Schenck v. United States

Nos. 437, 438

Argued January 9, 10, 1919

Decided March 3, 1919

249 U.S. 47

ERROR TO THE DISTRICT COURT OF THE UNITED STATES

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Syllabus



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. [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.



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.



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.



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.



Affirmed.



The case is stated in the opinion. HOLMES, J., lead 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 [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 [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, 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 [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 [249 U.S. 52] 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 [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.

