Washington resident Frank Shaffer was a storekeeper, postmaster, farmer, inventor, and member of the International Bible Students Association in Everett. He was also involved in two important court cases. He lost both, paying $1,000 in damages in the state civil case, Gates v. Shaffer (1913), and spending about two weeks in McNeil Island Federal Penitentiary in the federal criminal case, Shaffer v. United States (1919). Shaffer v. United States introduced the legal concept of bad tendency, which was used to convict thousands of citizens charged under the Espionage and Sedition Acts during World War I.
A Gradual Move West
Frank Shaffer, born in Canton, Ohio, on June 28, 1877, was the third of four children born to Henry D. and Adeline Ritz Shaffer. Henry served in the Union Army during the Civil War and, after his discharge in 1865, moved to Canton. In 1867, he married Addie Ritz. He was postmaster of Canton for eight years, a position he lost amid charges and countercharges of bribery and corruption in the civil service.
Soon after Frank was born, the family moved to an 880-acre sheep ranch in Big Creek, Kansas, three miles southeast of Hays City, and Henry was elected clerk of the district court in the fall of 1878.
In 1893, the Hays City Sentinel reported that 15-year-old Frank had gone to the world's fair in St. Louis, Missouri, alone. In 1895, Frank graduated from Hays City High School and headed west. It appears he was in San Francisco in 1896, and in 1899 was running a sawmill with his brother Harry in Granite Falls. In 1901, he married Millie Chowning (1882–1938), the second of five children of John Doroty Chowning (1857–1930) and Ellen Carpenter (1861–1889), born in Howell, Missouri. Her family left Howell for Renton soon after.
Frank was working as a shingle weaver when Millie gave birth to their first child, Melvin (1903–1950), in Everett. The Shaffer family then moved to Vancouver, British Columbia, where Adeline (1903?–1985) was born, and then southwest to Moclips in what's now Grays Harbor County, where Frank was a merchant and postmaster. He and Millie also owned a cannery.
In 1908, Millie gave birth to their youngest child, Maxine. And in November of that year, Frank was arrested for statutory rape.
Frank's arrest shocked Moclips. Oma Gates, 17, said Frank seduced her and she got pregnant. Frank denied it, claiming he was the victim of a blackmail plot: her father owed him money and demanded he forgive the debt plus pay an additional $50 or else. Birth records show that a baby boy was born on February 27, 1909, in Tacoma, and list Oma Gates and Frank Shaffer as his parents.
The rape case never went to trial. According to the Aberdeen Herald there was "a change in officers of the county and for some reason the case was never taken into the court" ("Sued For $10,000 ...").
In 1910, Frank filed Patent US1011378A, granted on December 12, 1911, for a machine for cleaning clams and fish. Also in 1910, the Shaffer family moved to Everett. In 1912, Frank and Millie sold the Moclips cannery to Pacific Fisheries Packing Company.
That same year, Oma sued Frank for $10,000; her attorney had told her that she couldn't sue until she turned 21. Frank's attorneys successfully argued in district court that since Oma hadn't filed within the three-year statute of limitations, she had missed her chance. The judge agreed, but in Gates v. Shaffer, the appellate court reversed, establishing that "only females over twenty-one years of age may maintain an action for their own seduction, the right of action for seduction while a minor accrues to her when she becomes twenty-one, and not at the age of majority, eighteen" (Gates v. Shaffer). Oma was awarded $1,000.
Into World War I
On November 30, 1915, Frank was awarded Patent US1162520A for a food-canning process. On February 13, 1917, Frank was granted Patent US1215724A for a new type of metal can. Both patents were assigned to the American Can Company in New Jersey.
On April 6, 1917, the United States declared war on Germany.
On April 13, 1917, the Wilson administration created the Committee on Public Information (CPI) to mobilize public opinion on behalf of the war, actively encouraging vigilante justice and citizens' groups to turn in people suspected of harboring disloyal thoughts. Dissent was basically impossible, though many citizens were opposed to U.S. involvement in the European conflict. There had been antiwar protests that continued after the U.S. entered the conflict, and more than 300,000 men attempted to evade the draft.
To deal with dissent, Congress passed the Espionage Act of 1917 on June 15. Debate about the bill was often heated. Senator William Edgar Borah (1865–1940) of Idaho said that the legislation "has all the ear marks of a dictatorship. It suppresses free speech and does it all in the name of war and patriotism" (Borah letter, quoted in Stone, "Judge Learned Hand ...", 348).
