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Clearly, the problem of the limits of freedom of speech in war time is no academic question. On the one side, thoughtful men and journals are asking how scores of citizens can be imprisoned under this Constitution only for their disapproval of the war as irreligous, unwise, or unjust. On the other, Federal and State officials point to the great activities of German agents in our midst and to the unprecedented extension of the business of war over the whole nation, so that in the familiar remark of Ludendorff, wars are no longer won by armies in the field, but by the morale of the whole people. The widespread Liberty bond campaigns, and the shipyards, munition factories, Government offices, training camps, in all parts of the country, are felt to make the entire United States a theater of war, in which attacks upon our cause are as dangerous and unjustified as if made among the soldiers in the rear trenches. The Government regards it as inconceivable that the Constitution should cripple its efforts to maintain public safety. Abstaining from countercharges of disloyalty and tyranny, let us recognize the issue as a conflict between two vital principles, and endeavor to find the basis of reconciliation between order and freedom.
At the outset, we can reject two extreme views in the controversy. First, there is the view that the Bill of Rights is a peace-time document and consequently freedom of speech may be ignored in war. This view has been officially repudiated. At the opposite pole is the belief of many agitators that the first amendment renders unconstitutional any act of Congress without exception "abridging the freedom of speech, or of the press," that all speech is free, and only action can be restrained and punished. This view is equally untenable. The provisions of the Bill of Rights can not be applied with absolute literalness but are subject to exceptions. For instance, the prohibition of involuntary servitude in the thirteenth amendment does not prevent military conscription, or the enforcement of a "work or fight" statute. The difficulty, of course, is to define the principle on which the implied exceptions are based, and an effort to that end will be made subsequently.
Since it is plain that the true solution lies between these two extreme views, and that even in war time freedom of speech exists subject to a problematical limit, it is necessary to determine where the line runs between utterance which is protected by the Constitution from governmental control and that which is not. Many attempts at a legal definition of that line have been made, but two mutually inconsistent theories have been especially successful in winning judicial acceptance, and frequently appear in the espionage act cases.
One theory construes the first amendment as enacting Blackstone's statement that "the liberty of the press * * * consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published." The line where
1 Report of the Attorney General of the United States (1918), 20: "This department throughout the war has proceeded upon the general principle that the constitutional right of free speech, free assembly, and petition exist in war time as in peace time, and that the right of discussion of governmental policy and the right of political agitation are most fundamental rights in a democracy."
2 Robertson v. Baldwin, 165 U. S. 275, 281 (1897).
3 Selective Draft Law Cases, 245 U. S. 366, 390 (1918); Claudius v. Davie, 175 Cal. 208 (1917).
4 State v. McClure, 105 Atl. 712 (Del. Gen. Sess., 1919).
5 See a discussion by Dean Pound of two views besides Blackstone's in 29 Harv. L. Rev. 640, 651. The view mentioned as Story's is really that of St. George Tucker, whom Story was criticising. 2 Story, Constitution, sec. 1886.
64 Blackstone, Commentaries, 151.
legitimate suppression begins is fixed chronologically at the time of publication. The Government can not interfere by a censorship or injunction before the words are spoken or printed, but can punish them as much as it pleases after publication, no matter how harmless or essential to the public welfare the discussion may be. This Blackstonian definition found favor with Lord Mansfield,1 and is sometimes urged as a reason why libels should not be enjoined. It was adopted by American judges in several early prosecutions for libel,3 one of which was in Massachusetts, whence Justice Holmes carried it into the United States Supreme Court.5 Fortunately he has now repudiated this interpretation of freedom of speech, but not until his dictum had had considerable influence, particularly in espionage act cases. Of course if the first amendment does not prevent prosecution and punishment of utterances, the espionage act is unquestionably constitutional.
