Nazis Here Violate Crime Laws–kohler

Max J. Kohler, writer of the following article, is a noted New York lawyer and an authority on immigration and constitutional law, and a former assistant U. S. District Attorney in New York. He is a member of the Executive Committee of the American Jewish Committee and a representative of B’nai B’rith on the Joint Council on German Jewish Persecutions.

In this article he discusses the legal aspects of the Nazi propaganda situation in this country and urges that vigorous measures be taken against those who violate our criminal laws by the dissemination of propaganda creating racial haired.

He also outlines previous cases and legal measures taken to prevent the furtherance of religious and racial bias through various organizations and individuals.

Our daily papers of the ninth instant have referred to outrageous brawls and riots and incendiary addresses delivered the day before by Nazi workers and sympathizers at or near the Ridgewood Grove Stadium in Queens County, N. Y., in the course of which something like 5,000, persons nearly all recent arrivals from Germany, imagined that they were still there, and joined in the German chorus of “Hell Hitler” and attempted to introduce persecutions and discriminations against Jews and attempts to boycott them upon our own shores. The newspapers report that addresses were delivered at this meeting in which plans to boycott all the Jews in this country were openly advocated and a resolution was adopted requesting the President to stop the boycott in this country proclaimed by the American Federation of Labor and certain Jewish organizations against Germany, and German Americans were urged to use their ballots against Mayor LaGuardia because of his advocacy of the last-named boycott.

Incendiary addresses by specified German Nazi leaders were reported in detail in the papers, and it was specifically announced that this boycott “will eventually make this a fight between Jew against Gentile, Gentile against Jew.” The novel doctrine was also announced that the American people by their protest and actions in resentment of Nazi onslaughts on civilization “have no right to try to force Germans to change their form of government, any more than the Germans have that right in this country.” The next day’s papers went one step further, and referred to supposed violations of law arising from Nazi use of foreign military uniforms and the like in our country in violation of alleged laws forbidding such course.

I take little interest in one prosecution which has attracted considerable attention, namely, against Spanknoebel, for a more or less technical violation of a Federal statute for representing a foreign government here without registering his appointment with our State Department, though the defendant has deemed it wise to resort to flight in order to evade punishment for such course, What is serious and interests me deeply however, is the question whether the United States will permit plans by comparatively few Germans and their allies to transfer to our shores from Germany the shocking racial demonstrations and discriminations which the Jews, Catholics and liberals in general have been subjected to abroad by the Nazi regime, and have this done in violation of fundamental American principles which our whole national history has sanctified until now As I shall proceed to point out hereinafter, these Nazi measures in our own country are gross violations of our criminal laws, and they ought to be prosecuted as such.

MUST TAKE VIGOROUS MEASURES

If–as seems to be the case–some Communists or even anti-Nazi American Jews have attempted to take the law into their own hands and physically interfere with Nazi meetings here they can properly be treated as law-breakers; I have no sympathy with their conduct, That does not mean that I consider the course of a limited number of persons illegal or improper who quietly attend these incendiary Nazi meetings with a view to getting evidence as to the nefarious schemes that are there being concocted, and exposing their doings and laying the basis for their prosecution for violation of our criminal laws. Unless, however, we take vigorous steps to stop the incendiary Nazi propaganda in this country, we will, before long, be treated to constant riots and tumults and lawless racial demonstrations in our own land.

The recent Ridgewood incident unfortunately is not the only one that has been brought to light lately. There were others in New Jersey where one of the Nazi culprits is now, however, fortunately serving a sentence of imprisonment for carrying unlawfully concealed arms. We have also had similar conspicuous unfortunate demonstrations in Los Angeles, Chicago, Philadelphia and elsewhere. What then are the legal aspects of these questions from the point of view of our criminal laws in this State? There can be no doubt that prosecutions will lie, not merely for criminal libel as distinguished from civil libel suits, when directed against a whole race or creed, but also for criminal incitements to breaches of peace, unlawful assemblages and illegal conspiracies and combinations.

As far back as 1732, the British courts in the case of Rex vs. Osborne 2 Barnadiston 138, 156; W. Kelynge’s Reports 231; 2 Swanston 503 note held that a despicable libel against the Jews of England could be prosecuted criminally, and conflicting reports of the case indicate that prosecutions both for criminal libel and for incitement to break the peace would lie. In the quaint language of that day, the court said of the incendiary item involved:

“Such sort of advertisements necessarily tending to raise tumults and disorders and inflame them with an universal spirit of barbarity against a whole body of men, as if guilty of crimes scarce practicable and totally incredbile.”

