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FREEDOM OF SPEECH

AND THE ESPIONAGE ACT

Address before the New Jersey State Bar

Association at Atlantic City, N. J.,

June 18, 1921

BY

HENRY W. TAFT

OF THE NBW YORK CITY BAR

PLAINFIELD, N. J.

New Jersey Law Journal Publishing Co.

1921

FREEDOM OF SPEECH

AND THE ESPIONAGE ACT

Address before the New Jersey State Bar

Association at Atlantic City, N. J.,

June 18, 1921

HENRY W: TAFT

OF THE NEW YORK CITY BAR

PLAINFIELD, N. J.

New Jersey Law Journal Publishing Co.

1921

Reprinted from the

New Jersey Law Journal

August, 192 i

By Trax(0far

SEP 24 1923

FREEDOM OF SPEECH

AND THE ESPIONAGE ACT

Address before the New Jersey State Bar

Association at Atlantic City, N. J.,

June 18, 1921

BY

HENRY W. TAFT

OF THE NEW YORK CITY BAR

PLAINFIELD, N. J.

New Jersey Law Journal Pubushing Co.

1921

Reprinted from the

New Jersey Law Journal

August, 1921

FREEDOM OF SPEECH AND
THE ESPIONAGE ACT

Among the rights connoted by the term Anglo-Saxon Civil Liberty
none is more vital to our institutions than that which prohibits our national
legislature from making any law "abridging the freedom of speech, or of
the press." This clause was not at first contained in the Constitution
because the framers, and particularly Hamilton, thought it related to a
matter regulated by common law and that the power to deal with it had
not been delegated. But the demand of the State Conventions could not
be resisted, and the provision became a part of the first of the ten
Amendments.

Many of the prohibitions of these Amendments, usually referred to
as the Bill of Rights, have never been resorted to. They have stood as
mute, if glorious, testimony of guaranties extorted by our race from its
rulers during centuries of contest and struggle; and they have served
as a potential agency warning against encroachment by the State upon
the rights of the individual. Thus, seldom has any attempt by any
department of our national government been made to place a limit upon the
freedom of oral or written expression. The first attempt, at a time
of supposed national stress, led to the passage of the Sedition Law of
1798, which, with the Alien Law, met such a storm of opposition as to
lead to the disastrous defeat, indeed to the disintegration of the Federalist
party. The agitation against these laws undoubtedly involved a warning
against any invasion of the right of free speech. But scrutiny of the
proceedings of the State Legislatures of the several States, notably the
extraordinary debate in the House of Delegates of Virginia; the able
and exhaustive report to the House of Delegates of Virginia written by
Mr. Madison, in reply to resolutions passed by the Legislatures of other
States; the Kentucky resolutions of 1798 prepared by Mr. Jeflferson, and
other contemporary evidence, must convince the candid student of his-
tory that the defeat and destruction of the Federalist party were due,
not so much to the contention that a violation of the First Amendment
was threatened, as to the view, then regarded as of far greater import-
ance, that the States had not delegated to the Federal Government the
power to legislate upon the subject at all. It was the first great political
battle involving the question of implied powers.

Since 1798, and until the passage of the Espionage Act of 191 7, there

has been no Federal statute dealing anew with the general subject of
seditious utterances, and there have been in that period few if any deci-
sions by the Supreme Court of vital importance in cases in which the
protection of the First Amendment has been invoked. And yet we have
passed through the great crises caused by the War of 1812, the Mexican
War, which evoked much just criticism of the government, the Civil
War, in which it finally became necessary to resort to the draft and
there was much vocal "copperhead" sentiment, and the Spanish War.
There have been virulent and unfounded attacks made upon the personal
and political character of such great Presidents as Washington and Lin-
coln, and, in the heat of our frequently recurring Presidential elections,
administrations have been subjected to criticism, sometimes verging closely
upon seditious libel. But at no time has a great constitutional struggle
upon the subject of free speech, like that caused in England by the Wilkes
case, agitated the American people.

This is a remarkable evidence either of the efficacy of the First
Amendment as a warning against imdue aggression, or of the fact that
the traditions of our race and the rules of common law were such that
constitutional protection was not necessary.

But it is now asserted that the Espionage Act of 1917, as interpreted
by the Supreme Court, has permitted encroachments upon the right of
free speech, which are a menace to our liberties. This discouraging con-
clusion is maintained by a school of writers who build upon views ex-
pressed in dissenting opinions by Justices Holmes and Brandeis. Peri-
odicals and publicists of so-called liberal tendencies have sought to arouse
public interest upon the subject. But, fortunately, practical statesmen
of the day do not seem to be apprehensive. When the same subject was
under discussion in 1798 it attracted the attention and enlisted the services
of great statesmen like Hamilton, Jefferson and Madison, and that re-
markable group of lawyers and legislators who then sat in the Virginia
House of Delegates, the Legislatures of Pennsylvania, New York, Mas-
sachusetts and other States, and the Federal Congress ; and, naturally,
the debate was on a lofty plane. To-day, however, no such intense
public sentiment has been aroused. But the discussion has assumed the
aspect of a manifestation of impatience with our Courts which reminds
one of the recall of judges and decisions. The advocacy of such views
by a minority of intellectuals is sometimes potential in producing dis-
content. It may do harm unless considered and fairly discussed, partic-
ularly by responsible bodies of lawyers.

