to compel the departure of aliens whom he judged dangerous to the peace and safety of the United States, or suspected, on reasonable grounds, of treasonable or secret machinations against our Government. The sedition law punished false, scandalous, and malicious writings against the Government, either House of Congress, or the President, if published with intent to defame any of them, or to incite against them the hatred of the people, or to stir up sedition or to excite resistance of law, or to aid any hostile designs of any foreign nation against the United States. The maximum penalty was a fine of $2,000 and two years' imprisonment. Truth was a defense, and the jury had power to determine criminality as under Fox's Libel Act. Despite the inclusion of the two legal rules for which reformers had contended, and the requirement of an actual intention to cause overt injury, the sedition act was bitterly resented as invading the liberty of the press. Its constitutionality was assailed on that ground by Jefferson who pardoned all prisoners when he became President, and popular indignation at the act and the prosecutions wrecked the Federalist Party. In those prosecutions words were once more made punishable for their judicially supposed bad tendency and the judges reduced the test of intent to a fiction by inferring the bad intent from this bad tendency. Whether or not the sedition act was unconstitutional, and on that question Jefferson seems right, it surely defeated the fundamental policy of the first amendment, the open discussion of public affairs. Like the British trials, the American sedition cases showed, as Prof. Schofield demonstrates,3 "the great danger * * * that men will be fined and imprisoned, under the guise of being punished for their bad motives or bad intent and ends, simply because the powers that be do not agree with their opinions, and spokesmen of minorities may be terrorized and silenced when they are most needed by the community and most useful to it, and when they stand most in need of the protection of the law against a hostile, arrogant, majority. When the Democrats got into power a common-law prosecution for seditious libel was brought in New York against a Federalist who had attacked Jefferson. Hamilton conducted the defense in the name of the liberty of the press.* testimony from Jefferson and Hamilton, the leaders of both parties, leaves the Blackstonian interpretation of free speech in America without a leg to stand on. And the brief attempt of Congress and the Federalist judges to revive the crime of sedition had proved so disastrous that it was not repeated during the next century.

This

The lesson of the prosecutions for sedition in Great Britain and the United States during this revolutionary period, that the most essential element of free speech is the rejection of bad tendency as the test of a criminal utterance, was never more clearly recognized

1 For references to the Sedition Act in Jefferson's letters, see the edition of Paul Leicester Ford, VII, 245: "The object of that [the bill] is the suppression of the whig presses VII, 246; VII, 266, on unconstitutionality: VII, 283, "The alien and sedition laws are working hard:" VII, 289, 311, 336, 350, 354, 355, 356, on popular opposition to the acts; VII, 367, 371, 483, on continuation of sedition law by Congress; VIII, 54, 56 ff., 308 ff., on unconstitutionality and pardons: IX, 456, on dismissal of prosecutions

2 Schofield, 9 Proc. Am. Sociol. Soc. $6. The four reported prosecutions are in Wharton's State Trials, — Lyon, 333 (1798); Cooper, 659 (1800); Haswell, 684 (1800); Callender, 688 (1800).

3 Schofield, op. cit., 91 and 92, note.

4 People v. Croswell, 3 Johns. Cas. 337 (1804). New York had then no constitutional guarantee of liberty of the press, but Hamilton urged that under that right at common law truth was a defense and the jury could decide on criminality. He defined liberty of the press as "The right to publish, with impunity, truth, with good motives, for justifiable ends though reflecting on government, magistracy, or individ uals." See Schofield, op. cit., 89 ff., for criticism of this definition as not in the common law and as too narrow a definition of the conception of free speech. However, it is embodied in many State constitutions and statutes. Two out of four judges agreed with Hamilton.

than in Jefferson's preamble to the Virginia act for establishing religious freedom. His words about religious liberty hold good of political and speculative freedom and the portrayal of human life in every form of art.

To suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he, being of course judge of that tendency, will make his opinions the rule of judgment, ana approve or condemn the sentiments of others only as they shall square with or differ from his

own.

