Hartzel v. United States, 531

• Decision Date: 12 June 1944
• Docket Number: No. 531,531
• Citation: 88 L.Ed. 1534,322 U.S. 680,64 S.Ct. 1233
• Parties: HARTZEL v. UNITED STATES
• Court: U.S. Supreme Court

322 U.S. 680

64 S.Ct. 1233

88 L.Ed. 1534

HARTZEL

v UNITED STATES.

No. 531.

Argued April 25, 1944.

Decided June 12, 1944.

Mr. Ode L. Rankin, of Chicago, Ill., for petitioner.

Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for respondent.

Mr. Justice MURPHY announced the conclusion and judgment of the court.

For the first time during the course of the present war we are confronted with a prosecution under the Espionage Act of 1917.¹ The narrow issue is whether there was sufficient evidence to support the jury's determination that petitioner violated the Act in that, in time of war, he willfully attempted to cause insubordination, disloyalty, mutiny and refusal of duty in the armed forces and willfully obstructed the recruiting and enlistment service of the United States.

Petitioner and two others were charged in a seven-count indictment with violations of the second and third clauses² of Section 3 of the Act, together with a violation of Section 4. It was alleged that in time of war they published and disseminated three pamphlets to numerous persons and organizations, among whom were individuals available and eligible for recruitment and enlistment in the military and naval forces of the United States as well as individuals already members of the armed forces. Counts 1, 3 and 5 charged that by these actions they willfully obstructed the recruiting and enlistment service of the United States in violation of the third clause of Section 3. Counts 2, 4 and 6 charged that these activities constituted a willful attempt to cause insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States in violation of the second clause of Section 3. Count 7 charged a conspiracy to violate Section 3, in violation of Section 4 of the Act. Petitioner was found guilty on all counts and was sentenced generally to five years in prison. The court below affirmed his conviction on appeal.³ 138 F.2d 169. The importance of the issues involved led us to grant certiorari. 320 U.S. 734, 64 S.Ct. 437.

Petitioner, an American citizen, was born 52 years ago in Pennsylvania. His ancestors, of Scotch, Irish and German descent, came to this country over 120 years ago. He enlisted in the armed forces in 1917 and served overseas. After his honorable discharge in 1919, he was employed in the city health department at Akron, Ohio, while earning a degree in science at Akron University. He then took courses in economics and political economy at the University of Chicago and became a financial analyst and statistician for various banks, investment brokers and investment companies in Chicago. After 1938 he was employed as an auditor and statistician, first by the state of Illinois and then by the federal government in corporations in Detroit and Chicago producing material for the United States Army Air Corps. During all this time he had constantly engaged in economic research on his own behalf and several articles by him were published in reputable business and financial periodicals. There was no evidence of his having been associated in any way with any foreign or subversive organization.

Prior to the entry of the United States into the present war, petitioner wrote several short articles containing scurrilous and vitriolic attacks on the English, the Jews and the President of the United States. Americans were urged not to ally themselves with the English. Only a German victory, it was said, would bring 'increased stability and safety for the West.' Petitioner had certain of these articles mimeographed by various individuals in Chicago, including one Elmer Soller, who was later indicted as a co-defendant with petitioner. Several hundred copies of the mimeographed articles were mailed by petitioner to individuals and organizations appearing on his mailing list.

Petitioner then wrote three articles in 1942 which formed the basis for his conviction under the Espionage Act of 1917. These articles repeated the same themes and were marked by the same calumny and invective; they are set out at length in the opinion of the court below, 138 F.2d at pages 170—172, and need not be repeated here. In substance, they depict the war as a gross betrayal of America, denounce our English allies and the Jews and assail in reckless terms the integrity and patriotism of the President of the United States. They call for an abandonment of our allies and a conversion of the war into a racial conflict. They further urge an 'internal war of race against race' and 'occupation (of America) by foreign troops until we are able to stand alone.'

