Joseph McKenna

“ Exception 3 is general, and involves, not only the points we have discussed and selected by counsel for discussion, but involves, besides, every other objection to the instructions and the sufficiency of the evidence, in all the aspects they can be viewed and estimated.
And as being within its comprehension we are confronted with a contention that the indictment and conviction are violative of the freedom of speech and of the press protected by the Constitution of the United States. ”

“ As long as one man can be found who makes war profits, I am in favor of taking away in taxes such part of those profits as the Government requires, and the Government needs the whole of such profits before adding a penny to the taxation of people who are already staggering under heavy burdens by reason of the higher prices occasioned by the war. ”

“ We cannot so conclude. We must take them at their word, as the jury did, and ascribe to them a more active and sinister purpose. They were the publications of a newspaper, deliberately prepared, systematic, always of the same trend, more specific in some instances, it may be, than in others. Their effect or the persons affected could not be shown, nor was it necessary. The tendency of the articles and their efficacy were enough for offense-their 'intent' and 'attempt,' for those are the words of the law-and to have required more would have made the law useless. ”

“ Like many other rules for human conduct, it can be applied correctly only by the exercise of good judgment; and to the exercise of good judgment calmness is, in times of deep feeling and on subjects which excite passion, as essential as fearlessness and honesty. The question whether in a particular instance the words spoken or written fall within the permissible curtailment of free speech is, under the rule enunciated by this court, one of degree; and because it is a question of degree the field in which the jury may exercise its judgment is necessarily a wide one. ”

“ Reason and experience teach us that the policy of financing a war for the most part by borrowing the necessary money, is in itself one of the worst financial burdens that war imposes upon men. But wealth is always a powerful factor in the Government. ”

“ Darkow, the news editor, and Werner, the editor, were each sentenced to five years in the penitentiary; Lemke, the business manager, to two years. The jury which found men guilty for publishing news items or editorials like those here in question must have supposed it to be within their province to condemn men, not merely for disloyal acts, but for a disloyal heart: provided only that the disloyal heart was evidenced by some utterance. To prosecute men for such publications reminds of the days when men were hanged for constructive treason. ”

“ Moreover, it is not to be assumed that the Americans are really in earnest with the war. No one would be surprised if they found a thousand and one excuse for taking no active part in the European War.' It is not apparent on a reading of this article-which is not unlike many reprints from the press of Germany to which our patriotic societies gave circulation in order to arouse the American fighting spirit-how it could rationally be held to tend even remotely or indirectly to obstruct recruiting. ”

“ Every man will observe, however, that even mere words may be fraught with consequences which although too remote to constitute the crime of treason, may nevertheless be words which are fraught with most awful consequences, * * * and that therefore it is properly within the province of the law to prohibit * * * and make it a crime even to utter them. ”

“ The purpose is manifest, however the statements of the article may be estimated, whether as criminal means, violations of law, or the exercise of free speech and of the press, and its statements were deliberate and willfully false; the purpose being to represent that the war was not demanded by the people but was the result of the machinations of executive power, and thus to arouse resentment to it and what it would demand of ardor and effort. In final comment we may say that the article in effect justified the German aggressions. ”

“ The act punishes the willful making and conveying of 'false reports and false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies.' Congress sought thereby to protect the American people from being willfully misled to the detriment of their cause by one actuated by the intention to further the cause of the enemy. ”

“ To hold that such publications can be suppressed as false reports, subjects to new perils the constitutional liberty of the press, already seriously curtailed in practice under powers assumed to have been conferred upon the postal authorities. Nor will this grave danger end with the passing of the war. The constitutional right of free speech has been declared to be the same in peace and in war. In peace, too, men may differ widely as to what loyalty to our country demands ”

“ The trial provided for is one by judge and jury, and the judge may not abdicate his function. If the words were of such a nature and were used under such circumstances that men, judging in calmness, could not reasonably say that they created a clear and present danger that they would bring about the evil which Congress sought and had a right to prevent, then it is the duty of the trial judge to withdraw the case from the consideration of the jury ”

“ He declared there that the differences between England and the United States in former times were only of a superficial nature, and that both peoples are now united inseparably, to fight for freedom and against the Hydra of militarism. He assures his hearers that the United States is ready for all sacrifices in order to end the war victoriously, and that, if necessary, it will send 10,000,000 men to France.'
'Berlin, Aug. 5.-In the 'Taglishe Rundschau,' Professor Jenny writes under the title 'Americanism' as follows: Americans think in exaggerations and talk in superlatives. ”

“ To-day the way is clear,' he explained, 'hesitation to provide now for heavy taxes would not be a mistake, it would be something worse.'
'Senator La Follette reviewed the financial history of previous American wars. 'We must not repeat such mistakes,' he said, 'it would be blind madness if we did not learn from the mistakes that were made in previous wars. A mistake that we make now may be fatal. It would certainly cost us untold millions of dollars and thousands upon thousands of lives, and by it we would prolong the war unnecessarily. ”

