GILBERT v. STATE OF MINNESOTA, 254 U.S. 325

Mr. Justice McKenna delivered the opinion of the court. A statute of Minnesota makes it unlawful “to interfere with or discourage the enlistment of men in the military or naval forces of the United States or of the State of Minnesota.” Its second and third sections are as follows: “Sec. 2. Speakmg by word of mouth against enlistment unlawful. — It shall be unlawful for any person in any public place, or at any meeting where more than five persons are assembled, to advocate or teach by word of mouth or otherwise that men should not enlist in the military or naval forces of the.

United States or the state of Minnesota. “Sec. 3. Teaching or advocating by written or printed matters against enlistment unlawful. — It shall be unlawful for any person to teach or advocate by any written or printed matter whatsoever, or by oral speech, that the citizens of this state should not aid . or assist the United States in prosecuting or carrying on war with the public enemies of the United States ”

Section 4 defines a citizen to be-“any person within the confines of the state,” and § 5 declares violations of the act to be gross misdemeanors and punishable by fine and imprisonment.' The. indictment charged thqt Gilbert at a timé and place designated in the State, and under the conditions prohibited by § 2, the United States being then and there at war with the Kingdom and Imperial Government of Germany, used the following language: • “We are going over to Europe to make the world safe for democracy; but I tell you we had better make America safe for democracy first.- You say, what is the matter with dur democracy.

I"tell you what is the mattér with-it: Have you had anything to say as to who should be president? Have you had anything to say as -to who should be Governor of this ‘ state? Have you had anything -to say as to whether we .would go into this -war? , You know you have not. If this is "such .A great democracy, for Heaven’s sake why should we not voté on conscription of men. .

Wé Were stampeded into, this -War by newspaper rot to pull England’s chestnuts out of thé fire-for her; -I tell you if they conscripted wealth like they have conscripted men, this: war would not last .over forty-éight hours. . . ■ A demurrér to the indictment was overruled, and Gilbert was tried anq cbnvicted. The judgment was that he pay a fine of -$500 and be imprisoned in the county jail of the County of Goodhue for one year, and pay the costs of the prosecution. The judgment was affirmed by the Supreme Court of thé State. .

The statute, itds contended, is repugnant to the Constitution of the United.States in that, (1) “all power of legislation regarding the subject matter'contained in the statute is conferred upon Congress and withheld from the States.”--

(2) And that the statute is obnoxious to the “inherent right of freé speech respecting the concerns, activities and interests of the United States of America and its Government.” We shall consider the objections in their order.

It is said in support of the exclusive power in Congress, that Congress alone can under the Constitution “‘provide for the common defence, and general welfare of the United States/ ‘declare war/ ‘raise and support armies/ ‘make mies for the government and regulation of the land and naval forces.’” To these affirmative delegations of power.to Congress, there is added, it is said, a prohibition to the States to “engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” And, “that the State of Minnesota is not a party to the war' now [then] being waged.

And if it has not engaged in any war, and until it does so engage, legislation such as a belligerent sovereign might enact, is beyond its province.” These specific grounds of objection to the statute are attempted to be reinforced by analogy to the power of Congress over interstate commerce to the exclusion of the interference, of the States.

The bases of the objections seem to be that plaintiff in error had an accountability as a citizen of the United States different from that which he had as a citizen of the State, and that, therefore, he was not subject to the power or jurisdiction of the State'exercised in the act under review. Manifestly, to support the contention something more is necessary than the letter of the cited constitutional provisions* The broader proposition must be established that a State has no interest or concern in the United States or its armies or power of protecting them from public enemies.

Undoubtedly, the United States can declare war and it, not the States, has the power to raise and maintain armies. But there are other considerations.

The United States is composed of. the States, the States are constituted of the citizens of the United States, who also are citizens of the States, and it is from these citizens that armies are raised and wars waged, and whether to victory and its benefits, or to defeat and its calamities, the States as well as the United States are intimately concerned.- And whether to victory or defeat depends upon their morale, the spirit and determination that animates them — -whether it is repellent, and adverse or eager and militant; and to maintain it eager and militant against attempts at its debasement in aid of the enemies of the United States, is a service of patriotism; and. from the contention that it encroaches upon or usurps any power of Congress, there is. an instinctive and immediate revolt.

Cold and technical reasoning in its minute consideration may indeed insist on a separation of the sovereignties and resistance in each to any cooperation from the other, but there is opposing demonstration in the fact that this country is one composed of many and must on occasions be animated as one and that the constituted and constituting sovereignties must have power of cooperation against the enemies of all. Of such instance, we think, is the statute of Minnesota and it goes' no farther.

It, therefore, has none of the character of the illustrations adduced against it, nor the possibility of conflict of powers which they condemn. , This was the view of the Supreme Court of the State, and the court expressed it with detail and force of reasoning. The same view of the statute was expressed in State v.

Holm, 139 Minnesota, 267, where, after a full discussion, the contention was rejected that ihe Espionage Law of June 15, 1917, abrogated or superseded the statute, the court declaring that the fact that the citizens of the State are also citizens of the.United States and owe a duty to the Nation, does not absolve them from duty to the State nor preclude a State from enforcing such duty. “The same act,” it was said, “may be an offense or transgression of the laws of both” Nation and State, and both may punish it without a conflict of their sovereignties. Numerous.cases were cited commencing with Moore v.

Illinois, 14 How. 13, and terminating, with Halter v. Nebraska, 205 U. S. 34. The latter case'is especially pertinent in its sentiment and reasoning. It sustained "a statute of Nebraska directed against the debasement of the National flag to trade uses against the contention that the flag being the National emblem was subject only to the control of the. National power. In sustaining the statute it was recognized that in a degradation of the flag there is a degradation of all of which it is the symbol, that is, “the National power and National honor” and what they represent and have in trust.