This Blackstonian theory dies hard, but has no excuse for longer life. In the first place, Blackstone was not interpreting a constitution but trying to state the English law of his time, which had no censorship and did have extensive libel prosecutions. Whether or not he stated that law correctly, an entirely different view of the liberty of the press was soon afterwards enacted in Fox's libel Act, so that Blackstone's view does not even correspond to the English law of the last 125 years. Furthermore, Blackstone is notoriously unfitted to be an authority on the liberties of American colonists, since he upheld the right of Parliament to tax them," and was pronounced by one of his own colleagues to have been "we all know, an antirepublican lawyer." 10
Not only is the Blackstonian interpretation of our free-speech clauses inconsistent with eighteenth-century history, soon to be considered, but it is contrary to modern decisions, thoroughly artificial, and wholly out of accord with a common-sense view of the relations of State and citizen. In some respects this theory goes althogether too far in restricting State action. The prohibition of previous restraint would not allow the Government to prevent a newspaper from publishing the sailing dates of transports or the number of troops. in a sector. It would render illegal removal of an indecent poster from a billboard or the censorship of moving pictures before exhibition, which has been held valid under a free-speech clause." And whatever else may be thought of the decision under the espionage act with the unfortunate title, United States v. The Spirit of '76,12 it was clearly previous restraint for a Federal court to direct the sei
1 King v. Dean of St. Asaph, 3 T. R. 428, 431 (1789): "The liberty of the press consists in printing without any previous licence, subject to the consequence of law."
2 See Roscoe Pound, "Equitable Relief against Defamation and Injuries to Personality," 29 Harv. L. Rev. 651. Recent Federal cases are American Malting Co. v. Keitel, 209 Fed. 351 (C. C. A. 2d, 1913); Willis v. O'Connell, 231 Fed. 1004 (S. D. Ala. 1916).
3 Respublica v. Oswald, 1 Dall. (U. S.) 319, 325 (Pa., 1788), McKean, J.; Trial of William Cobbett, for Libel, Wharton's State Trials, 322, 323 (Pa., 1797), McKean, J.; Respublica v. Dennie, 4 Yeates (Pa.) 267, 269 (1805). See Schofield in 9 Proc. Au. Sociol. Soc. 69.
4 Commonwealth v. Blanding, 3 Pick. (Mass.) 304, 313 (1825).
5 Patterson v. Colorado, 205 U. S. 454, 462 (1907).
6 Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247, 249 (1919).
7 Masses Pub. Co. v. Patten, 246 Fed. 24, 27 (C. C. A. 2d, 1917); United States v. Coldwell, Bull. Dept. Just., No. 158 (D. C. R. I.) 4.
832 Geo. III, c. 69 (1792). See page 948, infra.
91 BLACKSTONE COMMENTARIES, 109.
10 Willes, J., in Dean of St. Asaph's Case, 4 Doug. 73, 172 (1784), quoted by Schofield, 9 Proc. Am. Sociol. Soc. 85, note.
11 Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S. 230, 241 (1915).
12 Bull. Dept. Just., No. 33 (D. C. S. D. Cal., 1917), Bledsoe, J.
zure of a film which depicted the Wyoming Massacre and Paul Revere's Ride, because it was "calculated reasonably so to excite or inflame the passions of our people or some of them as that they will be deterred from giving that full measure of cooperation, sympathy, assistance, and sacrifice which is due to Great Britain as an ally of ours," and "to make us a little bit slack in our loyalty to Great Britain in this great catastrophe."
On the other hand, it is hardly necessary to argue that the Blackstonian definition gives very inadequate protection to the freedom of expression. A death penalty for writing about socialism would be as effective suppression as a censorship. Cooley's comment on Blackstone is unanswerable:2
* * * The mere exemption from previous restraints can not be all that is secured by the constitutional privisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications * * * Their purpose [of the free-speech clauses] has evidently been to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the Government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the veople have conferred upon them. The evils to be prevented were not the censorship of the press merely, but any action of the Government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.
If we turn from principles to precedents, we find several decisions which declare the constitutional guarantee of free speech to be violated by statutes and other governmental action which imposed no previous restraint but penalized publications after they were made. And most of the decisions in which a particular statute punishing for talking or writing is sustained do not rest upon the Blackstonian interpretation of liberty of speech, but upon another theory, now to be considered. Therefore, it is possible that Title I, section 3, of the espionage act violates the first amendment, although it does not interfere with utterances before publication.5
A second interpretation of the freedom of speech clauses limits them to the protection of the use of utterance and not to its "abuse.”