The rights embodied in the great charters of our liberties have
originally been asserted in connection with an actual incident in civil
administration or legal procedure. That was so, for instance, in the
case of the great writ of habeas corpus. Magna Charta and the Bill of
Rights did not spring into being full-panoplied and without antecedent
history. On the contrary they were the result of struggles, at long inter-
vals and under varying circumstances, with the executive and legislative
power of the State. Their guaranties always related to actual and con-
crete cases, and they were frequently occasioned by very homely and in-
trinsically unimportant episodes. When a right was secured, however,
there resulted not alone a high sounding phrase, calculated to inspire lofty
and patriotic sentiment, but the right asserted and the remedy guaranteed

acquired a vitality based on actual and frequently painful experience.
There was thus forthwith embodied a concept which needed no schoolman
to explain to the people. Justice Holmes has very aptly said that "the
provisions of the Constitution are not mathematical formulas having their
essence in their form; they are organic living institutions transplanted
from English soil. Their significance is vital, not formal; it is to be
gathered not simply by taking the words and a dictionary, but by con-
sidering their origin and the line of their growth." (Gompers v. U. S.,
233 U. S. 604, 610).

Our Constitution was conceived in this practical spirit. It must be
applied in the same spirit. The question whether it has been violated
must be settled by visualizing a real controversy, tried out according to
time-honored methods of procedure. If we idealize such a right as the
freedom of speech and apply an academic test to the verdict of a jury or
a charge of a Court we may easily find material for discontent, and it will
be but one step further for an enthusiast or a theorist to conclude that
the palladium of our liberties is imperilled. Thus in the Abrams, Schaef-
fer and Pierce cases, where the Supreme Court refused to set aside ver-
dicts of guilty for violations of the Espionage Act, a Harvard Professor
of Law charged the Supreme Court with being "careless in its safeguard-
ing of the fundamental human need of freedom of speech" and reached
the despairing conclusion that the decisions reduced the "great principle
behind" the First Amendment "almost to a pious hope." This attitude of
mind has led this same author to make an extended adverse criticism
of the decision of the Court in the Ahrarns case, in a chapter- filled with
extraneous matter which would be inadmissible in any actual trial. But
decisions upon violations of the Espionage Act must have applied to them
the tests not different from those in cases having less historical signifi-
cance. In the case of Schacffer^^ indicted for a violation of the Espionage
Act, Justice Brandeis (Justice Holmes concurring) said that the decision
of the majority of the Court subjected "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. Nor will
this grave danger end with the passing of the War." But Justice Clark,
while he joined in the dissent, expressed what seems to me the more
correct view, that the decision did not involve "a great peril either to the
maintenance of law and order and governmental authority on the one
hand, or to the freedom of the press on the other."

The extreme contention of the present day critics of the Espionage
Act is that, since the common law doctrine of seditious libel, which con-
demns all writings tending to bring into contempt the Church, the State,
the officers of government, or the administration of the law, has been
prohibited by the First Amendment, it must likewise follow that a person
cannot be condemned for the "bad intent" of a statement or a writing,
except where there is an actual incitement to crime with a prospect of
being successful.

This theory, it will be admitted, would go far toward depriving the

'Chapter III, entitled "A Contemporary State Trial" in "Freedom of Speech," by
Zechariah Chafee, Jr., Professor of Law in Harvard University.
'251 U. S. 466.

5

government of the power of self-protection in times of stress. If
prosecution for seditious libel were resorted to, as it has been in other
countries, to sustain a dynasty or to prevent an impairment of the sanc-
tity of the divine right of kings, we will all agree that anything resembling
a power to cause such a repression would be contrary to the spirit of our
institutions. Nor will it be seriously contended that criticism or abuse
of even the President of the United States, falling short of what
would justify a suit for libel, could be penalized by Act of Congress. But
that the "bad intent" of a writing is to be inferred only from its contents,
its tendency to produce disorder or crime, or the violent overthrow of our
government, and from the clear and present danger that it will be suc-
cessful, is the proposition that seems now to be maintained by some of
those who are criticizing the recent decisions of the Supreme Court on
the Espionage Act.*

The case of Schcnck v. TJie United States^ was decided in 1918 by
a unanimous Court, Justice Holmes writing the opinion. The prosecu-
tion was on an indictment for circulating a document, the clear purpose
of which was to incite to a violation of the Conscription Act. But it was
claimed that what was said was in important parts what had been said
by well known public men, and the Court admitted that in "many places
and in ortlinary times the defendants in saying all that was said in the
circular would have been within their constitutional rights. But the
character of every act depends upon the circumstances in zvhich it is done.
The most stringent protection of free speech zvould not protect a man in
falsely shouting fire in a theatre and causing a panic. It does not even
protect a man from an injunction against uttering zvords that may have
all the effect of force. . . . The question in every case is whether
the words used are used in such circumstances and are of such a nature
as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question
of pro.vimity and degree. When a nation is at war many things that might
be said in time of peace will not be endured so long as men fight and
no Court could regard them as protected by any constitutional right."

Justice Holmes adds, and these words are to be remembered in con-
nection with his subsequent dissent in the Ahrams and other Espionage
cases :

"The statute of 191 7 in Sec. 4 punishes conspiracies to obstruct as
well as actual obstruction. If the act, (speaking, or circulating a paper),
its tendency and the intent with which it is done are the same, we perceive
no ground for saying that success alone warrants making the act a crime."

The Schcnck case was followed by the Frolnverk case,^ where there
was an indictment for conspiracy to violate the Espionage Act in induc-
ing by newspaper publications a refusal to do military duty. Justice
Holmes, writing the opinion, said that the First Amendment "cannot have
been, and obviously was not. intended to give immunity for every possible
use of language." He added :

*The discussion is confined chiefly to the decisions under Sections 3 and 4 of
Title I. I do not deal with Censorship, or Exclusion from the Mails, or with Inter-
state Commerce.

