safety and in the search for truth. Every reasonable attempt should be made to maintain both interests unimpaired, and the great interest in free speech should be sacrificed only when the interest in public safety is really imperiled, and not, as most men believe, when it is barely conceivable that it may be slightly affected. In war time, therefore, speech should be unrestricted by the censorship or by punishment, unless it is clearly liable to cause direct and dangerous interference with the conduct of the war.

Thus our problem of locating the boundary line of free speech is solved. It is fixed close to the point where words will give rise to unlawful acts. We can not define the right of free speech with the precision of the rule against perpetuities or the rule in Shelley's case, because it involves national policies which are much more flexible than private property, but we can establish a workable principle of classification in this method of balancing and this broad test of certain danger. There is a similar balancing in the determination of what is "due process of law." And we can with certitude declare that the first amendment forbids the punishment of words merely for their injurious tendencies. The history of the amendment and the political function of free speech corroborate each other and make this conclusion plain.

The espionage act of 1917 seems on its face constitutional under this interpretation of the first amendment, but it may have been construed so extremely as to violate the amendment. Furthermore, freedom of speech is not only a limit on Congressional power but a policy to be observed by the courts in applying constitutional statutes to utterance. The scope of that policy is determined by this same method of balancing social interests. The boundary line of punishable speech under this act was consequently fixed where words come close to injurious conduct by the judge who has given the fullest attention to the meaning of free speech during the war, Judge Learned Hand, of the southern district of New York.

1

3

The

In Masses Publishing Co. v. Patten Judge Hand was asked to enjoin the postmaster of New York from excluding from the mails The Masses, a monthly revolutionary journal, which contained several articles, poems, and cartoons attacking the war. espionage act of 19172 made nonmailable any publication which violated the criminal provisions of that act, already summarized in this article. One important issue was, therefore, whether the postmaster was right in finding such a violation. The case did not raise the constitutional question whether Congress could make criminal any matter which tended to discourage the successful prosecution of the war, but involved only the construction of the statute, whether Congress had as yet gone so far. Judge Hand held that it had not and granted the injunction. He refused to turn the original act, which obviously dealt only with interference with

1 244 Fed., 535 (S. D. N. Y., 1917).

2 Act of June 15, 1917, c. 30, Title XII, sec. 2, 40 Stat. at L., 230, U.S. Comp. Stat., 1918, sec. 10401 a. 3 Act of June 15, 1917, c. 30, Title I, sec. 3, 40 Stat. at L., 219, U. S. Comp. Stat., 1917, sec. 10212 c: "Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies, and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both."

4 Page 935, supra.

the conduct of military affairs,' into a prohibition of all kinds of propaganda and a means for suppressing all hostile criticism and all opinion except that which encouraged and supported the existing policies of the war, or fell within the range of temperate argument. As Cooley pointed out long ago, you can not limit free speech to polite criticism, because the greater a grievance the more likely men are to get excited about it, and the more urgent the need of hearing what they have to say. The normal test for the suppression of speech in a democratic government, Judge Hand insists, is neither the justice of its substance nor the decency and propriety of its temper, but the strong danger that it will cause injurious acts. The espionage act should not be construed to reverse this national policy of liberty of the press and silence hostile criticism, unless Congress has given the clearest expression of such an intention in

the statute.

Judge Hand places outside the limits of free speech one who counsels or advises others to violate existing laws. It is true, he says, that any discussion designed to show that existing laws are mistaken in means or unjust in policy may result in their violation,3 but if one stops short of urging upon others that it is their duty or their interest to resist the law, he should not be held to have attempted to cause illegal conduct. If this is not the test, the 1917 act punishes every political agitation which can be shown to be apt to create a seditious temper. The language of the statute proves that Congress had no such revolutionary purpose in view.

