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Free Speech or Espionage Act Violation?

By THOMAS P. FARNER | Jan 31, 2018

In September 1917, a drama was playing out in a Trenton courtroom that would have a major influence on how political dissent would be treated in the United States. Frederick Krafft, a 58-year-old Ringwood, N.J., Socialist who had twice run for governor, was being tried under the recently passed Espionage Act for giving his speech in Newark in which the government indictment claimed he had said, “I can’t see how the government can compel troops to France. If it was up to me I’d tell them to go to hell. It’s a damn shame. I can’t see why the Socialists here have not the same rights as in Germany. They send their own Senators down to Washington to vote on conscription and they will not let the people do it.”

For uttering these words Krafft was charged with trying “to influence, persuade, and cause the said persons, who were members of the military forces of the United States, to become disloyal to the United States, and cause the same said persons who were members of the military forces of the United States, to mutiny to the injury of the military forces of the United States … to refuse to do the duties imposed on them as such members of the military forces of the United States.”

At the trial the government produced witnesses. “The first, Martin T. Gunning, a corporal in the National Guard, testified he had heard Krafft make the alleged remarks in the following language: ‘I do not see why the government can compel troops to cross the ocean. It is not in the constitution and it is a damned shame. Why in hell should we do it? Why have not the Socialists in this country the same right as they have in Germany to vote for or against the war? They send their own Senators down there to vote for conscription. Why don’t the people have a chance?’

“Arthur Rein (asked), ‘Why have not the Socialists the same right to vote against conscription or the war as the Socialists in Germany.’ And something else was said there. He says, ‘They sent their own Senators to Washington to vote on the conscription law instead of letting the people do it.’ David M. Silverberg testified, ‘I remember him saying that the Socialists have their Senators at Washington, and regulating this war. … Why cannot the Socialists of America have the same right as the Socialists of Germany to vote for or against this war?’ Alfred Barton, a private in the National Guard of New Jersey (stated,] ‘I said to Corporal Gunning … there is something the matter over there,’ and we started over, and we got in the center of the crowd, and when we got there he was saying, ‘I cannot see how the government can compel troops to go to France. If it was up to me I would tell them to go to hell. It is a damned shame. Why not have the Socialists of America the same privilege as they have in Germany?’ He said: ‘They have their own Senators down there vote for conscription, instead of having the people vote.’”

The New York man who was in the courtroom pointed out to the press several problems in the government’s case, saying, “A most superficial examination of the statements above quoted is sufficient to convince any person of intelligence and discrimination that the witnesses did not understand the speaker. They joined the audience after Krafft had finished his main speech. What they overheard were snatches of remarks made in answer to questions from the audience and their version of such statement show that they did not get the connection, meaning, or even drift of the speakers’ remarks.”

The man pointed out several factual errors. “Is it, for instance, imaginable that Frederick Krafft could have asserted in a public speech that ‘the Socialists in Germany have the right to vote for or against the war’ and ‘that they send their own Senators down there (in Germany) to vote for conscription,’ or ‘Why have not the Socialists have the same right to vote against conscription or the war as the Socialist of Germany’ or ‘The Socialists have their Senators in Washington regulating the war’?”

Krafft testified in his own defense, saying, “I said, furthermore, that a great many citizens of the United States are dissatisfied with the declaration of war,’ and I said, ‘That is a very erroneous position to take. No American citizen should criticize the President or Congress especially when the Constitution of the United States distinctly declares that Congress has the right to declare war, it must also find the necessary paraphernalia to carry on the war. … And so, all the way through, I showed that as an American citizen all my life, who enjoyed all the benefits of this country, I surely am a thorough patriot, and I would never have made the statement that they placed in my mouth.’”

At the end of the testimony Krafft’s lawyer asked for an immediate acquittal, saying, “…the facts or statements charged in the indictment do not show any intent to cause the thing charged – that is insubordination, disloyalty, mutiny, or refusal of duty; that while they may produce certain results there is nothing in the words themselves that tends to produce that result to the extent of charging intent, which is a necessary element in the charge.”

The judge refused the request and charged the jury as it prepared to deliberate. “It is important, gentlemen of the jury, that nothing should interfere with the military and naval forces of the United States when it is at war and in a death struggle. It is just as important, gentlemen of the jury, that at this time and all other times the liberty of individual citizens who have not committed crime, be protected. So, in your deliberation, you will consider the fact and the fact alone as to whether he made these statements, and if he did, did he make them with the intention willfully to cause insubordination, disloyalty, mutiny, or refusal of duty.

“So shut out everything but the evidence – and use your common sense and the ordinary rules of logic and weigh the testimony of all the witnesses, both pro and con, as they have related what occurred that night at that place, and determine whether the defendant used these words, and if he did, what his intention was – whether he used them willfully with intent to cause insubordination, disloyalty, mutiny, or refusal of duty.”

Krafft was found guilty and sentenced to five years in a federal prison plus a $1,000 fine. He appealed his conviction to the U.S. Circuit Court. On April 24, 1918 the Scranton Republican reported the court’s decision.

“The United States Court of Appeals here today handed down an opinion sustaining the conviction of Frederick Krafft. … Federal authorities here considered the opinion of the appellate court of the highest importance in the campaign to stamp out disloyalty and seditious utterances. Judge Buffington, supported by Judges McPherson and Woolley, held that mere verbal statements if uttered for a sinister purpose are violations of the espionage act even though no injury results to the government.”

The opinion read, “Mere verbal statements, if made for a sinister purpose are violations of the Espionage Law, even though no injury results to the government.”

Armed with the victory over Krafft, federal prosecutors across the country started looking for the “sinister motives” of those opposed to the war. The next battleground would be in Hollywood over a movie called “The Spirit of 76.”

Next Week: Those lovable Redcoats.

tpfcjf@comcast.net

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