*249 U. S. 47. 50.

'249 U. S. 204, 205.

6

"We venture to believe that neither Hamilton nor Madison nor any-
other competent person, then or later, ever supposed that to make criminal
the counselling of a murder within the jurisdiction of Congress would
be an unconstitutional interference with free speech."

The Debs case'^ was a prosecution for an obstruction of the recruiting
and enlistment service. Justice Holmes, writing the opinion of a unani-
mous court, approved, at least by implication, a charge to the jury that
they could not find against the defendant "unless the words used had as
their natural tendency and reasonably probable effect to obstruct the
recruiting service, etc., and unless the defendant had the specific intent
to do so in his mind." It will be observed that this charge does not require
that the words shall be such "as to create a clear and present danger"
that they will bring about the substantive evils aimed at. And if that
were the requirement of the law in all cases, it would involve a degree of
certitude and proximity which would probably rarely occur, and which
would be a test coming quite close to "saying that success alone war-
rants making the act a crime," which the Court in the Schenck case said
went too far. But the nature of the case does not require a rule of
causation more stringent than is usual in criminal trials. To require, as
in the Debs case, that an effect shall have a "natural tendency" and a
"reasonably probable effect," satisfies every requirement, and it is fair to
assume that the Court intended by the phraseology used in that case to
indicate, not a modification of the rule expressed in the Schenck case, but
an interpretation of its unnecessarily emphatic and comprehensive
language.

I have devoted some attention to this subject because in the dissenting
opinions of Justices Holmes and Brandeis, in some of the later cases,
they seem to have assumed that the words "clear and present danger"
were to be accepted as an unvarying formula for the guidance of Judges
and juries.

I now reach a consideration of the notable case of Abrams v. United
States,^ which has caused heated controversy. Justice Clark wrote the
opinion of the Court, and Justice Brandeis a dissenting opinion in which
Justice Holmes concurred. The defendants were charged with a con-
spiracy to violate the provisions of the Espionage Act in uttering writ-
tings which it was variously charged tended to incite resistance to the
United States in time of war and the curtailment of the production of
ammunition and other things necessary to the prosecution of the war.
The defendants were Russian citizens and avowed themselves to be revo-
lutionists in sympathy with the principles of the Russian revolution. The
principal claim made by them and the chief ground urged in the dis-
senting opinion was that the primary purpose of the writings com-
plained of was to prevent an injury to the cause of the Russian revolution
by the sending of American troops into Russia to fight the Bolshevists,
and that any effect of the writings of the defendants in obstructing war
measures against Germany were indirect, incidental and too remote to
justify an inference of criminal intent. But the question came before
the Court on a question of law, viz : "Whether there was some evidence

'249 U. S. 211.
'250 U. S. 616.

competent and substantial before the jury, fairly tending to sustain the
verdict." The consequences of this situation have sometimes been over-
looked, although lawyers will recognize it as presenting a narrow field of
inquiry for an appellate court ; and some of the most insistent critics
have seemed to assume that, on the question of bad intent and probable
effect, the case was thrown open to the Court for consideration as if it
had the full power to consider facts from which divergent inferences
could be drawn — in other words that they could usurp the function of
the jury.

To the claim that the defendants only intended to prevent injury to
the Russian cause, the Court said :

"Men must be held to have intended, and to be accountable for, the
effects which their acts are likely to produce. Even if their primary
purpose and intent was to aid the cause of the Russian Revolution, the
plan of action which they adopted necessarily involved, before it could be
realized, defeat of the war program of the United States, for the obvious
effect of this appeal, if it should become effective, as they hoped it might,
would be to persuade persons of character, such as those whom they regard-
ed themselves as addressing, not to aid government loans and not to work
in ammunition factories, where their work would produce 'bullets, bay-
onets, cannon' and other munitions of war, the use of which would cause
the 'murder' of Germans and Russians."

Referring to another part of the circular, which states that America
has bel rayed the workers and that there should be a "general strike" for
an "open challenge only will let the government know that not only the
Russian worker fights for freedom, but also here in America lives the
spirit of revolution," the Court said that "the manifest purpose of such
a publication was to create an attempt to defeat the war plans of the
government of the United States, by bringing upon the country the pa-
ralysis of a general strike, thereby arresting the production of all munitions
and other things essential to the conduct of the war ;" and, again, that
"the plain purpose of their propaganda was to excite, at the supreme crisis
of the war, disaffection, sedition, riots, and, as they hoped, revolution, in
this country, for the purpose of embarrassing and, if possible, defeating
the military plans of the government in Europe. And the Court con-
cluded that it was "clear not only that some evidence but that much
persuasive evidence was before the jury tending to prove that the defen-
dants were guilty."

Justice Holmes based his dissent upon the ground that the conduct
of the defendant was not "with intent" to curtail production of munitions,
etc., so as "to cripple or hinder the United States in the prosecution of
the war," because a man "does not do the act with intent to produce it
unless the aim to produce it is the proximate motive of the specific act,
although there may be some deeper motive behind." And then he lays
down the "clear and imminent danger" rule formulated in his opinion in
the Schenck case.

The substance of Justice Holmes' contention was that the only
object of the paper objected to was "to help Russia and stop American
intervention there against the popular government — not to impede the
United States in the war that it was carrying on. To say that two
phrases taken literally might import a suggestion of conduct that would

8

/

have interference with the war as an indirect and probably undesired
effect seems to me by no means enough to show an attempt to produce
that effect." But in the Dehs case, where bad intent was inferred from a
speech mainly dealing with socialism, Justice Holmes had said that "if a
part of the manifest intent of the more general utterances was to en-
courage those present to obstruct the recruiting service, and if in passages
such encouragement was directly given, the immunity of the general theme
may not be enough to protect the speech ;" and he added that the evidence
justified the conclusion that the bad intent existed.

