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SCHENCK v. UNITED STATES

249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470

Argued January 9 and 10, 1919

Decided March 3, 1919


World War I began in 1914, and by the time the United States declared war in 1917 the war effort was not going well for the allies. The English and French could not stand alone against Germany, and the Russians were torn by their own communist revolution. A massive effort was needed to insure an allied victory.


To provide the men needed, Congress passed a Selective Service Act, which created a military draft in 1917. In order to protect the war effort, Congress also passed the Espionage Act of 1917. Among other things, the Act made it a crime to cause or attempt to cause rebelliousness in the military or to do anything to interfere with the recruitment of persons into the military service.
Charles Schenck, the General Secretary of the Socialist Party, was an American who was deeply opposed to United States participation in the war. He was arrested for violating the Espionage Act after leaflets urging resistance to the draft were traced to Socialist headquarters.
The 15,000 leaflets had been sent to men who had been drafted. On the front it quoted the first section of the Thirteenth Amendment and hinted that it was violated by the military draft. The leaflet went on to state that a draftee was little better than a convict. It suggested that conscription (involuntary drafting for the military) was despotism in its worst form and a monstrous wrong against humanity. It said: “Do not submit to intimidation”; but suggested only peaceful measures, such as a petition for the repeal of the Act. The other side of the sheet was headed, “Assert Your Rights.” It stated reasons for alleging that anyone violated the Constitution when he or she refused to recognize “your rights 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 mercenary capitalist press, and even silent consent to the draft law as helping to support an infamous conspiracy. It denied the power to send United States 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 deserved. The leaflet
concluded: “You must do your share to maintain, support, and uphold the rights of the people of this country.”
Although Schenck denied responsibility for sending the leaflets, evidence presented at the trial showed that he was provided $125 for sending leaflets through the mail. The trial court determined that there was enough evidence to convict him. After Schenck was found guilty in a federal district court in Pennsylvania, he appealed his conviction and claimed that the leaflets should be protected as free speech. The government maintained that the Espionage Act had been a valid and necessary limit on speech.

  • ISSUE: Does the Espionage Act violate Schenck’s rights to free speech under the First Amendment?


SCHENCK v. UNITED STATES (1919)

Decision


The Supreme Court decided the Espionage Act was constitutional. Justice Holmes wrote for the unanimous Court, stating:
... 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 main purpose ... 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. 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. 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 ... 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....


WHY CAN’T YOU SAY THAT?

Learning Objectives: The student will


1. Analyze ten documents and determine if they violated the Espionage Act of 1917 and the Sedition Act of 1918;

2. Compare the Sedition Act of 1789 to the Sedition Act of 1918.


TEKS/TAKS: US Hist 3 D, 5 A; Govt 14 C, 14 E
Materials Needed: Ten documents for each group, copy of the Federal Espionage Act of 1917 and Sedition Act of 1918, copy of Sedition Act of 1789
Vocabulary: Sedition, espionage
Teaching Strategy:

.

1. Divide the class into groups of five. Give each group a set of the documents. Each member of the group should take two documents to analyze. Using a copy of the Federal Espionage Act of 1917 and the Sedition Act of 1918, students will decide if what is written in each of the documents would violate these laws.


2. After all members of the group have examined its documents, they should justify their answer to the other members of the group. Once each group has shared its documents, the students should repeat the process, but this time compare their documents with the Sedition Act of 1789.

Extension for GT/AP: Have students research and select examples of modern music and political advertisements that might violate the Sedition Act of 1918 if it were law today.



