Home ยป Articles ยป Case ยป Clear and Present Danger Test ยป Schaefer v. United States (1920)

Written by Christopher Capozzola, last updated on September 19, 2023

Select Dynamic field

Photo of Martin Darkow, managing editor of the German language newspaper Philadelphia Tageblatt, who was convicted of espionage under the Espionage Act of 1917 in connection with false news articles that the U.S. said hurt the war effort. Darkow was among five people who were convicted in the case. The U.S. Supreme Court in Schaefer v. United States (1920) upheld convictions of Darkow and two others, but overturned the others because of insufficient evidence linking them to publication of the articles. (Photo is from the War Department and was taken in 1918. It is in the public domain and available through theย U.S. National Archives and Records Administration).

In Schaefer v. United States, 251 U.S. 466 (1920), the Supreme Court upheld the convictions of three German-American newspaper publishers under the Espionage Act of 1917 based on the character of editorial changes they made to writings that they re-published.

 

The ruling represented one of a number of setbacks for civil liberties in the World War I era.

 

Editors, colleagues found guilty of espionage for false reports hindering war with Germany

 

On September 10, 1917, federal officials arrested Peter Schaefer and four colleagues at the Philadelphia Tageblatt, a left-leaning German-language newspaper featuring articles condensed and reprinted from other sources.

 

The government charged them with willfully mistranslating or abridging the original publications and thus violating the Espionage Actโ€™s provisions forbidding โ€œfalse reportsโ€ to hinder the U.S. war effort. (Two of the editors were also indicted for treason, but the charges were dismissed.)

 

Supreme Court upheld espionage convictions, used clear and present danger test

 

Five justices concurred with Justice Joseph McKennaโ€™s opinion in asserting that the clear and present danger test supported three of the convictions. 

 

They agreed with the lower court arguments that the articles โ€œweakened the spirit of recruitingโ€ and that the Espionage Actโ€™s restraints were neither โ€œexcessive nor ambiguous.โ€

 

Convictions of two of the men, including Schaefer, were overturned because of insufficient evidence linking them to publication of the articles.

 

Brandeis said prosecutions threatened First Amendment freedom

 

In dissent, Justice Louis D. Brandeis, joined by Oliver Wendell Holmes Jr., vehemently disagreed. Brandeis dismissed the idea that mere editing and re-publication could be grounds for prosecution and insisted that the Tageblattโ€™s articles had been taken out of context. He warned that such prosecutions would โ€œthreaten freedom of thought and of belief.โ€

 

In a separate dissent, Justice John H. Clarke urged the exoneration of another one of the defendants, a bookkeeper with no editorial input, who he believed was the victim of a โ€œflagrant mistrial.โ€ Clarke asserted that the First Amendment was not at issue in the case.

 

Within a few months, President Woodrow Wilson pardoned all three men, in part in response to a petition by 10,000 Philadelphia residents and the regret expressed publicly by their former prosecutor, U.S. attorney Francis Fisher Kane.

 

This article was originally published in 2009. Christopher Capozzola is Professor of History at the Massachusetts Institute of Technology. He is the author of Uncle Sam Wants You: World War I and the Making of the Modern American Citizen (2008).

 

How To Contribute

The Free Speech Center operates with your generosity! Please donate now!