Schoborg v. United States

• Decision Date: 12 March 1920
• Docket Number: 3273-3275.
• Citation: 264 F. 1
• Parties: SCHOBORG v. UNITED STATES. FELTMAN v. SAME. KRUSE v. SAME.
• Court: U.S. Court of Appeals — Sixth Circuit

264 F. 1

SCHOBORG v. UNITED STATES. FELTMAN v. SAME. KRUSE v. SAME. ^[*]

Nos. 3273-3275.

United States Court of Appeals, Sixth Circuit.

March 12, 1920

In and about Covington, Ky., there is a considerable community of German birth or descent. In 1917 and 1918 it was not uncommonly believed that a portion of this community was disloyal, and upheld and favored the cause of Germany as against the United States, in the pending war, and steps were taken to ascertain whether this belief was well founded. In the Latonia district of Covington, Charles B. Schoborg maintained a shoe cobbler's shop. He was 66 years old, was born in Germany and came to this country in childhood. From 1872 till 1914 save for 4 years' absence from the state, he had been continuously connected with the Covington city government as policeman and marshal, member of the board of trustees or city council, or police judge or magistrate. He was a man of intelligence, was commonly called "judge," and was evidently fitted to be, and was, a leader of opinion among his associates. His shop was used by them as a place of meeting, gossip, and discussion. Among them were Henry Feltman and Henry Kruse. Feltman was a tobacco dealer and banker in Cincinnati and Covington, and lived near Covington. He was 65, born in this country; his father came from Germany in childhood. Schoborg's shop was near where Feltman took and left the street car morning and night between his home and Cincinnati, and he was accustomed to step in there occasionally at other times. Kruse was 56 years old, and was born in this country of German parents. He had long been treasurer of a Covington brewery. He was a lifelong friend of Schoborg, and visited the shop often mornings and on Saturday afternoons, and very commonly in the evening, using it, he says, "as a loafing place" to sit down and talk and "meet the same old crowd."

Desiring to know what was going on in this shop, a volunteer association of citizens employed a detective agency, which found means to have a dictograph installed in the room, in March, 1918, with wires communicating with a listening station in a near-by building. Employes of the agency, called "operators," took turns in listening, and, in this way, knowledge was obtained of what was said in the shop from the time it opened in the morning until it closed at night for a total of 5 or 6 weeks of the period from March until July. As they listened, the operators made notes of the substance of what they heard. As the result of presenting their testimony to the grand jury, separate indictments were found against Schoborg, Feltman, and Kruse, alleging, in many counts and in various forms, violation of section 3, of title 1 of the Espionage Act of June 15, 1917, as amended May 16, 1918 (40 Stat. 553 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10212c)). These indictments (now) all rest upon the last clause of the amended statute, ^[1] denouncing word or act which supports or favors the cause of the enemy or opposes the cause of the United States. In successive and separate trials, extending over about 2 weeks in all, each of the three was convicted. Each brings a separate writ of error. The most important questions are so far common to the three cases that the three may well be disposed of in one opinion.

It is not feasible to repeat all the things which the operators claim to have heard said during this period by the different defendants. There was a great amount of repetition, the same sentiments having been expressed over and over again by the same speakers. A selection of enough of the alleged statements to show the general character of the discussion, is given in the margin. ^[2] It is It is enough to say here that the shop was the more or les regular meeting place of this informal club during the period from March until July, 1918, when the Germans, upon the west front, were constantly successful and the Allies constantly defeated, and that each one of the three, by what he said and by his express or implied approval of what others said, in discussing from day to day and from week to week the news of this series of disasters for the Allies, participated in rejoicing at the victory of the one and the defeat of the other, and, in great variety of form and expression, indicated his support and upholding of the German cause and his disparagement of, and opposition to, that of the United States. Disloyalty, extreme, pervasive, and constant, but shown by words only, could hardly be conceived in more typical and complete form.

S. T. McPherson, of Cincinnati, Ohio, and O. M. Rogers, of Covington, Ky., for plaintiffs in error.

Thos. D. Slattery, U.S. Atty., of Covington, Ky.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge (after stating the facts as above).

Common to the three cases is the claim that in so far as the Espionage Act undertakes to punish what was said by these respondents, it is in violation of the First Amendment to the Constitution, in that it abridges the right of free speech. The meaning and extent of this constitutional restriction have been often discussed in familiar cases. We need do no more than to refer to the latest discussion, found in the Schenck Case, 249 U.S. 47, 39 Sup.Ct. 247, 63 L.Ed. 470; but that discussion falls short of expressly reaching the present case, because it had to do with the act before amendment and with words which directly produced conditions which Congress had a clear right to forbid-- obstructing recruiting and enlistment, causing disloyalty among the military forces, etc.-- while the last clause of the amended statute reaches all instances, without expressed regard to their tendency or result, where words are employed to favor the cause of the one or oppose the cause of the other.

Counsel insistently urge the proposition that a citizen, acting with reasonable attention to the information available, and upon what he in good faith believes the facts to be, has a right to think that this country is wrong in one or more of the positions which have led to war, and that the enemy country is therein right, or to believe that the declaration of war by this country was, upon a balance of considerations, wrong, or that the further prosecution of the war is inadvisable, and that, holding any of these beliefs, he has a right to speak or write them in an endeavor to convert his fellow citizens thereto. However accurate or erroneous this proposition may be, we conclude that the situation shown by these records is of a different character, and that these respondents cannot effectively claim this right.

It is familiar law that language in a statute which is capable of a very broad or of a narrower construction should receive the latter where the former would or might make it unconstitutional, and where the latter is sufficient to reach the case before the court (U.S. v. Delaware Co., 213 U.S. 366, 407, 408, 29 Sup.Ct. 527, 53 L.Ed. 836), and hence it is not very important to point out that 'favor,' 'support,' and 'oppose,' as mere words, may have definition broad enough to cover and include some things which are also within the protection of the First Amendment; the really important question is whether that particular kind and degree of favor, support, or opposition alleged against defendants here is within the constitutional immunity.

Nor are we helped by any hard and fast formula distinguishing between the direct and the indirect causation of tangible injury. These are relative terms at any time, and in war time they take on a different color from that which they would carry in peace, when used to express the measure of constitutional right; and they could not be judged from the same aspect in 1918 as in 1898. In another branch of the law, the negligence may be deemed the proximate cause of the injury, even though there is more than one link in the chain of causation. Nor can we draw a fixed line between agitation and incitement; there may be incitement in fact which is not so in form. ^[3] Nor can a presumptive intent be insufficient merely because it is presumptive; an inference of intent may be strong enough to overbalance an express declaration; actions speak louder than words. ^[4] Even if--as we are urged to do-- we view with 'post-armistice mind' the defendants' conduct, we cannot forget that it occurred under pre-armistice conditions

Not because it was declared with reference to the particular clause of the law now involved, nor because it is so unambiguous as to furnish an infallible criterion, but because we know of no better formulation, we adopt, for our guidance, Mr. Justice Holmes' conclusion in the Schenck Case, 249 U.S. 47, 52, 39 Sup.Ct. 247, 249 (63 L.Ed. 470):

'The question in every case is whether the words used 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. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.'

We cannot doubt that the words in these indictments alleged, as shown by the proofs, as they have been above quoted and summarized, come within this condemnation; and, if there were doubt, the jury has found the forbidden intent, character and effect, and under instructions not substantially different from those which were given by Judge Westenhaver in the Debs Case (Department Justice Bulletin, No. 155), and in effect approved by the Supreme Court (249 U.S. 211, 215, 39 Sup.Ct 252, 63 L.Ed. 566). ...