CITES PREVIOUS CASES

This case was explained and approved of in the early New York case of Ryckman vs. Delavan 25 Wendell 184 at 195-6. It was also cited with approval and followed in State vs. Brady 44 Kansas 43 and in Peo. vs. Spielman 318 Illinois 482, which held that criminal-libel proceedings would lie for libeling the American Legion; see also Palmer vs. Concord 48 New Hampshire 211,. holding that a libel against the U. S. Army in Virginia could be prosecuted criminally, and criminal libel proceedings were held to lie on account of libels against the Knights of Columbus collectively and Catholic priests collectively in Crane vs. State, 14 Oklahoma Criminal 30; Jones vs. State 38 Texas Criminal 364; Peo. vs. Gordon 219 Pacific (California) 186 and Peo. vs. Eastman 188 N. Y. 478 at 481. See also Weston vs. Commercial Advertiser Ass’n. 184 N. Y. 479 and Bornmann vs. Star Co. 174 N. Y. 212.

Ir. various European countries, such proceedings, based upon a libel against a whole religious denomination are also maintainable (4 Paix et Droit No. 8, & “Reminiscences” of Josef S. Bloch).

It is probable that such publications, constituting crimes embraced in the classification “Breaches of the Peace,” (Incitement to) are now criminally actionable (9 Corpus Juris 37; Peo. vs. Smith 5 Cowen 258). N. Y. Penal Law Sec. 43, making it an offense to commit any act, wilfully and wrongfully “which seriously disturbs or endangers the public peace… for which no other punishment is expressly prescribed,” covers some phases of such misconduct as construed in People vs. Most 171 N. Y. 423, and People vs. Nesin 179 App. Div. 869, See also N. Y. Penal Law Sec. 2092 under which the earlier Most prosecution (128 N. Y. 108) took place. Compare U. S. Code Title 18 Sec. 335 making it criminal to mail wrappers, envelopes or postals containing matter calculated and intended to reflect injuriously upon the character or conduct of another.

In 1925, our New York Civil Rights Law (Sections 53-6) was resorted to to check the machinations of the Ku Klux Klan by requiring filing with the Secretary of State under criminal penalties, of sworn copies of lists of officers and members and constitution, bylaws, rules and oath of membership of such organizations with appropriate exceptions. Although the statute did not disclose on its face its purpose to check the activities of the Ku Klux Klan in fomenting antagonism and prejudice against Catholics, Jews and negroes) the U. S. Supreme Court, in sustaining the statute, in Bryant vs. Zimmerman, 278 U. S. 63 at 76, in a case involving that organization, in the opinion emphasized the harmful character of organizations thus “stimulation hurtful religious and race prejudices,” and sustained the constitutionality of the law. Compare Judge Cullen’s references to the anti-Catholic agitation of earlier days in Brink vs. Stratton 176 N. Y. 150 at 161.

N. Y. LEGISLATURE HAD BILL

The New York Legislature at this very session had before it a bill to add a new provision to our Civil Rights Law making it a crime to “disseminate any propaganda, caricatures, statement, etc. whether written, printed or oral which subjects or exposes, or is calculated, intended or likely to subject or expose any race, creed or color… to hatred, contempt, or ridicule” The principle of this measure–though itself badly drawn–was approved of by the Committee on Legislation of the New York County Lawyers Association a few weeks ago in a report prepared by me, which collected many of the authorities herein considered. Prohibitions against stirring up racial or religious antagonism, without exaction of proof of tendency to incite breaches of the peace, are quite in order in “Civil Rights Laws,” especially in view of their general purpose as authoritatively expounded many years ago in the leading case of People vs. King, 110 N. Y. 418. Moreover, cases construing and sustaining the validity of statutes, ordinances or regulations against dangerous social or industrial propaganda were conveniently collated in the note in 1 American Law Reports 336, including State vs. Quinlan 86 N. J. L. 120; State vs. Boyd 86 N. J. L. 75; aff. 87 N. J. L. 228, State vs. Fox 71 Wash. 185 aff. 236 U. S. 273, and Peo. vs. Most 171 N. Y. 423. In Gitlow vs. N. Y. 268 U. S. 652 at 667 Sanford J., speaking for the court said:

“That a state, in the exercise of its police power, may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. Robertson V. Baldwin, 165 U. S. 281, Patterson vs. Colorado, 205 U. S. 462, 10 Ann. Cas. 689; Fox vs. Washington, 236 U. S. 277, Gilbert v. Minnesota, 254 U. S. 339, People v. Most 171 N. Y. 423, 431, State v. Holm, 139 Minn, 267, 275, State v. Hennessy, 114 Wash. 351, 359, State v. Boyd, 86 N. J. L. 75, 79, State v. McKee 73 Conn. 18, 27.

Thus it was held by this Court in the Fox case, that a state may punish publications advocating and encouraging a breach of its criminal laws; and, in the Gilbert Case, that a state may punish utterances teaching or advocating that its citizens should not assist the United States in prosecuting or carrying on war with its public enemies.”