The First Amendment, while prohibiting legislation against free
speech as such, was not intended to give immunity to every possible
use of language. P.
249 U. S.
206.
A conspiracy to obstruct recruiting by words of persuasion
merely,
viz., by circulating newspaper publications, with
overt acts, is within the Espionage Act of June 15, 1917, and
within the power of Congress to punish. Pp.
249 U. S. 206,
249 U. S. 208.
Schenck v. United States, ante, 249 U. S. 47.
After conviction under an indictment charging such a conspiracy
and, as overt acts, the circulation of newspapers containing
articles which might well tend to effect its object if circulated
in certain places, the court must assume, in the absence of a bill
of exceptions, that the evidence as to the quarters reached by the
newspapers and the
scienter and expectation of the
defendant was sufficient to sustain the conviction. P.
249 U. S.
208.
A conspiracy to obstruct recruiting in violation of the
Espionage Act is criminal even when no means have been specifically
agreed on to carry out the intent, and hence it is not an objection
to an indictment that means are not alleged. P.
249 U. S.
209.
Neither, in such an indictment, is it necessary to allege that
false reports were made or intended to be made.
Id.
An allegation that defendants conspired to accomplish an object
necessarily alleges their intent to do so.
Id.
Under § 4 of the Espionage Act of 1917, the overt acts are
sufficiently alleged as done to effect the object of the
conspiracy.
Id.
An indictment is not bad for duplicity in setting up in a single
count a conspiracy to commit two offenses; the conspiracy is a
unit, however diverse its objects.
Id.
There is no merit in the suggestion that acts which are not
treasonable cannot be punished under the Espionage Act of 1917 upon
the theory that other acts included in the statute amount to
treason, and can only be punished as such. P.
249 U.S. 210.
The amendment of 1918 did not affect indictments found under the
Espionage Act of 1917.
Id.
Page 249 U. S. 205
Abuse of discretion is not established by the facts that, upon
overruling a demurrer to an indictment, the district court on the
next day ordered a plea of not guilty to be entered, refused a
continuance, empaneled a jury out of those previously called to
meet on that day for the term, and set the trial to begin on the
day following.
Id.
Affirmed.
The case is stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an indictment in thirteen counts. The first alleges a
conspiracy between the plaintiff in error and one Carl Gleeser,
they then being engaged in the preparation and publication of a
newspaper, the Missouri Staats Zeitung, to violate the Espionage
Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219. It alleges as
overt acts the preparation and circulation of twelve articles
&c. in the said newspaper at different dates from July 6, 1917,
to December 7 of the same year. The other counts allege attempts to
cause disloyalty, mutiny, and refusal of duty in the military and
naval forces of the United States by the same publications, each
count being confined to the publication of a single date. Motion to
dismiss and a demurrer on constitutional and other grounds,
especially that of the First Amendment as to free speech, were
overruled, subject to exception, and the defendant refusing to
plead, the court ordered a plea of not guilty to be filed. There
was a trial, and Frohwerk was found guilty on all
Page 249 U. S. 206
the counts except the seventh, which needs no further mention.
He was sentenced to a fine and to ten years imprisonment on each
count, the imprisonment on the later counts to run concurrently
with that on the first.
Owing to unfortunate differences, no bill of exceptions is
before us. Frohwerk applied to this Court for leave to file a
petition for a writ of mandamus requiring the judge to sign a
proper bill of exceptions, but a case was not stated that would
warrant the issuing of the writ, and leave was denied.
United
States ex rel. Frohwerk v. Youmans, 248 U.S. 540. The absence
of a bill of exceptions and the suggestions in the application for
mandamus have caused us to consider the case with more anxiety than
if it presented only the constitutional question which was the
theme of the principal argument here. With regard to that argument,
we think it necessary to add to what has been said in
Schenck
v. United States, 249 U. S. 47, only
that the First Amendment, while prohibiting legislation against
free speech as such, cannot have been, and obviously was not,
intended to give immunity for every possible use of language.
Robertson v. Baldwin, 165 U. S. 275,
165 U. S. 281.
We venture to believe that neither Hamilton nor Madison, nor any
other competent person then or later, ever supposed that to make
criminal the counseling of a murder within the jurisdiction of
Congress would be an unconstitutional interference with free
speech.
Whatever might be thought of the other counts on the evidence,
if it were before us, we have decided in
Schenck v. United
States that a person may be convicted of a conspiracy to
obstruct recruiting by words of persuasion. The government argues
that, on the record, the question is narrowed simply to the power
of Congress to punish such a conspiracy to obstruct, but we shall
take it in favor of the defendant that the publications set forth
as overt acts were the only means, and, when coupled with the joint
activity in producing them, the only evidence of
Page 249 U. S. 207
the conspiracy alleged. Taking it that way, however, so far as
the language of the article goes, there is not much to choose
between expressions to be found in them and those before us in
Schenck v. United States.
The first begins by declaring it a monumental and inexcusable
mistake to send our soldiers to France, says that it comes no doubt
from the great trusts, and later that it appears to be outright
murder without serving anything practical; speaks of the
unconquerable spirit and undiminished strength of the German
nation, and characterizes its own discourse as words of warning to
the American people. Then comes a letter from one of the counsel
who argued here, stating that the present force is a part of the
regular army raised illegally, a matter discussed at length in his
voluminous brief, on the ground that, before its decision to the
contrary, the Solicitor General misled this Court as to the law.
