at least three

"Berlin, Aug. 5.-In the "Täglishe Rundschau,' Professor Jenny writes under the title 'Ameri485

canism' as follows: Americans think in exEven aggerations and talk in superlatives. Ambassador Andrew White in his Memoirs falls into superlatives in comparatively insignificant cases. He speaks of them as the most important events of his life, and maintains that certain people have made an indelible impression on him, whom others consider to be ordinary, average men.

"The army of 10,000,000 men has dwindled to a voluntary army of 120,000; while the new conscripted army of 565,000 will not even be ready to begin drilling for the front in six months. The 100,000 air ships were reduced to 20,000, and then to 3,000, which the Americans hope to have ready for next summer, if they find the right model for them. As for the thousands of ships that were to be sent across the ocean, America, six months after the declaration of war, has not yet decided whether they are to be wood or steel ships; so far not even the keel of one ship has been laid. amounts to this: That now, when the Americans can scrape some tonnage together, the troops are not ready, and when they have the troops ready, the tonnage will not be available.

It

"The army of 10,000,000 and the 100,000 airships which were to annihilate Germany have proved to be American boasts, which will not stand washing. It is worthy to 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.

"But some fine day, if they do not stop their boasting and bluffing, it might happen to them that they get the lockjaw, for which there is no better relief than a good box on the ear.

Moreover, it is not to be assumed that the Americans are really in earnest with the war. No one would be surprised if they found a thousand and one excuses for taking no active part in the European War."

• 486

*It is not apparent on a reading of this article-which is not unlike many reprints from the press of Germany to which our patriotic societies gave circulation in order to arouse the American fighting spirit-how it could rationally be held to tend even remotely or indirectly to obstruct recruiting. But as this court has declared, and as Professor Chafee has shown in his "Freedom of Speech in War Time," 32 Harvard Law Review, 932, 963, the test to be applied-as in the case of criminal attempts and incitements-is not the remote or possible effect. There must be the clear and present danger. Certainly men, judging in calmness and with this test presented to them, could not reasonably have said that this coarse and heavy humor immediately threatened the success of recruiting. Compare United States v. Hall, (D. C.) 248 Fed. 150; United States v. Schutte (D. C.) 252 Fed. 212; Von Bank v. United States, 253 Fed. 641, 165 C. C. A. 267; Balbas v. United States, 257 Fed. 17, 168 C. C. A. 229; Sandberg v. United States, 257 Fed. 643, 168 C. C. A. 593; Kamman v. United States (C. C. A.) 259 Fed. 192; Wolf v. United States (C. C. A.) 259 Fed. 388, 391, 392.

Second. There were convictions on three counts of willfully conveying false reports and statements with intent to promote the success of the enemies of the United States. The Tageblatt, like many of the smaller newspapers, was without a foreign or a national news service of any kind, and did not purport to have any. It took such news usually from items appearing in some other paper theretofore published in the German or the English language. It did not in any way indicate the source of its news. The item, if taken from the English press, was of course translated. Sometimes it was copied in full, sometimes in part only, and

sometimes it was rewritten, or editorial comment was added. The government did not attempt to prove that any statement made in any of the news items published in the Tageblatt was false in fact. Its evidence,

*487

*under each count, was limited to showing that the item as published therein varied in some particular from the item as it appeared in the paper from which it had been copied; and no attempt was made to prove the original dispatch to the latter paper. The government contended that solely because of variation from the item copied it was a false report, although the item in the Tageblatt did not purport to reproduce an item from another paper, and in no way indicated the source of the news. Each of the

three items following illustrates a different method by which the variation was effected: I. The publication for which the news editor was convicted on the fifth count by reason of an addition to the item copied:

(The translation of (The original Tagethe Tageblatt item as blatt item as set forth set forth in the indict- in the indictment:) ment:)

Weitere Einschränk

ungen.

"Further Economies. "Amsterdam, September 2.-It has been re- Amsterdam, 2. Sept.

ported here that permis- Es wird hier gemeldet, sion to export the wheat dasz der Export von Weiand flour on the ships zen und Mehl auf den in held in New York has New York zurückgehalt

been refused. Informa

tion to this effect is contained in an official proc

of the latest

enen Schiffen verweigert wurde. Eine diesbezügliche Mittheilung ist in lamation einer amtlichen Erklärcut in bread rations and ung der jüngsten Brotraof the need for economy tionen-Verringerung und which has reached the der Aufforderung zur civil authorities: This Einschränkung enthalten, document says: 'We welche den Gemeindebe

know now with certainty hörden zuging.
that we cannot count up-
on the import of bread-
stuffs from America and
that we must strive to
make our own provisions
suffice. In initiated cir-
cles it is said that under
no conditions can the new
American proposal be ac-
cepted, and that the food-
stuffs may rot before the
ships will be unloaded.'"