Although the free-speech clauses were directed primarily against the sedition prosecutions of the immediate past, it must not be thought that they would permit unlimited previous restraint. They must also be interpreted in the light of more remote history. The framers of those clauses did not invent the conception of freedom of speech as a result of their own experience of the last few years. The idea had been gradually molded in men's minds by centuries of conflict. It was the product of a people of whom the framers were merely the mouthpiece. Its significance was not fixed by their personality, but was the endless expression of a civilization. It was formed out of past resentment against the royal control of the press under the Tudors, against the Star Chamber and the pillory, against the Parliamentary censorship which Milton condemned in his "Areopagitica," by recollections of heavy newspaper taxation, by hatred of the suppression of thought which went on vigorously on the Continent during the eighteenth century. Blackstone's views also had undoubted influence to bar out previous restraint. The censor is the most dangerous of all the enemies of liberty of the press, and can not exist in this country unless made necessary by extraordinary perils.

Moreover, the meaning of the first amendment did not crystallize in 1791. The framers would probably have been horrified at the thought of protecting books by Darwin or Bernard Shaw, but "liberty of speech" is no more confined to the speech they thought permissible than "commerce' "in another clause is limited to the sailing vessels and horse-drawn vehicles of 1787. Into the making of the constitutional conception of free speech have gone not only men's bitter experience of the censorship and sedition prosecutions before 1791, but also the subsequent development of the law of fair comment in civil defamation and the philosophical speculations of John Stuart Mill. Justice Holmes phrases the thought with even more than his habitual felicity. The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil."

4

It is now clear that the first amendment fixes limits upon the power of Congress to restrict speech either by a censorship or by a criminal

Act of Dec. 26, 1785, 12 Hening's Statutes at Large of Virginia (1823), c. 34, p. 84. 1 Revised Code of Virginia (1803), c. 20, p. 29.

Another excellent argument against the punishment of tendencies is found in Philip Furneaux, Letters to Blackstone, 2 ed., 60-63, London, 1771; quoted in State v. Chandler, 2 Harr. (Del.) 553, 576 (1837), and in part by Schofield, op. cit., 77.

2 1 Kohler, Lehrbuch des Burgerlichen Rechts, sec. 38.

3 Schofield, op. cit., is valuable on the relation of fair comment to free speech. See also Van Vechten Veeder, "Freedom of Public Discussion" 23 Harv. L. Rev. 413 (1910).

Gompers v. United States, 233 U. S. 604, 610 (1914).

statute, and if the espionage act exceeds those limits it is unconstitutional. It is sometimes argued that the Constitution gives Congress the power to declare war, raise armies, and support a navy, that one provision of the Constitution can not be used to break down another provision, and consequently freedom of speech can not be invoked to break down the war power. I would reply that the first amendment is just as much a part of the Constitution as the war clauses, and that it is equally accurate to say that the war clauses can not be invoked to break down freedom of speech. The truth is that all provisions of the Constitution must be construed together so as to limit each other. In war as in peace, this process of mutual adjustment must include the Bill of Rights. There are those who believe that the Bill of Rights can be set aside in war time at the uncontrolled will of the Government. The first 10 amendments were drafted by men who had just been through a war. Two of these amendments expressly apply in war. A majority of the Supreme Court declared the war power of Congress to be restricted by the Bill of Rights in Ex parte Milligan, which can not be lightly brushed aside, whether or not the majority went too far in thinking that the fifth amendment would have prevented Congress from exercising the war power under the particular circumstances of that case. If the first amendment is to mean anything, it must restrict powers which are expressly granted by the Constitution to Congress, since Congress has no other powers. It must apply to those activities of government which are most liable to interfere with free discussion, namely, the Postal Service and the conduct of war.

5

4

2

The true meaning of freedom of speech seems to be this: One of the most important purposes of society and government is the discovery and spread of truth on subjects of general concern. This is possible only through absolutely unlimited discussion, for, as Bagehot points out, once force is thrown into the argument, it becomes a matter of chance whether it is thrown on the false side or the true, and truth loses all its natural advantage in the contest. Nevertheless, there are other purposes of government, such as order, the training of of the young, protection against external aggression. Unlimited discussion sometimes interferes with these purposes, which must then be balanced against freedom of speech, but freedom of speech ought

1 United States v. Marie Equi, Bull. Dept. Just., No. 172, 21 (Ore., 1918), Bean, J.

2 Henry J. Fletcher, "The Civilian and the War Power," 2 Minn. L. Rev. 110, expresses this view. also Ambrose Tighe, "The Legal Theory of the Minnesota 'Safety Commission' Act," 3 Minn. L. Rev. 1. 3 Amendments III and V.

