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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'

These constitutional provisions are, of course, sacred to the American people and they safeguard rights of the most transcendent importance; but when those provisions were written into our constitutions, the framers thereof had in mind the thought that self-preservation was a primal right of nations, as of men, and that the exercise of free speech was intended for the perpetuation of a free government and not for the destruction thereof. It is these constitutional provisions that, strangely, have been invoked by those persons in the community who have attempted to pervert them and who have attempted to use these provisions as a cloak for the preaching of the doctrine that organized government should be overthrown by force and violence.

The Court of Appeals of this State, in construing the above quoted provision of our State Constitution, and defining the meaning of free speech (Judge Van writing the opinion, in the case of People v. Most, 171 N. Y. 423, at p. 431), used the following language:

"While the right to publish is thus sanctioned and secured, the abuse of that right is excepted from the protection of the Constitution, and authority to provide for and punish such abuse is left to the legislature. The punishment of those who publish articles which tend to corrupt morals, induce crime or destroy organized society, is essential to the security of freedom and the stability of the state. While all the agencies of government, executive, legislative and judicial, cannot abridge the freedom of the press, the Legislature may control and the courts may punish the licentiousness of the press. The liberty of the press,' as Chancellor Kent declared in a celebrated case, consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it respects governments, magistracy or individuals.' (Peo. v. Croswell, 3 Johns. Cas. 336, 393.) Mr. Justice Story defined the phrase to mean, that every man shall have a right to speak, write or print his opinions upon any subject whatsoever,

without any prior restraint, so always, that he does not injure any other person in his rights, person, property or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the Government.' (Story's Commentaries on the Const., Sec. 1874.)

"The Constitution does not protect a publisher from the consequences of a crime committed by the act of publication. It does not shield a printed attack on private character, for the same section from which the above quotation is taken expressly sanctions criminal prosecution for libel. It does not permit the advertisement of lotteries, for the next section prohibits lotteries and the sale of lottery tickets. It does not permit the publication of blasphemous or obscene articles, as the authorities uniformly hold. (People v. Ruggles, 8 Johns. 290, 297; People v. Muller, 96 N. Y. 408; In re Rapier, 143 U. S. 110.) It places no restraint upon the power of the Legislature to punish the publication of matter which is injurious to society according to the standard of the common law. It does not deprive the State of the primary right of self-preservation. It does not sanction unbridled license, nor authorize the publication of articles prompting the commission of murder or the overthrow of government by force. All courts and commentators contrast the liberty of the press with its licentiousness, and condemn as not sanctioned by the constitution of any state, appeals designed to destroy the reputation of the citizen, the peace of society or the existence of the government. (Story on Const., Chap. 1878; Cooley on Const. Lim., 518; Ordronaux on Constitutional Legislation, 237; Tiedeman on Police Powers, Chap. 81.) We think that no constitutional right of the defendant was violated by his conviction and that the judgment pronounced against him was rendered in accordance with law."

In the case of Scheneck v. the United States, and Baer v. the United States, 249 U. S. 47, the Supreme Court of the United states (Mr. Justice Holmes delivering the opinion), said in part:

"But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even pro

tect a man from an injunction against uttering words that may have all the effect of force. (Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 439.) 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."

In the case of Berkman and Goldman, the notorious anarchists who were recently deported from the United States, the claim was advanced by the defendants that their prosecution was an infringement on the right of free speech guaranteed by the Constitution. The fact of the matter was that Berkman and Goldman counselled disobedience to the Selective Service Law and urged their hearers not to register and not to obey the provisions of the said law; and Judge Mayer, in the United States District Court, in charging the jury in the Berkman-Goldman case, used the following language:

"This is not a trial of political principles. This cannot be turned into a political or state trial in the political sense. You are not to be misled by any effort to digress your mind. from the real issue, which simply is, whether these defendants are guilty or not guilty of the crime charged in the indictment.

"This is not a question of free speech. Free speech is guaranteed to us under the Constitution. No American worthy of the name believes in 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; and that free speech is guaranteed to us, and no court would deny it to anyone."

On June 15, 1917, the Espionage Law was passed, with the object of reaching not only those persons who might be engaged in espionage and to protect our country and industrial resources,

but also to prevent any unlawful interference with the Nation's efforts to raise an army and navy. Section 3 of that Act provided:

"Whoever when the United States is at war shall willfully cause or attempt to cause insubordination, disloyalty, munity or refusal of duty in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States to the injury of the service 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."

Eugene V. Debs, "our dear Gene" of the Socialist Party, and who is that party's candidate for President this year, was one of the "two thousand Socialists" who were arrested following the passage of the Espionage Act. Debs at a public meeting so couched his language that it was apparent that his purpose was to paralyze the Government of the United States in its endeavor to raise an army for the defense of the Nation. It was urged in his behalf at the time of his trial that he had committed no violation of law, that he was simply exercising the privileges of a free citizen, and that his utterances were protected under the provisions of the first Amendment to the Federal Constitution.

Mr. Justice Holmes, of the United States Supreme Court, writing the opinion in the Debs case, for a unanimous court, used the following forceful language:

"The main theme of the speech was Socialism, its growth, and a prophecy of its ultimate success. With that we have nothing to do, but if a part or the manifest intent of the more general utterances was to encourage those present to obstruct the recruiting service, and if in passages such encouragement was indirectly given, the immunity of the general theme may not be enough to protect the speech."

And then, after quoting from this speech, Mr. Justice Holmes, at another part of the opinion, said:

The statement was not necessary to warrant the jury in finding that one purpose of the speech -whether incidental or not does not matter was to oppose not only war in general, but this war, and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting. If that was intended, and if, in all the

curcumstances, that would be its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief."

In the case of Patterson v. Colorado, 206 U. S. 454, at p. 462, the Supreme Court of the United States, Mr. Justice Holmes writing the opinion, used the following language:

"But even if we were to assume that freedom of speech and freedom of the press were protected from abridgment on the part not only of the United States but also of the States, still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is To prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. (Commonwealth v. Blanding, 3 Pick. 304, 313, 314; Republica v. Oswald, 1 Dallas, 319, 325.) The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false."

In the case of the People against Louis C. Fraina, 255 Federal Reporter, p. 28 et seq., the United States Circuit Court of Appeals of the Second Circuit, Judge Hough writing the opinion, used the following language:

"The mental attitude evident throughout the conduct of defense below, and argument here, is suggested rather than plainly stated by the points that it was error to permit the jury to infer guilt from the speeches, that in so doing defendants were tried for their words, and such procedure invades the right of free speech.

"We think the contention may be thus summed up: If there was a meeting of minds, it was not actually productive of any breach of peace; no one was shown to have refused physical obedience to the law; it was all words; and men cannot constitutionally and lawfully be punished for words, especially when the language relates to rights based on the moral sense, i. e., the idealism,' of the non-religious conscientious objector.'