Dunne v. United States

• Decision Date: 20 September 1943
• Docket Number: No. 12195.,12195.
• Citation: 138 F.2d 137
• Parties: DUNNE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

138 F.2d 137 (1943)

DUNNE et al. v. UNITED STATES.

No. 12195.

Circuit Court of Appeals, Eighth Circuit.

September 20, 1943.

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Albert Goldman, of Chicago, Ill., and Osmond K. Fraenkel, of New York City (James Lipsig, of New York City, M. J. Myer, of Chicago, Ill., and Gilbert E. Carlson and Dabe J. Shama, both of Minneapolis, Minn., on the brief), for appellants.

Victor E. Anderson, U. S. Atty., of St. Paul, Minn., and Henry A. Schweinhaut, Sp. Asst. to Atty. Gen. (Wendell Berge, Asst. Atty. Gen., Oscar A. Provost, John Ford Baecher, and Philip R. Monahan, Attys., Department of Justice, all of Washington, D. C., on the brief), for appellee.

Before STONE, JOHNSEN, and RIDDICK, Circuit Judges.

STONE, Circuit Judge.

Twenty-nine persons were indicted in two counts. One died before trial. By direction of the Court, five were found not guilty. The jury found five more not guilty. The jury found the remaining eighteen not guilty on the first count and guilty on the second count. Judgment was entered on the verdicts and sentences imposed. The convicted persons appealed separately. The appeals were consolidated in this Court and presented on a single record.

Count 2 of the indictment charged conspiracy (under 18 U.S.C.A. § 11, Act of June 28, 1940, § 3) to violate sections 9 and 10 of 18 U.S.C.A. (Act of June 28, 1940, §§ 1 and 2) in the respects therein set forth.

The issues here have to do with (I) the validity of the Act, (II) the sufficiency of the indictment, and (III) the sufficiency of the evidence.

I. Validity of the Act.

The invalidity of the Act is urged upon two bases: (A) its inherent invalidity and (B) its invalidity as applied to the fact situation here.

(A) Inherent Invalidity. This attack is made upon each of the three here involved sections 9, 10 and 11. These sections, hereinafter set forth, have to do with the overthrow of the Government by force, the advocacy of insubordination, etc., in the armed forces, and conspiracies to effect either such overthrow or such insubordination.

We agree with appellants that, in approaching the problem of validity of a statute, which appears on its face to limit exercise of a right specifically protected by the Constitution, a presumption of validity is narrowed in its scope. Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155; United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 82 L.Ed. 1234. In truth, "courts should be astute to examine the effect of the challenged legislation" where it affects the exercise of those fundamental individual rights expressly protected by the Constitution. Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155. Here the challenge is that this Act abridges the freedom of speech specifically protected by the First Amendment. Therefore, we approach the problem with the attitude just stated.

Appellants state that "This statute must seek its validating force in the vague and undefined `right of self-preservation'." No such extremity exists. The statute is grounded upon specific Constitutional grants of power. The Preamble, setting forth the purposes of the Constitution, includes to "insure domestic Tranquility" and to "provide for the common defence", as well as to "secure the Blessings of Liberty." Article I, § 8, cl. 1 specifically grants to Congress the power to "provide for the common Defence." Clauses 12 to 16 grant the specific powers "to raise and support Armies," "to provide and maintain a Navy," "to make Rules for the Government and Regulation of the land and naval Forces," and covering the Militia. Clause 18 grants the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." Article IV, § 4 is "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion" and, upon application, "against domestic Violence." Thus, the Constitution expresses clearly the thoughts that the life of the Nation and of the States and the liberties and welfare of their citizens are to be preserved and that they are to have the protection of armed forces raised and maintained by the United States with power in Congress to pass all necessary and proper laws to raise, maintain and govern such forces.