Document Titles:

Document 1—Declaration of Independence;

Document 2—Martin Luther King, Jr., “The March on Washington Address,” The Mall, Washington, D.C.; Aug. 28, 1963;

Document 3—Mercy Otis WarrenThe Proposed Constitution Should Not Be Ratified”;

Document 4—Barbara Jordon’s keynote address “Change: From What to What?,”Democratic National Convention, July 13, 1992;

Document 5—Anti-draft Pamphlet;

Document 6—Eugene Debs’s statement that caused him to be arrested;

Document 7—Eugene McCarthy, “An Indefensible War,” Conference of Concerned Democrats, Conrad Hilton Hotel, Chicago, IL; December 2, 1967;

Document 8—W.E.B. Du Bois, “Returning Soldier,” April 1, 1919;

Document 9—Mario Cuomo, “A Case for Democrats: A Tale of Two Cities,” Democratic National Convention, San Francisco, California, July 16, 1984;

Document 10—Barbara Jordan, “On the Impeachment of the President,” Hearings on Articles of Impeachment by the Committee on the Judiciary of the House of Representatives, Washington, D.C.; July 26, 1974.

CLEAR AND PRESENT DANGER” AT HOME



DURING WORLD WAR I

On April 6, 1917, the United States entered World War I by declaring war on Germany. A few weeks later Congress passed a law that ordered the drafting of young men into the armed forces. Eventually over a million American soldiers went to Europe to fight in the “Great War.” By the time the war ended on November 11, 1918, more than 50, 000 Americans had been killed in combat.


At home most people supported President Woodrow Wilson=s view that it was necessary for the United States to enter the European war. “The world must be made safe for democracy,” he said. Nevertheless, American pacifists and political radicals spoke out against U.S. participation in the war. This situation presented a dilemma for Americans: Just how much free speech should a democracy allow during wartime?
A Clear and Present Danger”
Two months after its declaration of war. Congress passed the Espionage Act of 1917. Designed mainly to prevent sabotage and spying, the Espionage Act also prohibited any “attempt to cause insubordination, disloyalty, mutiny or refusal of duty, in the military or naval forces of the United States.”
The next year Congress enacted an amendment to the Espionage Act, making it a crime to “willfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States.” The amendment also made it illegal to “willfully utter, print, write, or publish any disloyal, profane, scurrilous [insulting], or abusive language about the form of government of the United States, or the Constitution of the United States, or the ... flag of the United States.”
The Espionage Acts of 1917 and 1918 carried penalties of up to $10,000, 20 years in prison, or both. About 2,000 persons were arrested and prosecuted under the provisions of these laws. One of those arrested was Charles T. Schenck, general secretary for the American Socialist Party. During his trial, Schenck admitted printing about 15, 000 anti-draft leaflets for distribution to men who had just received their draft notices. Some of the leaflets were mailed directly to drafted men.
After quoting the Thirteenth Amendment (which prohibits slavery), the leaflet stated that a man drafted into the Army was little more than a prison convict. According to the writers of the leaflet, the draft was a monstrous wrong created to keep the war going so businessmen could make more money from it. Under the section titled “Assert Your Rights,” the leaflet called upon drafted men to recognize “your right to assert your opposition to the draft.”
Charles T. Schenck and several other Socialist Party members were convicted of violating those parts of the Espionage Acts that prohibited interference with the operation of the draft. Schenck appealed his conviction to the U.S. Supreme Court on the grounds that the First Amendment protected everything he said, wrote and did. Among other things, the Amendment states that “Congress shall make no law...abridging [reducing] the freedom of speech, or of the press.”
The Schenck case finally reached the Supreme Court two months after the war ended. On March 3, 1919, the Court unanimously upheld Schenck’s conviction. Justice Oliver Wendell Holmes wrote the decision (Schenck v. United States, 249 U.S. 47, 1919).

Justice Holmes first rejected the argument that, in fact, there was no evidence that the leaflets actually persuaded young men to violate the draft law. Holmes wrote that the intention of Schenck and his fellow defendants to obstruct the draft was clear enough to justify their conviction. But what about the First Amendment? Did Congress itself act illegally by passing laws blocking Schenck’s freedom of speech?