The primary and ostensible purpose of the paper complained of
in the Ahrams case was to oppose sending troops to Russia, but the sub-
stantial effect of it was to obstruct the prosecution of the war. If the
rule of primary, and not secondary or consequential, intent should be ap-
plied, as Judge Holmes urged that it should be, the ingenuity of persons
disapproving the prosecution of the war and skilled in the modern art of
subtle propaganda would be employed in devising means by which, while
seeming to advocate by speech purposes not within the reach of the
Espionage Act, would have had the efficient result of obstructing the prose-
cution of the war. The opinion of the majority of the Court is far more
consonant with the ordinary rule applied in jury cases where questions of
"proximity and degree" involving intent are under consideration. The rest
of Justice Holmes's opinion deals in an admirable way with the general
subject of liberty of speech.^ It has been much quoted, particularly by
those who have criticized the opinion of the majority of the Court. In my
view it has very little to do with the question of intent or the procedural
situation which the Court had to deal with. It seems to have been evoked

""Persecution," said Justice Holmes, "for the expression of opinions seems to
me perfectly logical. If you have no doubt of your premises or your power and
want a certain result with all your heart you naturally express your wishes in law
and sweep away all opposition. To allow opposition by speech seems to indicate
that you think the speech impotent, as when a man says he has squared the circle,
or that you do not care whole-heartedly for the result, or that you doubt either
your power or your premises. But when men have realized that time has upset
many fighting faiths, they may come to believe, even more than they believe the
very foundations of their own conduct, that the ultimate good desired is better
reached by free trade in ideas — that the best test of truth is the power of the
thought to get itself accepted in the competition of the market, and that truth is
the only ground upon which their wishes safely can be carried out. That at any
rate is the theory of our Constitution. It is an experiment, as all life is an experi-
ment. Every year if not every day we have to wager our salvation upon some
prophecy based upon imperfect knowledge. While that experiment is part of our
system I think that we should be eternally vigilant against attempts to check the
expression of opinions that we loathe and believe to be fraught with death, unless
they so imminently threaten immediate interference with the lawful and pressing
purposes of the law that an immediate check is required to save the country. I
wholly disagree with the argument of the Government that the First Amendment
left the common law as to seditious libel in force. History seems to me against
the notion. I had conceived that the United States through many years had shown
its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only
the emergency that makes it immediately dangerous to leave the correction of evil
counsels to time warrants making any exception to the sweeping command, 'Con-
gress shall make no law abridging the freedom of speech.' Of course I am speak-
ing only of expression of opinion and exhortations, which were all that were ut-
tered here, but I regret that I cannot put into more impressive words my belief that
in their conviction upon this indictment the defendants were deprived of their
rights under the Constitution of the United States."

9

by the revulsion of feeling caused by what the Justice regarded as an ex-
cessive sentence of twenty years imprisonment imposed on the defendant.
But whatever the inspiration the result is a most eloquent statement of the
principle underlying the doctrine of Freedom of Speech which may well
take rank with the reasoning in "Mill on Liberty" and Milton in the "Areo-
pagitica." It contains the following aphoristic and much quoted sentence :

"But when men have realized that time has upset many fighting
faiths, they may come to believe even more than they believe the very
foundations of their own conduct that the ultimate good desired is better
reached by free trade in ideas — that the best test of truth is the power
of the thought to get itself accepted in the competition of the market,
and that truth is the only ground upon which their wishes safely can be
carried out."

But, after we have emerged from the spell of patriotic emotion caused
by Justice Holmes' eloquent digression, it becomes necessary to remind
ourselves again that the question before the Court was whether there was
enough substantial evidence, even under Judge Holmes' rule, to justify
the trial Judge in submitting the case to the jury on the question of
intent.

The striking phraseology of that part of his opinion vindicating the
wisdom of the doctrine of freedom of speech has diverted the attention of
some of the most vigorous critics of the conclusion of the majority of
the Court from the real question in the case. The chief among these
critics, Professor Chafee. has devoted forty pages of a book on "Free-
dom of Speech," to a consideration of the question as to "how the Abrams
trial and its outcome accord with a just administration of the criminal
law." After a sweeping criticism of the attitude of the majority of the
Court, he deplores the injustice to the defendants, but himself takes com-
fort, and then allays the fear which his criticism may have aroused in
others, by the anti-climactic statement that the effect of the decision "on the
legal conception of freedom of speech should be temporary in view of its
meagre discussion of the subject and the enduring qualities of the reason-
ing of Justice Holmes." Why, then, we may ask, is it necessary to pour
forth pages of irrelevant reasoning and denunciation whose principal
tendency is to impair the confidence of the people in the highest Court of
the land? If the trial Judge had in his discretion imposed a lighter sen-
tence (with which the Supreme Court had nothing to do), and Justice
Holmes had contented himself with discussing the question whether, un-
der the rule he himself announced in the Schenck, Frohzverk and Dehs
cases, the facts in the Abrams case justified the submission of the case to
the jury and had omitted his eloquent and inspiring, if irrelevant, dis-
course on the Freedom of Speech, the Abrams case would probably not
have assumed, as it has in the minds of some critics, the epochal import-
ance of the Wilkes case.

