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and the Act itself was more stringent in the punishment meted out and in not allowing the truth of a statement to be used as a defense.

The effect of allowing a "bad tendency" interpretation of the Espionage Act was to make punishable very minor utterances, many of which were not intentionally disloyal, and many more of which were the expression of honest dissent from the conduct of the war. Rose Pastor Stokes was sentenced for saying, "I am for the people, and the government is for the profiteers". Eugene V. Debs was convicted for "the natural tendency and reasonably probable effect" of his words. Robert Goldstein, for the production of "The Spirit of '76", a film depicting the origin of this country, was sentenced to ten years because it showed a scene of the Wyoming Massacre where British soldiers bayonetted women and children and carried away girls. This was held to be a play designed and intended to cause antagonism, hatred, and enmity between the people of the United States and their allies the people of Great Britain. The exaggerated feeling which swept the citizenry of the United States, and the administrators of justice as well, away from the sound moorings of reason has 7 been described by O'Brian;

"A phantom ships sailed into our harbors with gold from the Bolsheviki with which to corrupt the country; another phantom ship was found carrying ammunition from one of our harbors to Germany; submarine captains landed on our coasts, went to the theater and spread influenza germs; a new species of pigeon, thought to be German, was shot in Michigan; Mysterious aeroplanes floated over Kansas at night, etc. Then there were the alleged spies themselves,--Spoermann, alleged intimate of Bernstorff, landed on our coasts by the U-53, administrator of large funds, caught spying in our camps, who turned out to be a plumber from Baltimore. Several other alleged spies caught

7. 52 N. Y. Bar. Ass. Rep. 281 (1919).

on the beaches signaling to submarines were subsequently
released because they were, in several cases, honest
men, one of whom had been changing an incandescent
light bulb in his hotel room, mother of whom was trying
to attract the attention of a passerby on the beach, etc.
There was no community in the country so small that it
did not produce a complaint because of the failure to
intern or execute at least one alleged German spy.
These instances are cited, not to make light of the
danger of hostile activities, nor to imply that incess-
ant vigilance was not necessary in watching German
activities, but to show how impossible it was to
check that kind of war hysteria and war excitement which
found expression in impatience with the civil courts
and the oft-recurring and false statement that this
government showed undue leniency toward enemies within
our gates".

The I. W. W. Prosecutions

The I. W. W. convictions of 1918 furnish an excellent example of the stern repression of opinion during the war. The Federal government brought to trial and convicted 150 men and 1 woman, who were members of the I. W. W., for expressions of opinion. Cases were brought in three cities--Chicago, Illinois, Wichita, Kansas and Sacramento, California. The charges in the three cases were almost the same. It was alleged that the officers and members of the Industrial Workers of the World had entered into a conspiracy to obstruct the war by committing various acts of sabotage, and by speaking and writing against the war and the draft. All three cases were taken into Courts of Appeal where the charges of sabotage were thrown out, leaving the convictions merely for the expression of opinion and not for serious crimes of violence against person or property. The repressive and inordinate character of the prosecutions is also evident from the sentences imposed. These ranged from two to twenty years, the majority of the cases ranging from five to twenty years. The United States Supreme Court refused to review the cases and the convictions stood without legal recourse.

United States Supreme Court Decisions

No decisions on the Espionage Act were handed down by the Supreme Court until 1919 after the close of the war.

In Schenck v. U. S.

8

the question of free speech did not arise,

9

but the defense of constitutionality was raised and denied by Justice Holmes in the following words:

"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....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".

Words

This interpretation of the Espionage Act gives a wider swing to the Act than did the decision of Judge Hand. But while it allows conviction for opinion expressed with a bad intention, it imposes restraints which the trial courts neglected. are criminal, according to Justice Holmes, under certain clauses of the Act only because of their relation to the armed forces of the United States and that relation must be so close and definite as to constitute a "clear and present danger". This interpretation is apparently in accord with the purpose of the First Amendment.

If this rule of clear and

present danger had been laid down in the earlier espionage

prosecutions it is likely that there would have been more ac

quittals and wider tolerance.

8. 249 U. S. 47 (1919).

9. Ibid.

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