United States v. Strong

• Decision Date: 13 January 1920
• Docket Number: 4924.
• Citation: 263 F. 789
• Parties: UNITED STATES v. STRONG.
• Court: U.S. Court of Appeals — Ninth Circuit

263 F. 789

UNITED STATES v. STRONG.

No. 4924.

United States District Court, W.D. Washington, Northern Division.

January 13, 1920

Robt. C. Saunders, U.S. Dist. Atty., of Seattle, Wash.

John F Dore and Mark M. Litchman, both of Seattle, Wash., for defendant.

NETERER District Judge.

This is an indictment in ten counts. The first count charges the publication of an editorial in the Union Record, a daily newspaper, on the 4th of February, 1919, charged to be disloyal, scurrilous, and abusive, about the form of the government of the United States and the Constitution of the United States.

Count 2 is predicated on the same editorial, which, it is charged was intended to bring the form of the government of the United States, and the Constitution of the United States into contempt, scorn, contumely, and disrepute.

Count 3 charges the defendant, by the same publication, with intent to incite, provoke, and encourage resistance to the United States, when the United States was at war.

Count 4 charges the doing of all the acts enumerated in the preceding counts, in violation of the Espionage Act, predicated upon portions of the same article. All these acts were done, it is alleged, while the United States was at war.

Count 5 charges that the defendant did, on the 30th day of June 1919, ' * * * attempt to obstruct the recruiting and enlistment service of the United States by * * * writing and publishing' in the Seattle Union Record, a daily newspaper, the following: 'SIGNED.

By Anise.

There were sirens howling

And Bombs bursting

As a token

That the treaty

Was signed

That somewhere in Germany

A man had been found

Who could no longer stand

The sight

Of little white babies

Starving

And the sound of mothers

Wailing

And so at last he was willing

To put his name

To the ruthless bargain

To give away the lands

Of the people

To doom

Fifteen Million workers

To death or exile

By signing away the industries

To place a curse

Upon his children's children

Yes, he was willing

At last

But I wondered what he thought

As he faced

The pitiless victors

Gentlemen of the Allies

You have Us!.

We look at the vast sea

Of small dead faces

And there is no strength

Left in us

There is no bargain

So atrocious

That you cannot force it now

Upon us

But beware

Lest the day of judgment

Come for you

As it came for us

Lo!. we bear witness

How sin is punished

And yet how small

How inefficient

Our Lusitanias seem

Beside your starving

Of a thousand cities

Your seven months'

Massacre

Of unsurrendered people

After the fighting was Over!.

Our rulers sinned

And therefore our children

Perish

But for the sins

Of your rulers Shall not your children pay?

And I thought: 'Let us face

At last the naked fact.

They were like beasts

And we were like beasts.

We won, thank God, not They!.

And we take

What we choose

Even as they would have done

By law of club and fang,

But there is no honor left

And no high sounding alms

For any of us.'

Count 6 is predicated on the same article, and charges disloyal, scurrilous, and abusive language about the form of government of the United States, the Constitution of the United States, and the military and naval forces of the United States.

Count 7 is based upon portions of the same article, and charges 'intent * * * to bring the form of the government of the United States, the Constitution of the United States, the military and naval forces of the United States, into contempt, scorn, contumely, and disrepute.'

Count 8 charges 'intent then and there to incite, provoke, and encourage resistance to the United States' by the same publication.

Count 9 charges all of the acts separately charged in counts 5, 6, 7, and 8, in violation of section 3 of the Espionage Act.

Count 10 charges 'support and favor the cause of a country with which the United States was at war, to wit, the Imperial German Government, and the successors of the Imperial German Government, * * *' by the same publication.

The defendant has demurred to each count in the indictment on the ground that the facts stated do not constitute a crime; that more than one crime is charged in each count; that at the time of the publication of the articles the war had terminated, and the active operative provisions of the act had ceased; that the act upon which the charge is predicated is unconstitutional and violative of the First Amendment of the Constitution.

Counts 5 and 9 are clearly duplicitous. U.S. v. Dembowski (D.C.) 252 F. 894. The suggestion of defendant that the Espionage Act is violative of the First Amendment is not sustained. All of the other grounds in the demurrer may be discussed together.

