SCHENCK v. U. S.

367

"deny and disparage rights" which should be retained by all citizens. Arguments of the other side were described as coming from politicians and the capitalist press. Even silent consent to the conscription law was held to be support of an "infamous conspiracy." The right of the government to send citizens to foreign lands to kill others was denied, and it was asserted that such a practice should be condemned. The leaflet ended with an appeal to each man to do his share to "maintain, support, and uphold the rights of the people of this country."

99 11

Schenck in his defense claimed that his action was protected by the First Amendment. Two of his strongest statements were quoted from well-known public men. Justice Holmes, in giving the unanimous decision against the defendants, stated that in many places and in ordinary times all that the circular contained might be printed with impunity and the defendant would be within his constitutional rights. But in making a judgment, the circumstances of the case had to be taken into consideration. The question was "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.

99 12

The evidence in this case showed that there was a clear intent to incite men to resist the draft. Justice Holmes drew the attention of the court to the fact that in time of peace many things might be said which in time of war would not be tolerated, for they would then constitute a real hindrance to the nation and therefore could not be regarded as protected by any constitutional right. Justice Holmes drew the danger line at the place where speech would cause overt acts of injury to the state. The decision was not based on bad intent but on the "clear and present danger" which the leaflets would have created if they had reached the drafted men.'

13

CENSOR OF THE MAILS

It will be remembered that the Espionage Act of 1917 and 1918 gave wide powers of censorship to the Postmaster-General. Some instances will make clear how he exercised the control placed in his hands. The Masses, a paper published in New York City, was excluded from the second class mailing privileges. The paper 11 Schenck v. United States, 249 U. S. 48-51.

12 Ibid., 51-52.

18 Ibid., 52.

asked Judge Hand to enjoin the Postmaster-General from taking this action. The injunction was granted, but the decree was later reversed by the circuit court of appeals. The Milwaukee Leader was likewise refused the second class mailing privilege. Both of these papers were suppressed because in the postmaster's opinion they contained seditious matter. The number of the Masses which caused its suppression had in it four cartoons entitled Liberty Bell, Conscription, Making the World Safe for Capitalism, Congress and Big Business, and a poem which likened Emma Goldman and Alexander Berkman, then in prison for conspiracy to resist the draft, to "elemental forces." It also contained three articles which expressed admiration for the "sacrifice" of the conscientious objectors and lauded Goldman and Berkman as "friends of American Freedom." 14

These papers tried to be readmitted after once suppressed but were refused although the postmaster had no means of knowing that future issues might not be free of all objectionable matter. A paper can rarely afford to use any but the second class mail. This is a service especially designed for papers issued regularly. The postmaster, in refusing to allow these papers readmission to its privileges, based his action on the fact that since they had skipped numbers, they were not issued regularly and hence not eligible to the second class mail.15

The New York Call was another paper to come under the censorship. It was forbidden the use of the second class mail during most of the war. However, it continued publication, using the other classes of mail, reducing its size, and depending on its customers to aid it financially. It seems rather inconsistent that this paper should have been allowed to circulate through the other mails if it was debarred second class service. If seditious it should have been forbidden the mails entirely. When hostilities ceased, the Call in January, 1919, asked for its second class mailing privileges. Nine months elapsed after the request and no efforts on the part of the paper's staff could induce an answer from the Postmaster-General. The paper finally brought suit and at once received an answer denying the request. In March, 1920, the Call's case was tried and the court ordered the PostmasterGeneral to restore the paper's second class mailing privileges. The case was appealed, and the Call continued to be denied the second class mails while the case was pending. When a new ad14 "Freedom of Speech," pp. 46-47.

15 Ibid., p. 107.

ministration took office in 1921, both the Call and the Leader were restored to their former privileges.'

