by blocking out concrete situations on each side of the line until the line itself becomes increasingly plain, has as yet been of very little use for the first amendment. The cases are too few, too varied in their character, and often too easily solved, to develop any definite boundary between lawful and unlawful speech. Even if some boundary between the precedents could be attained, we could have little confidence in it unless we knew better than now the fundamental principle on which the classification was based. Indeed, many of the decisions in which statutes have been held to violate free speech seem to ignore so seriously the economic and political facts of our time, that they are precedents of very dubious value for the inclusion and exclusion process. Nearly every free-speech decision, outside such hotly litigated portions as privilege and fair comment in defamation, appears to have been decided largely by intuition.

1

2

Fortunately Justice Holmes has not left us without some valuable suggestions pointing toward the ultimate solution of the problem of the limits of free speech, and still others are contained in Judge Learned Hand's opinion in Masses v. Patten. 3 To these we shall soon return. For the moment, however, it may be worth while to forsake the purely judicial discussion of free speech, and obtain light upon its meaning from the history of the constitutional clauses and from the purpose free speech serves in social and political life. If we apply Coke's test of statutory construction, and consider what mischief in the existing law the framers of the first amendment wished to remedy by a new safeguard, we can be sure that it was not the censorship. This had expired in England in 1695, * and in the colonies by 1725.5 For years the Government here and in England had substituted for the censorship rigorous and repeated prosecutions for criminal libel or seditious libel, as it was often called, which were directed against political discussion, and for years these prosecutions were opposed by liberal opinion and popular agitation. Primarily the controversy raged around two legal contentions of the great advocates for the defense, such as Erskine and Andrew Hamilton. They argued, first, that the jury and not the judge ought to decide the libellous nature of the writing, and secondly, that the truth of the charge ought to prevent conviction. The real issue, however, lay much deeper. Two different views of the relation of rulers and people were in conflict. According to one view, the rulers were the superiors of the people, and therefore must not be subjected to any censure that would tend to diminish their authority. The people could not make adverse criticism in newspapers or pamphlets, but only through their lawful representatives in the legislature, who might be petitioned in an orderly manner. According to the other view, the rulers are agents and servants of the people, who may therefore find fault with their servants and discuss questions of their punishment or dismissal.

Under the first view, which was officially accepted until the close of the eighteenth century, developed the law of seditious libel. This is defined as "the intentional publication, without lawful

1 See note 29, supra.

2 Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247, 249 (1919).

3 244 Fed. 535 (S. D. N. Y., 1917); reversed in 246 Fed. 24 (C. C. A. 2d., 1917).

4 Macaulay, History of England, Chap. XIX.

5 C. A. Duniway, Freedom of Speech in Massachusetts, 89, note.

62 Stephen, History of the Criminal Law, 299.

1

excuse or justification, of written blame of any public man, or of the law, or of any institution established by law.": There was no need to prove any intention on the part of the defendant to produce disaffection or excite an insurrection. It was enough if he intended to publish the blame, because it was unlawful in him merely to find fault with his masters and betters. Such, in the opinion of the best authorities, was the common law of sedition. 2

* * *

It is obvious that under this law liberty of the press was nothing more than absence of the censorship, as Blackstone said. All through the eighteenth century, however, there existed beside this definite legal meaning of liberty of the press, a definite popular meaning: The right of unrestricted discussion of public affairs. There can be no doubt that this was in a general way what freedom of speech meant to the framers of the Constitution. As Schofield says, "One of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press. Liberty of the press as declared in the first amendment, and the English common law crime of sedition, can not coexist." 3 I must therefore strongly dissent, as would Prof. Schofield, from the conclusion of Dean Vance in a recent article on the espionage act, that the founders of our Government merely intended by the first amendment "to limit the new Government's statutory powers to penalize utterances as seditious, to those which were seditious under the then accepted common law rule." 4 The founders had seen 70 English prosecutions for libel since 1760, and 50 convictions under that common law rule, which made conviction easy. 5 That rule had been detested in this country ever since it was repudiated by jury and populace in the famous trial of Peter Zenger, the New York printer, the account of which went through 14 editions before 1791. Nor was this the only colonial sedition prosecution under the common law, and many more were threatened." The first amendment was written by men to whom Wilkes and Junius were household words, who intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government, without any incitement to law breaking, forever impossible in the United States of America.

