First Amendment Vol. 1

297 Pages·2008·2.36 MB·English

by  Tony Morris

Federal Court Interpretation of the First Amendment Vol. 1
Table of Contents

Schenck v United States 1
Abrams v United States 5
Gitlow v People of the State of New York 14
Whitney v People of the State of California 26
Dennis v United States 30
Yates v United States 81
Brandenburg v Ohio 108
Hess v Indiana 116
Prior Restraints
Near v State of Minnesota 120
New York Times Company v United States 140
United States v Progressives, Inc. 167
Nebraska Press Ass’n v Stuart 180
United States v Noriega 184
Chaplinsky v State of New Hampshire 192
Tinker v Des Moines School District 196
Cohan v California 209
Texas v Johnson 216
United States v Eichman 240
R.A.V. Petitioner v City of St. Paul, MN 249

0
SUPREME COURT OF THE UNITED STATES

249 U.S. 47
Schenck v. United States
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Argued: January 9, 10, 1919 --- Decided: March 3, 1919

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.
[p48]
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. 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. 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. 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. 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. 53.
Affirmed.
The case is stated in the opinion
1
U.S. Supreme Court
SCHENCK v. U.S. , 249 U.S. 47 (1919)
249 U.S. 47
SCHENCK
v.
UNITED STATES.
BAER
v.
SAME.
Nos. 437, 438.
Argued Jan. 9 and 10, 1919.
Decided March 3, 1919.
[249 U.S. 47, 48] 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 [249 U.S.
47, 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 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.
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
2
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. 47, 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 , 24 Sup.
Ct. 372; Weeks v. United States, 232 U.S. 383, 395 , 396 S., 34 Sup. Ct. 341, 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, 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 S., 31 Sup. Ct. 2
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. 47, 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 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.
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. 47, 52] main
purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Sup. Ct. 556, 51 L. ed. 879, 10
3
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 S., 25
Sup. Ct. 3. 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
S. 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.
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. 47, 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. St. 13 (Comp. St. 14).
Judgments affirmed.