In der

selben beiszt es: "Wir wissen nun bestimmt, dasz wir auf die Einfuhr von Brotgetreide aus Amerika nicht rechnen können, und dasz wir uns bemühen müssen, mit den eigenen Vorräthen auszukommen."-In eingeweihten Kreisen heiszt es, dasz man auf den neuen Vorschlag Amerikas unter keinen Umständen eingehen und das Getreide eher verfaulen lassen wird, als die Schiffe auszuladen.

488

*The falsification charged is said to consist in having added to the dispatch which was copied from the Staatszeitung the words:

"In initiated circles it is said that under no conditions can the new American proposal be accepted, and that the foodstuffs may rot before the ships will be unloaded."

But it is obvious, upon comparing the English translation with the German original, that the defendant did no such thing. What occurred was this: The sentence referred to was not made a part of the dispatch in the Tageblatt. It followed the dispatch; it was not within the quotation marks, and was separated from it by a dash-a usual method of indicating that what follows is comment or an addition made by the editor. In the English translation, as set forth in the indictment, this sentence, through some inadvertence of the government's translator or draftsman, was included as part of the dispatch and brought with the quotation therein. Evidently both the jury and the trial judge failed to examine the German original.

2. One of the publications for which the news editor was convicted on the first count because of an omission from the item copied:

(40 Sup.Ct.)

"Ready for the Fray?

"St. Petersburg, September 7th.-The Russian Baltic Fleet will defend Kronstadt and Reval, and through them the Russian capital itself. The commanders of the two fortresses bave made this report to the provisional government. A large part of the Baltic fleet was under control of the Maximalists, who hitherto have opposed Kerensky. The commanders of Sveaborg and Helsingfors have also telegraphed their assurance to the government that the Baltic fleet has expressed its willingness to offer desperate resistance, in case the Germans should make a naval attack upon the strongholds between Riga and the capital.

"Investigation of the Fall of Riga.

489

the consequences would be that next winter bread riots could be expected in the big cities. He recommended the acceptance of amendments by which further taxation of large incomes and big war profits would be effected, which would bring the total amount of the bill to about $3,500,000,000.

"Senator La Follette declared that wealth had never, in any war, offered itself on the altar of patriotism. He attacked the proposed issue of bonds and prophesied that the Liberty Bonds would eventually find their way into the hands of the rich, if they had not already done so. 'But,' he continued, 'this is not all, for war, and principally the sale of bonds, leads inevitably to inflation. This raises prices and through that the cost of living for the great mass of people is raised. Reason and experience teach us that the policy of financing a war for the most part by borrowing the necessary money, is in itself one of the worst financial burdens But wealth is althat war imposes upon men. ways a powerful factor in the Government. It fattens on war loans and war contracts as well as on speculation, which is not wanting in Upon these grounds the rich are time of war. always in favor of war, and when they have succeeded in bringing on a war, they are often powerful enough with ministers of war and parliaments and congresses to force the maximum of loans and to reduce taxation to a minimum by every possible intrigue and argument.

"The Russians devastated the land through which they retreated from Riga, in order to impede the German advance. Roads were broken up, bridges destroyed and provisions burned. A special commission has been set up by Premier Kerensky to investigate the fall of Riga. As far as reports have so far been permitted to appear, it is established that only two regiments gave up their positions without fighting, and the others offered the attacking Germans bold resistance. The retreat was carried out in an orderly manner, in spite of pursuit by the German armies. The first of these, advancing along the coast in the region of Dunaburg, is "And that is the case with us in this war. apparently endeavoring to reach Berna, on the Gulf of Riga. The second German army is Within thirty days after the declaration of war wealth had precipitated us into bond issues of pressing along the Pskoff road to execute a turning movement, while the third is energet- unheard of size. Morgan came to the city, the 491 ically pushing in a northeasterly direction 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 billions of interest bearing Treasury notes.' ed by the Russian resistance.' "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 graph of the following sentence which appeared in the paper from which the item was

taken:

"From this it can be concluded that the fall of Riga has united the opposing political factions in Russia."

3. The publication for which the news editor was convicted on the sixth count, because of the change of a word in the item copied:

"War of the Rich.

will be introduced next winter. 'Of what use is the postponement?' he asked, 'Whose interest is served if taxes on incomes and war profits are kept down and the masses are delivered over to the money lenders as security for an enormous and wickedly disproportionate issue of bonds?' He insisted that the policy of financing the war should at once be decided upon.

66

To-day the way is clear,' he explained, 'hesitation to provide now for heavy taxes would not be a mistake, it would be something worse.'

"Senator La Follette reviewed the financial 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.

"Hot Fight in the Senate Over Increased Taxation of War Profits.

"Washington, August 21.-Taxation of riches in such a measure that the burdens of the cost of the war will be taken from the shoulders of the poor man was recommended today in the Senate by Senator La Follette in a long speech.

⚫490 He declared that the proposed two billion *dollar bill as drawn up in the Senate's Committee on Financial Affairs is impractical because it covers less than seventeen per cent. of the war expenses of the first year and from this would result the necessity of issuing bonds for billions of dollars. Bonds, however, mean the same as an increased cost of living, and one of

blind madness if we did not learn from the mistakes that were made in previous wars. A mistake that we make now may be fatal. It would certainly cost us untold millions of dollars and thousands upon thousands of lives, as by it we would prolong the war unnecessarily.