The serious penalties of the Act are suggested as bearing upon our consideration. If the extent of penalties has any bearing, it is purely as make-weight. If the Act is invalid, it must be because of other reasons. If it be valid, the penalties to be assessed for violation are solely matters of legislative selection so long as they do not transcend the Eighth Amendment.

In addition to the above examined contentions which appellants urge to the Act in general, they make various specific attacks upon sections 9, 10 and 11 separately. We next examine these attacks upon the separate sections.

Section 9¹ makes it a crime "to advise, counsel, urge, or in any manner cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces" or "to distribute any written or printed matter" doing these things, "with intent to interfere with, impair, or influence the loyalty, morale, or discipline" of such forces.

As preliminary to an attack upon this section, appellants recognize the similarity of this section to a part of section 3 of the Espionage Act of June 15, 1917, 40 Stat. 219, 50 U.S.C.A. § 33, which has been upheld (Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561; Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566), and, therefore, the necessity of avoiding here the effect of those decisions upon that Act. They rightly urge that this portion of the Espionage Act, by its express terms, was limited to periods when this country might be at war; and that the above decisions must be construed, as ruling authority, with that situation in mind. Also, they rightly contend that this section 9 is, by its terms, also applicable to a state of peace. Therefore, they urge that such decisions are not here applicable and that whether section 9 is valid or not is not ruled by these authorities. We agree that these three cases do not rule this case as direct decisive authorities. The situation here that section 9 applies to a peace status as well as to war and that the conspiracy claimed here was during time of peace sufficiently differentiates those cases to prevent them from ruling these appeals. The question of validity of section 9 is, in that respect, open. On the other hand, it does not follow that those cases contain no expressions which are useful guides for determining the character of questions present here simply because the situation dealt with in those cases was different from that here present. In this connection, a pertinent matter should be stated. Although there had long been a seditious conspiracy Act, 18 U.S.C.A. § 6, there was a situation in 1940 which impressed Congress with the need for this Act. That situation, known to all, was the existence of war in Europe; the apprehension that this country might be drawn into war; the knowledge of the effective use of "fifth column" activities by countries which might be our enemies; and the apprehension that such activities were being or might be used in this country. In stating the purposes of the Bill, it was said in the House: "The officers testified before our committee that they were loath to ask for this provision in peacetime but that conditions had become worse, that propagandists were now gaining a foothold to some extent among the enlisted men of our Army and Navy, and that but for the high character and splendid loyalty that has always obtained among the rank and file of our men they would have had to ask for the enactment of this bill much sooner. So, then, title I interdicts the exertion of subversive influences with the intent to undermine the loyalty, morale, or discipline of our fighting men."

Thus, while this Act is applicable to peace as well as war conditions, it was enacted on the brink of war and to correct existing dangers.

The vital necessity of armed forces to maintain the National and the State governments and the liberties of the citizens is expressly recognized and provided for in the Constitution. The lack of such in the Confederation was one of the cardinal reasons for calling the meeting which became the Constitutional Convention. Congressional enactments having the purposes of raising or maintaining armed forces have high standing because of their importance. At the same time, they must not limit the constitutionally protected individual liberties of the citizen to any greater extent than is reasonably necessary and proper to accomplish the important allowable ends of preserving the life of the Government and the States and their orderly conduct. An armed force which lacks loyalty, morale or discipline or wherein is insubordination, disloyalty, mutiny or refusals to do their duty is far worse than no armed force at all and is positively an active menace to constituted government and to the liberties of the people. Therefore, the question here is whether this section of this Act goes so far beyond what is necessary or proper to effectuate its obviously necessary and proper purposes as to infringe upon protected individual rights.

The argument against validity of this section is as follows. That the threat to free speech arises from the provisions as to (1) what may not be said or written, (2) as to whom it may not be said or written, and (3) as to the extent to which the motives behind the statement or writing affect the verdict. (1) As to what may not be expressed, the argument centers around the statutory expression "or in any manner cause insubordination" (italics added), etc. It is urged that this expression is so broad that it...