250 U.S. 616 (1919)
On a single indictment containing four counts, five defendants were charged with conspiring to violate the Espionage Act of Congress during the war with Germany.1
All five defendants were born in Russia.2 They were intelligent, had considerable schooling, and at the time of their arrest had lived in the United States for terms varying from five to ten years, but none had applied for naturalization.3
Four testified at trial, with three avowing they were rebels, revolutionists, or anarchists who did not believe in government in any form. The fourth described himself as a socialist who believed in a proper kind of government but classified the United States government as capitalistic.4
It was admitted that the defendants had united to print and distribute two circulars, one in English and one in Yiddish, with five thousand copies printed and distributed about August 22, 1918, in New York City.5 The group maintained a meeting place in rooms rented by one defendant under an assumed name, where the subject of printing the circulars was discussed about two weeks before arrest, and the printing outfit was purchased on July 27, 1918, and installed in a basement room for work at night.6 The circulars were distributed by throwing them from a window of a building where one defendant was employed and by other secret means in the city.7
The government introduced copies of the two circulars attached to the indictment, a sheet entitled Revolutionists Unite for Action written by one defendant and found on him when arrested, and another paper found at the headquarters for which one defendant assumed responsibility.8 The defendants pleaded not guilty, but the conspiracy and overt acts were largely admitted and fully established at trial in the District Court, leading to conviction and sentencing under the indictment.9
Whether the evidence introduced at trial was sufficient to sustain the jury's verdict of guilty under the counts of the indictment?10
Evidence sufficient to sustain any one of several counts of an indictment will sustain a verdict and judgment of guilty under all if the sentence does not exceed that which might lawfully have been imposed under any single count.11 A question of law is 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.12
Yes. The defendants admitted that they had united to print and distribute the circulars and that five thousand of them had been printed and distributed about the 22nd day of August, 1918.13 The circulars called for a general strike of workers in ammunition factories for the purpose of curtailing production of ordnance and munitions essential to the prosecution of the war.14 Additional papers found showed the purpose to throw the country into a state of revolution to frustrate the military program of the Government.15
This evidence tends to prove that the defendants were guilty as charged in both the third and fourth counts of the indictment.16
The evidence introduced at trial was sufficient to sustain the jury's verdict of guilty under the counts of the indictment.17
Related opinions on this issue
Justice Holmes dissented on the ground that the statute requires a specific intent to hinder the prosecution of the war.18 It seems to me that no such intent is proved.19 The second leaflet is the only one that affords even a foundation for the charge, and there it is evident from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against the popular government not to impede the United States in the war that it was carrying on.20
The leaflets did not support the charges in the first two counts at all.21
Whether the defendants' printing and distribution of the circulars was protected by the First Amendment to the Constitution?22
The First Amendment does not protect speech when the words 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.23 The power is greater in time of war than in time of peace because war opens dangers that do not exist at other times.24 It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion.25
No. The language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war.26 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.27 The claim that the acts charged were within the protection of freedom of speech and of the press is sufficiently discussed and is definitely negatived in Schenck v. United States.28
The defendants' printing and distribution of the circulars was not protected by the First Amendment to the Constitution.29
Related opinions on this issue
Justice Holmes dissented on the First Amendment ground as well.30 He had no doubt that Schenck, Frohwerk, and Debs were rightly decided under the clear and present danger test.31 Yet these leaflets presented no immediate danger that their opinions would hinder the success of the government arms.32
An actual intent to produce the forbidden effect is necessary, and the only object here was to help Russia, not to impede the United States in the war.33 Persecution for the expression of opinions is perfectly logical only if one has no doubt of one's premises, but the Constitution embodies the experiment of free trade in ideas.34
Justice Brandeis concurs with the foregoing opinion.35