4
U.S. Supreme Court
ABRAMS v. U S , 250 U.S. 616 (1919)
250 U.S. 616
ABRAMS et al.
v.
UNITED STATES.
No. 316.

Argued Oct. 21 and 22, 1919.
Decided Nov. 10, 1919.
Mr. Harry Weinberger, of New York City, for plaintiffs in error.
Mr. Assistant Attorney General Robert P. Stewart, for the United States.
Mr. Justice CLARKE delivered the opinion of the Court.
On a single indictment, containing four counts, the five plaintiffs in error, hereinafter designated the
defendants, were convicted of conspiring to violate provisions of the [250 U.S. 616, 617] Espionage Act
of Congress (section 3, title I, of Act June 15, 1917, c. 30, 40 Stat. 219, as amended by Act May 16, 1918,
c. 75, 40 Stat. 553 [Comp. St. 1918, 10212c]).
Each of the first three counts charged the defendants with conspiring, when the United States was at
war with the Imperial Government of Germany, to unlawfully utter, print, write and publish: In the first
count, 'disloyal, scurrilous and abusive language about the form of government of the United States;' in
the second count, language 'intended to bring the form of government of the United States into
contempt, scorn, contumely, and disrepute;' and in the third count, language 'intended to incite,
provoke and encourage resistance to the United States in said war.' The charge in the fourth count was
that the defendants conspired 'when the United States was at war with the Imperial German
Government, ... unlawfully and willfully, by utterance, writing, printing and publication to urge, incite
and advocate curtailment of production of things and products, to wit, ordnance and ammunition,
necessary and essential to the prosecution of the war.' The offenses were charged in the language of the
act of Congress.
It was charged in each count of the indictment that it was a part of the conspiracy that the defendants
would attempt to accomplish their unlawful purpose by printing, writing and distributing in the city of
New York many copies of a leaflet or circular, printed in the English language, and of another printed in
the Yiddish language, copies of which, properly identified, were attached to the indictment.
All of the five defendants were born in Russia. They were intelligent, had considerable schooling, and at
the time they were arrested they had lived in the United States terms varying from five to ten years, but
none of them had applied for naturalization. Four of them testified as witnesses in their own behalf, and
of these three frankly avowed that they were 'rebels,' 'revolutionists,' [250 U.S. 616, 618] 'anarchists,'
that they did not believe in government in any form, and they declared that they had no interest
5
whatever in the government of the United States. The fourth defendant testified that he was a 'Socialist'
and believed in ' a proper kind of government, not capitalistic,' but in his classification the government
of the United States was 'capitalistic.'
It was admitted on the trial that the defendants had united to print and distribute the described
circulars and that 5,000 of them had been printed and distributed about the 22d day of August, 1918.
The group had a meeting place in New York City, in rooms rented by defendant Abrams, under an
assumed name, and there the subject of printing the circulars was discussed about two weeks before
the defendants were arrested. The defendant Abrams, although not a printer, on July 27, 1918,
purchased the printing outfit with which the circulars were printed, and installed it in a basement room
where the work was done at night. The circulars were distributed, some by throwing them from a
window of a building where one of the defendants was employed and others secretly, in New York City.
The defendants pleaded 'not guilty,' and the case of the government consisted in showing the facts we
have stated, and in introducing in evidence copies of the two printed circulars attached to the
indictment, a sheet entitled 'Revolutionists Unite for Action,' written by the defendant Lipman, and
found on him when he was arrested, and another paper, found at the headquarters of the group, and
for which Abrams assumed responsibility.
Thus the conspiracy and the doing of the overt acts charged were largely admitted and were fully
established.
On the record thus described it is argued, somewhat faintly, that the acts charged against the
defendants were not unlawful because within the protection of that freedom [250 U.S. 616, 619] of
speech and of the press which is guaranteed by the First Amendment to the Constitution of the United
States, and that the entire Espionage Act is unconstitutional because in conflict with that amendment.
This contention is sufficiently discussed and is definitely negatived in Schenck v. United States and Baer
v. United States, 249 U.S. 47 , 39 Sup. Ct. 247, and in Frohwerk v. United States, 249 U.S. 204 , 39 Sup.
Ct. 249.
The claim chiefly elaborated upon by the defendants in the oral argument and in their brief is that there
is no substantial evidence in the record to support the judgment upon the verdict of guilty and that the
motion of the defendants for an instructed verdict in their favor was erroneously denied. A question of
law is thus presented, which calls for an examination of the record, not for the purpose of weighing
conflicting testimony, but only to determine whether there was some evidence, competent and
substantial, before the jury, fairly tending to sustain the verdict. Troxell, Administrator, v. Delaware,
Lackawanna & Western R. R. Co., 227 U.S. 434, 442 , 33 S. Sup. Ct. 274; Lancaster v. Collins, 115 U.S. 222,
225 , 6 S. Sup. Ct. 33; Chicago & North Western Ry. Co. v. Ohle, 117 U.S. 123, 129 , 6 S. Sup. Ct. 632. We
shall not need to consider the sufficiency, under the rule just stated, of the evidence introduced as to all
of the counts of the indictment, for, since the sentence imposed did not exceed that which might
lawfully have been imposed under any single count, the judgment upon the verdict of the jury must be
affirmed if the evidence is sufficient to sustain any one of the counts. Evans v. United States, 153 U.S.
608 , 14 Sup. Ct. 939; Claassen v. United States, 142 U.S. 140 , 12 Sup. Ct. 169; Debs v. United States, 249
U.S. 211, 216 , 39 S. Sup. Ct. 252.
6
The first of the two articles attached to the indictment is conspicuously headed, 'The Hypocrisy of the
United States and her Allies.' After denouncing President Wilson as a hypocrite and a coward because
troops were sent into Russia, it proceeds to assail our government in general, saying:- [250 U.S. 616,
620] 'His [the President's] shameful, cowardly silence about the intervention in Russia reveals the
hypocrisy of the plutocratic gang in Washington and vicinity.'
It continues:
'He [the President] is too much of a coward to come out openly and say: 'We capitalistic nations
cannot afford to have a proletarian republic in Russia."
Among the capitalistic nations Abrams testified the United States was included.