Justice Holmes admitted that during peacetime the leaflet distributed by Schenck and the other Socialists would have been protected by the First Amendment. “But,” Justice Holmes went on, “the character of every act depends upon the circumstances in which it is done.” The circumstances of this case involved not peacetime but wartime.
Justice Holmes next held that freedom of speech might be limited in certain circumstances. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic,” he wrote.
At what point, then, is the government justified in punishing someone for what he or she says or writes? “The question in every case,” Holmes answered, “is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger.”
In the view of Justice Holmes and the other members of the Supreme Court, wartime was one of those circumstances when certain spoken and written words are too dangerous to allow. “When a nation is at war,” Holmes explained, “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.”
Justice Holmes concluded his written opinion by saying that any leaflet that encouraged men “to assert your opposition to the draft” was “a clear and present danger” during the time the United States was at war. Under these circumstances, the Supreme Court ruled that Charles T. Schenck and the other defendants had been properly convicted.
Free Trade in Ideas”
Eight months after the Schenck case was decided, the Supreme Court handed down another opinion involving free speech during wartime. But this time, the Supreme Court was not unanimous.
Jacob Abrams and four other defendants in this case were all immigrants from Russia. They described themselves as “rebels,” “revolutionaries” and “anarchists.” The group was accused of printing and distributing leaflets that insulted the United States and interfered with the nation’s war effort against Germany. The defendants were charged under the provisions of the Espionage Acts of 1917 and 1918.
Most of the leaflets in question had been thrown out of a window on August 22, 1918. This incident took place within a few months of the Russian Communist Revolution of 1917. Soon after the Revolution was over, the Communists ended the Soviet Union’s participation in the war against Germany. The United States and the other Allies were deeply opposed to these actions. In response, some of the Allied Powers, including the United States, sent troops into certain parts of the Soviet Union. The five Russian immigrants printed and distributed their leaflet to protest this intervention.
One article in the leaflet denounced President Wilson as a hypocrite and a coward for sending American troops into the U.S.S.R. The article went on to appeal to American workers to revolt against the government.
A second article referred to “his majesty, Mr. Wilson, and the rest of the gang; dogs of all colors!” This article also addressed Russian immigrants working in U.S. ammunition factories: “you are producing bullets, bayonets, cannons, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.” The article then called for a general strike in the United States “to create so great a disturbance...America shall be compelled to keep their armies at home, and not be able to spare any for Russia.”
Were the words in this leaflet “a clear and present danger” to the United States, which at the time was still at war in Europe? A majority of seven Supreme Court Justices thought so (Abrams v. United States, 250 U.S. 616, 1919).

The majority concluded that even if the authors of the leaflet were mainly concerned with the cause of the Russian Revolution, their plan of action included undermining the U.S. war effort. Appealing to workers to stop making ammunition and calling for a general strike during wartime was as much a threat to the country as interfering with the military draft.


Two justices, Louis D. Brandeis and Oliver Wendell Holmes, dissented, concluding that circumstances in this case did not amount to “a clear and present danger.” Justice Holmes, who only a few months earlier had upheld the conviction of Charles T. Schenck, wrote the dissenting opinion.
Justice Holmes now argued, “it is only the present danger of immediate evil or an intent to bring it about” that justifies limiting free speech. Holmes could find no “immediate evil” in what he called “a silly leaflet by an unknown man.” He also failed to see any intention on the part of the defendants to hinder America’s war against Germany. He wrote that the only purpose of the leaflet was “to help Russia and stop American intervention there.”
In his dissent, Justice Holmes also maintained that “a clear and present danger” must be a real and immediate threat. He further declared that in a democracy the way to find the truth is “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.”
In the Schenck case, decided in 1919, Justice Holmes recognized that there are circumstances in which the government may limit what people say and write. In the Abrams case, also decided in 1919, Holmes warned against excessive attempts by the government to stifle free speech, even in wartime:
I think that we should be eternally vigilant against attempts to check the opinions that we loathe [hate]... 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.
This language would set the tone for debate in free expression cases throughout the twentieth century.
Article: Bill of Rights in Action, Winter 1988. Constitutional Rights Foundation

SEDITION ACT OF 1789
If any person shall write, print, utter, or publish, or shall cause to procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding $2000 and by imprisonment not exceeding two years.

