893.102S/1839
The Consul General at Shanghai (Gauss) to the Secretary of State
[Received June 21.]
Sir: I have the honor to refer to my confidential despatch No. 2115 of April 17, 1939,63 concerning the complaints made to the Shanghai Municipal Council, to my British colleague, and to me by the Japanese Consul General in regard to the anti-Japanese propaganda published by the Chinese language newspapers in the International Settlement.
Following the complaint made to me by the Japanese Consul General, I forwarded to Mr. Leighton Shields, the United States District Attorney for China, a number of Chinese newspaper clippings to which the Japanese Consul General had taken exception. I asked Mr. Shields to examine them and to inform me whether there would seem to be any possibility of proceeding against any of these allegedly American incorporated newspapers under any statutes in force in this extraterritorial jurisdiction. A copy of my letter of April 21st to the District Attorney is enclosed.63
[Page 58]Under date of May 17th I received a reply from Mr. Shields and enclose a copy thereof64 for the information of the Department. It will be noted the District Attorney emphasized that freedom of speech and freedom of the press are fundamental and well established concepts of our democratic ideology; that in time of war the Government of the United States may prohibit the publication of articles which incite to illegal acts and whose effect is to injure the United States—not a foreign power; and that only where publication is made of libellous, indecent or extortionate material may legal measures be taken against the offending publication. Mr. Shields referred specifically to disturbed conditions prevailing at Shanghai and to the question of the modification of the established principle of the freedom of the press for reasons of political prudence or expediency; he concluded that “no American official entrusted with the administration of American extraterritorial rights would dare to enforce special regulations for special cases and contrary to the principles of law which apply to Americans residing within the United States.”
Of the Chinese newspaper clippings transmitted to Mr. Shields for examination, he stated none is actionable with the possible exception of two articles published by the Hwa Mei Wan Pao on April 10th and 11th. Translations of these articles are enclosed.64 The District Attorney expressed the opinion that the reference by name in these articles to two Chinese and the assertion that the one committed arson and that the other was a traitor might be made the basis for a libel action but pointed out that whether or not these articles amount to criminal libels which would justify his taking action against the publishers depended upon the “real facts” behind the articles in question.
In short, the District Attorney is of the opinion that there exists no basis in American law for the prosecution of these newspapers because of the publication of articles or news items which are of a political nature or which are derogatory or alleged to be derogatory to a government other than the Government of the United States.
Respectfully yours,