6

It must not be forgotten that the controversy over liberty of the press was a conflict between two views of government, that the law of sedition was a product of the view that the Government was master, and that the American Revolution transformed into a working reality the second view that the Government was servant, and therefore subjected to blame from its master-the people. Conse

1 2 Stephen, History of the Criminal Law, 353.

2 Ibid., 353, and Chap. XXIV, passim; Schofield, in 9 Proc. Am. Sociol. Soc., 70 ff., gives an excellent summary with especial reference to American conditions.

3 Schofield, ibid., 76, 87.

4 W. R. Vance, in "Freedom of Speech and of the Press," 2 Minn. L. Rev. 239, 259.

5 2 May, Constitutional History of England, 2 ed., 9, note.

6 17 How. St. Tr. 675 (1735). The fullest account of Zenger and the trial is given by Livingston Rutherford, John Peter Zenger, New York, 1904. Rutherford's bibliography lists 13 editions of the account of the trial before 1781. The Harvard Law School Library contains 4 of these (London, 1738; London, 1752; London, 1765; New York, 1770), and also an undated copy without specified place differing from any listed by Rutherford. See also the life of Zenger's counsel, Andrew Hamilton, by William Henry Loyd, in 1 Great American Lawyers, 1. The close relation between the Zenger trial and the prosecutions under George III in England and America is shown by the quotations on reprints of the trial and the dedication of the 1784 London edition to Erskine.

7 C. A. Duniway, Freedom of the Press in Massachusetts, 91, 93, 115, 123, 130, and note. In 1767 Chief Justice Hutchinson charged the grand jury on Blackstonian lines, "This liberty means no more than a freedom for everything to pass from the press without a license." Ibid., 125.

quently, the words of Sir James Fitzjames Stephen about this second view have a vital application to American law.1

To those who hold this view fully and carry it out to all its consequences there can be no such offense as sedition. There may indeed be breaches of the peace which may destroy or endanger life, limb, or property, and there may be incitements to such offenses, but no imaginable censure of the Government, short of a censure which has an immediate tendency to produce such a breach of the peace, ought to be regarded as criminal.

The repudiation by the constitutions of the English common law of sedition, which was also the common law of the American Colonies, has been somewhat obscured by judicial retention of the two technical incidents of the old law after the adoption of the free-speech clauses. Many judges, rightly or wrongly, continued to pass on the criminality of the writing and to reject its truth as a defense,2 until statutes or new constitutional provisions embodying the popular view on these two points were enacted. Doubtless a jury will protect a popular attack on the Government better than a judge, and the admission of truth as a defense lessens the evils of suppression. These changes help to substitute the modern view of rulers for the old view, but they are not essential. Sedition prosecutions went on with shameful severity in England after Fox's Libel Act 4 had given the jury power to determine criminality. The American sedition act of 1798, which President Wilson declares to have "cut perilously near the root of freedom of speech and of the press,' intrusted criminality to the jury and admitted truth as a defense. On the other hand, freedom of speech might exist without these two technical safeguards. The essential question is not who is judge of the criminality of an utterance but what is the test of its criminality. The common law and the sedition act of 1798 made the test, blame of the Government and its officials, because to bring them into disrepute tended to overthrow the State. The real issue in every free-speech controversy is this-whether the State can punish all words which have some tendency, however remote, to bring about acts in violation of law, or only words which directly incite to acts in violation of law.

Such a

If words do not become criminal until they have an immediate tendency to produce a breach of the peace, there is no need for a law of sedition, since the ordinary standards of criminal solicitation and attempt apply. Under those standards the words must bring the speaker's unlawful intention reasonably near to success. limited power to punish utterances rarely satisfies the zealous in times of excitement like a war. They realize that all condemnation of the war or of conscription may conceivably lead to active resistance o insubordination. Is it not better to kill the serpent in the egg? All writings that have a tendency to hinder the war must be suppressed.

