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Written by John R. Vile, last updated on December 1, 2023

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In Hartzel v. United States, 322 U.S. 680 (1944), the Supreme Court overturned the conviction of an individual for violating the Espionage Act of 1917. Especially when contrasted with a number of decisions upholding convictions that the Court issued during World War I, this decision from World War II shows a Court more willing to tolerate dissent.


Hartzel indicted for selling literature attacking America’s allies

The United States had indicted O. M. Hartzel under the Espionage Act of 1917 for sending literature to individuals, including members of the military, attacking America’s British allies and accusing the president of allying with Jews. Hartzel was especially concerned with the peril of the “yellow races” and hoped to see the war effort directed against them rather than against the Germans.


Conviction overturned to align with previous First Amendment cases

The Supreme Court overturned Hartzel’s conviction on the basis that the Espionage Act and other criminal laws that affected First Amendment freedoms should be narrowly construed in accord with Justice Oliver Wendell Holmes’s admonition to do so in Abrams v. United States (1919). Subjectively, the jury had to find that an individual had the specific intent to cause insubordination in the armed forces. Objectively, in the language of Schenck v. United States (1919), it must be shown that the individual’s words had created “a clear and present danger” that Congress had a right to prevent.


Writing for the majority, Justice Francis W. Murphy noted that although he believed the pamphlets contained “vicious and unreasoning attacks,” he did not believe that the government had showed that the petitioner had specifically sought to bring about disloyalty or mutiny in the armed forces or that he had created a real danger of doing so. Murphy wrote that in the absence of such evidence, “an American citizen has the right to discuss these matters either by temperate reasoning or by immoderate and vicious invective without running afoul of the Espionage Act of 1917.”


Dissenters thought Hartzel was attempting to cause disloyalty

Justice Stanley F. Reed authored a dissent in which Justices Felix Frankfurter, William O. Douglas, and Robert H. Jackson concurred. They believed that the record did contain adequate evidence to indicate that Hartzel was attempting to cause disloyalty within the armed forces and argued that this was a matter for a jury, rather than for an appellate court, to decide.


John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.


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