There is no finer judicial statement of the right of free speech than these words of Judge Hand:

Political agitation, by the passions it arouses or the convictions it engenders, may in fact stimulate men to the violation of law. Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them in execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with direct incitment to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government. The distinction is not a scholastic subtefuge, but a hard-bought acquisition in the fight for freedom.*

Look at the espionage act of 19175 with a postarmistice mind and it is clear that Judge Hand was right. There is not a word in it to make criminal the expression of pacifist or pro-German opinions. It punishes false statements and reports necessarily limited to statements of fact-but beyond that does not contain even a provision against the use of language. Clauses (2) and (3) punish successful interference with military affairs and attempts to interfere, which would probably include incitement." The tests of criminal attempt and incitement are well settled." The first re

1 Masses Publishing Co. v. Patten, supra, 539. The plain fact that the original espionage act is a military statute and not a sedition statute is also recognized by United States v. Fontana, Bull. Dept. Just., No. 148 (N. D., 1917), Amidon, J.; United States v. Wishek, Bull. Dept. Just., No. 153 (N. D.,1917), Amidon, J.; United States v. Henning, Bull. Dept. Just., No. 184 (Wis., 1917), Geiger, D. J.; and implied by other cases. The large number of cases which ignore the clear meaning of the statute is astounding in view of the rule that criminal statutes must be construed strictly.

2 Cooley, Constitutional Limitations, 7 ed., 613.

3 He expresses this idea both in Masses Publishing Co. v. Patten, supra, and in United States v. Scott Nearing, 252 Fed., 223, Bull. Dept. Just., No. 129 (S. D. N. Y., 1918). 4 Masses Pub. Co. v. Patten, 244 Fed., 535, 540 (1917).

5 See note 91, supra, for text of the act.

6 Attempts do not ordinarily include solicitation, see Beale, infra, 16 Harv. L. Rev. 491, 506, note 1; but attempts to commit offences under the 1917 espionage act would naturally be by incitement.

7 Joseph H. Beale, "Criminal Attempts," 16 Harv. L. Rev. 491; Commonwealth v. Peaslee, 177 Mass. 267,59 N. E. 55 (1901), Holmes, C. J.; United States v. Stephens, 12 Fed. 52 (Ore. 1882), Deady, D. J.

alsó 32 Harv. L. Rev. 417.

See

1

quirement is the intention to bring about the overt criminal act. But the law does not punish bad intention alone, or even everything done with a bad intention. A statute against murder will not be construed to apply to discharging a gun with the intention to kill a man 40 miles away. Attempts and incitement to be punishable must come dangerously near success. A speaker is guilty of solicitation or incitement to a crime only if he would have been indictable for the crime itself, had it been committed, either as accessory or principal. Consequently, no one should have been held under clauses (2) and (3) of the espionage act of 1917 who did not satisfy these tests of criminal attempt and incitement. As Justice Holmes said in Commonwealth v. Peaslee, "It is a question of degree." We can suppose a series of opinions, ranging from This is an unwise war" up to "You ought to refuse to go, no matter what they do to you," or an audience varying from an old women's home to a group of drafted men just starting for a training camp. Somewhere in such a range of circumstances is the point where direct causation begins and speech becomes punishable as incitement under the ordinary standards of statutory construction and the ordinary policy of free speech, which Judge Hand applied. Congress could push the test of criminality back beyond this point, although eventually it would reach the extreme limit fixed by the first amendment, beyond which words can not be restricted for their remote tendency to hinder the war. In other words, the ordinary tests punish agitation just before it begins to boil over; Congress could change those tests and punish it when it gets really hot, but it is unconstitutional to interfere when it is merely warm. And there is not a word in the 1917 espionage act to show that Congress did change the ordinary tests or make any speech criminal except false statements and incitement to overt acts. Every word used, "cause," "attempt," "obstruct," clearly involves proximate causation. Finally, this is a penal statute and ought to be construed strictly. Attorney General Gregory's charge that judges like Learned Hand "took the teeth" out of the 1917 act is absurd, for the teeth the Government wanted were never there until other judges in an excess of patriotism put in false ones. Nevertheless, Judge Hand was reversed, largely on a point of administrative law, but the Circuit Court of Appeals thought it desirable to reject his construction of the espionage act and substitute the view that speech is punishable under the act "if the natural and reasonable effect of what is said is to encourage resistance to law and the words are used in an endeavor to persuade to resistance.' It is possible that the Court of Appeals did not intend to lay down a very different principle from Judge Hand, but chiefly wished to insist that in determining whether there is incitement one must look not only at the words themselves but also at the surrounding circumstances which may have given the words a special