PORTIONS OF THE FEDERAL ESPIONAGE ACT OF 1917
SEC. 3. Whoever when the United States is at war, shall willfully make or convey false reports or false statements with the intent to interfere with the operation or success of the military or naval forces of the United States...and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States...shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.”
SEC. 4. If two or more persons conspire to violate the provisions of sections two or three of this title, and one or more of such persons does any act to effect the object of the conspiracy, and each of the parties to such conspiracy shall be punished as in said sections provided in the case of the doing of the act the accomplishment of which is the object of such conspiracy. Except as above provided conspiracies to commit offenses under this title shall be punished as provided by section thirty-seven of the Act to codify, revise, and amend the penal laws of the United States approved March fourth, nineteen hundred and nine.”
SEC. 5. Whoever harbors or conceals any person who he knows, or has reasonable grounds to believe or suspect, has committed, or is about to commit, an offense under this title shall be punished by a fine of not more than $10,000 or by imprisonment for not more than two years or both.”
SEC. 6. The President in time of war or in case of national emergency may by proclamation designate any place other than those set forth in subsection (a) of section one hereof in which anything for the use of the Army or Navy is being prepared or constructed or stored as a prohibited place for the purposes of this title: Provided, That he shall determine that information with respect thereto would be prejudicial to the national defense.”

ESPIONAGE ACT OF 1917 AND THE SEDITION ACT OF 1918
“SEC. 3. Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall willfully make or convey false reports or false statements, or say or do anything except by way of bona fide and no disloyal advice to an investor or investors, with intent to obstruct the sale by the United States of bonds or other securities of the United States or the making of loans by or to the United States, and whoever when the United States is at war, shall willfully cause or attempt to cause, or incite or attempt to incite, insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States, and whoever, when the United States is at war, shall willfully utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States into contempt, scorn, contumely, or disrepute, or shall willfully utter, print, write, or publish any language intended to incite, provoke, or encourage resistance to the United States, or to promote the cause of its enemies, or shall willfully display the flag of any foreign enemy, or shall willfully by utterance, writing, printing, publication, or language spoken, urge, incite, or advocate any curtailment of production in this country of any thing or things, product or products, necessary or essential to the prosecution of the war in which the United States may be engaged, with intent by such curtailment to cripple or hinder the United States in the prosecution of the war, and whoever shall willfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated, and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10, 000 or imprisonment for not more than twenty years, or both: Provided, That any employee or official of the United States Government who commits any disloyal act or utters any unpatriotic or disloyal language, or who, in abusive and violent manner criticizes the Army or Navy or the flag of the United States shall be at once dismissed from the service. Any such employee shall be dismissed by the head of the department in which the employee may be engaged, and any such official shall be dismissed by the authority having power to appoint a successor to the dismissed official.”


SEC. 4. When the United States is at war, the Postmaster General may, upon evidence satisfactory to him that any person or concern is using the mails in violation of any of the provisions of this Act, instruct the postmaster at any post office at which the mail is received addressed to such person or concern to return to the postmaster at the office at which they were originally mailed all letters or other matter so addressed, with the words ‘Mail to this address undeliverable under Espionage Act plainly written or stamped upon the outside thereof, and all such letters or other matter so returned to such postmasters shall be by them returned to the senders thereof under such regulations as the Postmaster General may prescribe.’”*

*The bold wording is the original wording of the Espionage Act of 1917. The smaller non-bold wording reflects the additions made in 1918 to create the Sedition Act of 1918.


ESPIONAGE ACT OF 1917

TITLE I.

ESPIONAGE.