1 "Free speech, like every form of freedom, goes in danger of its life in war time. The other day in Russia an Englishman came on a street meeting shortly after the first revolution had begun. An extremist was addressing the gathering and telling them that they were fools to go on fighting, that they ought to refuse and go home, and so forth. The crowd grew angry and some soldiers were for making a rush at him; but the chairman, a big burly peasant, stopped them with these words: 'Brothers, you know that our country is now a country of free speech. We must listen to this man, we must let him say anything he will. But, brothers, when he's finished we'll bash his head in!" John Galsworthy, "American and Briton" 8 Yale Rev. 27 (October, 1918).
2 Cooley, Constitutional Limitations, 7 ed., 603, 604.
3 Louthan v. Commonwealth, 79 Va. 196 (1884), statute punishing school superintendent for political speeches; Atchison, etc., Ry. v. Brown, 80 Kans. 312: 102 Pac. 459 (1999)-service-letter statute, making employer liable to civil action if he failed to furnish a discharged employee a written statement for the true reason for discharge. St. Louis, etc., Ry. Co. v. Griffin, 106 Texas 477, 171 S. W. 703 (1914), same; Wallace 2. Georgia Ry. Co., 94 Ga. 732, 22 S. E. 579 (1894), same; Ex parte Harrison, 212 Mo. 88. 110 S. W. 709 (1908), statute punishing voters' leagues for commenting on candidates for office without disclosing the names of all persons furnishing the information; State ex rel. Metcalf v. District Court, 52 Mont. 46, 155 Pac. 278 (1916), contempt proceedings for criticism of judge for past decision; State ex rel. Ragan v. Junkin, 85 Neb. 1, 122 N. W. 473 (1909), statute invalidating nomination of condidates by conventions or any other method except primaries; State v. Pierce, 163 Wis. 615, 158 N. W. 696 (1916), corrupt practices act punishing political disbursements outside one's own county, except through a campaign committee. Some of these decisions are open to dispute on the desirability of the statutes, and some are opposed by other cases for that reason, but in their repudiation of the Blackstonian test they furnish unquestioned authority.
4 Examples in such cases of express repudiation of the Blackstonian doctrine are found in Schenck v. United States, 249 U. S. 47. 39 Sup. Ct. Rep. 247 (1919); State v. McKee, 73 Conn. 18, 46 Atl. 409 (1900); State 2. Pioneer Press Co., 100 Minn. 173, 110 N. W. 867 (1907); Cowan v. Fairbrother, 118 N. C. 406, 418 (1896). 5 Title XII of the espionage act does impose previous restraint on publications which violate the act by authorizing the Postmaster General to exclude them from the mails. See page 961, infra.
It draws the line between "liberty" and "license." Chief Justice White' rejects—
the contention that the freedom of the press is the freedom to do wrong with impunity and implies the right to frustrate and defeat the discharge of those governmental duties upon the performance of which the freedom of all, including that of the press, depends. * * * However complete is the right of the press to state public things and discuss them, that right, as every other right enjoyed in human society, is subject to the restraints which separate right from wrong doing.
A statement of the same view in another peace case is made by Judge Hamersley, of Connecticut:2
Every citizen has an equal right to use his mental endowments, as well as his property, in any harmless occupation or manner; but he has no right to use them so as to injure his fellow citizens or to endanger the vital interests of society. Immunity in the mischievous use is as inconsistent with civil liberty as prohibition of the harmless The liberty protected is not the right to perpetrate acts of licentiousness, or any act inconsistent with the peace or safety of the State. Freedom of speech and press does not include the abuse of the power of tongue or pen, any more than freedom of other action includes an injurious use of one's occupation, business, or property.
The decisions in the war are full of similar language.3
Practically the same view is adopted by Cooley, that the clauses guard against repressive measures by the several departments of government, but not against utterances which are a public offense, or which injure the reputation of individuals.
We understand liberty of speech and of the press to imply not only liberty to publish, but complete immunity from legal censure and punishment for the publication, so long as it is not harmful in its character, when tested by such standards as the law affords. For these standards we must look to the common-law rules which were in force when the constitutional guaranties were established, and in reference to which they have been adopted.