See

44 Wall. (U. S.) 2 (1866). The judges all agreed that Congress had not authorized the trial of the petiThe majority, per Davis, J., took the ground that the Government can not tioner by a military tribunal. have recourse to extraordinary procedure until there are extraordinary conditions to justify it and that under the Bill of Rights the decision of Congress that such procedure is necessary can be reviewed by the courts. The minority, per Chase, C. J., declared that Congress is sole judge of the expediency of military The majority view on measures in war time, and that the war power is not abridged by any amendment.

this matter may be accepted by one who questions their opinion that military tribunals are never justified outside the theater of active military operations in a place where the civil courts are open. It may be that military tribunals are necessary where the machinery of the civil courts can not adequately meet the situation (3 Minn. L. Rev. 9), but the civil courts must eventually decide whether their machinery was adequate Otherwise, in any war, no matter how small or how distant, Congress could put the whole country 5 United States Constitution, Art. I, sec. 1. "All legislative powers herein granted shall be vested in a Congress." Amendment X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people."

or not.

under military dictatorship.

"This Government is acknowledged by all to be one of enumerated powers. The principle, that it can exerci e only the powers granted to it, would seem too apparent." Marshall, C. J., in McCulloch v. Maryland, 4 Wheat. (U. S.) 316, 405 (1819). See also Taney, C. J., in Ex parte Merryman, Taney, 246, 260 (1861), and Brewer, J., in Kansas v. Colorado, 206 U. S. 46, 81 (1907).

6 The Metaphysics of Toleration," in his Literary Essays, Silver Library edition, II, 208 (Longmans).

to weigh very heavily in the scale. The first amendment gives binding force to this principle of political wisdom.1

Or to put the matter another way, it is useless to define free speech by talk about rights. The agitator asserts his constitutional right to speak, the Government asserts its constitutional right to wage war. The result is a deadlock. Each side takes the position of the man who was arrested for swinging his arms and hitting another in the nose, and asked the judge if he did not have a right to swing his arms in a free country. Your right to swing your arms ends just where the other man's nose begins." To find the boundary line of any right, we must get behind rules of law to human facts. In our problem, we must regard the desires and needs of the individual human being who wants to speak and those of the great group of human beings among whom he speaks. That is, in technical language, there are individual interests and social interests, which must be balanced against each other, if they conflict, in order to determine which interest shall be sacrificed under the circumstances and which shall be protected and become the foundation of a legal right. 2 It must never be forgotten that the balancing can not be properly done unless all the interests involved are adequately ascertained, and the great evil of all this talk about rights is that each side is so busy denying the other's claim to rights that it entirely overlooks the human desires and needs behind that claim.

The rights and powers of the Constitution, aside from the portions which create the machinery of the Federal system, are largely means of protecting important individual and social interests, and because of this necessity of balancing such interests the clauses can not be construed with absolute literalness. The fourteenth amendment and the obligation of contracts clause, maintaining important individual interests, are modified by the police power of the States, which protects health and other social interests. The thirteenth amendment is subject to many implied exceptions, so that temporary involuntary servitude is permitted to secure social interests in the construction of roads, 3 the prevention of vagrancy, the training of the militia or National Army. It is common to rest these implied exceptions to the Bill of Rights upon the ground_that they existed in 1791 and long before, but a less arbitrary explanation is desirable. It seems better to say that long usage does not create an exception, but demonstrates the importance of the social interest behind the exception.5

4

The first amendment protects two kinds of interests in free speech."
There is an individual interest, the need of many men to express

1 This paragraph and a portion of the preceding have already been printed in 17 New Republic, 67.
2 This distinction between rights and interests clarifies almost any constitutional controversy. The
distinction originated with Von Ihering. For a presentation of it in English, see John Chipman Gray,
Nature and Sources of the Law, sec. 48 ff.