SECTION 1. That (a) whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, coaling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, or other place connected with the national defense, owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers or agents, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, or stored, under any contract or agreement with the United States, or with any person on behalf of the United States, or any prohibited place within the meaning of section six of this title; or (b) whoever for the purpose aforesaid, and with like intent or reason to believe, copies, takes, or makes, or obtains or attempts, or induces or aids another to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or (c) whoever, for the purpose aforesaid, receives or obtains or agrees or attempts or induces or aids another to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts or induces or aids another to receive or obtain it, that it has been or will be obtained, taken, made or disposed of by any person contrary to the provisions of this title; or (d) whoever, lawfully or unlawfully, having possession of, access to, control over, or being intrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note relating to the national defense, willfully communicates or transmits or attempts to communicate or transmit the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or (e) whoever, being intrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, or information, relating to the national defense, through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than two years, or both.

SEC. 2. (a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates delivers, or transmits, or attempts to, or aids or induces another to, communicate, deliver, transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by imprisonment for not more than twenty years: Provided, That whoever shall violate the provisions of subsection (a) of this section in time of war shall be punished by death or imprisonment for not more than thirty years; and (b) whoever, in time of war, with intent that the same shall be communicated to the enemy, shall collect, record, publish, or communicate, or attempt to elicit any information with respect to the movement, numbers, description, condition, or disposition of any of the armed forces, ships, aircraft or war materials of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy, shall be punished by death or by imprisonment for not more than thirty years.

SEC. 3. Whoever, when the Untied States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.

SEC. 4. If two or more persons conspire to violate the provisions of sections two or three of this title, and one or more of such persons does any act to effect the object of the conspiracy, and each of the parties to such conspiracy shall be punished as in said sections provided in the case of the doing of the act the accomplishment of which is the object of such conspiracy. Except as above provided conspiracies to commit offenses under this title shall be punished as provided by section thirty-seven of the Act to codify, revise, and amend the penal laws of the United States approved March fourth, nineteen hundred and nine.

SEC. 5. Whoever harbors or conceals any person who he knows, or has reasonable grounds to believe or suspect, has committed, or is about to commit, an offense under this title shall be punished by a fine of not more than $10,000 or by imprisonment for not more than two years or both.

SEC. 6. The President in time of war or in case of national emergency may by proclamation designate any place other than those set forth in subsection (a) of section one hereof in which anything for the use of the Army or Navy is being prepared or constructed or stored as a prohibited place for the purposes of this title: Provided, That he shall determine that information with respect thereto would be prejudicial to the national defense.

SEC. 7. Nothing contained in this title shall be deemed to limit the jurisdiction of the general courts-martial, military commissions, or naval courts-martial under sections thirteen hundred and forty-two, thirteen hundred and forty-three, and sixteen hundred and twenty-four of the Revised Statutes as amended.

SEC. 8. The Act entitled “An Act to prevent the disclosure of national defense secrets,” approved March third, nineteen hundred and eleven, is hereby repealed.



SEDITION ACT OF 1918

40 STAT 553
Bold print is Espionage Act of 1917

CHAP. 75—An Act To Amend section three, title one, of the Act entitled “An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,” approved June fifteenth, nineteen hundred and seventeen, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section three of title one of the Act entitled “An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,” approved June fifteenth, nineteen hundred and seventeen, be, and the same is hereby, amended so as to read as follows:

SEC. 3. Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall willfully make or convey false reports or false statements, or say or do anything except by way of bona fide and no disloyal advice to an investor or investors, with intent to obstruct the sale by the United States of bonds or other securities of the United States or the making of loans by or to the United States, and whoever when the United States is at war, shall willfully cause or attempt to cause, or incite or attempt to incite, insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States, and whoever, when the United States is at war, shall willfully utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States into contempt, scorn, contumely, or disrepute, or shall willfully utter, print, write, or publish any language intended to incite, provoke, or encourage resistance to the United States, or to promote the cause of its enemies, or shall willfully display the flag of any foreign enemy, or shall willfully by utterance, writing, printing, publication, or language spoken, urge, incite, or advocate any curtailment of production in this country of any thing or things, product or products, necessary or essential to the prosecution of the war in which the United States may be engaged, with intent by such curtailment to cripple or hinder the United States in the prosecution of the war, and whoever shall willfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated, and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10, 000 or imprisonment for not more than twenty years, or both: Provided, That any employee or official of the United States Government who commits any disloyal act or utters any unpatriotic or disloyal language, or who, in abusive and violent manner criticizes the Army or Navy or the flag of the United States shall be at once dismissed from the service. Any such employee shall be dismissed by the head of the department in which the employee may be engaged, and any such official shall be dismissed by the authority having power to appoint a successor to the dismissed official.”



