Schenck v. United States
- Opinion, Holmes
Evidence held sufficient to connect the defendants with the mailing of printed circulars in pursuance of a conspiracy to obstruct the recruiting and enlistment service, contrary to the Espionage Act of June 15, 1917. P 49. [p48]
Incriminating document seized under a search warrant directed against a Socialist headquarters, held admissible in evidence, consistently with the Fourth and Fifth Amendment, in a criminal prosecution against the general secretary of a Socialist party, who had charge of the office. P. 50.
Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances a to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done. P. 51.
A conspiracy to circulate among men called and accepted for military service under the Selective Service Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the intent to effect that result, and followed by the sending of such circulars, is within the power of Congress to punish, and is punishable under the Espionage Act, § 4, although unsuccessful. P. 52.
The word "recruiting," as used in the Espionage Act, § 3, means the gaining of fresh supplies of men for the military forces, as well by draft a otherwise. P. 52
The amendment of the Espionage Act by the Act of May 16, 1918, c. 75, 40 Stat. 553, did not affect the prosecution of offenses under the former. P. 53.
The case is stated in the opinion.
HOLMES, J., Opinion of the Court
MR. JUSTICE HOLMES delivered the opinion of the court.
This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219, by causing and attempting [p49] to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendants willfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offence against the United States, to-wit, to use the mails for the transmission of matter declared to be nonmailable by Title XII, § 2 of the Act of June 15, 1917, to-wit, the above mentioned document, with an averment of the same overt acts. The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. The defendants were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points also of which we must dispose.
It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was concerned in sending the documents. According to the testimony, Schenck said he was general secretary of the Socialist party, and had charge of the Socialist headquarters from which the documents were sent. He identified a book found there as the minutes of the Executive Committee of the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on the other side of one of them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck personally attended to the printing. On [p50] August 20, the general secretary's report said "Obtained new leaflets from printer and started work addressing envelopes" &c., and there was a resolve that Comrade Schenck be allowed $125 for sending leaflets through the mail. He said that he had about fifteen or sixteen thousand printed. There were files of the circular in question in the inner office which he said were printed on the other side of the one sided circular, and were there for distribution. Other copies were proved to have been sent through the mails to drafted men. Without going into confirmatory details that were proved, no reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about. As to the defendant Baer, there was evidence that she was a member of the Executive Board, and that the minutes of its transactions were hers. The argument as to the sufficiency of the evidence that the defendants conspired to send the documents only impairs the seriousness of the real defence.
It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as appears. The contrary is established. Adams v. New York, 192 U.S. 585; Weeks v. United States, 232 U.S. 383, 395, 396. The search warrant did not issue against the defendant, but against the Socialist headquarters at 1326 Arch Street, and it would seem that the documents technically were not even in the defendants' possession. See Johnson v. United States, 228 U.S. 457. Notwithstanding some protest in argument, the notion that evidence even directly proceeding from the defendant in a criminal proceeding is excluded in all cases by the Fifth Amendment is plainly unsound. Holt v. United States, 218 U.S. 245, 252, 253.
The document in question, upon its first printed side, recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the Conscription Act, and that a conscript is little better than a [p51] convict. In impassioned language, it intimated that conscription was despotism in its worst form, and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said "Do not submit to intimidation," but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights." It stated reasons for alleging that anyone violated the Constitution when he refused to recognize "your right to assert your opposition to the draft," and went on
If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.
It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up, "You must do your share to maintain, support and uphold the rights of the people of this country." Of course, the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point.
But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the [p52] main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462. We admit that, in many places and in ordinary 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 which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would 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 words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. 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 proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917, in § 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. Goldman v. United States, 245 U.S. 474, 477. Indeed, that case might be said to dispose of the present contention if the precedent covers all media concludendi. But, as the right to free speech was not referred to specially, we have thought fit to add a few words.
It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The [p53] words are "obstruct the recruiting or enlistment service," and it might be suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting volunteers, the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put as an alternative to enlistment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c. 75, 40 Stat. 553, of course, does not affect the present indictment, and would not even if the former act had been repealed. Rev.Stats., § 13.
