Milwaukee Leader v. Burleson, Postmaster General of the United States, 255 U.S. 407, 41 S. Ct. 352, 65 L. Ed. 704 (1921)

 MR. JUSTICE CLARKE delivered the opinion of the court.

After a hearing on September 22, 1917, by the Third Assistant Postmaster General, . . .   an order was entered, revoking the second-class mail privilege granted to . . . the Milwaukee Leader . . . upon the charge that articles were appearing in [the] paper so violating the provisions of the National Defense Law, which has come to be popularly known as the Espionage Act of Congress, as to render it "non-mailable" by the express terms of Title XII of that act. . .

For the purpose of preventing disloyalty and disunion among our people of many origins, and to the end that a united front should be presented to the enemy, the Espionage Act, one of the first of the National Defense laws enacted by Congress after the entry of the United States into the World War, provided severe punishment for any person who "when the United States is at war" shall wilfully make or convey false reports or false statements with intent to interfere with the operation and success of the military or naval forces of the country, or with the intent to promote the success of its enemies, or who shall cause, or attempt to cause, insubordination, disloyalty, mutiny or refusal of duty in such forces, or who shall wilfully obstruct the recruiting and enlistment service of the United States (§ 3). One entire title of this act (Title XII) is devoted to "Use of Mails," and in the exercise of its . . . power over the mails Congress therein provided that any newspaper published in violation of any of the provisions of the act should be "non-mailable" and should not be "conveyed in the mails or delivered from any post office or by any letter carrier.". . .

The Postmaster General . . . found that, beginning within a week after the declaration of war against the German Government and continuing to the date of the revocation of the second-class privilege herein, the [Milwaukee Leader] published in its newspaper frequently, often daily, articles which contained false reports and false statements, published with intent to interfere with the success of the military operations of our Government, to promote the success of its enemies, and to obstruct its recruiting and enlistment service. For this [reason] . . . the Postmaster General . . . revoked the second-class privilege which had been granted to the [newspaper]. . . A similar executive authority with respect to matters within their jurisdiction has been given to the heads of all the great departments of our Government and is constantly exercised by them.

This is neither a dangerous nor an arbitrary power, as was argued at the bar, for it is not only subject to review by the courts . . . but it is also subject to control by Congress and by the President of the United States. Under the Constitution, which we shall find it vehemently denouncing, the rights of the [newspaper] were, and are, amply protected by the opportunity thus given it to resort for relief to all three departments of the Government, if those rights should be invaded by any ruling of the Postmaster General.

All this being settled law, there remains the question whether substantial evidence to support his order may be found in the facts stated in the Postmaster General's answer. . . In the answer of the Postmaster General there were quoted more than fifty excerpts from editorial articles which appeared in [the] newspaper at intervals between April 14 and September 13, 1917. . .

Without going much into detail: It was declared in the quoted articles, that the war was unjustifiable and dishonorable on our part, a capitalistic war, which had been forced upon the people by a class, to serve its selfish ends. Our Government was denounced as a "plutocratic republic," a financial and political autocracy, and resident Russians were praised for defaming it. Other articles denounced the draft law as unconstitutional, arbitrary and oppressive, with the implied counsel that it should not be respected or obeyed, and it was represented that soldiers in France were becoming insane in such numbers that long trains of closed cars were being used to convey them away from the battle front. It was confidently asserted that the Constitution of the United States was purposely made difficult of amendment in order that we might not have real democracy in this country, the President was denounced  as an autocrat, and the war legislation as having been passed by a "rubber stamp Congress." In the guise of argument these articles sought to convince the readers of them that soldiers could not legally be sent outside the country and that our Government was waging a war of conquest  when Germany was ready to make an honorable peace. The Food Control Law was denounced as "Kaiserizing America." It was declared that we were fighting for commercial supremacy and world domination only and that when the "financial kings" concluded that further fighting might endanger their loans to the Allies, they would move for peace, which would quickly come. Our "Allies" were repeatedly condemned and our enemies frequently praised.

These publications were not designed to secure amendment or repeal of the laws denounced in them as arbitrary and oppressive, but to create hostility to, and to encourage violation of, them. Freedom of the press may protect criticism and agitation for modification or repeal of laws, but it does not extend to protection of him who counsels and encourages the violation of the law as it exists. The Constitution was adopted to preserve our Government, not to serve as a protecting screen for those who while claiming its privileges seek to destroy it.

Without further discussion of the articles, we cannot doubt that they conveyed to readers of them, false reports and false statements with intent to promote the success of the enemies of the United States, and that they constituted a willful attempt to cause disloyalty and refusal of duty in the military and naval forces and to obstruct the recruiting and enlistment service of the United States, in violation of the Espionage Law and that therefore their publication brought the paper containing them within the express terms of Title XII of that law, declaring that such a publication shall be "non-mailable" and "shall not be conveyed in the mails or delivered from any post office or by any letter carrier."

While written more adroitly than the usual pro-German propaganda of that time, they nevertheless prove clearly that the publisher of these articles was deliberately and persistently doing all in its power to deter its readers from supporting the war in which our Government was engaged and to induce them to lend aid and comfort to its enemies. The order of the Postmaster General not only finds reasonable support in this record but is amply justified by it. . .