SEC. 2. That section one of Title XII and all other provisions of the Act entitled “An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,” approved June 15th, nineteen hundred and seventeen, which apply to section three of Title I thereof shall apply with equal force and effect to said section three as amended.

Title XII of the said Act of June fifteenth, nineteen hundred and seventeen, be, and the same is hereby, amended by adding thereto the following section:

“SEC. 4. When the United States is at war, the Postmaster General may, upon evidence satisfactory to him that any person or concern is using the mails in violation of any of the provisions of this Act, instruct the postmaster at any post office at which the mail is received addressed to such person or concern to return to the postmaster at the office at which they were originally mailed all letters or other matter so addressed, with the words ‘Mail to this address undeliverable under Espionage Act’ plainly written or stamped upon the outside thereof, and all such letters or other matter so returned to such postmasters shall be by them returned to the senders thereof under such regulations as the Postmaster General may prescribe.”

Approved, May 16, 1918.



Document 1
That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

Document 2
In a sense we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.
It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned....
I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. Some of you have come from areas where your quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive.
Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettoes of our Northern cities, knowing that somehow this situation can and will be changed. Let us not wallow in the valley of despair.
I say to you today, my friends, that in spite of the difficulties and frustrations of the moment, I still have a dream. It is a dream deeply rooted in the American dream.
I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident; that all men are created equal.”

Suriano, Gregory. Great American Speeches, Gramercy Books, New York, 1993.



Document 3
All writers on government agree, and the feelings of the human mind witness the truth of these political axioms, that man is born free and possessed of certain unalienable rights—That government is instituted for the protection, safety, and happiness of the people, and not for the profit, honour, or private interest of any man, family, or class of men—That the origin of all power is in the people, and that they have an incontestable right to check the creatures of their own creation, vested with certain powers to guard the life, liberty, and property of the community. And if certain selected bodies of men, deputed on these principles, determine contrary to the wishes and expectations of their constituents, the people have an undoubted right to reject their decisions, to call for a revision of their conduct, to depute others in their room, or if they think proper, to demand further time for deliberation on matters of the greatest moment . . .


Document 4

The American Dream is not dead. True, it is gasping for breath, but it is not dead. However, there is no time to waste because the American Dream is slipping away from too many. It is slipping away from too many black and brown mothers and their children; from the homeless of every color and sex; from the immigrants living in communities without water and sewer systems. The American Dream is slipping away from the workers whose jobs are no longer there because we are better at building war equipment that sits in warehouses than we are at building decent housing; from the workers on indefinite layoffs while their chief executive officers are making bonuses that are more than the worker will take home in 10 or 20 or 30 years.

Excerpt of document is from Documents of Texas History, by Wallace, Vigness, and Ward, State House Press, Austin, Texas 1994.




Document 5
...the recruiting officers are coming. They will take your sons of military age and impress them into the army...They will be shipped...to the bloody quagmire of Europe. Into that seething, heaving swamp of torn flesh and floating entrails they will be plunged, in regiments, divisions, and armies, screaming as they go.”

