"The matter at bottom is political, not legal. Men can be unished for words, if the legislature so decrees, within constitutional limits. Men commit crimes when they counsel or procure others to sin against the statute law, and they also commit crimes when they confederate to effect that object, and yet it is difficult to imagine any more suitable or usual method of procuring or counselling than by speech. In this inaccurate sense men have very often been punished for words by statutory enactment.

"The free speech secured federally by the first amendment means complete immunity for the publication by speech or print of whatever is not harmful in character, when tested by such standards as the law affords. For these standards we must look to the common law rules in force when the constitutional guarantees were established and in reference to which they were adopted. By legislative action the boundaries of unpunishable speech have doubtless and often been much enlarged; but the constitutional limit remains unchanged, and what the legislature has done it can undo. Legal talk-liberty never has meant, however, the unrestricted right to say what one pleases at all times and under all circumstances.' Warren v. United States, 183 Fed., at 721, 106 C. C. A. 156, 33 L. R. A. (N. S.) 800. Nothing said to the jury by the court below in this case went beyond the limits this stated, and there was no error.

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Complaint as to inferring guilt from speeches, or letting men be found guilty therefrom, when or if the speeches only expressed moral principles and social aspirations, is really objecting to the statutes. The statutes in question here, like most others, are of general application; they must be so unless exceptions of equal authority are also stautory. They operate alike on the religious, the atheist and the unthinking." This is the same Louis C. Fraina who was one of the organizers of the Communist Party of America in Chicago in September, 1919.

In the case of Roger N. Baldwin, the court used the following language:

"It would be impossible for me to convey to your mind successfully the point of view which I think is entertained by the great masses of the people, and which must be enter

tained by the courts and by those, such as the Department of Justice, who are charged with the administration of the law.

"In all that you have said, I think that you have lost sight of one very fundamental and essential thing for the preservation of that American liberty to which, by tradition, you feel that you are genuinely devoted.

"A republic can last only so long as its laws are obeyed. The freest discussion is permitted, and should be invited, in the processes that lead up to the enactment of a statute. There should be the freest opportunity of discussion as to the method of administration of a statute by human beings, but the republic must cease to exist if disobedience to any law enacted by the orderly processes laid down by the Constitution is in the very slightest degree to be tolerated.

"That is, from my point of view, fundamental; that is essential not only from an ideal standpoint, but from a practical standpoint, and we should not be able, as I think most Americans think, to conduct what we regard as the government of the free people, if some individual, whether from good or bad motives, were able to successfully violate a statute duly, properly and constitutionally passed, because his own view of the statute might differ from that entertained by the lawmakers who had enacted the law, and the executice who has given it his approval.

"That, to my mind, is the foundation of our system; its perpetuity rests upon obedience of the law.

"It may often be that a man or woman has greater foresight than the masses of the people; and it may be that in the history of things he who seems to be wrong today may be right tomorrow, but with those possible idealistic and academic speculations a court has nothing to do."

It may be interesting to note that several of the defendants in the cases above cited which arose subsequent to the entry of this country in the Great War were Socialists, with the exception of Berkman and Goldman, who were avowed anarchists.

Roger N. Baldwin has been described as a philosophical anarchist by the Socialist, Rev. Norman M. Thomas. It is quite evident that these men and women in their written and spoken utterances were guided by the war declaration and platform of the Socialist Party of America, adopted at the St. Louis Conven

tion in April, 1917, and which has been more fully treated elsewhere in this report, and particularly to that portion of the St. Louis Platform, which provided as follows:

to continuous, active and public opposition to the war, through all means within our power and to unyielding opposition to all military or industrial conscription and any attempt to raise money for war expense by taxing the necessaries of life or issuing bonds which will put the burden on future generations."

