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the recruiting or enlistment service of the United States, to the injury of the service or of the United States," with a deliberate, conscious, wilful intent so to do.
A report of the Executive Committee of the Socialist Party in September, 1919, stated that some two thousand Socialists in all had been arrested "for their opinions." It is not uncharacteristic of the atmosphere and attitude in which such arrests were possible that counsel for the Committee, purporting to state in summing up what he "read" in this report of the Executive Committee, substituted "arrested because of their disloyal activities" for "arrested for their opinions (p. 2153). Not more than twenty-seven Socialists were convicted under the Espionage Act (p. 2036). The disparity gives some indication of the proportion of the estimated 2,000 whose arrests were on any charge or no charge at all.
The reports of the Attorney-General for the two years from June 30, 1917, to June 30, 1918, show a total of 877 convictions under the Espionage Act during the entire period, with 285 cases still pending at the close. We have not been able to learn of a single case among all of them in which there was any evidence of the infliction upon the recruiting service or any other war agency of any visible or tangible harm or where there was any basis for the conviction except that the defendant had said what he thought.
In the midst of this Debs lifted his voice against capitalism, against the war, and against the persecution of his friends and comrades. He followed them to jail. The United States Supreme Court chose his case, with certain others decided at the same time, for their definition of the scope and application of the Espionage Act.
*His speeches in the record appear at pp. 2227, 2244 and 426.
Their decision leaves it true that Congress cannot abridge the freedom of speech or of the press to this extent, that Congress cannot candidly forbid the expression of objectionable opinions or points of view. But, though Congress could not in terms forbid criticism of the war, it is held that it can constitutionally forbid such things as wilful obstruction of the recruiting service.
"The question in every case is whether the words used are used in such circumstances and are of such 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." (Schenck v. United States, 249 U. S. 47.)
"We should add that the jury were most carefully instructed that they could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, etc., and unless the defendant had the specific intent to do so in his mind." (Debs v. United States, 249 U. S.)
Thus, whether a criticism of the war in fact obstructs. the recruiting service is to be determined, not by looking at the recruiting service and seeing whether it has suffered, not by any concrete tangible or visible test whatever, but by looking at the words and giving a guess. The offense contains a second element wilful, that is, conscious and deliberate, intent that the words used should have the forbidden effect. That may, however, be proved by the same evidence. For the law has a hard-working theory that when a forbidden thing may be deemed likely to follow from cer
tain conduct it may also be deemed to have been intended. Thus as to both elements of the offenseobstruction, and intent to obstruct - the proof of the pudding is in looking at it through the store window. The question is no longer of "proof beyond a reasonable doubt;" instead, it is enough if there is evidence to sustain a guess.
No one who knows them supposes that Debs or any of the others convicted under the Espionage Act spoke with any thought of the recruiting service actually in mind. There is no proof or presumption that any hearer of any speech was made by it derelict in any duty. Debs "obstructed the war" only in the sense that he sought to convince his public that it would be a good thing to end it. That the exponents, not the consequences, of certain opinions, were what was actually aimed at in Espionage Act prosecutions is shown strikingly by the Stokes case. Mrs. Stokes made a speech. to a few women at luncheon. It would never have been heard of. Her indictment spread what she said through the newspapers to practically the whole people of the United States.
We criticise the Espionage Act trials not only because guilt was made a matter of guessing instead of evidence, but also because the persons accused could not under the circumstances have even the benefit of
a fair guess. * Remember the psychology of war-time.
Taking for granted either the rightness of the war
*While this brief is in press the newspapers have reported the reversal of the conviction of Mrs. Stokes for the unfairness of the trial judge in his charge to the jury. The reversing opinion says:
"When the charge is considered in the light of the time and circumstances surrounding the trial, of the many side issues, and of other characteristics of the charge, this court is unable to resist the conviction that the partisan zeal of the court below led it to place too heavy a burden upon the defendant."
or a duty of unquestioning support, strictly tutored in an idealistic conception of it, threatened incessantly with bogies of sinister propaganda and subjected to a deliberate campaign to "mobilize the mind of America," facing penalties of social ostracism and worse for doubts or questions, the great mass of the American people forgot how to tolerate the normal varieties and diversities of the free human mind. People might still concede the good faith of obstinate, perverse and unreasonable opinions upon such comparatively minor matters as transubstantiation, divorce, and the fair price of wheat. But to suggest even a possibility of honest difference as to the rightness of the war became more immoral than adultery. The millions of Americans whose votes for Wilson in 1916 were votes against war were not all simultaneously converted by Presidential proclamation. But they were eliminated from public opinion. It was felt treasonable to admit the existence of a body of conscientious and law-abiding citizens opposed to the war, complying conscientiously with all requirements of express law, however abhorrent, but who did nothing in support of the war except under compulsion who kept the minds they had before and thought they had still a right to speak them.
(d) Appeal to Prejudice in this Proceeding.
It is upon what survives of this same psychology that the case against the five Assemblymen has come more and more to depend as other elements have dropped away. The iteration and reiteration of expressions of op
*A widely circulated booklet called “The Kaiserite in America” solemnly assured the public that the Socialist Party opposed the war not because it was socialist but because it was pro-German; that it stood with the German Socialist Party of Scheidemann; whereas the " Independent Socialists" of America, such as John Spargo and Charles Edward Russell, were in sympathy with such Independent Socialists in Germany as Liebknecht, Haase and Rosa Luxemburg.
position to the war from the St. Louis Proclamation; the bandying of adjectives -traitorous, unpatriotic, etc., the framing of questions in such a manner as to imply that men who adhere with pride and with a sense of justification by the event to their opposition to the war will want to qualify or deny that opposition or claim to have acted inconsistently with it; the reading in evidence of expressions of a contrary point of view by persons with whose beliefs this proceeding is in no way concerned, all this can have had no purpose except to revive antagonism here between those who thought the war was good and those who did not.
The Socialist Assemblymen took the oath of office in good faith, and they are under no obligation inconsistent with their faithful adherence to it.
There is now no charge against the five Assemblymen except that they are Socialists. "The purpose of this review," said counsel for the Committee in closing (p. 2187), "is not to establish individual guilt but to demonstrate that these five Assemblymen seek seats in this Assembly in order that they may do their part in carrying out the program laid down by their party and assist in the realization of its principles." The only live questions of fact in the case are those relating to program and principles of the Socialist party.
Of these there remains undiscussed only the claim that members of the Socialist party are ipso facto incapable of taking and keeping the oath of office. This claim has three aspects, one general and two specific.