Schaefer v. United States, 251 U.S. 466 (1920)

MR. JUSTICE CLARKE, dissenting.

On a single indictment containing nine counts, five men, Peter Schaefer, Paul Vogel, Louis Werner, Martin Darkow, and Herman Lemke, were convicted and sentenced to the penitentiary for printing seventeen articles in a German language newspaper published at Philadelphia between, June 24 and September 17, 1917.

Schaefer was president and Vogel was treasurer of the company which published the paper, but their entire time was given to the service of labor unions, which had loaned money to the company, and they were given these official positions for the purpose of enabling them to keep informed as to its business progress and the disposition of its earnings.

All the members of the court agree that there was no substantial evidence that Schaefer or Vogel were in any respect responsible for the publications complained o,f and that, as to them, the judgment must be reversed.

In this conclusion, I cordially concur, but I go further and am clear that a similar reversal should be entered as to Herman Lemke, who was convicted, as Schaefer and Vogel were, on only one of the nine counts of the indictment.

Lemke was given the sounding title of "business manager," but, as a matter of fact, he was a mere bookkeeper of a small business, with very limited authority. The newspaper led a precarious financial existence, and Lemke’s duties were restricted to making out and collecting bills for advertising and circulation, to paying some bills and to turning over the remainder of the money, if any remained, to the treasurer, Vogel. Lemke himself and two or three other witnesses testified that he had nothing whatever to do with deciding what should be published in the newspaper, and that he never wrote for it excepting that, when a reporter was ill, he occasionally reported a concert. There was no evidence to the contrary.

On such a record, it is very clear that a man holding such a position as Lemke held could not, and did not, have anything to do with determining what should be published in the paper. He had no more to do with the policy of the paper than a porter would have with determining the policy of a railroad company. In my judgment, the failure of proof as to Lemke was as complete as it was as to Schaefer and Vogel, and I cannot share in permitting him to be imprisoned in the penitentiary for a year for publications which he was powerless either to authorize or prevent.

A different case is made against Werner and Darkow. Werner was a writer of political editorials for the paper, and Darkow was the news editor. Werner was found guilty on four counts and not guilty on five. Darkow was found guilty on five counts and not guilty on four.

Two of the articles written, or caused to be published, by Werner and one or perhaps two of those caused to be published by Darkow were of a character such that they might have been fairly convicted of violating the act under which they were indicted, but none of these articles was included in count one, and only one of them was included in count nine, and with respect to this one article in count nine, Werner was found not guilty when charged with its publication in count three. The charge of the court did not distinguish between these really offending publications and the many innocent ones the publication of which was charged to be criminal, with the result that it failed to give such direction to the deliberations of the jury as I think every person accused of crime is entitled to have given.

The denial of separate motions to instruct the jury to render a verdict of not guilty as to Werner and Darkow on the first and ninth counts seems to me to constitute error so fundamental and pervasive as to render the entire trial unfair and unjust to a degree which requires the granting of a new trial to each of them.

I shall state my reasons for this conclusion as briefly as I may.

The first count charges that the defendants did

knowingly, willfully and unlawfully make and convey false reports and statements with intent to promote the success of the enemy of the United States, to-wit, the Imperial German government.

The indictment and the record in general make it very plain that the district attorney, in framing the indictment, and during the trial, believed that the statute prohibiting the making and conveying of a false report and statement would be violated by the publication of any article which had been published elsewhere if, in the publication, it was changed, either by addition or omission, and this without any proof that the original publication was true and the second publication false, and seemingly without regard to whether or not the publication had any tendency to promote the success of the enemy. The trial court accepted this construction of the statute and submitted the first count to the jury on this theory of the law.

I cannot doubt that this was gravely erroneous, for the real purpose of the statute is to punish published, not suppressed, reports and statements, whether original or copies, made with the intent to promote the success, and which were of a nature reasonably likely to promote the success, of the enemy of the United States by discouraging our own people or encouraging the enemy.

The first of the thirteen false reports, which it is charged in the first count were published, is typical of the others, and will sufficiently explain my position.