The next case decided by the Supreme Court was Schaeffer v. United
States,^^ where the defendants were accused of wilfully falsifying tele-
graphic dispatches with the ultimate result and intent of hampering the
United States in raising armies and conducting the War. Referring to the
article on which the prosecution was based, Justice McKenna, delivering

"251 U. S. 466.

10

the opinion of the Court, said that "its statements were deliberate and
wilfully false, the purpose being to represent that the War was not de-
manded 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." Justices Holmes, Brandeis and Clark dissented.
Justice Brandeis wrote a dissenting opinion, in which Holmes, J., con-
curred. He refers to the "clear and present danger" test, and he con-
cludes that the evidence did not justify the jury "acting in calmness" in
finding "either that they [the acts] would obstruct, or that they would
promote the success of the enemies of the United States." On the con-
trary, he thinks the jury "must have supposed it to be within their prov-
ince 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 he concludes that "convic-
tions such as these, besides abridging freedom of speech, threaten free-
dom of thought and of belief." But the position already alluded to of
Justice Clark (who believed that the jury had not been correctly in-
structed) seems more consonant with the facts, that is, that the case
involved no such serious consequences but was an ordinary case involving
the question whether a jury could reasonably infer guilt.

The case of Pierce v. The United States,^^ decided in March, 1920,
remains to be examined. The prosecution in this case grew out of the
distribution in New York State by the defendants of a pamphlet called
"The Price We Pay," which was prepared by a Socialist organization in
Chicago. The pamphlet was a "highly colored and sensational docu-
ment," picturing in lurid terms the horrors of war and in juxtaposi-
tion making such statements as this : "Conscription is upon us ; the draft
law is a fact. Into your homes the recruiting officers are coming. They
will take your sons of military age and impress them into the army." And
there are many statements of unquestioned fact, but coupled with dread-
ful rhetorical pictures, referring to a "seething swamp of torn flesh and
floating entrails" into which the conscripted men will be plunged "scream-
ing as they go." And then there is the conclusion : "And still the re-
cruiting officers will come ; seizing age after age, mounting up to the elder
ones and taking the younger ones as they grow to soldier size. . .
The manhood of America gazes at that seething heaving swamp of bloody
carrion in Europe, and says, 'Must we — be that.' . . . You cannot
avoid it ; you are being dragged, whipped, lashed, hurled into it."

These statements introduced the conclusion that the realization of the
awful predictions of the pamphlet could be avoided by establishing Social-
ism ; and the claim was made, as a similar claim was made in the Abrams
case, that that and not the obstruction of the prosecution of the War was
the primary purpose of the pamphlet. But it was also shown that with
some of the pamphlets there was also distributed a circular issued by the
Socialist party in which it is stated : "This organization has opposed war
and conscription. It is still opposed to war and conscription. . . .
Do you want to help in this struggle?"

"252 U. S. 239.

II

Justice Pitney, writing the opinion of the Court/^ held that the de-
fendants knowing the contents of the pamphlet were to have attributed
to them an intent, and justified the conclusion that they attempted, "to
bring about any and all such consequences as reasonably might be antici-
pated from its distribution," and that "whether the printed words would
in fact produce as a proximate result a material interference with the
recruiting or enlistment service, or the operation or success of the forces of
the United States, was a question for the jury to decide in view of all
the circumstances of the time and considering the place and manner of
distribution." And in support of this conclusion the principle of the
decision in the Schcnck, Frohzverk and Debs cases was relied on.

To the argument so frequently made in Espionage cases that the
defendants said nothing new but only repeated comments upon matters of
public concern, the Court said :

"In eft'ect it would allow the professed advocate of disloyalty to
escape responsibility for statements, however audaciously false, so long
as he did but reiterate what had been said before ; while his ignorant
dupes, believing his statements and thereby persuaded to obstruct the
recruiting or enlistment service, would be punishable by fine or imprison-
ment under the same section."

Justice Brandeis, in writing the dissenting opinion^^ in which Justice

""If its (the pamphlet's) probable effect was at all disputable, at least the jury
fairly might believe that, under the circumstances existing, it would have a tendency
to cause insubordination, disloyalty, and refusal of duty in the military and naval
forces of the United States; that it amounted to an obstruction of the recruiting
and enlistment service; and that it was intended to interfere with the success of
our military and naval forces in the war in which the United States was then en-
gaged. Evidently it was intended, as the jury found, to interfere with the con-
scription and recruitment services ; to cause men eligible for the service to evade
the draft ; to bring home to them, and especially to their parents, sisters, wives, and
sweethearts, a sense of impending personal loss, calculated to discourage the young
men from entering the service ; to arouse suspicion as to whether the chief law of-
ficer of the Government was not more concerned in enforcing the strictness of mil-
itary discipline than in protecting the people against improper speculation in their
food supply; and to produce a belief that our participation in the War was the
product of sordid and sinister motives, rather than a design to protect the interests
and maintain the honor of the United States."

""A verdict should have been directed for the defendants on these counts also
because the leaflet was not distributed under such circumstances, nor was it of
such a nature as to create a clear and present danger of causing either insubordi-
nation, disloyalty, mutiny or refusal of duty in the military or naval forces. The
leaflet contains lurid and perhaps exaggerated pictures of the horrors of war. Its
arguments as to the causes of this war may appear to us shallow and grossly unfair.
The remedy proposed may seem to us worse than the evil which, it is argued, will
be thereby removed. But the leaflet, far from counselling disobedience to law,
points to the hopelessness of protest, under the existing system, pictures the irre-
sistible power of the military arm of the Government, and indicates that acquies-
cence is a necessity. Insubordination, disloyalty, mutiny and refusal of duty in the
military or naval forces are very serious crimes. It is not conceivable that any man
of ordinary intelligence and normal judgment would be induced by anything in the
leaflet to commit them and thereby risk the severe punishment prescribed for such
offenses. Certainly there was no clear and present danger that such would be the
result. The leaflet was not even distributed among those in the military or the
naval service. It was distributed among civilians ; and since the conviction on the
first count has been abandoned here by the Government, we have no occasion to
consider whether the leaflet might have discouraged voluntary enlistment or obedi-
ence to the provisions of the Selective Draft Act."

