United States v. Prieth

• Decision Date: 01 August 1918
• Citation: 251 F. 946
• Parties: UNITED STATES v. PRIETH et al.
• Court: U.S. District Court — District of New Jersey

251 F. 946

UNITED STATES v. PRIETH et al.

United States District Court, D. New Jersey.

August 1, 1918

[Copyrighted Material Omitted]

Charles F. Lynch, U.S. Atty., of Newark, N.J.

Otto A Stiefel, Abram H. Cornish, and Harrison V. Lindabury, all of Newark, N.J., and Thomas P. Fay, of Long Branch, N.J., for defendants.

HAIGHT District Judge.

The indictment to which the defendants have demurred, is based on section 4, title 1, of the so-called 'Espionage Act' of June 15, 1917 (40 Stat. 217, c. 30), and charges a conspiracy to commit the third specific crime set forth in section 3, title 1, of that act, before it was amended by Act May 16, 1918, c. 75. It contains but one count, and alleges in substance, that subsequent to June 15, 1917, the defendants conspired 'unlawfully and willfully to obstruct the recruiting and enlistment service of the United States, to the injury of the service and of the United States, through and by means of the printing and publishing at Newark, * * * and the circulating and distributing at Newark aforesaid and elsewhere throughout the United States, among persons who were then and there persons available and eligible for enlistment and recruiting in the military forces of the United States, as well as persons who then and there were liable to be taken into the service of the military forces of the United States, under the provisions of an act of Congress entitled (then follows a description of the Selective Service Act of May 18, 1917), a certain newspaper or publication called and known as the New Jersey Freie Zeitung, containing headlines and editorials and printed matter calculated and intended by the said defendants to induce said persons available and eligible for enlistment and recruiting in said military forces to fail and refuse to enlist for service therein, and to induce persons liable to military service pursuant to said act of Congress approved May 18, 1917, to refuse to submit to registration and draft for service in the military forces, to the injury of the service and of the United States'; that thereafter, at various times between June 16, 1917, and October 1, 1917, to effect the object of the conspiracy, they caused a number of articles to be printed in the before-mentioned newspaper, and the latter to be put in circulation through the mails and otherwise. The articles, together with the dates of publication, are all set forth in the indictment. Many grounds of demurrer have been assigned, but they raise comparatively few questions, which will hereafter appear.

1. It is urged, primarily, that the provision of section 3, title 1, of the 'Espionage Act,' which the indictment alleges that the conspiracy sought to violate, cannot be violated by merely inducing persons to refrain from enlisting; that it contemplates only such obstructions as are in the nature of a tort, directed either against the persons actually engaged in the 'recruiting or enlistment service' or 'the service itself.' Hence it is argued that, as the indictment alleges that the conspiracy was to induce those eligible for enlistment, etc., not to enlist, and in no way contemplated any acts which would constitute a tort or torts to 'the service' or those engaged in it, it does not charge a crime. It is further insisted that, if that construction of the act is not tenable, and it can be violated by inducing eligible persons not to enlist, still the indictment charges no crime, because an obstruction, within the meaning of the act, must be directed to a concrete case or cases, and not generally, as the indictment in this case alleges, and must be of a coercive, threatening, or intimidating nature. These contentions are so closely associated that they may be properly considered together. I can find nothing in the act which would warrant any such constructions as the defendants urge. It is only applicable when the United States is at war, and at that time the government is chiefly interested in procuring men for the army and navy.

It may at the outset, therefore, be safely assumed that the evil which Congress wished to prevent, by enacting the provision in question of the act, was the placing of obstacles in the way of raising an adequate army and navy, an urgent and pressing necessity, and that it was not concerned with the means which might be devised to obstruct recruiting or enlistments. Hence to adopt either of the defendants' constructions would be to attribute to Congress an intent entirely inconsistent with the manifest purposes of the act. Of course, no such construction should be adopted, unless the language used clearly requires it. But it does not. The verb 'obstruct' is broad. It is defined in Webster's New International Dictionary (among other definitions) as synonymous with 'to impede, retard, embarrass, oppose,' and as 'to be, or come, in the way of; to hinder from passing, action, or operation; to stop, impede, retard'; and such has been the construction generally given to it when it has been used in other federal penal statutes. See, for instance, United States v. Williams, Fed. Cas. 16,705; United States v. McDonald, Fed. Cas. 15,667. It thus follows that anything which would impede, hinder, or embarrass the 'recruiting' service would 'obstruct' it.