1 United States v. Stephens, supra, illustrates the same principle.

2 See Beale, supra, 16 Harv. L. Rev. 491, 505. Under the Federal statutes he would be a principal. Rev. Stat., secs. 5323, 5427, Mar. 4, 1999, c. 321, sec. 332; 35 Stat. at L. 1152; U. S. Comp. Stat. 1918, sec. 10506 (Crim. Code, sec. 332).

3 177 Mass. 267, 272, 59 N. E. 55 (1901).

4 See page 936, supra.

Masses Pub. Co. v. Patten, 245 Fed. 102 (C. C. A. 2d, 1917), Hough, J., stayed the injunction; ibid., 246 Fed. 24 (C. C. A. 2d, 1917), Ward, Rogers, and Mayer, J., reversed the order granting the injunction.

6 That the postmaster's decision must stand unless clearly wrong. See for authorities against this proposition, 32 Harv. L. Rev. 417, 420.

7 Masses v. Patten, 246 Fed. 24, 38, Rogers, J.

meaning to their hearers. Mark Antony's funeral oration, for instance, counseled violence while it expressly discountenanced it.1 However, the undoubted effect of the final decision in Masses v. Patten was to establish the old-time doctrine of indirect causation in the minds of district judges throughout the country. By its rejection of the common-law test of incitement. it deprived us of the only standard of criminal speech there was, since there had been no wellconsidered discussion of the meaning of free speech in the first amendment. It allowed conviction for words which had an indirect effect to discourage recruiting, if the intention to discourage existed,3 and this requirement of intention became a mere form since it could be inferred from the existence of the indirect effect. A few judges. notably Amidon, of North Dakota, have stemmed the tide, but of most espionage act decisions what Schofield and Stephen and Jefferson said about the prosecutions under George III and the sedition act of 1798 can be said once more, that men have been punished without overt acts, with only a presumed intention to cause overt acts, merely for the utterance of words which judge and jury thought to have a tendency to injure the state. Judge Rogers was right in saying that the words of the espionage act of 1917 bear slight resemblance to the sedition law of 1798. but the judicial construction is much the same, except that under the sedition law truth was a defense.

6

The revival of the doctrines of indirect causation and constructive intent always puts an end to genuine discussion of public matters. It is unnecessary to review the espionage act decisions in detail, but a few general results may be presented here. The courts have treated opinions as statements of fact and then condemned them as false because they differed from the President's speech or the resolution of Congress declaring war. They have made it impossible for an opponent of the war to write an article or even a letter in a newspaper of general circulation because it will be read in some training camp where it might cause insubordination or interfere with military success. He can not address a large audience because it is liable to include a few men in uniform; and some judges have held him punishable if it contains men between 18 and 45; while Judge Van Valkenburgh, in United States v. Rose Pastor Stokes, would not even require that, beacause what is said to mothers, sisters, and sweethearts may lessen their enthusiasm for the war, and "our Armies in the field and our Navies upon the sea can operate and succeed only so far as they are supported and maintained by the folks at home." The doctrine of indirect causation never had better illustration than in his charge. Furthermore, although Mrs. Stokes was indicted only for writing a letter, the judge admitted her

See the re view of Masses v. Patten by Learned Hand, J., in United States v. Nearing. 252 Fed. 223,227 (S. D. N. Y., 1918).

2 Ibid. Judge Rogers may not have realized he was rejecting it (246 Fed. 38), but the test of common-law incitement has ne er been applied to the act by a district judge since.