12

Holmes concurred, rested his conclusions largely upon a strict application
of the "clear and present danger" rule of the Schenck case. As to the
charge of conspiracy he held that there was no evidence of evil intent
except in the pamphlet itself and that was insulificient to justify its sub-
mission to the jury. He said it was "not conceivable that any man of
ordinary intelligence and normal judgment would be induced by anything
in the leaflet to commit them [i. e., crimes] and thereby risk the severe pun-
ishment prescribed for such offenses. Certainly there was no clear and
present danger that such would be the result."

I do not go into the detail of Justice Brandeis' argument in support
of his conclusions. It is only necessary to add that here, as in the
Schaeffer case, the case presented a great variety of circumstances and the
only question was whether they permitted divergent inferences which a
jury should be permitted to pass upon.

I have now concluded my examination of the leading decisions of
the Supreme Court under Article I, Sections 3 and 4 of the Espionage
Act. Can it reasonably be said that they have tended to the disintegra-
tion of one of the foundation stones of our constitutional structure? An
answer to this question requires a survey of the circumstances under
which the Espionage Act was passed.

The World War was fought under conditions never before par-
alleled in history. The magnitude of military and naval operations re-
quired the conscription of all the potential economic and industrial re-
sources of this country. It soon became, or at least seemed, manifest that
even if the man power of the nation could have been recruited by volun-
tary enlistment, that method of creating an army could not successfully
be adopted, and certainly not without impairing the efficiency of our indus-
trial life. It was just as important to maintain production at home as
it was to supply men for the front. Out of this situation grew the draft
under the Selective Service Law, under which the civilian population
cooperated in selecting a great army from their own numbers and in
their own localities, and with a minimum of impairment of the efficiency
of essential industries. Never before in the history of warfare was a
draft so scientifically conceived and so successfully carried through. But
it required the cooperation of the great mass of our citizenry. And ob-
struction, or even too freely expressed discouragement or disapproval,
needed little to give it the aspect of interference with military preparations.
As Justice Holmes said of the circulation of the paper in the Frohwerk
case, it might have been "in quarters where a little breath would be enough
to kindle a flame."

Before we entered the War we had learned what an important part
propaganda was playing in the great struggle to preserve modern civiliza-
tion. Germany especially had never ceased to rely upon it as one of
the most potent weapons behind the lines of their enemies. And one of
its most subtly dangerous features was a skillful camouflage by which the
real purpose of disloyal literature was so cloaked as to make it appear,
as was attempted in the Ahrams and Pierce cases, to have an innocent
purpose. Thus Germany openly announced that "bribery of enemies'
subjects, acceptances of offers of treachery, utilization of discontented
elements in the population, support of pretenders and the like, are permis-
sible ; indeed, international law is in no way opposed to the exploitation

13

of the crimes of third parties." (German War Book — Morgan Trans-
lation, p. 85).

In this country there were millions of American citizens of German
and Austrian birth or descent, and before we entered the War many of
these had evinced their sympathy with the cause of the Central powers.
While the great body of these citizens remained loyal and contributed their
full share to the success of our arms, there were some who remained at
heart in sympathy with Germany, some who were apathetic, and some
who were undoubtedly disloyal in thought and only lacked the opportunity
to be disloyal in act.

The Bolshevist propaganda was also constantly revealing itself and
was resorted to as openly as personal safety would permit. Socialist
opposition to the War was more open and candid than German propa-
ganda. In the Abrams case it was sought to show that the writings had
no direct relation to our war with Germany. But at the time it was
necessary to conserve all our national resources. And any impairment of
the efficiency of our essential industries by the introduction of Soviet
principles or by general strikes, sabotage or other manifestations of dis-
content, could hardly avoid the effect of interfering with our war activi-
ties, and this was so obvious that an attribution of criminal intent required
little additional evidence to support it. Such evidence was ample in the
Abrams case.

Probably never before have so many causes combined to justify this
country in adopting temporary repressive measures. The few provisions
of the Sedition Laws of 1798 which survived and the statute defining trea-
son had served in previous emergencies the purpose of national self-pro-
tection. But it soon became manifest that they were not adequate to pre-
vent obstruction of the draft and the marshalling of our resources for
the unprecedented struggle. Mr. O'Brian, the Special Assistant of the
Attorney-General for war work, has said that we "had on our statute
books almost no protection against hostile activities." It was a clear case
for the application of the principle, long ago stated by Madison, that it is
"vain to oppose constitutional barriers to the impulse of self-preserva-
tion." And few now seriously doubt that in 1917 measures of national
self-preservation were necessary. No law of the kind was necessary in
the Revolutionary War, the War of 1812, the Mexican War, the Civil
War or the Spanish War, because the conditions in this country, and the
methods of warfare on either side, did not require it. But the necessity
for the Espionage Act was soon shown by the number of cases that it
became necessary to prosecute.^*

It has been charged that in some of the earlier cases under the
Espionage Act, incorrect rules were applied by trial Judges ; that Circuit
Courts of Appeals did not hew to the correct line of judicial interpretation ;
that juries showed evidence of permitting patriotic emotion to influence
their deliberations unduly, and that there was undue severity in imposing
sentences. Justice Holmes showed that the length of the sentence in the
Abrams case was not absent from his mind when he was formulating
the most frequently quoted portion of his dissenting opinion ; and the

"Nearly 2,000 cases were commenced in 1918 and 1919, and up to June 30, 1919,
according to the report of the Attorney-General, there had been nearly 900 con-
victions.