- MEMBERS OF the CITY COUNCIL OF the CITY OF LOS ANGELES et al. v. TAXPAYERS FOR VINCENT, et al.
- BETHEL SCHOOL DISTRICT NO. 403, et al., Petitioners v. Matthew N. FRASER, a Minor and E.L. Fraser, Guardian Ad Litem.
- Samuel K. SKINNER, Secretary of Transportation, et al., Petitioners v. RAILWAY LABOR EXECUTIVES' ASSOCIATION et al.
- TEXAS, Petitioner v. Gregory Lee JOHNSON.
- Richard H. AUSTIN, Michigan Secretary of State and Frank J. Kelley, Michigan Attorney General, Appellants v. MICHIGAN CHAMBER OF COMMERCE.
- R.A.V., Petitioner, v. CITY OF ST. PAUL, MINNESOTA.
- DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., et al. v. FEDERAL COMMUNICATIONS COMMISSION et al. Certiorari to the United States Court of Appeals for the District of Columbia Circuit.
- PITTSBURGH PRESS COMPANY, Petitioner, v. The PITTSBURGH COMMISSION ON HUMAN RELATIONS et al.
- NEBRASKA PRESS ASSOCIATION et al., Petitioners, v. Hugh STUART, Judge, District Court of Lincoln County, Nebraska, et al.
- CITY OF MADISON, JOINT SCHOOL DISTRICT NO. 8, et al., Appellants, v. WISCONSIN EMPLOYMENT RELATIONS COMMISSION et al.
- Jerry Lee SMITH, Petitioner, v. UNITED STATES.
- C. Brice RATCHFORD, etc., et al., petitioners, v. GAY LIB et al
- Albert OHRALIK, Appellant, v. OHIO STATE BAR ASSOCIATION.
- Albert SMITH, President of the Village of Skokie, Illinois, et al. v. Frank COLLIN et al
- WHITNEY v. PEOPLE OF STATE OF CALIFORNIA.
- AMERICAN COMMUNICATIONS ASS'N, C.I.O., et al. v. DOUDS. UNITED STEEL WORKERS OF AMERICA et al. v. NATIONAL LABOR RELATIONS BOARD.
- TERMINIELLO v. CITY OF CHICAGO.
- FEDERAL COMMUNICATIONS COMMISSION, Petitioner, v. PACIFICA FOUNDATION.
- NEW YORK TIMES COMPANY, Petitioner, v. UNITED STATES. UNITED STATES, Petitioner, v. The WASHINGTON POST COMPANY et al.
- Paul M. BRANZBURG, Petitioner, v. John P. HAYES, Judge, etc., et al. In the Matter of Paul PAPPAS, Petitioner. UNITED STATES, Petitioner, v. Earl CALDWELL.
- CALIFORNIA et al., Appellants, v. Robert LaRUE et al.
- HERNDON v. LOWRY, Sheriff.
- INTERSTATE CIRCUIT, Inc., et al. v. UNITED STATES. PARAMOUNT PICTURES DISTRIBUTING CO., Inc., et al. v. SAME.
- CANTWELL et al. v. STATE OF CONNECTICUT.
- THORNHILL v. STATE OF ALABAMA.
- MILK WAGON DRIVERS UNION OF CHICAGO, LOCAL 753, et al. v. MEADOWMOOR DAIRIES, Inc.
- BRIDGES v. STATE OF CALIFORNIA. TIMES-MIRROR CO. et al. v. SUPERIOR COURT OF STATE OF CALIFORNIA, IN AND FOR LOS ANGELES COUNTY.
- CHAPLINSKY v. STATE OF NEW HAMPSHIRE.
- WEST VIRGINIA STATE BOARD OF EDUCATION et al. v. BARNETTE et al.
- TAYLOR v. STATE OF MISSISSIPPI. BENOIT v. SAME. CUMMINGS v. SAME.
