Schenck v. United States, 249 U.S. 47 (1919)
Uploaded by
Scribd Government DocsSchenck v. United States, 249 U.S. 47 (1919)
Uploaded by
Scribd Government Docs249 U.S.
47
39 S.Ct. 247
63 L.Ed. 470
SCHENCK
v.
UNITED STATES. BAER v. SAME.
Nos. 437, 438.
Argued Jan. 9 and 10, 1919.
Decided March 3, 1919.
Messrs. Henry John Nelson and Henry Johns Gibbons, both of
Philadelphia, Pa., for plaintiffs in error.
Mr. John Lord O'Brian, of Buffalo, N. Y., for the United States.
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, tit. 1, 3, 40 Stat. 217, 219 (Comp.
St. 1918, 10212c), by causing and attempting 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 defendant wilfully
conspired to have printed and circulated to men who had been called and
accepted for military service under the Act of May 18, 1917, c. 15, 40 Stat. 76
(Comp. St. 1918, 2044a-2044k), 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 offense
against the United States, to-wit, to use the mails for the transmission of matter
declared to be non-mailable by title 12, 2, of the Act of June 15, 1917 (Comp.
St. 1918, 10401b), 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.
2
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 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, 24 Sup. Ct. 372, 48 L. Ed.
575; Weeks v. United States, 232 U. S. 383, 395, 396, 34 Sup. Ct. 341, 58 L.
Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. 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, 33
Sup. Ct. 572, 57 L. Ed. 919, 47 L. R. A. (N. S.) 263. 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,
31 Sup. Ct. 2, 54 L. Ed. 1021.
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 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 any one 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.
5
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 main purpose,
as intimated in Patterson v. Colorado, 205 U. S. 454, 462, 27 Sup. Ct. 556, 51
L. ed. 879, 10 Ann. Cas. 689. 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, 25 Sup. Ct. 3, 49 L. Ed. 154. 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. Buck's Stove & Range Co., 221 U.
S. 418, 439, 31 Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. 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
section 4 (Comp. St. 1918, 10212d) 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 38 Sup. Ct. 166, 62 L. ed. 410. 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.
6
It was not argued that a conspiracy to obstruct the draft was not within the
words of the Act of 1917. The 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. St. 13 (Comp. St. 14).
Judgments affirmed.