It purported to be a dispatch from London, and, translated, reads as follows:

The Crisis

Is Advancing in Russia with Rapid Strides

The Coalition government Will Probably Not Last Long

Its Position in Foreign Affairs is Condemned

London, June 23. -- The Petrograd correspondent of the Chronicle telegraphs today that a great crisis is in progress in Russia. (By that he means apparently that the unstable and weak coalition government will soon be got rid of. It seems to obey unwillingly the instructions of the Workmen’s and Soldiers’ Council to request the allies to revise their war aims. The workmen will not stand for this much longer. It is highly significant too that not a word has been reported for four days about the great general congress of the Workmen’s and Soldiers’ delegates, apparently because its behavior does not please the allies.)

The correspondent of the Chronicle quotes an extract from Maxim Gorky’s newspaper "New Life," which says that people all over the world are to understand that Russia rejects the aggressive war aims of the allies. The correspondent sees a sign in this that the socialists of Russia will not wait much longer.

Obviously there is nothing in this, as published, which could either discourage Americans or encourage the German enemy, and the indictment does not claim that there is. That which the indictment charges makes the publication criminally false is that there was omitted from it "a proposal by Maxim Gorky that Russia wage a separate war against Germany." Thus, the charge is that the crime consisted not in publishing something which tended to encourage German enemies, but in omitting to publish something which it is conceived might have discouraged them. It is not charged that what was printed was harmful, but that something which was unfavorable to Germany was not published.

This is characteristic of all but two of the thirteen articles in the first count, and to these additions were made so inconsequential as, in my judgment, not to deserve notice.

It seems to me very clear that the statute could not be violated by publishing reports and statements harmless in themselves, and which were not shown to be false, merely because they had been published in a different form in another paper, and this is the extent to which the proof in this case goes as to all of the publications complained of in the first count. Without more discussion, I am so clear that the requested instruction for the defendants Werner and Darkow as to the first count should have been granted that I think the refusal of it entitles them to a new trial.

The ninth count consists of a charge of conspiracy on the part of the entire five defendants to willfully make and convey false reports and false statements with intent to interfere with the operation and success of the military and naval forces of the United States, with willfully causing and attempting to cause insubordination, disloyalty, and mutiny in the military and naval forces of the United States, and with willfully obstructing the recruiting and enlisting service of the United States by the publication of various articles referred to, but not quoted, in the indictment.

With a single exception, these articles are the same as those incorporated in the first count, and this exception purported to be a dispatch from the Hague, giving the reasons for the unrest in Germany, from which it is charged there was omitted a statement that one of the reasons for such unrest was the failure of the submarine campaign carried on by the German government. Even in this ninth count, it is not charged that the publications as actually made were harmful, but it proceeds, as does the first count, upon the implication that they might have been more discouraging than they were to the German enemy if the omitted statements had been incorporated into them, and that, for this reason, they violated the statute. In other words, it comes to this -- that the ninth count charges as criminal not a conspiracy to publish the articles complained of, which were innocent, but a conspiracy to suppress certain statements which were published in other newspapers in connection with or as a part of the published articles and which it is argued might have been harmful to the German cause if they had been published. It is impossible for me to think that the statute could be violated in any such manner.

It was clearly proved that the newspaper was so poor financially that it was not able to have telegraphic service of any character, and, morning paper that it was, it filled its news columns with clippings from the evening papers of the night before and from early editions of the morning papers when it could procure them before its hour for going to press. It did not print nearly as many columns as the newspapers from which it obtained its news, and for this reason it was necessarily obliged to cut and condense both headlines and the body of the articles. In several of the instances complained of, these exigencies of publication plainly caused the omissions complained of.

Convinced as I am that the requested instructions to the jury that Werner and Darkow could not be found guilty on the first and ninth counts should have been given, and that the charge of the court was so utterly unadapted to the case as it would have been if they had been given as to be valueless or worse as a direction to the jury, I think that the least that can be done in the interest of the orderly administration of justice is to grant a new trial and let a new jury, properly instructed, pass upon the case.

I cannot see, as my associates seem to see, that the disposition of this case involves a great peril either to the maintenance of law and order and governmental authority, on the one hand, or to the freedom of the press, on the other. To me, it seems simply a case of flagrant mistrial, likely to result in disgrace and great injustice, probably in life imprisonment for two old men, because this Court hesitates to exercise the power, which it undoubtedly possesses, to correct, in this calmer time, errors of law which would not have been committed but for the stress and strain of feeling prevailing in the early months of the late deplorable war.