Later, on August 3, came discussion of the causes of the war,
laying it to the administration and saying "that a few men and
corporations might amass unprecedented fortunes, we sold our honor,
our very soul," with the usual repetition that we went to war to
protect the loans of Wall Street. Later, after more similar
discourse, comes "We say therefore, cease firing."
Next, on August 10, after deploring "the draft riots in Oklahoma
and elsewhere" in language that might be taken to convey an
innuendo of a different sort, it is said that the previous talk
about legal remedies is all very well for those who are past the
draft age and have no boys to be drafted, and the paper goes on to
give a picture, made as moving as the writer was able to make it,
of the sufferings of a drafted man, of his then recognizing that
his country is not in danger and that he is being sent to a foreign
land to fight in a cause that neither he nor any one else knows
anything of, and reaching the conviction that this is but a war to
protect some rich men's money.
Page 249 U. S. 208
Who then, it is asked, will pronounce a verdict of guilty upon
him if he stops reasoning and follows the first impulse of nature:
self-preservation, and further, whether, while technically he is
wrong in his resistance, he is not more sinned against than
sinning, and yet again whether the guilt of those who voted the
unnatural sacrifice is not greater than the wrong of those who now
seek to escape by ill-advised resistance. On August 17, there is
quoted and applied to our own situation a remark to the effect
that, when rulers scheme to use it for their own aggrandizement,
loyalty serves to perpetuate wrong. On August 31, with more of the
usual discourse, it is said that the sooner the public wakes up to
the fact that we are led and ruled by England, the better; that our
sons, our taxes, and our sacrifices are only in the interest of
England. On September 28 there is a sneering contrast between Lord
Northeliffe and other Englishmen spending many hundreds of
thousands of dollars here to drag us into the war and Count
Bernstorff spending a few thousand to maintain peace between his
own country and us. Later follow some compliments to Germany and a
statement that the Central powers are carrying on a defensive war.
There is much more to the general effect that we are in the wrong
and are giving false and hypocritical reasons for our course, but
the foregoing is enough to indicate the kind of matter with which
we have to deal.
It may be that all this might be said or written even in time of
war in circumstances that would not make it a crime. We do not lose
our right to condemn either measures or men because the country is
at war. It does not appear that there was any special effort to
reach men who were subject to the draft, and if the evidence should
show that the defendant was a poor man, turning out copy for
Gleeser, his employer at less than a day laborer's pay, for Gleeser
to use or reject as he saw fit, in a newspaper of small
circulation, there would be a natural inclination
Page 249 U. S. 209
to test every question of law to be found in the record very
thoroughly before upholding the very severe penalty imposed. But we
must take the case on the record as it is, and, on that record, it
is impossible to say that it might not have been found that the
circulation of the paper was in quarters where a little breath
would be enough to kindle a flame, and that the fact was known and
relied upon by those who sent the paper out. Small compensation
would not exonerate the defendant if it were found that he expected
the result, even if pay were his chief desire. When we consider
that we do not know how strong the government's evidence may have
been, we find ourselves unable to say that the articles could not
furnish a basis for a conviction upon the first count at least. We
pass therefore to the other points that are raised.
It is said that the first count is bad because it does not
allege the means by which the conspiracy was to be carried out. But
a conspiracy to obstruct recruiting would be criminal even if no
means were agreed upon specifically by which to accomplish the
intent. It is enough if the parties agreed to set to work for that
common purpose. That purpose could be accomplished or aided by
persuasion as well as by false statements, and there was no need to
allege that false reports were intended to be made or made. It is
argued that there is no sufficient allegation of intent, but intent
to accomplish an object cannot be alleged more clearly than by
stating that parties conspired to accomplish it. The overt acts are
alleged to have been done to effect the object of the conspiracy,
and that is sufficient under § 4 of the Act of 1917. Countenance we
believe has been given by some courts to the notion that a single
count in an indictment for conspiring to commit two offences is bad
for duplicity. This Court has given it none.
Buckeye Powder Co.
v. E. I. Dupont de Nemours Powder Co., 248 U. S.
55,
248 U. S. 60-61;
Joplin Mercantile Co. v.
United
Page 249 U. S. 210
States, 236 U. S. 531,
236 U. S. 548.
The conspiracy is the crime, and that is one, however diverse its
objects. Some reference was made in the proceedings and in argument
to the provision in the Constitution concerning treason, and it was
suggested on the one hand that some of the matters dealt with in
the Act of 1917 were treasonable and punishable as treason or not
at all, and on the other that the acts complained of, not being
treason, could not be punished. These suggestions seem to us to
need no more than to be stated. The amendment of the Act of 1917 in
1918 (Act May 16, 1918, c. 75) did not affect the present
indictment.
Schenck v. United States. Without pursuing the
matter further, we are of opinion that the indictment must
stand.
Before the demurrer was disposed of, the court had ordered
jurymen to be summoned to serve for the April term of the court and
to report for service on June 25, 1918, as, of course, it might.
The demurrer was overruled on June 24, and on the following day the
plea of not guilty was ordered to be entered, a continuance was
refused, a jury was empannelled, and the trial set to begin the
next morning. There is nothing before us that makes it possible to
say that the judge's discretion was wrongly exercised. Upon the
whole case, we are driven to the conclusion that the record shows
no ground upon which the judgment can be reversed.
Judgment affirmed.
