Mr. WALSH of Montana, from the Committee on the Judiciary, submitted the following

REPORT

[To accompany S. 1058]

The Committee on the Judiciary, to which was referred the bill (S. 1058) repealing various provisions of the act of June 15, 1917 (40 Stat. L. 217), having considered the same, report favorably thereon, with the recommendation that it do pass without amendment. The bill deals with certain provisions of the so-called espionage act passed to meet conditions presented on the entrance of the United States into the World War and immediately prior thereto, namely, section 3 of Title I, section 4 of the same title, and sections 1, 2, and 3 of Title XII of the same act.

The section first above named is as follows:

SEC. 3. Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.

As it now appears in the law it was a part of the act referred to as originally passed. It was amended and enlarged by an act passed in 1918, but the amended act was afterwards repealed, at the cessation of hostilities, along with a very considerable amount of legislation commonly referred to as war measures. The repealing act, however, reenacted section 3 as it stood before being amended. Section 4 deals with conspiracies to violate either section 2 or section 3 of Title I of the act. The bill proposes to amend section 4 so as to confine its operations to section 2. The bill also proposes the repeal of sections 1, 2, and 3, of Title XII, which declares to be unmailable material offending against any provision of the espionage act, and

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in effect authorizes a postmaster to determine whether any particular matter does or does not offend against the statute and to exclude it from the mails if he concludes that it does.

Under section 3 of Title I, either in its original form or as it was amended, innumerable prosecutions were instituted and convictions had resulting in sentences of imprisonment for long periods, in most cases for words spoken or written, the statute having been construed and the verdicts rendered under the influence, or at least in the midst. of the passions incident to the war. After it was over Executive clemency was exercised in most, if not all the cases, largely because of a general recognition that the circumstances under which the trials took place negatived the idea that a calm judgment could have been rendered. If one could conceive that the statute would be administered with the same dispassionate reflection that ordinarily is given to the law and the facts in criminal trials, it might not be altogether questionable in point of wisdom, but applicable as it is only when the country is at war it may easily become an engine of oppression. That it has been such is indicated by a review of its operation in the statement hereto appended, supplied by advocates of the bill, marked "Exhibit A."

Whatever view may be taken in that regard, it is to be borne in mind that the statute has no application except in the existence of a state of war. It would seem as though Congress might safely be relied upon, in the deplorable event of the occurrence of another war calling for legislation of an extraordinary character, to meet the emergency as it may arise. There seems to be no sound reason for anticipating such a contingency. If section 3 is repealed, as in the opinion of the committee it should be, there would be no reason for retaining reference to that section in that following it relating to conspiracy.

The committee is further of the view that it is unwise to invest the post-office authorities with the power to determine whether an article. or articles in a newspaper does or does not offend against the statute, a question often so delicate as that learned judges of the Supreme Court has differed in the conclusion at which they have respectively arrived when called upon to solve it. Prompt delivery of its copies is essential to the existence of a newspaper. The exclusion from the mails of even a single issue may signify its ruin, indeed is likely to result in forced suspension. The act, accordingly, gives to administrative officers authority to suspend publication. Indeed the statute has been so administered as to make it to all intents and purposes a censorship law.

MEMORANDUM IN BEHALF OF THE REPEAL OF VARIOUS PROVISIONS OF THE ESPIONAGE LAW

STATEMENT OF FACT

The espionage act (act of June 15, 1917, 40 Stat. 217) comprises a vast body of law which has taken its place under various titles of the United States Code. We are not concerned with "most of the espionage act" which deals with "subjects like actual espionage, the protection of future military secrets, and the enforcement of neutrality in conflicts between other nations." (Chafee, Freedom of Speech, p. 43.) In the appendix (p. 28) we give in full the provisions of the act which it is now sought to repeal. The complexity of the law makes it difficult to present the situation accurately and yet simply. The provisions with which

we are primarily concerned are what were designated in the original espionage act as section 3 of Title I, and Title XII.

Section 3 of Title I as originally enacted provided:

'Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both."

On May 16, 1918, this provision was amended (c. 75, sec. 1, 40 Stat. 553) so as to make it far more elaborate and so as specifically to include many offenses not named in the earlier and simpler form. Congress repealed the amendatory act and revived and restored the section as originally enacted, by the resolution of March 3, 1921 (c. 136, 41 Stat. 1359). This provision by its very wording, though it remains on the statute books, is suspended until the next war.

The essential provision of Title XII (contained in sec. 2 of that title) reads as follows:

"Letters or writings advocating treason declared nonmailable. Every letter, writing, circular, postal card, picture, print, engraving, photograph, newspaper, pamphlet, book, or other publication, matter or thing, of any kind, containing any matter advocating or urging treason, insurrection, or forcible resistance to any law of the United States, is hereby declared to be nonmailable."

Section 1 declares nonmailable letters, etc., in violation of any of the provisions of the espionage act. Section 3 fixes a maximum penalty of not more than $5,000 and/or five years' imprisonment for violation of these sections.

A section 4 was added to Title XII by the act of 1918 authorizing the Postmaster General "when the United States is at war" to declare all mail undeliverable addressed to any person "using the mails in violation of any of the provisions of this act." But the resolution of March 3, 1921, repealed this section 4. This title in its original form not only remains in the body of our law but is not even suspended until the next war. It is now operative and ready for use at any time.

