Shaffer v. United States
167 C.C.A. 206, 255 F. 886, 1919 U.S. App. LEXIS 1541 (1919)
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Rule of Law:
Under the Espionage Act of 1917, printed material constitutes nonmailable matter if its natural and probable tendency and effect is to obstruct the military recruiting or enlistment service, even if the material does not explicitly mention recruiting or military service.
Facts:
- Daniel Wallace Shaffer was involved with a book that taught that patriotism is identical with murder and the spirit of the devil, and that the war against Germany was a crime.
- For approximately four and a half months, Shaffer and his wife were engaged in distributing this book.
- During this period, Shaffer distributed 25 copies and his wife distributed 100 copies.
- A number of the books were sent to recipients through the United States mail.
- Wrappers for the mailed books identified Shaffer as the sender.
- Shaffer admitted to addressing some of the mailed books and directing his wife to address others.
- Payments for books sent C.O.D. were sometimes received by Shaffer, who was the treasurer of the association that owned the books.
- On March 29, 1918, authorities found 124 copies of the book concealed at Shaffer's home.
Procedural Posture:
- The United States prosecuted Shaffer in a federal trial court for violating the Espionage Act of 1917.
- A jury found Shaffer guilty, and the trial court entered a judgment of conviction against him.
- Shaffer, as plaintiff in error, appealed the conviction to the United States Circuit Court of Appeals for the Ninth Circuit.
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Issue:
Does a book that teaches that patriotism is murder and that the war against Germany is wrong constitute nonmailable matter under the Espionage Act of 1917 by willfully obstructing the recruiting or enlistment service of the United States?
Opinions:
Majority - Gilbert, Circuit Judge
Yes. A book with such teachings constitutes nonmailable matter under the Espionage Act because its natural and probable tendency is to obstruct military recruiting. The court reasoned that the crucial question is not whether the publication contains opinions versus facts, but whether the natural tendency and effect of the words are to produce a result condemned by the statute—in this case, obstructing recruitment. The military service may be obstructed by attacking the justice of the war's cause and undermining the spirit of loyalty and patriotism that inspires enlistment. To teach that patriotism is murder and the war is a crime weakens the will to serve. The court also found sufficient evidence that Shaffer used the mails, either directly or by aiding and abetting his wife, making him a principal to the offense.
Analysis:
This case exemplifies the broad interpretation of the Espionage Act of 1917 during the World War I era and the application of the 'bad tendency' test for speech. The court's 'natural and probable tendency' standard allowed for the criminalization of speech that did not directly incite illegal action but was thought to have a tendency to produce a harmful result. This decision shows that anti-war speech, even if framed as opinion or moral argument, could be deemed to obstruct the war effort by undermining public morale. It stands as a key historical example of the government's power to restrict speech during wartime, a power that would be significantly debated and later refined by First Amendment jurisprudence.