Document 6
No wonder Johnson [Samuel Johnson, an English writer] said that “Patriotism is the last refuge of scoundrels.” He had the Wall Street gentry in mind . . . for in every age it has been the tyrant who has wrapped himself in the cloak of patriotism, or religion, or both . . .
The United States, under the rule of the plutocracy [rich], is the only country that would send a woman to the penitentiary for 10 years for exercising her constitutional right of free speech. If this be treason let them make the most of it. . . .
Do not worry, please; don’t worry over the charges of Treason to your masters, but be concerned about the Treason that involves yourselves. Be true to yourself, and you cannot be a traitor to any cause on earth.

Document 7
...Finally, it is a war which is morally wrong. The most recent statement of objectives cannot be accepted as an honest judgment as to why we are in Vietnam. It has become increasingly difficult to justify the methods we are using and the instruments of war which we are using as we have moved away from limited targets and somewhat restricted weapons to greater variety and more destructive instruments of war, and have also extended the area of operations almost into the heart of North Vietnam.
Even assuming that both objectives and methods can be defended, the war cannot stand the test of proportion and of prudent judgment. It is no longer possible to prove that the good that may come with what is called victory, or projected as victory, is proportionate to the loss of life and property and to other disorders that follow from this war....

Suriano, Gregory. Great American Speeches, Gramercy Books, New York, 1993.



Document 8
We are returning from war! The Crisis and tens of thousands of black men were drafted into a great struggle. For bleeding France and what she means and has meant and will mean to us and humanity and against the threat of German race arrogance. . . .
This is the country to which we Soldiers of Democracy return. This is the fatherland for which we fought! But it is our fatherland. It was right for us to fight again. The faults of our country are our faults. Under similar circumstances, we would fight again. But by the God of heaven, we are cowards and jackasses if now that the war is over, we do not marshal every ounce of our brain and brawn to fight a sterner, longer, more unbending battle against the forces of hell in our own land.
We return.
We return from fighting.
We return fighting.
Make way for Democracy! We saved it in France, and by the Great Jehovah, we will save it in the United States of America, or know the reason why.

Lewis, David. W.E.B. Du Bois, Henry Holt Co., New York, 1993.



Document 9
The President said he didn’t understand that fear. He said, “Why, this country is a shining city on a hill.” The President is right. In many ways, we are “a shining city on a hill.” But the hard truth is that not everyone is sharing in this city’s splendor and glory.
A shining city is perhaps all the President sees from the portico of the White House and the veranda of his ranch, where everyone seems to be doing well. But there’s another part of the city, the part where some people can’t pay their mortgages and most young people can’t afford one, where students can’t afford the education they need and middle-class parents watch dreams they hold for their children evaporate.
In this part of the city there are more poor than ever, more families in trouble. More and more people who need help but can’t find it. Even worse: there are elderly people who tremble in the basements of the houses there. There are people who sleep in the city’s streets, in the gutter, where the glitter doesn't show. There are ghettos where thousands of young people, without an education or a job, give their lives away to drug dealers every day.

There is despair, Mr. President, in faces you never see, in places you never visit in your shining city.
In fact, Mr. President, this nation is more a “Tale of Two Cities” than it is a “Shining City on a Hill.” Maybe if you visited more places, Mr. President, you’d understand.

Suriano, Gregory. Great American Speeches, Gramercy Books, New York, 1993.



Document 10

The Constitution charges the president with the task of taking care that the laws be faithfully executed, and yet the president has counseled his aides to commit perjury, willfully disregarded the secrecy of grand jury proceedings, concealed surreptitious entry, attempted to compromise a federal judge while publicly displaying his cooperation with the processes of criminal justice.
A president is impeachable if he attempts to subvert the Constitution.”
If the impeachment provision in the Constitution of the United States will not reach the offenses charged here, then perhaps that eighteenth century Constitution should be abandoned to a twentieth-century paper shredder. Has the President committed offenses and planned and directed and acquiesced in a course of conduct which the Constitution will not tolerate? That is the question. We know that. We know the question. We should now forthwith proceed to answer the question. It is reason, and not passion, which must guide our deliberations, guide our debate, and guide our decision.

Suriano, Gregory. Great American Speeches, Gramercy Books, New York, 1993.