Section 3 of Title 1 of the Espionage Act targeted free speech. This section made it a crime for any person willfully to "make or convey false reports or false statements with intent to interfere" with the military success of the United States or "to promote the success of its enemies"; willfully to "cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States"; or willfully to "obstruct the recruiting or enlistment service of the United States" when the nation is at war ("Act of June 15, 1917 ..."). Violations were punishable by fine up to $10,000 and prison sentences of up to 20 years.
The act also authorized the postmaster general to exclude from the mails any writing or publication that is "in violation of any of the provisions of this act" or that contains "any matter advocating or urging treason, insurrection or forcible resistance to any law of the United States" ("Act of June 15, 1917 ..."). Postmaster General Albert Sidney Burleson took it upon himself to advance a level of censorship when, on the day after the Espionage Act was passed, he directed local postmasters to forward to Washington, D.C., any material that would "interfere with the success of any Federal loan … or cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval service, or to obstruct the recruiting, draft, or enlistment services … or otherwise to embarrass or hamper the Government in conducting the War" ("Burleson To Postmasters ..."). Within months, the Post Office Department had excluded from the mails the issues of more than 15 major publications, most of them Socialist and/or pacifist.
In November 1917, Attorney General Thomas Watt Gregory, referring to war dissenters, declared, "May God have mercy on them, for they need expect none from an outraged people and an avenging government" ("All Disloyal Men ..."). In his Third Annual Message to Congress, President Woodrow Wilson said, "Such creatures of passion, disloyalty, and anarchy must be crushed out. They are not many, but they are infinitely malignant, and the hand of our power should close over them at once" (Woodrow Wilson, December 15, 1915, National Archives).
First Espionage, Then Sedition
The Wilson administration pushed Congress to enact a set of amendments, and the Espionage Act of 1918, commonly known as the Sedition Act, passed on May 16, 1918. The Sedition Act declared it criminal for any person to say anything with intent to obstruct the sale of war bonds; to utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language intended to cause contempt or scorn for the form of government of the United States, the Constitution, the flag, or the uniform of the army or navy; to urge the curtailment of production of war materials with the intent to hinder the war effort; or to utter any words supporting the cause of any country at war with the United States or opposing the cause of the United States.
Consequences after the passage of the Espionage and Sedition Acts were predictable. Vigilantes ransacked the homes of German Americans, sauerkraut was called liberty cabbage, German measles became liberty measles, hamburgers were called liberty sandwiches, and dachshunds were renamed liberty dogs. The American Red Cross barred individuals with German last names from joining, and orchestras replaced selections from the German Wagner with those of the French Berlioz. In Van Houten, New Mexico, an angry mob accused an immigrant miner of supporting Germany and forced him to kneel, kiss the flag, and shout "To hell with the Kaiser." In Collinsville, Illinois, a mob forced Robert Prager (1888–1918), a German immigrant miner, to walk Main Street barefoot while wrapped in an American flag and, after they failed to tar and feather him, hanged him.
Those not of German descent were also targeted, particularly Socialists and antiwar and labor activists. In Texas, six farmers were horsewhipped because they declined to contribute to the American Red Cross. Rose Pastor Stokes (1879–1933), editor of the Socialist Jewish Daily News, was sentenced to 10 years for saying, "I am for the people, while the government is for the profiteers." Film producer Robert Goldstein (1883–?), a son of German Jewish immigrants, was fined $5,000 (later remitted) and sentenced to 10 years (later commuted to three years) for producing the silent film The Spirit of '76. The federal government charged that he had willfully attempted to cause insubordination among United States military forces by inciting hatred of now-ally Britain and its soldiers through the depiction of British forces during the American Revolution.
The Department of Justice (DOJ) also went after certain religious groups. According to The New York Times, "Disloyalty fostered by certain religious sects has been growing in the United States ... according to DOJ officials ... [The government] regards the preaching of opposition to the aims of this particular war as of seditious nature" ("Warn Seditious Pastors ..."). Special Assistant Attorney General and head of the War Emergency Division of the DOJ John Lord O'Brian declared that "the most dangerous type of propaganda is religious pacifism, i.e., opposition to the war on the ground that it is opposed to the word of God" ("Some More Law").
One focus of suppression was on a book called The Finished Mystery, published in 1917 by the Watch Tower Bible and Tract Society, run by the International Bible Students Association. This book contained statements that government officials claimed were "treasonable, disloyal, and seditious utterances" (Shaffer v. U.S., transcript). One passage in the book quoted a sermon given before the Espionage Act was passed by social activist Reverend John Haynes Holmes (1879–1964) of New York's Church of the Messiah. In A Statement to My People on the Eve of War, Holmes said, "The war itself is wrong. Its prosecution will be a crime. There is not a question raised, an issue involved, a cause at stake, which is worth the life of one blue-jacket on the sea or one khaki-coat in the trenches."