This case was submitted with two other cases in which the Espionage Act was involved, and in which the Union Record is concerned. In the argument the preamble to the Constitution is quoted, and a 'constant recurrence to fundamentals' is urged, and it is suggested that the Constitution guarantees unto each man his life, his liberty, and his property, and that the article clearly is a threat of overthrow of the government and the assumption of property without compensation.

It is conceded, I think, that the advocacy of anarchy and sedition, or overthrow of government, is no crime, under the general statutes or law as presently enacted, unless the acts amount to treason, rebellion, or seditious conspiracy; nor is advising or advocating unlawful obstruction of industry, or unlawful or violent destruction of private property, a crime under the laws of the United States. The destruction of private property or the obstruction of industry might be a subject for investigation by a court of equity, jurisdictional facts being present. The offense, if any is charged, must be under the Espionage Act. Section 10212c, Compiled Statutes, provides that--

'Whoever, when the United States is at war, * * * shall willfully cause or attempt to cause, or incite or attempt to incite, insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States, and whoever, when the United States is at war, shall willfully utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, * * * or any language intended to bring the * * * government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, * * * or the uniform of the army or navy of the United States into contempt, scorn, contumely, or disrepute; or shall willfully utter, print, write, or publish any language intended to incite, provoke, or encourage resistance to the United States, * * * ' shall be punished.

Each of the several acts charged in the indictment is made a separate offense under section 3 of the act, supra, and each act is predicated upon intent to do the prohibited thing. Intent of conduct is, therefore, as held by all of the authorities, an ingredient of the charge. The character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 25 Sup.Ct. 3, 49 L.Ed. 154; Schenck v. U.S., 249 U.S. 47, 39 Sup.Ct. 247, 63 L.Ed. 470. Is the language employed sufficient, if disseminated and adopted, to produce the results condemned by the statute? Shaffer v. U.S., 255 F. 886, 167 C.C.A. 206.

The court will take judicial notice of the fact that open hostilities ceased in the Great War on November 11, 1918, the day on which the armistice was signed; that soon thereafter demobilization began and continued; that the treaty of peace was signed at Versailles on June 28, 1919; and that it has not been ratified by the Senate, and that no proclamation has been issued by the President declaring the war at an end.

It is asserted by the defendant that hostilities having ceased, demobilization proceeding, that the provisions of the Espionage Act became thereby inoperative; while it is asserted by the government, in view of the facts which the court judicially knows, the treaty of peace had not been concluded, and is still pending before the Senate; that the railways are still under national control by virtue of the war power; that the Food Control Act has recently been amended; that the War Time Prohibition Act has been upheld by the Supreme Court (Hamilton, Collector, v. Ky. Distilleries & Warehouse Co. (Dec. 15, 1919) 251 U.S. 146, 40 Sup.Ct. 106, 64 L.Ed. . . .); and that the conduct of the defendant must be considered with relation to the provisions of the Espionage Act, supra.

The Supreme Court in Hamilton v. Ky. Distilleries, supra, among other things said: 'It is shown that many war-time activities have been suspended, that vast quantities of war materials have been disposed of, that trade with Germany has been resumed, and that the censorship of postal, telegraphic and wire communications has been removed.'

It further says:

'That a statute valid when enacted may cease to have validity owing to a change of circumstances has been recognized, with respect to state laws, in several rate cases. Minn. Rate Cases, 230 U.S. 352, 33 Sup.Ct. 729, 57 L.Ed. 1511, 48 L.R.A. (N.S.) 1151, Ann. Cas. 1916A, 18; Missouri Rate Cases, 230 U.S. 474, 33 Sup.Ct. 975, 57 L.Ed. 1571; Lincoln Gas Co. v. Lincoln, 250 U.S. 256, 39 Sup.Ct. 454, 63 L.Ed. 968. That the doctrine is applicable to acts of Congress was conceded arguendo in Perrin v. U.S., 232 U.S. 478, 34 Sup.Ct. 387, 58 L.Ed. 691, and Johnson v. Gearlds,

...