ABRAMS v. UNITED STATES

250 U.S. 616, 40 S.Ct. 17

1919


Jacob Abrams, a twenty-nine-year-old Russian immigrant, was arrested in New York City on August 23, 1918 for violating the Espionage Act of 1917 and the Sedition Act of 1918. These laws made it a crime to write and publish disloyal or profane statements that were intended to interfere, during wartime, with the production of goods necessary to the defense of the United States.
Abrams and several other Russian immigrants, who were self-professed anarchists and revolutionaries, had written, printed, and distributed copies of a leaflet that severely criticized President Wilson’s decision to send U.S. troops into Russia. Approximately 5,000 leaflets, characterizing the American form of government in “scurrilous and abusive language,” were distributed. The writers condemned America’s efforts of the Wilson administration to aid in crushing the Russian Revolution, referring in their leaflets to President Wilson as a “coward” and to his administration as “the plutocratic gang in Washington.” They advocated halting the production of materials necessary to fight the war by urging American workers to walk off their jobs in protest against the government and in support of the new communist government in Russia. The leaflets also appealed to soldiers to stop killing their Russian comrades.
The defendants were convicted in Federal District Court on all counts and sentenced to twenty years in prison. They then appealed the convictions.


  • ISSUE: Is a law that makes it a crime to criticize the American form of government in violation of the First Amendment right to free speech?

ABRAMS v. UNITED STATES (1919)

Decision


The Supreme Court, in a seven-to-two decision, upheld the convictions. Justice Clarke, writing for the Court, noted that the defendants’ leaflet, in which they called for a general strike, were distributed “in the greatest port of our land, from which great quantities of war supplies were at the time being manufactured for transportation overseas.” Clark argued that “the obvious effect” of the leaflet “would be to persuade persons ... not to work in ammunition factories, where their work would produce bullets, bayonets, cannons, and other munitions” needed by U.S. military forces in World War I.
Clark moved away from the Clear and Present Danger test and instead asserted:
[T]he plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as the hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the Government in Europe. A technical distinction may perhaps be taken between disloyal and abusive language applied to the form of our government or language intended to bring the form of our government into contempt and disrepute, and language of like character and intended to produce like results directed against the President and Congress, the agencies through which that form of government must function in time of war. But it is not necessary to a decision of this case to consider whether such distinction is vital or merely formal, for the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war....
The case of Abrams v. U.S., however, is best known for the dissenting opinion written by Justice Holmes and joined by Justice Brandeis. Justice Holmes first carefully examined the statute in question:
It seems to me that this statute must be taken to use its words in a strict and accurate sense. They would be absurd in any other. A patriot might think that we were wasting money on aeroplanes, or making more cannon of a certain kind than we needed, and might advocate curtailment with success, yet even if it turned out that the curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States in the prosecution of the war, no one would hold such conduct a crime....
Next, Justice Holmes explained the nature of the “clear and present danger” theory, as applied to this case. He wrote:
I have never seen any reason to doubt that the questions of law that alone were before this Court in the cases of Schenck, Frohwerk, and Debs were rightly decided. I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times.
But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger and at any rate would have the quality of an attempt.... An actual intent in the sense that I have explained is necessary to constitute an attempt, where a further act of the same individual is required to complete the substantive crime.... It is necessary where the success of the attempt depends upon others because if that intent is not present, the actor’s aim may be accomplished without bringing about the evils sought to be checked. An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carry on the war in which we were engaged.
Justice Holmes concluded his dissent with a compelling theory of free speech in a constitutional democracy. Arguing for “free trade in ideas,” Holmes said:
... [T]he best test of this 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 experiment. 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 safe the country....
That this decision marked a turning away from the Clear and Present Danger standard was evident to Holmes. In his dissent he tried to refine the test to show how the Schenck v. U.S. rationale could work in a variety of contexts. Many view this dissent as one of Holmes’ finest, earning him the title “the Great Dissenter.”
BENJAMIN GITLOW v.
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