3 Butler v. Perry, 240 U. S. 328 (1916).

4 Robertson v. Baldwin, 165 U. S. 275, 281 (1897).

5 Not everything old is good. Thus the antiquity of peonage does not constitute it an exception to the thirteenth amendment; it is not now demanded by any strong social interest. Bailey v. Alabama, 219 U. S. 219 (1911). It is significant that the social interest in shipping which formerly required the compulsory labor of articled sailors (Robertson v. Baldwin, supra) is no longer recognized in the United States as sufficiently important to outweigh the individual interest in free locomotion and choice of occupation. Even treaties providing for the apprehension in our ports of deserting foreign seamen have been abrogated by the La Follette Seamen's Act, act of Mar. 4, 1915, c. 153, sec. 16, 38 Stat. at L., 1184; U. S. Comp. Stat., 1918, sec. 8382 a. For the old social interest in the regulation of laborers' wages, now abrogated by the New York constitution, see Saratoga v. Saratoga Gas, 191 N. Y. 123, 141, 83, N. E. 693 (1908). That the Bill of Rights does not crystallize antiquity, Hurtado v. California, 110 U. S. 516 (1884).

6 See Roscoe Pound, "Interests of Personality," 28 Harv. L. Rev., 445, 453-56.

their opinions on matters vital to them if life is to be worth living, and a social interest in the attainment of truth, so that the country may not only adopt the wisest course of action but carry it out in the wisest way. This social interest is especially important in war time. Even after war has been declared there is bound to be a confused mixture of good and bad arguments in its support, and a wide difference of opinion as to its objects. Truth can be sifted out from falsehood only if the Government is vigorously and constantly cross-examined, so that the fundamental issues of the struggle may be clearly defined, and the war may not be diverted to improper ends, or conducted with an undue sacrifice of life and liberty, or prolonged after its just purposes are accomplished. Legal proceedings prove that an opponent makes the best crossexaminer. Consequently it is a disastrous mistake to limit criticism to those who favor the war. 1 Men bitterly hostile to it may point out evils in its management like the secret treaties, which its supporters have been too busy to unearth. The history of the last five years shows how the objects of a war may change completely during its progress, and it is well that those objects should be steadily reformulated under the influence of open discussion not only by those who demand a military victory but by pacifists who take a different view of the national welfare. Further argument for the existence of this social interest becomes unnecessary if we recall the national value of the opposition in former wars.

The great trouble with most judicial construction of the espionage act is that this social interest has been ignored and free speech has been regarded as merely an individual interest, which must readily give way like other personal desires the moment it interferes with the social interest in national safety. The judge who has done most to bring social interests into legal thinking said years ago, "I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate and often unconscious." The failure of the courts in the past to formulate any principle for drawing a boundary line around the right of free speech has not only thrown the judges into the difficult questions of the espionage act without any well-considered standard of criminality, but has allowed some of them to impose standards of their own and fix the line at a point which makes all opposition to this or any future war impossible. For example:

No man should be permitted, by deliberate act, or even unthinkingly, to do that which will in any way detract from the efforts which the United States is putting forth or serve to postpone for a single moment the early coming of the day when the success of our arms shall be a fact.3

The true boundary line of the first amendment can be fixed only when Congress and the courts realize that the principle on which speech is classified as lawful or unlawful involves the balancing against each other of two very important social interests, in public

1 Judge Van Valkenburgh told the jury that it must be so limited in United States v. Rose Pastor Stokes, Bull. Dept. Just., 106, 14 (W. D. Mo., 1917). See page 966, infra.

2 Oliver Wendell Holmes, "The Path of the Law," 10 Harv. L. Rev., 457, 467.

8 United States v. "The Spirit of '76," Bull. Dept. Just., No. 33, 2 (S. D. Cal., 1917), Bledsoe, J. Another good example is United States v. Schoberg, Bull. Dept. Just., No. 149 (E. D. Ky., 1918), Cochran, J.