Frend v. United States

• Decision Date: 31 October 1938
• Docket Number: No. 7198.,7198.
• Citation: 100 F.2d 691
• Parties: FREND et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

100 F.2d 691 (1938)

FREND et al. v. UNITED STATES.^*

No. 7198.

United States Court of Appeals for the District of Columbia.

Argued October 5, 1938.

Decided October 31, 1938.

Frederick A. Ballard and Howard C. Westwood, both of Washington, D. C., for appellants.

David A. Pine, U. S. Atty., and David A. Hart, Asst. U. S. Atty., both of Washington, D. C., for the United States.

Before GRONER, C. J., and MILLER and VINSON, JJ.

GRONER, C. J.

Appellants were convicted in the Police Court of the District of Columbia of the violation of a joint resolution of the Congress approved February 15, 1938.

Because of the constitutional question involved, we granted an appeal.

The resolution (52 Stat. 30, 22 U.S.C. A. §§ 255a, 255b,) makes it unlawful, within five hundred feet of an embassy, legation, or consulate in the District of Columbia to display any flag, banner, placard, or device designed or adapted to intimidate, coerce, or bring into public odium any foreign government, party, or organization, or to bring into public disrepute its political, social, or economic acts or views, or to intimidate, coerce, harass, or bring into public disrepute any diplomatic or consular representatives, or to congregate within five hundred feet of any embassy, legation, or consulate and refuse to disperse after being ordered to do so by the police authorities of the District.

The evidence abundantly shows that all four defendants flagrantly violated the terms of the resolution. At the time of the arrest, each defendant was parading in the public streets in front of the Austrian or the German embassy with a number of other persons, some of whom were carrying banners or placards inscribed with language — the repetition of which would accomplish no good purpose — intended and calculated to bring into contempt the German Government. That this congregation of people with opprobrious signs and songs in the streets in front of the embassies was a concerted, prearranged plan intended "to bring into public disrepute political, social, or economic * * * views * * * of a foreign government," is conclusively shown. In the circumstances, and without stopping to determine whether each of the defendants was then displaying one of the placards mentioned, we think that all are guilty under the provisions of the local law making it an offense to aid and abet in a violation of a law. D.C.Code 1929, T. 6, § 5; see Dane v. United States, 57 App.D.C. 161, 18 F.2d 811; Story v. United States, 57 App.D.C. 3, 16 F.2d 342, 53 A.L.R. 246.

It is argued, however, that, notwithstanding this, defendants should have been acquitted because the congressional resolution is unconstitutional in that it transcends congressional power and in that it abridges freedom of the press, freedom of assembly, and freedom of speech, and violates the due process clause of the Constitution. We think there is no substance to these contentions.

First. The Congress under the provisions of Art. 1, sec. 8, cl. 17, of the Constitution, U.S.C.A.Const. art. 1, § 8, cl. 17, has the power of exclusive legislation in all cases over the District of Columbia, and this power, as the Supreme Court has said, means that, as to the District, Congress possesses not only the power which belongs to it in respect to territory within a State but the power of the State as well. Keller v. Potomac Electric Power Co., 261 U.S. 428, 442, 43 S.Ct. 445, 67 L.Ed. 731. In addition, Congress has the power to "define and punish * * * Offenses against the Law of Nations," and to make all laws necessary and proper for the execution of the powers vested by the Constitution in the Government of the United States. Art. 1, sec. 8, cls. 10, 18, U.S.C.A.Const. art. 1, § 8, cls. 10, 18.

The purpose of the resolution, as stated by Senator Pittman (81 Cong.Rec., Part 8, p. 8586) in presenting it to Congress, is to protect foreign diplomats in their embassies and legations from harassment and annoyance which would bring into odium the countries they represent, and which would nullify the inviolability of ambassadors and ministers as they are protected in every country throughout the world. "As in war the bearers of flags of truce are sacred, or else wars would be interminable, so in peace ambassadors, public ministers, and consuls, charged with friendly national intercourse, are objects of especial respect and protection, each according to the rights belonging to his rank and station."¹ The law of nations, therefore, requires every government to take all reasonable precautions to prevent the doing of the things which the resolution makes unlawful.² The rule arises out of the necessity of the protection of nations in their intercourse with each other, and imposes on the Government of the United States responsibility to foreign nations for all violations by the United States of their international obligations. United States v. Arjona, 120 U.S. 479, 483-485, 7 S.Ct. 628, 30 L.Ed. 728. This responsibility includes the duty of protecting the residence of an ambassador or minister against invasion as well as against any other act tending to disturb the peace or dignity of the mission or of the member of a mission.³ It was doubtless the recognition of this obligation which induced Secretary Hull, in urging prompt passage of the resolution, to say: "If we are to obtain for our representatives in foreign countries that degree of protection to which they are entitled, we should be in a position to show a like consideration for representatives of other governments in this country. * * * By the comity of nations, representatives of foreign governments in countries where law and order are supposed to prevail are entitled to freedom from any attempted intimidation or coercion." 81 Cong.Rec., Part 8, p. 8593.

Second. Nor do we think there is any substance in the point that the resolution violates the constitutional provisions in relation to free speech and free assembly. The reply of Senator Pittman to this contention in the debate on the adoption of the resolution is aptly expressed. He said: "* * * under the Constitution, anyone has a right to express his or her opinion, with regard to any ruler or with regard to any government, but I say that they have not the constitutional right — if prohibited by law — to make an offensive demonstration in front of an embassy or in front of a legation, the residence of a diplomat, who is our guest here, who depends on us wholly for his protection not only against murder, not only against insult, but against any character of annoyance or interference that will bring the hatred of the people of his country against our people." 81 Cong.Rec., Part 8, p. 8589.

The resolution, interpreted in the light of its purpose and according to the limitations of the Constitution, places no restriction upon speech or assembly...