14

sentence in that case certainly did not err on the side of excessive leniency.
It may be the fact that in individual cases under the Espionage Act errors
were made by trial Courts in instructing juries as to the nature and extent
of the protection afforded by the First Amendment. But that should
not be a source of discouragement to the lovers of liberty; for the sub-
ject was to a great extent new to American jurisprudence, as, happily for
us, never before has an occasion arisen requiring our Courts to give so
much attention to the subject. It is not strange if judges, though firm
believers in the doctrine of freedom of speech in its historical and philo-
sophical aspect, should not always succeed in correctly formulating its
limitations when applied to concrete instances. But I venture to think
that, if occasion should again arise, the discussions in the recent decisions
of the Supreme Court under the Espionage Act are landmarks in our
Constitutional jurisprudence which will be found to define in a practical
way the division line which must separate the freedom of speech pro-
tected by the First Amendment and the licentiousness which may legally
be prohibited by statute.

To enter upon an examination of the proceedings in the lower Courts
would extend this address beyond its suitable limits. If errors have been
committed, or if through local conditions, or by reason of prejudice or
passion, exact justice has not always been meted out, that is because
our judicial system is a human institution and, therefore, not perfect.
But if in extending to persons charged with crime the protection of the
Constitution the Supreme Court has stood staunch, we need not fear for
the safety of our liberties. ^^

Some of the comments upon the results in the Espionage cases reveal
a lack of confidence in our judicial system. I append some of these
criticisms in a note.^® I mention them only because they tend to con-

"John Lord O'Brian, Assistant Attorney-General, says : "In default of authori-
tative decisions by the Supreme Court, with eighty-eight Federal districts, each
equipped with a United States Attorney and at least one District Judge, and the
great variety of conditions peculiar to the respective localities, it is only strange
that there did not develop greater divergencies in the character of prosecutions as
well as the character of the decisions by the lower Courts. ... A review of
the rulings of the Courts on questions of evidence and a scrutiny of the charges to
juries will show the future commentator that United States District Judges were
keenly alive to this danger, (i. e., that there should not be 'fair and impartial
trials'). They continually emphasized constitutional rights, gave great latitude to
defendants' proof and urged necessity for the dispassionate consideration of evi-
dence. . . . The ordinary procedure of our Courts functioned well. The efficacy
of juries as triers of fact has been once more demonstrated in a convincing man-
ner, and the highest praise is not too much for the Federal Judiciary who, with
only a few exceptions, taking a broad view of the necessities of the country, still
maintained the American tradition of fairness and went to extremes in enforcing
consideration of the constitutional guarantees." (Address before the New York
State Bar Association, Vol. 42, of the Annual Reports).

"Thus it is said that in time of war the protection of a jury trial is illusory.
Professor Chafee is disturbed because Judge Clayton, a Judge of character and
ability with a distinguished public career, was assigned to try the Ahrams case, al-
though it was his first prominent case of the kind, while there were three other
District Court Judges who had had "extensive experience in the difficulties of War
legislation." Furthermore, he thought the position of the defendants "could hardly
be understood without some acquaintance with the immigrant population of a great
city, some knowledge of the ardent thirst of the East Side Jew for the discussion
of international affairs. Yet because the New York dockets were crowded the

15

firm what I have already said, that is that, after all, the questions arising
under the Espionage Act largely involve ordinary matters of judicial pro-
cedure, not vital questions of civil liberty. And the differences between
the Justices of the Supreme Court, when analyzed, will be found to relate
not to great questions of constitutional law, but to differing ideas as to
deductions from proven facts.

Words that we regard as impious, disloyal, revolutionary or obscene,
produce in most of us a natural, if temporary, reaction, in which the
remedy of repression first suggests itself. We do not readily rely upon the
unwisdom of applying the law of seditious libel under a form of govern-
ment like ours. We do not recall the warning of the Wilkes case, or the his-
tory of the constitutional struggles in England, by which freedom of speech
became the heritage of our ancestors. Neither do the ancient lessons
taught by the death of Socrates, or the unanswerable logic of Mill and
Milton on freedom of opinion, occur to us. The natural impulse is to
adopt the simplest and quickest method of repression. Many intelligent
persons who would indignantly deny that they would change the guaran-
ties of our Bill of Rights are among the first to denounce seditious utter-
ances and to favor laws to prevent them. This human tendency has led
to persecutions of all kinds in the past.

But after centuries of experience we have worked out a practical
solution of the vexed question, and we now believe that, both as a mat-
ter of inherent individual right and of political and social expediency,
opinion and its free expression should not be restrained except so far as
that may be necessary for the preservation of order and the protection of
the State. Experience shows that error, if repressed, gains factitious
strength. The repression confirms it in those who are forced to be silent,
while those who could dispel it lack the opportunity. Justice Holmes has
used a striking figure on the subject when he said :

"With elTervescing opinions, as with the not yet forgotten cham-
pagnes, the quickest way to let them get flat is to let them get exposed
to the air."