To maintain and reverence these, to “encourage patriotism and love of country among its people,” may be affirmed, .it was said, to be a duty that rests upon each State, and that “when, by its legislation, the State encourages a feeling of patriotism towards the Nation, it necessarily encourages a like feeling towards the State.” And so with the statute of Minnesota. An army is an instrument of government, a necessity of its power and honor, and it maybe, of its security.

An army, of course, can only be raised and directed by Congress, in neither has the State power, but it has power to regulate the conduct of its citizens and to restrain the exertion of baleful influences against the promptings of patriotic duty to the detriment of the welfare of the Nation and State. To do so is not to usurp a National power, it is only to render á service to its people, as Nebraska rendered a service to its people when it inhibited the debasement of the flag.

We concur, therefore, in the final conclusion of the court, that the State is not inhibited from making.“the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes.” The statute, indeed, may be supported as a simple exertion of the police power to preserve the peace of the State. As counsel for the State say, “The act under consideration does not relate to the raising of armies for the national defense, nor to rules and regulations for the government of those under arms.

It is simply a local police measure, aimed tc suppress a species of seditious. speech which the legislature of the State has found objects onable. If the legislature has otherwise power to prohibit utterances of the character of those here complained of,, the fact that such suppression has some contributory effect on the federal function of raising armies is quite beside the question.” And the State knew the conditions which existed and could have a solicitude for the public peace, and this record justifies it. Gilbert’s remarks were made in k public meeting. They were resented by his auditors.

There were protesting interruptions, also accusations and threats against him, disorder and intimations of violence. And such is not ah uncommon experience. On such occasions feeling usually runs high and is impetuous; there is a prompting to violence and when violence is once yielded to, before it can be quelled, tragedies may be enacted. To preclude such result ora danger of it is a proper exercise, of the power of the State. Presser v. Illinois, 116 U. S. 262, 267. The next contention is, that the statute is violative of the right of free speech, and therefore void.

It is asserted that the right of free speech is a natural and inherent right, and that it, and the freedom of the press, were “regarded as among the most sacred and vital possessed by mankind, when this nation was born, when its constitution was framed and adopted.” And the contention seems necessary for the plaihtiff in error to support.

But without so deciding or considering the freedom asserted as guaranteed or seemed either by the Constitution of the United States or by the constitution of the State, we pass immediately to the contention and for the pmposes of this case may concede it, that is, concede that the asserted freedom is natmal and inherent, but it is not absolute, it is subject to restriction and limitation. And this we have decided. In Schenck v. United States, 249 U.

S. 47, 52, we distinguished times and occasions and said that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic”; and in Frohwerk v. United States, 249 U. S. 204, 206, we said “that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously wag not, intended to give immunity for every possible use of language.” See also, Debs v. United States, 249 U. S. 211; Abrams v. United States, 250 U. S. 616. In Schaefer v. United States, 251 U.

S. 466, commenting on those cases and their contentions it was said that the curious spectacle was presented of the Constitution of the United States being invoked to justify the activities of anarchy or of the enemies of the United States, and by a strange perversion of its precepts it was adduced against itself. And we did more than reject the contention, we forestalled all repetitions of it, and the contention in the case at bar is a repetition of it.

It is a direct assault upon the statute of Minnesota, and a direct assertion in spite of the prohibition of the statute that one can by speech, teach or advocate that the citizens of the State should not aid or assist “the United States in. prosecuting or carrying on war with the public enemies of the United States,” and be protected by the Constitution of the United States. The same conditions existed as in the cited cases, that is, a condition of war and its emergency existed, and there was explicit limitation to § 3 in the charge of the trial court to the jury.

The court read §§ 2 and 3 of the statute to the jury and said, “I take it from the reading of the whole indictment that it is prosecuted under

Section 3, which I have just read to you.” Gilbert’s speech had the purpose they denounce. The Nation was at war with Germany, armies were recruiting, and the speech was the discouragement of that — its purpose was necessarily the discouragement of that. It was not an advocacy of policies or a censure of actions that a citizen had the right to make. The war was flagrant; it' had been declared by the power constituted by the Constitution to declare it, and in the manner provided for by the Constitution.

It was not declared in aggression, but in defense, in defense of our national honor, in vindication of the “most sacred rights of our Nation and our people.” This was known to Gilbert for he was informed in affairs and the operations of the Government, and every word that he uttered in denunciation of the war was false, was deliberate misrepresentation of the motives which impelled it, and the objects for which it was prosecuted. He could have had no purpose other than that of which he was charged. It would be a travesty on the constitutional privilege he invokes to assign him its protection. Judgment affirmed.

Mr. Justice Hoimes concurs in thé result. The Chief Justice, being of the opinion that the subject-matter is within the. exclusive legislative power of Congress, when exerted, and that the action of Congress has occupied the whole field, therefore dissents. In Gustafson v.

Rhinow, 144 Minnesota, 415, the Supreme Court of Minnesota sustained a. law of the Státe giving to soldiers who served in the war against Germany $15 for each month or fraction of a month of service, against an attack that the soldiers were soldiers of the United States. 'The court expressed the concern and interest of the State as follows: “It is trae that the Federal government alone has power to declare war, but having done so, the government and people of Minnesota became bound to defend and support the national government.

While the states of the nation are sovereign in a certain field, they are also members of the family of states^ponstituting the national organization.” Words of President Wilson in his WaT Message to Congress, April 2, 1917,