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.

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 act’s provisions forbidding “false reports” to hinder the U.S. war effort. (Two of the editors were also indicted for treason, but the charges were dismissed.)

Five justices concurred with Justice Joseph McKenna’s opinion in asserting that the clear and present danger test supported the convictions. They agreed with the lower court arguments that the articles “weakened the spirit of recruiting” and that the espionage act’s restraints were neither “excessive nor ambiguous.” 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 Tageblatt’s articles had been taken out of context. He warned that such prosecutions would “threaten freedom of thought and of belief.” In a separate dissent, Justice John H. Clarke urged the exoneration of one of the defendants, a bookkeeper with no editorial input, who he believed was the victim of a “flagrant mistrial.” 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.

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