has sent millions of her sons for its upbuilding. The sooner the American people come to their senses and demand peace, the better and more honorable it will be for this country."

The animus of the article and the effect expected of it need no comment to display. It was followed, supplemented, we may say, and reinforced by another article July 7, 1917. It (the latter) had for headlines the words "Failure of Recruiting," and recruiting failed, was its representation, notwithstanding an "advertising campaign was worked at high pressure," and "all sorts of means were tried to stir up patriotism." Its further declaration was that

"Germany was represented as a violator of all human rights and all international law, yet all in vain. Neither the resounding praises nor the obviously false accusations against Germany were of any avail. The recruits did not materialize."

The cause was represented to be:

"That the American who was not a coward" did "not care to allow himself to be shot to satisfy British lust for the mastery of the world," and "the people instinctively recognized and felt" that "the pro-British policy of the government is an error, which can bring nothing but injury upon this country."

It was then added that "the nation therefore" was doing the only thing it could still do, "since its desires were not consulted at first." It refused "to take part."

a consequence of the war to turbulent resistance to it, and thus giving the article the character of the others, with a definite illustration of the opposition to the war by a Senator and his prophecy of a riotous protest by the people. It will be recalled that in other articles the antagonism of the people. to the war was declared, and in one of them it was said that the war was commenced "under Wilson's régime" and "without their [the people's] consent."

In conclusion, we may add that there are in the record what are called "intent" articles, which supplement and emphasize the charges of the indictment, and, it is to be remembered, that defendants were witnesses, and had the opportunity of explanation, and to preclude any misapprehension of the German originals or defect in their translation. And the jury could judge of the defendants by their presence.

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*We have not deemed it necessary to consider the articles commented on with reference to the verdicts; the Abrams Case has made it unnecessary. On any count of which any defendant was convicted he could have been sentenced to 20 years' imprisonment. The highest sentence on any defendant was five years.

Further comment is unnecessary, and our conclusion is that the judgment must be affirmed as to Werner, Darkow, and Lemke but reversed as to Schaefer and Vogel; as to them the case is remanded for further proceedings in accordance with this opinion.

So ordered.

Mr. Justice BRANDEIS delivered the fol

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exercise of free speech and of the press, *and its statements were deliberate and willfully false; the purpose being to represent that the war was not demanded by the people but was the result of the machinations of executive power, and thus to arouse resentment to it and what it would demand of ardor and effort. In final comment we may say that the article in effect justified the German aggressions.

We do not deem it necessary to adduce the other charges of the indictment. We may, however, refer to the plausibility of the excuse of the alteration of Senator La Follette's speech, and remark that it disappears when the speech is considered in connection with the articles that preceded and followed it. The alterations were, it is true, of two words only, but words of different import than those the Senator used. The Senator urged that the burden of taxation made necessary by the war be imposed upon those who might profit by the war, in order to relieve those who might suffer by it and be brought to "bread lines." The article changed the words to "bread riots"; that is, changed the expression of acceptance of what might come as

Justice HOLMES concurred:

With the opinion and decision of this court, reversing the judgment against Schaefer and Vogel on the ground that there was no evidence legally connecting them with the publication, I concur fully. But I am of opinion that the judgments against the other three defendants should also be reversed, because either the demurrers to the sereral counts should have been sustained or a verdict should have been directed for each defendant on all of the counts.

The extent to which Congress may, under the Constitution, interfere with free speech, was in Schenck v. United States, 249 U. S. 47, 52, 39 Sup. Ct. 247, 249 (63 L. Ed. 470), declared by a unanimous court to be this:

responsible, fanatical minorities. Like many other rules for human conduct, it can be