Growing more inflammatory as it proceeds, the circular culminates in:
'The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and
mine!'
'Yes friends, there is only one enemy of the workers of the world and that is CAPITALISM.'
This is clearly an appeal to the 'workers' of this country to arise and put down by force the government
of the United States which they characterize as their 'hypocritical,' 'cowardly' and 'capitalistic' enemy.
It concludes:
'Awake! Awake, you Workers of the World!
REVOLUTIONISTS.'
The second of the articles was printed in the Yiddish language and in the translation is headed,
'Workers-Wake Up.' After referring to 'his Majesty, Mr. Wilson, and the rest of the gang, dogs of all
colors!' it continues:
'Workers, Russian emigrants, you who had the least belief in the honesty of our government,'
- which defendants admitted referred to the United States government--
'must now throw away all confidence, must spit in the face the false, hypocritic, military
propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the
prosecution of the war.'
The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear
to patriotic [250 U.S. 616, 621] appeals in behalf of the government of the United States, and to cease
to render it assistance in the prosecution of the war.
It goes on:
7
'With the money which you have loaned, or are going to loan them, they will make bullets not
only for the Germans, but also for the Workers Soviets of Russia. Workers in the ammunition
factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but
also your dearest, best, who are in Russia and are fighting for freedom.'
It will not do to say, as is now argued, that the only intent of these defendants was to prevent injury to
the Russian cause. Men must be held to have intended, and to be accountable for, the effects which
their acts were likely to produce. Even if their primary purpose and intent was to aid the cause of the
Russian Revolution, the plan of action which they adopted necessarily involved, before it could be
realized, defeat of the war program of the United States, for the obvious effect of this appeal, if it should
become effective, as they hoped it might, would be to persuade persons of character such as those
whom they regarded themselves as addressing, not to aid government loans and not to work in
ammunition factories, where their work would produce 'bullets, bayonets, cannon' and other munitions
of war, the use of which would cause the 'murder' of Germans and Russians.
Again, the spirit becomes more bitter as it proceeds to declare that--
'America and her Allies have betrayed [the Workers]. Their robberish aims are clear to all men.
The destruction of the Russian Revolution, that is the politics of the march to Russia.
'Workers, our reply to the barbaric intervention has to be a general strike! An open challenge
only will let the government know that not only the Russian Worker fights for [250 U.S. 616,
622] freedom, but also here in America lives the spirit of Revolution.'
This is not an attempt to bring about a change of administration by candid discussion, for no matter
what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of
such a publication was to create an attempt to defeat the war plans of the government of the United
States, by bringing upon the country the paralysis of a general strike, thereby arresting the production of
all munitions and other things essential to the conduct of the war.
This purpose is emphasized in the next paragraph, which reads:
'Do not let the government scare you with their wild punishment in prisons, hanging and
shooting. We must not and will not betray the splendid fighters of Russia. Workers, up to fight.'
After more of the same kind, the circular concludes:
'Woe unto those who will be in the way of progress. Let solidarity live!'
It is signed, 'The Rebels.'
That the interpretation we have put upon these articles, circulated in the greatest port of our land, from
which great numbers of soldiers were at the time taking ship daily, and in which great quantities of war
supplies of every kind were at the time being manufactured for transportation overseas, is not only the
fair interpretation of them, but that it is the meaning which their authors consciously intended should
be conveyed by them to others is further shown by the additional writings found in the meeting place of
the defendant group and on the person of one of them. One of these circulars is headed:
'Revolutionists! Unite for Action!'
8
After denouncing the President as 'Our Kaiser' and the hypocrisy of the United States and her Allies, this
article concludes:- [250 U.S. 616, 623] 'Socialists, Anarchists, Industrial Workers of the World, Socialists,
Labor party men and other revolutionary organizations Unite for Action and let us save the Workers'
Republic of Russia!
'Know you lovers of freedom that in order to save the Russian revolution, we must keep the
armies of the allied countries busy at home.'
Thus was again avowed the purpose to throw the country into a state of revolution, if possible, and to
thereby frustrate the military program of the government.
The remaining article, after denouncing the President for what is characterized as hostility to the
Russian revolution, continues:
'We, the toilers of America, who believe in real liberty, shall pledge ourselves, in case the United
States will participate in that bloody conspiracy against Russia, to create so great a disturbance
that the autocrats of America shall be compelled to keep their armies at home, and not be able
to spare any for Russia.'
It concludes with this definite threat of armed rebellion:
'If they will use arms against the Russian people to enforce their standard of order, so will we
use arms, and they shall never see the ruin of the Russian Revolution.'
These excerpts sufficiently show, that while the immediate occasion for this particular outbreak of
lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our
government sending troops into Russia as a strategic operation against the Germans on the eastern
battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war,
disaffection, sedition, riots, and, as they 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 [250 U.S. 616, 624] 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, as the third count runs, and, the defendants, in
terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for
the purpose of curtailing the production of ordnance and munitions necessary and essential to the
prosecution of the war as is charged in the fourth count. Thus it is clear not only that some evidence but
that much persuasive evidence was before the jury tending to prove that the defendants were guilty as
charged in both the third and fourth counts of the indictment and under the long established rule of law
hereinbefore stated the judgment of the District Court must be
AFFIRMED.
Mr. Justice HOLMES, dissenting.
9