The contention that only such obstructions are within the act as are in the nature of torts committed against the persons actually engaged in the 'recruiting service' is stated by counsel to be based on the use of the words 'willfully' and 'injury.' Conceding that the meaning of those words is generally as counsel contends, I am nevertheless utterly unable to comprehend how, under any reasoning, the conclusion sought to be drawn therefrom is justifiable. Those words simply require that an obstruction, to be criminal, shall, on the one hand, be intentionally caused, with the evil purpose of obstructing the recruiting service, and, on the other hand, that it be injurious to the nation, or 'the service,' or both. It certainly requires no argument to demonstrate that the 'enlistment or recruiting service' would be quite as much obstructed, and it and the United States as severely injured, by inducing eligible persons, through newspaper articles, persuasion, or any kindred means, not to enlist, as by an assault upon a recruiting officer, the demolishment of a building in which a recruiting office is located, the tearing down or defacement of recruiting posters, or by actually intimidating prospective recruits. Indeed, the former means would probably be more effective than any of the latter.

The arguments that only such obstructions as are directed at a concrete prospective recruit, and then only when threats, etc., are employed, proceed, respectively, on the theory that this act should be construed the same as prior statutes which prohibit the obstructing of 'an officer in the courts of the United States,' and that decisions in labor injunction cases are applicable. If it be assumed for purposes of argument that the last-mentioned statutes have under all circumstances been construed as narrowly as counsel contend, that affords no reason for so construing the statute in question. Neither the language nor the purpose of the latter justify any such construction. There is no analogy between labor injunction cases and recruiting for the army and navy, save the right to freely contract. But the government has undoubtedly the additional right, which those decisions do not recognize that the employer has, to prevent any and all interferences with its raising of an army, no matter whet they may be.

There is no merit in defendants' contention that the act, construed as I have construed it, would be, in effect, an act to regulate the press. The press has no more of a constitutional right, when the country is at war, to willfully induce available persons not to join the army and navy, than an individual has to stand in front of a recruiting office and urge prospective recruits not to enlist, or by force, coercion, or intimidation attempt to keep them away, or otherwise actually interfere with the recruiting officers. The press, in its very nature, reaches a great many people and in a great many ways and places. To attribute to Congress an intention to make it criminal only when an obstruction is aimed at a concrete individual, and consists of threats, coercion, or intimidation (which could be easily frustrated by the police or military authorities), would necessarily presuppose that Congress intended that an evil-intentioned press, which is capable of being one of the most effective weapons against recruiting-- a weapon which reaches the prospective recruit in his home, either directly or indirectly, when he is freer from the enthusiasm which pervades a community in times of war than when he is mingling with other men-- could, with impunity, do anything it saw fit to obstruct recruiting. It would be ridiculous to think that Congress ever had any such intention.

Moreover there has been no case, as far as I have been able to ascertain, where any judge has adopted any such narrow construction of the act in question as the defendants contend for, or any case in which it has not been held, in one way or another, that any willful act, no matter what it was, which was designed to, and the effect of which was to, obstruct recruiting and enlistment, whether it was aimed at a particular person or the public generally, is a violation of this provision of the Espionage Act. Some of the cases (most of them being charges to the jury, reported in the bulletins issued by the Department of Justice) which have so construed the act are as follows: United States v. Wallace, Bulletin No. 4 (D.C.S.D. Iowa); Masses Pub. Co. v. Patten, 246 F. 24, 158 C.C.A. 250, L.R.A. 1918C, 79,...