Such has always been the argument of the opponents of free speech. And the most powerful weapon in their hand, since the

12 Stephen, History of the Criminal Law, 300. The italics are mine. See also Schofield, 9 Proc. Am. Sociol. Soc. 75.

2 Duniway, supra, Chap. IX; Commonwealth v. Clap, 4 Mass. 163 (1808); Commonwealth v. Blanding, 3 Pick. (Mass.) 304 (1825).

3 Examples are: Pa. Cons. 1790, art. 9, sec. 7; N. Y. Session Laws, 1805, c. 90; N. Y. Cons., 1822, Art. VII, sec. 8; Mass. Laws, 1827, c. 107. See Schofield, op. cit., 95–99.

4 32 Geo. III, c. 60 (1792).

51 Stat. at L., c. 71, 596, act of July 14, 1798.

3 Woodrow Wilson, History of the American People, 153.

abolition of the censorship, is this doctrine of indirect causation, under which words can be punished for a supposed bad tendency long before there is any probability that they will break out into unlawful acts. Closely related to it is the doctrine of constructive intent, which regards the intent of the defendant to cause violence as immaterial so long as he intended to write the words, or else presumes the violent intent from the bad tendency of the words on the ground that a man is presumed to intend the consequences of his acts. When rulers are allowed to possess these weapons, they can by the imposition of severe sentences create an ex post facto censorship of the press. The transference of that censorship from the judge to the jury is indeed important when the attack on the Government which is prosecuted expresses a widespread popular sentiment, but the right to jury trial is of much less value in times of war or threatened disorder when the herd instinct runs strong, if the opinion of the defendant is highly objectionable to the majority of the population, or even to the particular class of men from whom or by whom the jury are drawn. It is worth our frank consideration, whether in a country where the doctrine of indirect causation is recognized by the courts 12 small property holders, who have been through an uninterrupted series of patriotic campaigns and are sufficiently middle-aged to be in no personal danger of compulsory military service, are fitted to decide whether there is a tendency to obstruct the draft in the writings of a pacifist, who also happens to be a socialist and in sympathy with the Russian Revolution.2 This, however, is perhaps a problem for the psychologist rather than the lawyer.

The manner in which juries in time of excitement may be used to suppress writings in opposition to the Government, if bad tendency is recognized as a test of criminality, is illustrated by the numerous British sedition trials during the French Revolution. These were after the passage of Fox's Libel Act. For instance, John Drakard was convicted for printing an article on the shameful amount of flogging in the army, under a charge in which Baron Wood emphasized the formidable foe with whom England was fight

1 "Under Charles II [trial by jury] was a blind and cruel system. During part of the reign of George III it was, to say the least, quite as severe as the severest judge without a jury could have been. The revolutionary tribunal during the Reign of Terror tried by a jury." 1 Stephen, History of the Criminal Law, 569.

2"As to the jury*** they were about 72 years old, worth fifty to sixty thousand dollars, retired from business, from pleasure, and from responsibility for all troubles arising outside of their own family. An investigator for the defense computed the average age of the entire venire of 100 men: it was 70 years. Their average wealth was over $50,000. In the jury finally chosen every man was a retired farmer or a retired merchant, but one, who was a contractor still active. They were none of them native to leisure, however, but men whose faces were bitterly worn and wearied out of all sympathy with a struggle they had individually surmounted." Max Eastman, "The Trial of Eugene Debs," 1 Liberator, No. 9 (November, 1918), 9. This statement is, of course, by a friend of Debs, but if accurate, makes the method of jury selection a serious problem in the prosecution of radicals.

The charge of Mayer, J., in United States v. Phillips, Bull. Dept. Just., No. 14, was so favorable to the defendant that, I am informed by an eyewitness, an acquittal was generally expected in the court room, but the defendants were convicted.

