United States v. Nearing

• Decision Date: 01 August 1918
• Parties: UNITED STATES v. NEARING et al.
• Court: U.S. District Court — Southern District of New York

252 F. 223

UNITED STATES v. NEARING et al.

United States District Court, S.D. New York.

August 1, 1918

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Morris Hillquit, of New York City, for the demurrer.

Vincent H. Rothwell, of New York City, opposed.

LEARNED HAND, District Judge (after stating the facts as above).

The two first counts of both indictments allege a conspiracy to cause insubordination in the army and to obstruct the enlistment service by the publication of the pamphlet above described. We are to suppose that the conspiracy contemplated and intended that the pamphlet should be circulated among present or future members of the army, and persons subject to the draft and to voluntary enlistment, and that the pamphlet was chosen as a means apt to cause the first to become insubordinate and the second to evade the draft or refuse enlistment. If the conspiracy had been successful, these results would have followed. Hence the question is necessarily presented whether the accomplishment of that result in that way would have made the author criminally responsible for the results against which the statute is directed. It must be remembered that, in so far as the statute forbids causing insubordination, it forbids incitement to the commission of crime, since all insubordination is a crime committed by the independent will of others. It must therefore be taken as forbidding those acts which would make the authors accessories before the fact to insubordination, disloyalty refusal of duty, and the like. Indeed, it is doubtful whether that clause adds to the criminal responsibility at common law of those who should cause or attempt to cause others to commit such crimes.

The same thing is true of the second count, for obstructing the enlistment service. Construing this as including only voluntary enlistment, I shall show later that the statute meant to cover at least active and gratuitous advice, counsel, or command not to enlist; and by analogy I should say that the measure of liability should be the same as though the refusal to volunteer were a crime, and as though the question were whether the defendants were accessories. The result-- i.e., refusal to volunteer-- the statute does not positively forbid, but it deprecates it. At least we may safely say that the measure of liability ought not to be larger when the result is not a crime than when it is. For the present I shall leave it so, and assume that in both clauses the question is: What words make their utterer responsible for crimes which in the course of nature, including the wills of others, may be expected to follow from them?

That the author of words may in fact be the cause of the commission of crime by others is a trite enough observation. Any discussion of existing laws, designed to show that they are mistaken in means, or unjust in policy, may have that result. Every one knows that the obligation of law in the minds of many men depends altogether upon their approval of its purposes, and that to arouse their disapproval is to terminate their obedience. Indeed, there are few whose allegiance to any given law is not modified by their opinion of its justice, and the measure of whose obedience does not turn in some degree upon that factor.

At common law the utterer of written or spoken words is not criminally liable merely because he knows they will reach those who will find in them the excuse for criminal acts. On the contrary, the rule has always been that, to establish criminal responsibility, the words uttered must amount to counsel or advice or command to commit the forbidden acts, and this is the classic form of expression. 4 Blackstone, 36, 37. Of course, the counsel or advice need not be explicit, since the meaning of words comprises what their hearers understand them to convey. Yet the terms, 'counsel' or 'advice' have a content which can be determined objectively, and do not depend upon the subjective intent of their author. I tried unsuccessfully in Masses Pub. Co. v. Patten (D.C.) 244 F. 535, to suggest an analysis of what is included in those terms, and shall not attempt it again. It is enough here merely to suggest that they must have limits determined by the character of the words themselves. That there may be language, as, for instance. Mark Antony's funeral oration, which can in fact counsel violence while it even expressly discountenances it, is true enough; but that raises only the situation, familiar enough everywhere in the law, and already mentioned, of the actual meaning of words to their hearers.

Now, there is nothing in the pamphlet in question which can, as I read it, be understood to constitute any counsel or advice or command to obstruct the draft or to become insubordinate. At least, if it be the pleader's purpose to allege that they reached persons who so understood them, and that the defendants knew of this likelihood, that must be especially alleged. Taken with any interpretation which they can fairly bear, they remain entirely within the range of discussion, and at common law would not, I think, subject their author to criminal responsibility for the results, no matter what his intent.

Whatever may be the rule at common law, I understand Masses Pub. Co. v. Patten, 246 F. 24, 158 C.C.A. 250, Ann. Cas. 1918B, 999, to lay down an added measure of criminal liability under this statute to the utterance of words which may cause insubordination, or may obstruct the enlistment service. In that case, it is true, there is language which, taken broadly, can be made to mean that the author is liable if he merely knows that his words will so result. This I can hardly think can have been the significance of the decision, since, as I have already shown, the inevitable consequence would be to imperil any discussion of public matters. It certainly was not the purpose of that case to do so, or indeed to insist that the style or manner of the discussion must measure with any standard of taste or temperance. Such a result would be foreign to the whole history of the subject. The test as laid down in that case was, I think, this: That though in the form of public discussion words, which might not themselves amount to advice or counsel to violate the law, would nevertheless make their author criminally responsible if they were in fact the cause of the results forbidden, and if they were uttered with the specific intent of producing those results. In short, the test was made, not objective only, but in part subjective, as is indeed often the case in the definition of crime. At least this is as I understand that case, and it is in this sense that the rule was applied in the trial of the first indictment against the Masses Publishing Company, which was the direct result of the decision of the Circuit Court of Appeals.

Now, in the first two counts of each indictment, the defendants are alleged to have intended by the words used to cause insubordination and to obstruct the enlistment service. It is certainly true, and can hardly be denied, that the pamphlet might be an efficient argument, and so a cause in the minds of men, to secure that result. Such utterances and such a manner would produce a state of mind prone to insubordination and to evasion. Thus both conditions are fulfilled which are required, not, to be sure, under the common-law rules in such matters, but in the decision mentioned.

Similarly of the third and fourth counts...