"As long as one man can be found who makes war profits, I am in favor of taking away in taxes such part of those profits as the Government requires, and the Government needs the whole of such profits before adding a penny to the taxation of people who are already staggering under heavy burdens by reason of the higher prices occasioned by the war. This may be a new principle in war financing, but it is the least that one can do for the mass of the people, and it is considerably less than simple justice would demand for them.

*492

""The great mass of the people bear the costs of war, although they may not be directly taxed one dollar. The great mass of the people pay in higher prices and pro-longed hours of labor. They pay in service, not alone on the battle field, but whenever men and women work hard all day long. But more than all this, they pay the cost of war with their blood, and their lives, and what is the greatest sacrifice of all, with the blood and lives of their loved ones.

"If bread lines are a familiar sight in every city in the land, as they undoubtedly will be if the present prices of the most necessary supplies for living hold firm during the coming winter, if cold and hunger become daily guests with thousands of families, who, until now, have only known comfort, a condition which is certain to come about during the coming winter months, if no help against the present level of prices can be found, then it is my opinion that the members of this Congress will do little enough if they come to realize that they are adding to the privations and pains of the mass of the people if they hesitate to place even a fairly moderate portion of the financial burden upon the rich.''

Falsification is charged solely because the word "Brot-riots" (translated as "breadriots") was used in the eleventh line of the article, instead of the word "Brodreihen" (translated as "bread-lines").

The act punishes the willful making and conveying of "false reports and 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." Congress sought thereby to protect the American people from being willfully misled to the detriment of their cause by one actuated by the intention to further the cause of the enemy. Willfully untrue statements which might mislead the people as to the financial condition of the government and thereby embarrass it; as to the adequacy of the preparations for war or the support of the forces; as to the sufficiency of the food supply; or willfully untrue statements or reports of military opera

*493

tions which might mislead public opinion as to the competency of the army and navy or its leader (see "The Relation Between the Army and the Press in War Time," War College Publication, 1916); or willfully untrue statements or reports which might mislead officials in the execution of the law, or military authorities in the disposition of the forces such is the kind of false statement, and the only kind, which, under any rational construction, is made criminal by the act. Could the military and naval forces of the United States conceivably have been interfered with, or the success of the enemy conceivably have been promoted by, any of the three publications set forth above? Surely, neither the addition to the first nor the omission from the second constituted the making of a false statement or report. The mistranslation of "breadlines" in one passage of

the third, if it can be deemed a false report, obviously could not have promoted the suc cess of our enemies. The other publications set out in the indictment were likewise impotent to produce the evil against which the statute aimed.

Darkow, the news editor, and Werner, the editor, were each sentenced to five years in the penitentiary; Lemke, the business manager, to two years. The jury which found men guilty for publishing news items or editorials like those here in question must have supposed it to be within their province to condemn men, not merely for disloyal acts, but for a disloyal heart: provided only that the disloyal heart was evidenced by some utterance. To prosecute men for such publications reminds of the days when men were hanged for constructive treason. And, indeed, the jury may well have believed from the charge that the Espionage Act had in effect restored the crime of constructive trea

*494

son.2 To hold that such harmless addi*tions to or omissions from news items, and such impotent expressions of editorial opinion, as were shown here, can afford the basis even

of a prosecution, will doubtless discourage criticism of the policies of the government.

"These acts which are prohibited are treasonable

2 The presiding judge in charging the jury said of the act: Its general purpose is to protect our military strength and efficiency to protect ourselves against anything which would promote the success of our enemies by undermining our morale, lessening our will to win; or as it is generally expressed, our will to conquer, creating divisions among our people. in the sense in which that word is used, in the common speech of the people. Indeed, they may constitute legal treason as defined in some jurisUnited States, for the simple reason that there is dictions, but they are not treason against the a provision in our Constitution (which of course, the acts of Congress follow), that treason against the United States-you will observe that it does not say "treason generally,' but treason against the United States, shall consist only in making war upon them, or in adhering to their enemies, giving them aid and comfort, and there is another provision to the effect that no person shall be convicted of the crime of treason unless there are two witnesses to the same overt act, making, as you will see, it perfectly clear that mere words, whether published or not, as long as they are mere words, do not constitute the crime of treason, but they must be words uttered and published under such circumstances as to become deeds or acts in themselves, as 'words' may be. So that words, unless there is something to which they may attach and unless the direct, natural, and reasonably to be enemy, do not constitute the crime of treason. expected consequences of them would be to aid the Every man will observe, however, that even mere words may be fraught with consequences which although too remote to constitute the crime of treason, may nevertheless be words which are fraught with most awful consequences, and that therefore it is properly within the prov... and make it ince of the law to prohibit This is in substance what the law does. Congress could not call some mere words treason, because the Constitution prohibits it, but there is no constitutional limitation on the power of Congress to declare those things a crime against the law which Congress has done in this act.

a crime even to utter them.

...

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