We see in our political life repeated instances of the power of discus-
sion to dispel error. To mention only one, we all remember the proposed
recall of judges and decisions which was pressed with extraordinary
earnestness and persistence. It was a fallacy aflFecting the proper func-
tion of the judiciary in our system which presented great danger to our
institutions. The discussion which it excited resulted in the complete
exposure to all of the fallacy on which it was founded ; and its advo-

Abrams case was assigned to a judge who had tried no important Espionage
Act case, who was called in from a remote district where people were of one
mind about the War, where the working class is more conspicuous for a sub-
missive respect for law and order than for the criticism of high officials,
where Russians are scarce and Bolshevists unknown." This same critic con-
tinues that if we are going to continue to "prosecute men for the bad political
tendency of their disloyal or anarchistic utterances," that is, under the rule of pro-
cedure approved by the Supreme Court, it may be advisable to adopt the "wide
open policy" of evidence in use in France, where parties and witnesses express
"fully and unhindered." This comment was made with reference to the exclusion
of testimony, which Professor Chafee admits was proper "in the absence of any
established technique for political crimes in this country," but that made it neces-
sary for the Judge to have "pounded home" the proposition that the subject ex-
cluded had nothing to do with the case.

i6

cates were themselves persuaded of their error. If the agitation had been
met with smug complacency, or by repression, it might have prevailed, or
remained unsettled as a future menace. Discontent with our Courts will
undoubtedly again arise in some other form — indeed, it has already arisen,
as I have shown, on their treatment of the subject of free speech. The
best way to meet it is to discuss it, to make opinion liquid as water,
free as air, and not by repression to freeze opinion into prejudice.

But my chief theme to-day is free speech in War time, especially
bearing upon political rights in a representative democracy. The safety
of such a State as ours rests in unrestrained discussion of any subject
affecting it. But neither the State nor any public officer is sacrosanct,
as they are in a monarchy where the permanency of the State depends in
part on the sacred character of the sovereign, and free criticism easily
becomes sedition. Yet in this country seditious libel has practically de-
parted from our jurisprudence. And the most valuable field for free
speech is unrestrained discussion of public affairs and public men; and
so long as there is no violation of the law of libel, such discussion is with-
out restriction. If this results in unfairness, in misrepresentation, in in-
temperate abuse, in glaring breaches of good taste and in other partisan
excesses which our political contests evoke, we must depend upon time
and discussion, working on the minds of the people finally aroused to
exercise independent judgment, to allay animosities, to soften asperities,
to condemn the intemperate, to discover the fundamental element of truth
and finally to come to an approximately correct conclusion.

With the complexities of our modern civilization increasing obstacles
are placed in the way of the free play of public opinion. For illustra-
tion I mention one of the obstacles I refer to. Mr. Cobb, the Editor of
the New York World, in December, 1919, said that there were 1,200
private press agents engaged in business in New York, and he asserts
that "many direct channels to news have been closed and the information
for the public is first filtered through publicity agents. The great cor-
porations have them, the banks have them, the railroads have them, all
the orq^anizations of business and of social and political activity have
them, and they are the media through which news comes. Even states-
men have them." And so in times of peace we must exercise patience,
and try to believe that in the long run substantial error will be detected
and truth and sanity will prevail. But during the late War patience was
not always possible. The emergency did not permit delay. We could not
depend upon time and free discussion to eliminate error and vindicate
truth. We were engaged in the greatest struggle of our history. We
believed, rightly or wrongly, that our institutions and our liberties — yes,
modern civilization — were at stake. We had to have a gigantic army;
we couldn't wait. We had to get it through the instrumentality of our
present form of government ; we couldn't stop to examine the advantages
of the Soviet plan, and, as a practical matter, mere discussion of that sub-
ject tended to impair the efficiency of our essential industries and, there-
fore, our fighting strength. It was too late to discuss the merits of the
War. The die was cast. We had to fight, not discuss. And everyone
realized that under the circumstances it would take little to "fan the
flame" and produce indifference, inefficiency or disloyalty.

Under such circumstances it would have been absurd to stop to hunt

17

out the ignorant foreigners among whom Ahrams distributed his inflam-
matory circular and persuade each of them by reason that it was based
on an economic fallacy; or to correct maliciously falsified dispatches cal-
culated to discourage our War operations ; or to remove the impression
of Pierce's dreadful circulars upon registrants. It became necessary, as
one of the despairing critics has said, for the government to conscript
public opinion, as it conscripted men and material. But conscription
in any sense of the word is no longer necessary. The technical continu-
ance of a state of war affords little reason for retaining laws to prevent
obstruction of the operations of our military forces or of our recruiting
service. The retention of such laws may give comfort to some, and in
the present situation they are perhaps innocuous, unless, indeed, it is sup-
posed that they may be useful in combating Communistic movements
against our government. But, while it is true that Russian Bolshevism
asserts that it cannot continue unless all the world is made Communistic,
and, if necessary, by force, no hostile invasion is possible except by prop-
aganda. Now that the War is over, however, and such propaganda cannot
weaken our military resources, I believe that Communism can best be
fought by argument, and not by repression. It stands for a destruction
of the sanctity of private contracts and of the principle of private prop-
erty ; it conscripts labor so as to create a veritable condition of slavery ;
and it abolishes the right of inheritance. It suppresses in the individual
all desire through initiative and thrift to improve his physical, mental or
moral condition. If such doctrines as these are subjected to the test of
free discussion they cannot flourish in this country. What is needed is
a dissemination of its literature showing the real nature of Bolshevism,
and a frank discussion which will enlighten the masses of our people
as to its real meaning. There may be discontent and occasional disorder,
but if the American people will seriously concern themselves to combat
such heresies, they not only will wither away, but we will have a most
healthful exhibition of the power of unrestrained discussion.

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