By a series of decisions the United States Supreme Court upheld the constitutionality of section 3 of Title I. Illustrative authorities are:

Pierce v. U. S., 252 U. S. 239-1920.

Schenck v. U. S., 249 U. S. 47-1919.

Frohwerk v. U. S., 249 U. S. 204-1919.

In the famous Milwaukee Leader case (U. S. v. Burleson, 255 U. S. 407-1921) the Supreme Court upheld Section XII.

ITS OPERATION DURING THE WORLD WAR PROVED WHOLLY UNSATISFACTORY

General character of conduct for which prosecutions were instituted.-There were approximately 2,000 prosecutions under the espionage law (Chafee. Freedom of Speech, p. 56), mostly under section 3 of Title I.

"Under the second and third clauses against causing insubordination or obstructing recruiting, only a few persons have been convicted for actually urging men to evade the draft or not to enlist. Almost all the convictions have been for expressions of opinion about the merits and conduct of the war. It became criminal to advocate heavier taxation instead of bond issues, to state that conscription was unconstitutional though the Supreme Court had not yet held it valid, to say that the sinking of merchant vessels was legal, to urge that a referendum should have preceded our declaration of war, to say that war was contrary to the teachings of Christ. Men have been punished for criticizing the Red Cross and the Y. M. C. A It was in no way necessary that these expressions of opinion should be addressed to soldiers or men on the point of enlisting or being drafted. Most judges held it enough if the words might conceivably reach such men" (idem, p. 57).

On the other hand, Judge Van Valkenburgh in the prosecution against Rose Pastor Stokes for the words in a private letter, "I am for the people and the Government is for the profiteers" indicated that he would regard it as criminal to argue thus to women because "our armies in the field and our navies upon the sea can operate and succeed only so far as they are supported and maintained by the folks at home." "

Although this conviction was reversed it indicates the kind of conduct for which prosecutions will be Instituted under the statute. Not all defendants have the money to appeal

Uncertain standards embodied in the act.-Nor was this divergence limited to the judges. United States attorneys throughout the country held extremely different views as to what was punishable under the act. In the district of Massachusetts no prosecutions whatsoever were brought. (Chafee, Propaganda and Conscription of Public Opinion, reprint pp. 9-10.) But throughout the country the difficulty was apparently to stop rather than to encourage prosecutions. To quote John Lord O'Brian, assistant to the Attorney General in charge of espionage act prosecutions:

"It has been quite unnecessary to urge upon the United States attorneys the importance of prosecuting vigorously, and there has been little difficulty in securing convictions from juries. On the contrary, it has been necessary at all times to exercise caution in order to secure to defendants accused of disloyalty the safeguard of fair and impartial trials. In addition to the causes already recited there were the patriotic agitations continually being carried on by the Liberty loan speakers, four-minute men and others, all of which worked the whole country up to a pitch of intense patriotism, resulting in instinctive aversion toward anyone even under suspicion for disloyalty."

On May 23, 1918, after the amended act was in force, the Attorney General sent circulars to all United States attorneys advising that it be administered with discretion and so as not to suppress legitimate criticism. (Rep. Atty. Gen. 1918, 674.) About a month before the end of the war the Attorney General issued a circular directing district attorneys to send no more cases under the amended act to grand juries without first submitting the facts to the Attorney General and receiving his opinion whether they constituted an offense. (O'Brian, 306.)

Prior legislation sufficient to prevent incitement to disobey law. Many honestminded individuals, while deploring some of the effects of the espionage law, may nevertheless have regarded section 3 of Title I of that act as necessary to the public safety during the World War. Except for the excesses represented by some of the prosecutions, they argue, legislation to curb interference with the Government's war program was essential. But such legislation was already on the statute books. If the laws previously in effect had been adequately enforced such interference could have been completely curbed. If section 3 of Title I is repealed these other laws will remain in effect.

Title 18, section 6, United States Code (Criminal Code, sec. 6) provides: "Seditious conspiracy. If two or more person in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined not more than $5,000, or imprisoned not more than six years, or both." (R. S., sec. 5336; Mar. 4, 1909, c. 321, sec. 6, 35 Stat. 1089.)

This statute was successfully invoked in Wells v. United States (257 Fed. 605, C. C. A. 9, 1919) to punish four persons for having conspired by force to prevent, hinder, or delay the execution of certain Federal statutes-the declaration of war against Germany and others. The case arose before the espionage law became effective. Section 6 was used to punish defendants who had collaborated in the preparation and distribution of a certain anticonscription circular urging forcible resistance to conscription.

The court said:

"It was not necessary to show that force was actually employed, but only that there was a conspiracy entered into that contemplated the employment of force, as a means to the accomplishment of a common purpose to oppose the execution of a law of the United States, or the authority of the Government to prosecute the war" (614).

So much for the law making it punishable for two or more to conspire to urge forcible resistance to law. It was and is equally punishable for a single individual to incite to forcible reisttance to law. Thus section 4 of title 18, United States Code (Criminal Code, sec. 3) provides:

"Inciting rebellion or insurrection. Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be imprisoned not more than ten years, or fined not more than $10,000, or both; and shall, moreover, be incapable of holding any office under the United States."

Two further provisions of the Criminal Code were successfully relied on by the Government in securing the conviction of Emma Goldman. (Goldman v.