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
249 U. S. 49.
Page 249 U. S. 48
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.
249 U. S.
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.
249 U. S.
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.
249 U. S.
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.
249 U. S. 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.
249 U. S. 53.
Affirmed.
The case is stated in the opinion.
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
Page 249 U. S. 49
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
Page 249 U. S. 50
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,
232 U. S. 395,
232 U. S. 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,
218 U. S. 252,
218 U. S.
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
Page 249 U. S. 51
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
Page 249 U. S. 52
main purpose, as intimated in
Patterson v. Colorado,
205 U. S. 454,
205 U. S. 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,
195 U. S. 205,
195 U. S. 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,
221 U. S. 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,
245 U. S. 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
Page 249 U. S. 53
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.
Judgments affirmed.