“ The court erred in refusing to instruct the jury to render a verdict of not guilty upon all of the counts in case of each of the defendants.
Assignments 1 and 3 may be considered together. They both depend upon an appreciation of the evidence, although assignment 1 is more particular as to the offense charged. But neither can be discussed without a review of the evidence and a detailed estimation of its strength, direct and inferential. ”

“ Upon these grounds the rich are always in favor of war, and when they have succeeded in bringing on a war, they are often powerful enough with ministers of war and parliaments and congresses to force the maximum of loans and to reduce taxation to a minimum by every possible intrigue and argument. ”

“ Indeed, they are so intimate to liberty in every one's convictions-we may say feelings-that there is an instinctive and instnat revolt from any limitation of them, either by law or a charge under the law, and judgment must be summoned against the impulse that might condemn a limitation without consideration of its propriety. ”

“ Even Ambassador Andrew White in his Memoirs falls into superlatives in comparatively insignificant cases. He speaks of them as the most important events of his life, and maintains that certain people have made an indelible impression on him, whom others consider to be ordinary, average men. ”

“ The great mass of the people bear the costs of war, although they may not be directly taxed one dollar. The great mass of the people payin higher prices and prolonged hours of labor. They pay in service, not alone on the battle field, but whenever men and women work hard all day long. ”

“ The call for peace will come from the masses, and will demand to be heard. And the sooner the better. No blood has been shed yet, no hate or bitterness has yet arisen against Germany, who has never done this country any harm, but has sent millions of her sons for itsu pbuilding. The sooner the American people come to their senses and demand peace, the better and more honorable it will be for this country.'
The animus of the article and the effect expected of it need no comment to display. It was followed, supplemented, we may say, and reinforced by another article July 7, 1917. ”

“ To them its derisive contempt may have been truly descriptive of American feebleness and inability to combat Germany's prowess, and thereby chill and check the ardency of patriotism and make it despair of success, and in hopelessness relax energy both in preparation and action. ”

“ What counsel mean by 'falsification,' is not easy to represent, they conceding there was proof that 'the articles which were published differ from the articles in the papers from which they were copied,' but contending that no evidence was offered of what was contained in the original dispatches of which the publications purported to be copies. ”

“ The newspaper led a precarious financial existence and Lemke's duties were restricted to making out and collecting bills for advertising and circulation, to paying some bills and to turning over the remainder of the money, if any remained, to the treasurer, Vogel. Lemke himself and two or three other witnesses testified that he had nothing whatever to do with deciding what should be published in the newspaper, and that he never wrote for it excepting that when a reporter was ill he occasionally reported a concert. ”

“ In other words, it comes to this, that the ninth count charges as criminal, not a conspiracy to publish the articles complained of, which were innocent, but a conspiracy to suppress certain statements which were published in other newspapers in connection with or as a part of the published articles and which it is argued might have been harmful to the German cause if they had been published. It is impossible for me to think that the statute could be violated in any such manner. ”

“ There must be the clear and present danger. Certainly men, judging in calmness and with this test presented to them, could not reasonably have said that this coarse and heavy humor immediately threatened the success of recruiting. ”

“ The 100,000 air ships were reduced to 20,000, and then to 3,000, which the Americans hope to have ready for next summer, if they find the right model for them. As for the thousands of ships that were to be sent across the ocean, America, six months after the declaration of war, has not yet decided whether they are to be wood or steel ships ”

“ The aid so asserted to have been rendered to England by President Wilson was represented to have been in opposition to the wishes of the people, expressed—
'by the unwillingness of their [the United States] young men to offer themselves as volunteers for the war. ”

“ On such a record it is very clear that a man holding such a position as Lemke held, could not, and did not, have anything to do with determining what should be published in the paper. He had no more to do with the policy of the paper than a porter would have with determining the policy of a railroad company. In my judgment the failure of proofa § to Lemke was as complete as it was as to Schaefer and Vogel and I cannot share in permitting him to be imprisoned in the penitentiary for a year for publications which he was powerless either to authorize or prevent. ”

“ It seems to obey unwillingly the instructions of the Workmen's and Soldiers' Council to request the allies to revise their war aims. The workmen will not stand for this much longer. It is highly significant too that not a word has been reported for four days about the great general congress of the Workmen's and Soldiers' delegates ”

“ Evidently both the jury and the trial judge failed to examine the German original.
2. One of the publications for which the news editor was convicted on the first count because of an omission from the item copied:
'Ready for the Fray?
'St. Petersburg, September 7th.-The Russian Baltic Fleet will defend Kronstadt and Reval, and through them the Russian capital itself. The commanders of the two fortresses have made this report to the provisional government. A large part of the Baltic fleet was under control of the Maximalists, who hitherto have opposed Kerensky. ”