To a judge obliged to decide whether honest and able opposition to the continuation of a war is punishable, these generalizations furnish as much help as a woman forced, like Isabella in "Measure for Measure," to choose between her brother's death and loss of honor, might obtain from the pious maxim, "Do right." What is abuse? What is license? What standards does the law afford? To argue that the Federal Constitution does not prevent punishment for criminal utterances begs the whole question, for utterances within its protection are not crimes. If it only safeguarded lawful speech, Congress could escape its operation at any time by making any class of speech unlawful. Suppose, for example, that Congress declared any criticism of the particular administration in office to be a felony, punishable by 10 years' imprisonment. Clearly, the Constitution must limit the power of Congress to create crimes. But how far does that limitation go? Cooley suggests that the legislative power extends only to speech which was criminal or tortious at
1 Toledo Newspaper Co. v. United States, 247 U. S. 402, 419 (1918).
2 State v. McKee, 73 Conn. 18, 28, 46 Atl. 409 (1900).
3 Mayer, J., in United States v. Phillips, Bull. Dept. Just., No. 14 (S. D. N. Y., 1917), 5: In this country it is one of our foundation stones of liberty that we may freely di cuss anything we please, provided that that discussion is in conformity with law, or at least not in violation of it." Mayer, J., in United States v. Goldman, Bull. Dept. Just., No. 41 (S. D. N. Y., 1917), 2: "No American worthy of the name believes in anything else than free speech; but free speech means, not license, not counseling disobedience of the law. Free speech means that frank, free, full, and orderly expression which every man or woman in the land, citizen or alien, may engage in, in lawful and orderly fashion." Van Valkenburgh, J., in United States v. Stokes, Bull. Dept. Just., No. 106 (W. D. Mo., 1918), 12: "No one is permitted under the constitutional guaranties to commit a wrong or violate the law." See also United States v. Pierce, Bull. Dept. Just., No. 52 (S. D. N. Y., 1917), 22, Ray, J.; United States v. Nearing, Bull. Dept. Just., No. 192 (S. D. N. Y., 1917), 4, Mayer, J.
4 Cooley, Constitutional Limitations, 7 ed., 605; quoted by Hough, J., in Fraina v. United States, 255 Fed. 28, 35 (C. C. A. 2d, 1918.)
common law in 1791. No doubt, conditions then must be con sidered, but must the legislature leave them unchanged for all time? Moreover, the few reported American cases before 1791 prove that our common law of sedition was exactly like that of England, and it would be extraordinary if the first amendment enacted the English sedition law of that time, which was repudiated by every American and every liberal Englishman, and altered by Parliament itself in the very next year, 1792.1 Clearly, we must look further and find a rational test of what is use and what is abuse. Saying that the line lies between them gets us nowhere. And "license is too often "liberty" to the speaker, and what happens to be anathema to the judge.
We can, of course, be sure that certain forms of utterance, which have always been crimes or torts at common law, are not within the scope of the free-speech clauses. The courts in construing such clauses have, for the most part, done little more than place obvious cases on this or that side of the line. They tell us, for instance, that libel and slander are actionable, or even punishable, that indecent books are criminal, that it is contempt to interfere with pending judicial proceedings, and that a permit can be required for street meetings; and on the other hand, that some criticism of the Government must be allowed, that a temperate examination of a judge's opinion is not contempt, and that honest discussion of the merits of a painting causes no liability for damages. But when we ask where the line actually runs and how they know on which side of it a given. utterance belongs, we find no answer in their opinions. Justice Holmes in his espionage-act decisions had a magnificent opportunity to make articulate for us that major premise, under which judges ought to classify words as inside or outside the scope of the first amendment. He, we hoped, would concentrate his great abilities on fixing the line. Instead, like the other judges, he has told us that certain plainly unlawful utterances are, to be sure, unlawful.
* * *
The first amendment. * * * obviously was not intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder would be an unconstitutional interference with free speech.2
* * *
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.3
How about the man who gets up in a theater between the acts and informs the audience, honestly but perhaps mistakenly, that the fire exits are too few or locked? He is a much closer parallel to Schenck or Debs. How about James Russell Lowell when he counselled, not murder, but the cessation of murder, his name for war? The question whether such perplexing cases are within the first amendment or not can not be solved by the multiplication of obvious examples, but only by the development of a ratoinal principle to mark the limits of constitutional protection.
"The gradual process of judicial inclusion and exclusion," which has served so well to define other clauses in the Federal Constitution
12 May, Constitutional History of England, Chap. IX; 2 Stephen, History of the Criminal Law, Chap. 2 Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. Repr. 249, 250 (1919).
3 Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247 (1919).
4 Miller, J., in Davidson v. New Orleans, 96 U. S. 97, 104 (1877).