3 Masses Pub. Co. v. Patten, 246 Fed. 24, 39 (1917), Ward. J.

4 Masses Pub. Co. v. Patten, 246 Fed. 24, 39 (1917), Roger, J.: "The court does not hesitate to say that, considering the natural and reasonable effect of the publication, it was intended willfully to obstruct recruiting."

5 See in particular his discussion of "stirring up class against class," in United States v. Brinton, Bull. Dept. Just. No. 132 (N. D., 1917).

6 Masses Pub. Co. v. Patten, 246 Fed. 24, 29 (1917),

7 Detailed comment will be found in Walter Nelles, Espionage Act Cases, and in 32 Harv. L. Rev. 417.

8 Bull Dept. Just., No. 106, p. 4 (W. D. Mo., 1917).

3

speeches to show her intent, and then denounced the opinions expressed in those speeches in the strongest language,' to the jury as destructive of the Nation's welfare, so that she may very well have been convicted for the speeches and not for the letter. His decision makes it practically impossible to discuss profiteering, because of "the possible, if not probable effect" on our troops, while a recent case, in the second circuit, makes it equally perilous to urge a wider exemption for conscientious objectors because this tends to encourage more such objectors, a close parallel to the English imprisonment of Bertrand Russell. Many men have been imprisoned for arguments or profanity used in the heat of private altercation, and even unexpressed thoughts have been prosecuted through an ingenious method of inquisition. And although we are not at war with Russia, three men who opposed our intenvention and compared our troops to the Hessians were condemned by Judge Clayton to imprisonment for 20 years. Judge Van Valkenburgh summed up the facts with appalling correctness in view of the long sentences imposed under the espionage act, when he said that freedom of speech means the protection of "criticism which is made friendly to the Government, friendly to the war, friendly to the policies of the Government. 19 6

The United States Supreme Court did not have an opportunity to consider the espionage act until 1919, after the armistice was signed and almost all the district court cases had been tried. Several appeals from conviction had resulted in a confession of error by the Government, but as last four cases were heard and decided against the accused. Of these three were clear cases of incitement to resist the draft, so that no real question of free speech arose. Nevertheless the defense of constitutionality was raised, and denied by Juctice Holmes. His fullest discussion is in Schenck v. United States:

8

* * *

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right. This portion of the opinion, especially the italicized sentence, substantially agrees with the conclusion reached by Judge Hand, by

1 Bull. Dept. Just., No. 106, p. 4 (W. D. Mo 1917), passim, making use of Mrs. Stokes's declared sympathy with the Russian Revolution, an offense not punishable even under the 1917 espionage act, to show how dangerous it was for her to talk about profiteers, His vigorous denunciation of that revolution, totally unconnected with the indictment, recalls Lord Kenyon's similar use of the massacres of the French Revolution in Rex v. Cuthell, 27 How. St. Tr. 642, 674 (1790). Utterances not covered by the indictment were also admitted in Doe v. United States, 253 Fed. 903 (C. C. A. 8th, 1918).

2 United States v. Rose Pastor Stokes, supra, p. 8.

3 Fraina v. United States, 255 Fed. 28 (C. C. A. 2d, 1918).

4 Rex v. Bertrand Russell, Littell's Living Age, Feb. 15, 1919, p. 385.

5 United States v. Pape, 253 Fed. 270 (1918). A German-American who had not subscribed to Liberty bonds was visited in his house by a committee who asked his reasons and received a courteous reply that he did not wish either side to win the war and could not conscientiously give it his aid. He was thereupon arrested and held in confinement until released by a district court.

6 United States v. Rose Pastor Stokes, supra, p. 14. At least 12 persons have been sentenced for 10 years, 5 for 15 years, and 21 for 20 years.

732 Harv. L. Rev. 420, note 22.

8 Sugarman v. United States, 249 U. S. 130, 39 Sup. Ct. Rep. 191 (1919); Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247 (1919); Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. Rep. 249 (1919). 9 249 Ú. S. 47, 39 Sup. Ct. Rep. 247, 249. The italics are mine.