After writing these articles, petitioner had them mimeographed by his co-defendant Soller and mailed about six hundred copies of them, anonymously, to persons and organizations on his mailing list. In order to avoid detection, he deposited the envelopes in several different mail boxes and endeavored to leave no finger-prints.⁴ He had compiled this mailing list from several sources: (1) The World Almanac, which gave him the names of various prominent people, associations, fraternities, sororities, etc.; (2) a government publication containing a list of labor unions; (3) daily newspapers which mentioned the names of people actively engaged in the America First Committee; and (4) telephone directories at the public library which gave him the names of various state and district commanders of the American Legion. Included in his list were such persons as United States senators, representatives, bishops and other church officials; such organizations as the Daughters of the American Revolution and We the Mothers Mobilize were also included.

The Government proved that two of these pamphlets were mailed to and read by the Commanding General of the United States Army Air Forces and a colonel attached to the General Staff. All three pamphlets were mailed to the United States Infantry Association, which publishes the Infantry Journal, a service publication, and were read at its headquarters by two Army officers in the course of their duties. The evidence also showed that one or more of the pamphlets were received in the mail by the president of Northwestern University, the American Newspaper Publishers Association, the Kiwanis International, the Lions International, the Air Line Pilots Association and the American Legion, Department of Illinois. Individuals registered under the Selective Training and Service Act of 1940 and employed by these various organizations read the pamphlets in the ordinary course of their work, including one 20-year old clerk whose duty it was to open the incoming mail at the office of the Lions International. In addition, envelopes addressed to at least eighteen high ranking Army officers were found secreted under a bathtub in petitioner's home, together with several of the pamphlets.

Shortly after being taken into custody, petitioner signed a statement in which he claimed that 'the prime motive which impelled me in writing and distributing the articles discussed above, was the hope that they might tend to create sentiment against war amongst the white races and in diverting the war from them, to unite the white races against what I consider to be the more dangerous enemies, the yellow races.' At the trial he testified that 'I thought there was a trend toward Communism, and I thought it was quite a dangerous position because of warfare between the white races, it would be the cause of war between the white and yellow races, and rather than have it beat into us, we might as well face the facts and know what we are facing, a certain group of Communists discussing methods, their viewpoints. I wanted to help minimize that so we could again have public standpoint established in this country.' He said he thought his articles might improve the morale of persons available and eligible for recruiting and enlistment in the armed forces, though he retracted this statement on cross-examination. His efforts, he thought, 'were political in character' and 'the effect on the troops of saying that America was betrayed would be for them to consider whether it was or not and if so, to fight for Americans.'

On the basis of these facts, petitioner was found guilty of violating the second and third clauses of Section 3 of the Act. These clauses are directed at those who, in time of war, 'willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States,' or who, in time of war, 'willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service of the United States.' Thus these clauses punish the making and dissemination of statements and writings which are intended to have the evil effects set forth by Congress. No question is here raised as to the constitutionality of these provisions or as to the sufficiency of the indictment returned thereunder. But such legislation, being penal in nature and restricting the right to speak and write freely, must be construed narrowly and 'must be taken to use its words in a strict and accurate sense.' Mr. Justice Holmes, dissenting in Abrams v. United States, 250 U.S. 616 at page 627, 40 S.Ct. 17, at page 21, 63 L.Ed. 1173.

The language of the second and third clauses of Section 3 makes clear that two major elements are necessary to constitute an offense under these clauses. The first element is a subjective one, consisting of a specific intent or evil purpose at the time of the alleged overt acts to cause insubordination or disloyalty in the armed forces or to obstruct the recruiting and enlistment service. This requirement of a specific intent springs from the statutory use of the word 'willfully.' That word, when viewed in the context of a highly penal statute restricting freedom of expression, must be taken to mean deliberately and with a specific purpose to do the acts proscribed by Congress. Cf. United States v. Murdock, 290...