(A Statement to My People on the Eve of War was still on sale in the United States at the time. While Holmes continued to preach and write against war and in favor of pacifism around the country, he was never charged under the Espionage Act.)
After tracts from the Industrial Workers of the World (IWW), The Finished Mystery may have been the antiwar item most often singled out for condemnation. On February 12, 1918, the book was banned in Canada. On February 27, 1918, the United States Army Intelligence Bureau raided the Watch Tower Bible and Tract Society's offices and seized copies of the book and other literature. Public condemnation also continued. The Abilene Weekly Reflector of Abilene, Kansas, quoted a local official as saying, "It is rank Prussian propaganda, and should not be read by any red-blooded American citizen, much less those who are more or less inclined to lean towards the Kaiser" ("Clean Out 'Finished Mystery' for Kansas"). In Oklahoma, a newspaper from the Choctaw nation reported, "And this is the kind of stuff, German propaganda, that has been distributed all over the country and right here in Durant" ("Books Under Gov't Ban ...").
Warrants were issued on May 7, 1918, for the arrest of Watch Tower officials for violating the Espionage Act, seven of whom were tried, convicted, and sentenced to 20 years in federal prison. (After the war had ended, the seven would be released on bail after an appeals court found that they had been wrongly convicted, and in May 1920 the government announced that all charges had been dropped.)
The International Bible Students accused other clergy of targeting them and The Finished Mystery. They distributed thousands of copies of a one-page newsletter called "Kingdom News," in which they shared their perspective, until those handing it out it were arrested. Other Bible Students were arrested for continuing to distribute the book. In Wynnewood, Oklahoma, Claude Watson was tarred and feathered by draftees for distributing The Finished Mystery, and in Freewater, Oregon, Clyde W. Metz was threatened with lynching.
The Watch Tower Bible and Tract Society revised the book by removing pages containing the seditious material in the second edition and, in 1918, alerted its supporters that they could protect themselves from arrest by removing the offending pages before selling this second edition. But that didn't satisfy the Wilson administration, which notified district attorneys that further distribution would be a violation of the Espionage Act. Though the Society directed its members to suspend public distribution of the book, on March 14, 1918, The Finished Mystery was banned.
Here Come the Feds
On March 29, 1918, Special Agent R. E. L. Johnston from the Bureau of Investigation of the DOJ, accompanied by Snohomish County deputy sheriffs Claude Wetherby and N. S. Berridge and Everett city police officer David Daniels, went to the Shaffer home. Frank and Millie Shaffer were now living on their farm about three and a half miles from Everett. For four years they had been members of the International Bible Students Association; Frank was even treasurer of the Everett Class of International Bible Students. The police officials showed up without a search warrant to look for one of the Shaffer's fellow bible students, George Martinich, and copies of The Finished Mystery.
Austrian-born George Martinich emigrated from Croatia to Canada on August 2, 1915, and became a naturalized citizen, then moved to Bellingham. He moved to Everett and opened a barber shop at 1207 Hewitt Avenue. Someone reported that he had refused to allow War Savings posters exhibited in his barbershop window. State authorities had learned that Martinich had just received a shipment of The Finished Mystery that Frank and Millie were hiding. At the Shaffer home, the officers discovered five copies, four of which were packed for mailing. As Officer David Daniels testified:
"Shaffer again spoke up and said, 'You have no right in my place,' and Johnston had to state to him again that he was a Government officer and wanted his books. After that Shaffer subsided somewhat, but Martinich was inclined to be wrathy, and I took and led the man outside" (Shaffer v. U.S., transcript).
George Martinich, like thousands of other noncitizens with "un-American views," was arrested and soon deported to Canada. The Alien Property Custodian Report valued his property at $216.41.
Officers returned the next day with a warrant and found another 124 copies of The Finished Mystery that Frank and George had hidden in the barn. At about this time, Special Agent Johnston told Frank that The Finished Mystery was a banned book. Johnston testified:
"Mr. Shaffer said he didn't know the book was banned, only about what he read in the paper. I said, 'I am a Government man, Mr. Shaffer. I am telling you that this book is banned.' 'Well,' he said, 'we have not been advised of that. I am not taking any orders from you. I take mine from the Watch Tower Bible and Tract Society.' I said, 'You will keep talking and get into trouble. If I were you I would be quiet.' His wife said, 'Frank, you keep still now'" (Shaffer v. U.S., transcript).
Arrested and Indicted
On April 24, 1918, Frank Shaffer was arrested. In May 1918, he was indicted on three separate counts of violating the Espionage Act.
Count I accused Frank of, through the distribution of The Finished Mystery, attempting to incite, persuade, and induce males between the ages of 21 and 45 and fit for military service to commit acts of insubordination, disloyalty, and refusal of duty of the military and naval forces of the United States.