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applied correctly only by the *exercise of good judgment; and to the exercise of good judgment calmness is, in times of deep feeling and on subjects which excite passion, as essential as fearlessness and honesty. The question whether in a particular instance the words spoken or written fall within the permissible curtailment of free speech is, under the rule enunciated by this court, one of degree; and because it is a question of degree the field in which the jury may exercise its judgment is necessarily a wide one. But its field is not unlimited. The trial provided for is one by judge and jury, and the judge may not abdicate his function. If the words were of such a nature and were used under such circumstances that men, judging in calmness, could not reasonably say that they created a clear and present danger that they would bring about the evil which Congress sought and had a right to prevent, then it is the duty of the trial judge to withdraw the case from the consideration of the jury; and, if he fails to do so, it is the duty of the appellate court to correct the error. In my opinion, no jury acting in calmness could reasonably say that any of the publications set forth in the indictment was of such a character or was made under such circumstances as to create a clear and present danger, either that they would obstruct recruiting or that they would promote the success of the enemies of the United States. That they could have interfered with the military or naval forces of the United States or have caused insubordination, disloyalty, mutiny, or refusal of duty in its military or naval services was not even suggested; and there was no evidence of conspiracy, except the co-operation of editors and business manager in issuing the publications complained of.

The nature and possible effect of a writ

importance is shown by the fact that each of the three was made the subject of a separate count.

First. There were convictions on three counts of willfully obstructing the recruiting and enlistment service. The conviction of the news editor of so obstructing rested wholly upon his having inserted the following reprint from a Berlin paper in the Tageblatt:

Yankee Bluff.

"Professor Jenny Does Not Take the American Preparations for War Seriously.

"Ambassador Paige Assures England That We

Will Send Ten Million Men.

"London, Aug. 5.-Ambassador Paige followed Lloyd George at Guild Hall in Plymouth, with a great speech. He declared there that the differences between England and the United States in former times were only of a superficial nature, and that both peoples are now united inseparably, to fight for freedom and against the Hydra of militarism. He assures his hearers that the United States is ready for all sacrifices in order to end the war victoriously, and that, if necessary, it will send 10,000,000 men to France."

"Berlin, Aug. 5.-In the 'Täglishe Rundschau,' Professor Jenny writes under the title 'Ameri

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canism' as follows: Americans think in exaggerations and talk in superlatives. Even Ambassador Andrew White in his Memoirs falls into superlatives in comparatively insignificant cases. He speaks of them as the most important events of his life, and maintains that certain people have made an indelible impression on him, whom others consider to be ordinary, average men.

"The army of 10,000,000 men has dwindled to a voluntary army of 120,000; while the new conscripted army of 565,000 will not even be ready to begin drilling for the front in six months. The 100,000 air ships were reduced to 20,000, and then to 3,000, which the Americans hope to have ready for next summer, if they find the right model for them. As for the

ing here and there a sentence and presenting it separated from the context. In making such determination, it should be read as a whole; at least, if it is short, like these

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news items and editorials. Sometimes it is necessary to consider, in connection with it, other evidence which may enlarge or otherwise control its meaning, or which may show that it was circulated under circumstances which gave it a peculiar significance or effect. But no such evidence was introduced by the government. The writings here in question must speak for themselves. Fifteen publications were set forth in the indictment; and others were introduced in evidence. To reproduce all of them would unduly prolong this opinion. Four are selected which will illustrate the several contentions of the government. That at least three

the ocean, America, six months after the declaration of war, has not yet decided whether they are to be wood or steel ships; so far not even the keel of one ship has been laid. It amounts to this: That now, when the Americans can scrape some tonnage together, the troops are not ready, and when they have the troops ready, the tonnage will not be available.

"The army of 10,000,000 and the 100,000 airships which were to annihilate Germany have proved to be American boasts, which will not stand washing. It is worthy to note how much the Yankees can yell their throats out without spraining their mouths. This is in accord with their spiritual quality. They enjoy a capacity for lying, which is able to conceal to a remarkable degree a lack of thought behind a superfluity of words.,

"But some fine day, if they do not stop their boasting and bluffing, it might happen to them that they get the lockjaw, for which there is no better relief than a good box on the ear. Moreover, it is not to be assumed that the Americans are really in earnest with the war. No one would be surprised if they found a thousand and one excuses for taking no active part in the European War."