Another significant fact in sedition prosecutions is the well-known probability that juries will acquit, after the excitement is over, for words used during the excitement, which are as bad in their tendency as other writings prosecuted and severely punished during the critical period. This was very noticeable during the reign of George III. It is also interesting to find two juries in different parts of the country differing as to the criminal character of similar publications or even the same publication. Thus Leigh Hunt was acquitted for writing an article for the printing of which Drakard was convicted. See note 61, infra. The acquittal of Scott Nearing and the conviction by the same jury of the American Socialist Society for publishing his book form an interesting parallel. Mayer, J., has decided that there is not such inconsistency in the two verdicts as to warrant a new trial. Bull. Dept. Just., No. 198.

ing, and the general belief that Napoleon was using the British press to carry out his purpose of securing her downfall.1

It is to be feared, there are in this country many who are endeavoring to aid and assist him in his projects, by crying down the establishment of the country, and breeding hatred against the Government. Whether that is the source from whence the paper in question springs, I can not say, but I advise you to consider whether it has not that tendency. You will consider whether it contains a fair discussionwhether it has not a manifest tendency to create disaffection in the country and prevent men enlisting into the army--whether it does not tend to induce the soldi r to desert from the service of his country. And what considerations can be more awful than these? * * *

* * *

The House of Parliament is the proper place for the discussion of subjects of this nature. It is said that we have a right to discuss the acts of our legislature. That would be a large permission indeed. Is there, gentlemen, to be a power in the people to counteract the acts of the Parliament and is the libeller to come and make the people dissatisfied with the government under which he lives? This is not be to permitted to any man-it is unconstitutional and seditious.

The same desire to nip revolution in the bud was shown by the Scotch judges who secured the conviction of Muir and Palmer for advocating reform of the rotten boroughs which chose the House of Commons and the extension of the franchise, sentences of transportation for 7 and 14 years being imposed.2

The right of universal suffrage, the subjects of this country never enjoyed, and were they to enjoy it they would not long enjoy either liberty or a free constitution. You will, therefore, consider whether telling the people that they have a just right * * * to a total subversion of this constitution, is such a writing as any person is entitled to compose, to print, and to publish.

In the light of such prosecutions it is plain that the most vital indication that the popular definition of liberty of the press, unpunishable criticism of officials and laws, has become a reality, is the disappearance of these doctrines of bad tendency and presumptive intent. In Great Britain they lingered until liberalism triumphed in 1832, but in this country they disappeared with the adoption of the free-speech clauses. The French press law no longer recognizes indirect provocation to crime as an offense. The revival of those doctrines is a sure symptom of an attack upon the liberty of the press.

3

Only once in our history prior to 1917 has an attempt been made to apply those doctrines. In 1798 the impending war with France, the spread of revolutionary doctrines by foreigners in our midst, and the spectacle of the disastrous operation of those doctrines abroad — facts that have a familiar sound to-day-led to the enactment of the Alien and Sedition Laws." The alien law allowed the President

4

131 How. St. Tr. 495, 535 (1811). Leigh Hunt was acquitted for writing the same article. Lord Ellenborough charged, 31 How. St. Tr. 367, 408, 413 (1811), "Can you conceive that the exhibition of the words 'One Thousand Lashes,' with strokes underneath to attract attention, could be for any other purpose than to excite disaffection? Could it have any other tendency than that of preventing men from entering into the army?" Compare with these two charges that of Van Valkenburgh, J., in United States v. Rose Pastor Stokes, Bull. Dept. Just., No. 106 (W. D. Mo., 1917), 985, infra.

22 May, Constitutional History, 38-41, on the trials of Muir and Palmer. Fourteen years appears to have been the longest sentence for sedition imposed in Scotland during the French wars. Four years was the longest in England. See note 120, infra, for sentences under the Espionage Act.

3 A. Esmein, Éléments de Droit Constitutionnel, 6 ed. 1145, 1149; Ernst Freund in 19 New Republic 14 (May 3, 1919). Thecrime of délit d'opinion no longer exists. Under the Republic one can lawfully express monarchical opinions and attack the Constitution. Formerly indirect incitement was unlawful. During the reaction after the assassination of the Duc de Berry, the law allowed procès de tendance, by which a newspaper could be suppressed if "l'esprit résultant d'une succession d'articles serait de nature à porter atteinte à la paix publique." In the same way the New York post office objected to the general tenor and animus of the Masses as seditious without specifying any particular portion as objecticnał le, although the periodical offered to excerpt any matter so pointed out. Masses Pub. Co. v. Patten, 244 Fed. 535, 536, 543 (1917).

Events leading up to these statutes are narrated in the standard histories, and also in Francis Wharton State Trials of the United States, 23.

5 Act of June 25, 1798, 1 Stat. at L., 570; act of July 14, 1798, 1 Stat. at L., 596.