In Count II, Frank was accused of making statements designed to interfere with the war effort by saying to Snohomish County resident Dottie Florance,
- "There is no use in your crocheting or doing any other work for the Red Cross, as you are wasting your time, as the United States can never win this war against Germany."
- "If the people of the United States bought all of the Liberty Bonds and Thrift Stamps that they could, they would lose their money in the treasury at the end of the war to pay people back."
- "It would be more to the credit of the American boys if they would stay at home and refuse to go and fight for the government in this war" (Shaffer v. U.S., transcript).
And in Count III, Frank was accused of using the United States Postal Service to mail The Finished Mystery.
Frank came before Judge Jeremiah Neterer (1862–1943) on June 25, 1918. During his trial, Millie testified that she sold about 100 copies of the book and that Frank sold about 25, between October 31, 1917, and March 12, 1918. She was also present at a meeting on March 12, when a letter was received from headquarters directing that no more books be distributed. Neither she nor Frank circulated any more of the books.
Frank as well as Millie testified that he had never said what Dottie Florance claimed. But Frank also said that he was not helping the United States in any way, shape, form, or manner to win the present war and he had helped to hide the books that were found in the barn. Frank's beliefs, coupled with prosecution questions about subscriptions to the Red Cross and Liberty Bonds, explains why Frank was prosecuted. Most federal judges during the First World War were "intent upon meting out quick justice and severe punishment to the 'disloyal,'" and no details of legislative interpretation or appeals to the First Amendment were likely "to stand in the way" (Lawrence, Eclipse of Liberty ..., 70).
On June 28, 1918, Frank was convicted by a federal jury on one of the three counts, that of using the United States Postal Service to distribute materials that violated the Espionage Act. He appealed his conviction and was out on $5,000 bond while his case made its way through the courts. Surety was provided by P. and Ida Crittendon and C. R. and Blanche Schweitzer of Everett.
The U.S. Circuit Court of Appeals for the Ninth Circuit affirmed Frank's conviction in February 1919, reasoning that the natural tendency of speech condemning war was to cause men to refuse induction -- someone who had been persuaded that war is immoral is more likely to refuse to fight in it.
"It is true that disapproval of war and the advocacy of peace are not crimes under the Espionage Act; but the question here … is whether the natural and probable tendency and effect of the words … are such as are calculated to produce the result condemned by the statute" (Shaffer v. U.S. Opinion).
The federal courts combined the legal concepts of bad tendency and constructive intent to uphold convictions like Frank's, an approach embraced by almost every federal court that interpreted the Espionage Act during the war.
The courts' bad tendency test is now seen as a misinterpretation of both the First Amendment and the Espionage Act. This distortion of well-established principles of criminal law went even further in failing to protect free speech than the standard advocated by the DOJ at the time.
While waiting to hear whether the Supreme Court of the United States would grant Frank a writ of certiorari, on March 3, 1919, President Wilson commuted Frank's sentence from two-and-a-half years to one year. Then the Supreme Court denied cert in November 1919.
Imprisoned on McNeil Island
On January 6, 1920, Frank left his and Millie's home at 7025 6th Avenue NW in Seattle to serve his 12-month sentence at McNeil Island. While some reports say that Frank served 18 months, his prison records indicate that he was received at the prison on January 6, 1920, pardoned by President Wilson on January 22, 1920, and released soon after. On March 12, 1920, his youngest daughter, Maxine, died of tuberculosis.
Millie Shaffer died August 25, 1938, in Ellensburg, but it is unclear when Frank Shaffer died. In the 1930 census, Millie is listed as the head-of-household, living with her father, daughter, and granddaughter in Portland. The census also lists her as widowed. But according to the January 16, 1950, Spokesman-Review obituary for Frank and Millie's son Melvin, Frank was still alive in 1950. However, when Melvin's wife, Etta, died in 1957, Frank was not listed among the survivors.
More than 2,000 dissenters were prosecuted under the Espionage Act and the Sedition Act. "If you believed our going into this war was a mistake," The Nation wrote in a postwar editorial, "if you held, as President Wilson did early in 1917, that the ideal outcome would be 'peace without victory,' you were a traitor." Even members of the Wilson administration realized after the war they had made mistakes. John Lord O'Brian observed soon after the war that "immense pressure [was] brought to bear throughout the war on the DOJ in all parts of the country for indiscriminate prosecution, wholesale repression, and restraint of public opinion … [and laws] affecting 'free speech' received the severest test thus far placed upon them in our history" (quoted in Stone, 337).
While the Sedition Act was repealed in 1921, the Espionage Act of 1917 remains in force.