16

The Call, the Leader, and the Masses were not the only papers to be suppressed. An issue of the Public was suppressed because it urged raising more money by taxes and less by loans. Lenin's Soviets at Work, an economic pamphlet, suffered a like fate. The Freeman's Journal and Catholic Register were censored for reprinting Jefferson's opinion that Ireland should be a republic. Other papers and writings received censorship for like offenses.1

CONCLUSION

There are many opinions as to just how far a government should prevent freedom of speech and of the press in time of war. Conditions of war demand a loyal country. When men are dying in the trenches, it scarcely behooves those at home to refuse them moral support. Discontent and distrust in the civilian population are reflected in conditions at the front, causing disaffection among the troops and defeat. Yet sometimes censorship is more perilous than freedom. In war time there must be a greater degree of censorship than in time of peace. But the greatest measure of freedom actually consistent with the national safety should be granted. Only in this way can the mind of the people be sounded, the danger elements detected and watched. Only in this way can the government remain to any degree compliant to the will of the people. Only in this way may minority opinion be expressed. A war which cannot be criticized or discussed may develop aims which the people, if informed, would not tolerate. Frank criticism helps to control the unscrupulous, to expose abuses, to censor the government as the government censors the people. That matters were carried to extremes during the World War was tacitly acknowledged by the commutation of long sentences. Abrams and his fellows had their sentences reduced from twenty to two and a half years. By the end of 1923, after much agitation, all the political offenders imprisoned by the federal government were released. Probably many of those apprehended were justly confined during the war as actually a hindrance to its success, but after the war was past there was little reason for keeping them imprisoned.

16 Files of the New York Call, 1920-1921.

17 "Freedom of Speech," pp. 107-108.

XXVI

CIVIL LIBERTIES IN TIME OF PEACE

Restriction of civil liberties did not end with the cessation of hostilities. A precedent created in war time was continued in time of peace by many of the states which passed their sedition acts either during or after the war. The aftermath of war was reflected in disturbed conditions in industry caused by the reëntry of the discharged soldiers into business, curtailment in production, unemployment, and a reduction of wages in advance of a parallel decline in the cost of living. This situation resulted in widespread disturbances between capital and labor and in the activities of radical groups. It made the people, already accustomed to an abridgement of civil liberty, acquiesce in its continuation.

NORMAL CRIMINAL LAW

The government is the people's protector against disorder and crime, but it is a disputed question whether the people need protection from ideas. They are guarded against overt acts or incitation to such acts by the normal criminal law. In time of peace this law has been sufficient to restrain criminal acts and obscene, libelous language whether the offender was an anarchist, bomb thrower, or common thief. Radical organizations existed for years in the United States, yet the people found that a spirit of tolerance toward those who merely expressed extreme or repugnant doctrines did not endanger the nation or its citizens. On the other hand all freedom of speech and written word was suppressed in Russia until the autocratic government which pursued this course was overthrown.

The law in existence before the passage of the state sedition acts seemed adequate, at least in time of peace. It allowed a wide margin of freedom for the sake of discussion, holding that truth would prevail over falsehood. It drew the danger line at a point just behind the commitment of overt acts and was willing to run a certain risk in allowing extremists to express their views in

1

STATE SEDITION LAWS

371

the belief that suppression would in the end be more dangerous to the peace, security, and ideals of a democratic country.'

STATE SEDITION LAWS

1

The sedition acts passed by the states during or since the World War were an outgrowth of the war hysteria. They had as their precedents, the New York Anarchy Law and the act passed by Idaho, the first state to adopt such legislation during the period of the war with Germany. The New York Anarchy Law was passed in 1902 as a result of the assassination of President McKinley by an anarchist. Only one prosecution was brought under this act until the new interest in sedition aroused by the war resulted in several convictions. Many of the new sedition laws made membership in a subversive organization a crime though the party manifesto was often so indefinite that determination as to its criminality depended largely on the meaning read into the words by each individual. These laws made evil intent with a remote possibility of disorder punishable and sought to stifle radical views at variance with the present order. Many of their provisions were so loose in phraseology as to be capable of a wide interpretation, which might encompass the innocent as well as the guilty.

Some Typical Provisions. A typical red flag law read: "Any person who displays a red flag, banner or badge or any flag, badge, banner or device of any color or form whatever in any public place or in any meeting place or public assembly, or from or in any house, building or window as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchist action or as an aid to propaganda that is of a seditious character is guilty of a felony." Some states defined the penalty for such an offense which ranged from six months to several years in jail and fines of $1,000 or over.

Criminal anarchy was defined in these laws as the doctrine "that organized government should be overthrown by force or violence, or by assassination of the executive head or any of the executive officials of government, or by any unlawful means."

Criminal syndicalism was described as "the doctrine which advocates crime, physical violence, arson, destruction of property 1 Chafee, Z. Jr., "Freedom of Speech," pp. 169-180.

2 Ibid., p. 188.

3 Ibid., p. 174. 4 Ibid., p. 180.