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*It is not apparent on a reading of this article-which is not unlike many reprints from the press of Germany to which our patriotic societies gave circulation in order to arouse the American fighting spirit-how it could rationally be held to tend even remotely or indirectly to obstruct recruiting. But as this court has declared, and as Professor Chafee has shown in his "Freedom of Speech in War Time," 32 Harvard Law Review, 932, 963, the test to be applied as in the case of criminal attempts and incitements-is not the remote or possible effect. There must be the clear and present danger. Certainly men, judging in calmness and with this test presented to them, could not reasonably have said that this coarse and heavy humor immediately threatened the success of recruiting. Compare United States v. Hall, (D. C.) 248 Fed. 150; United States v. Schutte (D. C.) 252 Fed. 212; Von Bank v. United States, 253 Fed. 641, 165 C. C. A.

267; Balbas v. United States, 257 Fed. 17, 168 С. С. A. 229; Sandberg v. United States, 257 Fed. 643, 168 C. C. A. 593; Kamman v. United States (C. C. A.) 259 Fed. 192; Wolf v. United States (C. C. A.) 259 Fed. 388, 391, 392.

Second. There were convictions on three counts of willfully conveying false reports and statements with intent to promote the success of the enemies of the United States. The Tageblatt, like many of the smaller newspapers, was without a foreign or a national news service of any kind, and did not purport to have any. It took such news usually from items appearing in some other paper theretofore published in the German or the English language. It did not in any way indicate the source of its news. The item, if taken from the English press, was of course translated. Sometimes it was copied in full, sometimes in part only, and sometimes it was rewritten, or editorial comment was added. The government did not attempt to prove that any statement made in any of the news items published in the Tageblatt was false in fact. Its evidence,

*487

*under each count, was limited to showing that the item as published therein varied in some particular from the item as it appeared in the paper from which it had been copied; and no attempt was made to prove the original dispatch to the latter paper. The government contended that solely because of variation from the item copied it was a false report, although the item in the Tageblatt did not purport to reproduce an item from another paper, and in no way indicated the source of the news. Each of the

zur

lamation of the latest einer amtlichen Erklärcut in bread rations and ung der jüngsten Brotraof the need for economy tionen-Verringerung und which has reached the der Aufforderung civil authorities: This Einschränkung enthalten, document says: 'We welche den Gemeindebeknow now with certainty hörden zuging. In derthat we cannot count up- selben heiszt es: "Wir on the import of bread- wissen nun bestimmt, stuffs from America and dasz wir auf die Einfuhr that we must strive to von Brotgetreide aus make our own provisions Amerika nicht rechnen suffice. In initiated cir- können, und dasz wir uns cles it is said that under bemühen müssen, mit den no conditions can the new eigenen Vorräthen auszuAmerican proposal be ac- kommen."-In eingeweihcepted, and that the food- ten Kreisen heiszt es, stuffs may rot before the dasz man auf den neuen ships will be unloaded." Vorschlag Amerikas un

ter keinen Umständen eingehen und das Getreide eher verfaulen lassen wird, als die Schiffe auszuladen.

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*The falsification charged is said to consist in having added to the dispatch which was copied from the Staatszeitung the words:

"In initiated circles it is said that under no conditions can the new American proposal be accepted, and that the foodstuffs may rot before the ships will be unloaded."

But it is obvious, upon comparing the English translation with the German original, that the defendant did no such thing. What occurred was this: The sentence referred to was not made a part of the dispatch in the Tageblatt. It followed the dispatch; it was not within the quotation marks, and was separated from it by a dash-a usual method of indicating that what follows is comment or an addition made by the editor. In the English translation, as set forth in the indictment, this sentence, through some inadvertence of the government's translator or draftsman, was included as part of the dispatch and brought with the quotation therein. Evidently both the jury and the trial judge failed to examine the German original.

2. One of the publications for which the news editor was convicted on the first count because of an omission from the item copied:

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"The great mass of the people bear the costs of war, although they may not be directly taxed one dollar. The great mass of the people pay in higher prices and pro-longed hours of labor. They pay in service, not alone on the battle field, but whenever men and women work hard all day long. But more than all this, they pay the cost of war with their blood, and their lives, and what is the greatest sacrifice of all,

with the blood and lives of their loved ones.

