A statute of Minnesota makes it unlawful 'to interfere with or discourage the enlistment of men in the military or naval forces of the United States or of the state of Minnesota.'
Its second and third sections are as follows:
'Sec. 2. Speaking by Word of Mouth against Enlistment Unlawful.-It shall be unlawful for any person in any public place, or at any meeting where more than five persons are assembled, to advocate or teach by word of mouth or otherwise that men should not enlist in the military or naval forces of the United States or the state of Minnesota.
'Sec. 3. Teaching or Advocating by Written or Printed Matter against Enlistment Unlawful.
-It shall be unlawful for any person to teach or advocate by any written or printed matter whatsoever, or by oral speech, that the citizens of this state should not aid or assist the United States in prosecuting or carrying on war with the public enemies of the United States.'
Section 4 defines a citizen to be 'any person within the confines of the state,' and section 5 declares violations of the act to be gross misdemeanors and punishable by fine and imprisonment. (Gen. St. Supp. 1917, §§ 8521-2 to 8521-5).
The indictment charged that Gilbert at a time and place designated in the state, and under the conditions prohibited by section 2, the United States being then and there at war with the kingdom and imperial government of Germany, used the following language:
'We are going over to Europe to make the world safe for democracy, but I tell you we had better make America safe for democracy first. You say, what is the matter with our democracy? I tell you what is the matter with it: Have you had anything to say as to who should be President? Have you had anything to say as to who should be Governor of this state? Have you had anything to say as to whether we would go into this war? You know you have not. If this is such a good democracy, for Heaven's sake why should we not vote on conscription of men? We were stampeded into this war by newspaper rot to pull England's chestnuts out of the fire for her. I tell you if they conscripted wealth like they have conscripted men, this war would not last over forty-eight hours, * * *'
A demurrer to the indictment was overruled, and Gilbert was tried and convicted. The judgment was that he pay a fine of $500 and be imprisoned in the county jail of the county of Goodhue for one year, and pay the costs of the prosecution. The judgment was affirmed by the Supreme Court of the state.
The statute, it is contended, is repugnant to the Constitution of the United States in that: (1) 'All power of legislation regarding the subject-matter contained in the statute is conferred upon Congress and withheld from the states.' (2) And that the statute is obnoxious to the 'inherent right of free speech respecting the concerns, activities and interests of the United States of America and its government.'
We shall consider the objections in their order. It is said in support of the exclusive power in Congress, that Congress alone can under the Constitution "provide for the common defense and general welfare of the United States,' 'declare war,' 'raise and support armies,' 'to make rules for the government and regulation of the land and naval forces." To these affirmative delegations of power to Congress, there is added, it is said, a prohibition to the states to 'engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.' And, 'that the state of Minnesota is not a party to the war now [then] being waged. If it is not engaged in any war, and until it does so engage, legislation such as a belligerent sovereign might enact, is beyond its province.' These specific grounds of objection to the statute are attempted to be reinforced by analogy to the power of Congress over interstate commerce to the exclusion of the interference of the states.
The bases of the objections seem to be that plaintiff in error had an accountability as a citizen of the United States different from that which he had as a citizen of the state, and that therefore he was not subject to the power or jurisdiction of the state exercised in the act under review. Manifestly, to support the contention something more is necessary than the letter of the cited constitutional provisions. The broader proposition must be established that a state has no interest or concern in the United States or its armies or power of protecting them from public enemies.