- MARTIN v. CITY OF STRUTHERS, OHIO.
- KIYOSHI HIRABAYASHI v. UNITED STATES.
- HERNDON v. STATE OF GEORGIA.
- UNITED STATES v. SCHWIMMER.
- William EPTON v. NEW YORK (two cases).
- ABRAMS et al. v. UNITED STATES.
- STILSON v. UNITED STATES. SUKYS v. SAME.
- FROHWERK v. UNITED STATES.
- DEBS v. UNITED STATES.
- UNITED MINE WORKERS OF AMERICA, Petitioner, v. James M. PENNINGTON et al.
- A BOOK NAMED 'JOHN CLELAND'S MEMOIRS OF A WOMAN OF PLEASURE,' et al., Appellants, v. ATTORNEY GENERAL OF the COMMONWEALTH OF MASSACHUSETTS.
- CURTIS PUBLISHING CO., Petitioner, v. Wallace BUTTS. The ASSOCIATED PRESS, Petitioner, v. Edwin A. WALKER.
- SCHAEFER v. UNITED STATES. VOGEL v. SAME. WERNER v. SAME. DARKOW v. SAME. LEMKE v. SAME.
- UNITED STATES ex rel. MILWAUKEE SOCIAL DEMOCRATIC PUB. CO. v. BURLESON, Postmaster General.
- GILBERT v. STATE OF MINNESOTA.
- THOMAS v. COLLINS, Sheriff.
- PRINCE v. COMMONWEALTH OF MASSACHUSETTS.
- Clarence BRANDENBURG, Appellant, v. State of OHIO.
- Oleta O'Connor YATES, Henry Steinberg, Loretta Starvus Stack, et al., Petitioners, v. UNITED STATES of America. William SCHNEIDERMAN, Petitioner, v. UNITED STATES of America. AI RICHMOND and Philip Marshall Connelly, Petitioners, v. UNITED STATES of America.
- Samuel ROTH, Petitioner, v. UNITED STATES of America. David S. ALBERTS, Appellant, v. STATE OF CALIFORNIA.
- KOVACS v. COOPER, Judge.
- NIEMOTKO v. STATE OF MARYLAND. KELLEY v. STATE OF MARYLAND.
- KUNZ v. PEOPLE OF STATE OF NEW YORK.
- DENNIS et al. v. UNITED STATES.
- BEAUHARNAIS v. PEOPLE of the STATE OF ILLINOIS.
- NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, et al., Petitioners v. CLAIBORNE HARDWARE COMPANY et al.
- Albertis S. HARRISON, Jr., Attorney General of Virginia, et al., Appellants, v. NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, a Corporation, and NAACP Legal Defense and Educational Fund, Incorporated.
- Raphael KONIGSBERG, Petitioner, v. STATE BAR OF CALIFORNIA and the Committee of Bar Examiners of the State of California.
- HARTZEL v. UNITED STATES.
- BRIDGES v. WIXON, District Director, Immigration and Naturalization Service.
- MARSH v. STATE OF ALABAMA.
- PENNEKAMP et al. v. STATE OF FLORIDA.
- NotFound v. SUBVERSIVE ACTIVITIES CONTROL BOARD.
- Junius Irving SCALES, Petitioner, v. UNITED STATES of America.
- CENTRAL HUDSON GAS & ELECTRIC CORPORATION, Appellant, v. PUBLIC SERVICE COMMISSION OF NEW YORK.
- CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Appellant, v. PUBLIC SERVICE COMMISSION OF NEW YORK.
- Bernard CAREY, etc., Appellant, v. Roy BROWN et al.
- O'CONNELL et al. v. UNITED STATES.
- GITLOW v. PEOPLE OF THE STATE OF NEW YORK.
- B. Elton COX, Appellant, v. STATE OF LOUISIANA.
- NEAR v. STATE OF MINNESOTA ex rel. OLSON, Co. Atty.
- PANAMA R. CO. v. TOPPIN.
- PIERCE et al. v. UNITED STATES.