"If bread lines are a familiar sight in every city in the land, as they undoubtedly will be if the present prices of the most necessary supplies for living hold firm during the coming winter, if cold and hunger become daily guests with thousands of families, who, until now, have only known comfort, a condition which is certain to come about during the coming winter months, if no help against the present level of prices can be found, then it is my opinion that the members of this Congress will do little enough if they come to realize that they are adding to the privations and pains of the mass of the people if they hesitate to place even a fairly moderate portion of the financial burden upon the rich."

Falsification is charged solely because the

word "Brot-riots" (translated as "bread

riots") was used in the eleventh line of the article, instead of the word "Brodreihen" (translated as "bread-lines").

The act punishes the willful making and conveying of "false reports and 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." Congress sought thereby to protect the American people from being willfully misled to the detriment of their cause by one actuated by the intention to further the cause of the enemy. Willfully untrue statements which might mislead the people as to the financial condition of the government and thereby embarrass it; as to the adequacy of the preparations for war or the support of the forces; as to the sufficiency of the food supply; or willfully untrue statements or reports of military opera

*493

tions which might mislead public opinion as to the competency of the army and navy or its leader (see "The Relation Between the Army and the Press in War Time," War College Publication, 1916); or willfully untrue statements or reports which might mislead officials in the execution of the law, or military authorities in the disposition of the forces such is the kind of false statement, and the only kind, which, under any rational construction, is made criminal by the act. Could the military and naval forces of the United States conceivably have been interfered with, or the success of the enemy conceivably have been promoted by, any of the three publications set forth above? Surely, neither the addition to the first nor the omission from the second constituted the making of a false statement or report. The mistranslation of "breadlines" in one passage of

the third, if it can be deemed a false report, obviously could not have promoted the success of our enemies. The other publications set out in the indictment were likewise impotent to produce the evil against which the statute aimed.

ger, to two years.

Darkow, the news editor, and Werner, the editor, were each sentenced to five years in the penitentiary; Lemke, the business manaThe jury which found men guilty for publishing news items or editorials like those here in question must have supposed it to be within their province to condemn men, not merely for disloyal acts, but for a disloyal heart: provided only that the disloyal heart was evidenced by some utterance. To prosecute men for such publications reminds of the days when men were hanged for constructive treason. And, indeed, the jury may well have believed from the charge that the Espionage Act had in effect restored the crime of constructive trea

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son.2 To hold that such harmless additions to or omissions from news items, and such impotent expressions of editorial opinion, as were shown here, can afford the basis even of a prosecution, will doubtless discourage criticism of the policies of the government.

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..

2 The presiding judge in charging the jury said of the act: Its general purpose is to protect our military strength and efficiency to protect ourselves against anything which would promote the success of our enemies by undermining our morale, lessening our will to win; or as it is generally expressed, our will to conquer, creating divisions among our people. "These acts which are prohibited are treasonable in the sense in which that word is used, in the common speech of the people. Indeed, they may constituto legal treason as defined in some jurisdictions, but they are not treason against the

..

United States, for the simple reason that there is a provision in our Constitution (which of course, the acts of Congress follow), that treason against the United States-you will observe that it does not say 'treason generally,' but treason against the United States, shall consist only in making war upon them, or in adhering to their enemies, giving them aid and comfort, and there is another provision to the effect that no person shall be convicted of the crime of treason unless there are two witnesses to the same overt act, making, as you will see, it perfectly clear that mere words, whether published or not, as long as they are mere words, do not constitute the crime of treason, but they must be words uttered and published under such circumstances as to become deeds or acts in themselves, as 'words' may be. So that words, unless there is something to which they may attach and unless the direct, natural, and reasonably to be expected consequences of them would be to aid the enemy, do not constitute the crime of treason. Every man will observe, however, that even mere words may be fraught with consequences which although too remote to constitute the crime of

treason, may nevertheless be words which are fraught with most awful consequences, and that therefore it is properly within the province of the law to prohibit and make it