The foregoing decisions clearly establish the proposition that self-defense is the primal right of a free nation that a nation has the rught to punish either written or spoken attempts to undermine its existence, and that the constitutional provisions, both state and federal, with regard to free speech, do not protect that abuse of free speech, the object of which is the destruction or the weakening of the nation. Those misguided apologists for revolutionary radicalism who would place no curb whatever upon speech, have evidently lost sight of these fundamental principles of government. This is particularly true of such organizations as the National Civil Liberties Bureau, whose counsel, Walter Nelles, expressed the opinion that in a republic there could exist no such crime as Criminal Anarchy.

In the course of the hearing before Chief City Magistrate William McAdoo, in the case of the People of the State of New York against Benjamin Gitlow and James Larkin, Mr. Nelles, in arguing for the dismissal of the charges pending against his clients, advanced the rather anomalous argument that the use of language, the object of which was to urge the forcible and violent overthrow of organized government, did not constitute a crime, and challenged the constitutionality for that reason of the Criminal Anarchy statute of this State.

While this Committee believes that there should be the fullest freedom of speech, within constitutional limitations, we do not believe that liberty and freedom of speech under the Constitution mean the unrestrained right to do and say that which will result in the forcible and violent overthrow of our form of government.

The Circuit Court of Appeals for the Eighth Circuit, in the case of Warren v. The United States, 183 Fed. Rep. 718, at p. 721, very aptly said:

"Liberty and freedom of speech under the constitution do not mean the unrestrained right to do and say what one pleases at all times and under all circumstances, and certainly they do not mean that contrary to the will of Congress one may make of the post office establishment of the United States an agency for the publication of his views of the character and conduct of others, as distinguished from the carriage of the mails. The very idea of government implies some imposition of restraint in the interest of the general welfare, peace and good order. The statute under consideration is a part of a body of legislation which is being gradually enlarged, and which is designed to exclude from the mails that which tends to debauch the morals of the people, or is contrived to despoil them of their property or is an apparent, visible attack upon their good names. The competency of Congress is beyond question, and the courts have uniformly upheld the legislation and applied it in the light of its evident purposes.'

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The chief criticism of those persons in the community who oppose the enforcement of the criminal anarchy statute of this state is that it does not require an overt act for the consummation of the crime there defined, and that it is sought to punish persons for their opinions, their idea apparently being that the mere counselling of force and violence, without the actual commission of an act of violence, is not criminal. The fallacy of this argument is apparent on a moment's reflection, for really, what more overt act is needed than the urging or counselling or advising another that organized government should be overthrown by force and violence? It is in this way that riots are started the harangue, the rousing of the hot blood of the listener, the picturing of fancied wrongs, the appeal to the mob spirit, and then the mob in action.

We have made a comparison of the statutes of many of the states of the Union dealing with the subject of criminal anarchy, syndicalism, sedition and the display of the red and black flag, which we reprint at the end of this chapter. A study of these statutes, however, leads us to the opinion expressed in our preliminary report that the criminal anarchy statute of this state is sufficiently broad and comprehensive to protect the people of our state and its institutions, provided this statute is properly enforced. The committee seeks to put no curb upon.

the expressions or upon the thoughts of the people of this State, other than the necessary check against that abuse of free speech that is covered by the existing criminal anarchy statute above referred to.

Many of the statutes of the other States of the Union set forth at the end of this chapter embody within them a far greater limitation upon freedom of speech and the utterances of the individual than does our own statute. The phraseology of some of them is of such a character as possibly to invite the criticism that they constitute a curb upon freedom of speech and expression, and therein lies the superiority of our statute. No person, we believe, can legitimately claim that the New York statute dealing with the subject of Criminal Anarchy constitutes a curb upon free speech, for in its essential terms it makes a crime of that only which constitutes the advocacy of the forcible, violent or unlawful overthrow of our form of government.

At the time of the writing of this report, Senate bill, Int. No. 1118, entitled "An act to amend the executive law, in relation to powers of attorney-general with respect to prosecutions for criminal anarchy, and making an appropriation therefor," and introduced in the Senate by the Chairman of this Committee, passed both the Senate and the Assembly of the State of New York, and it is now awaiting the action of the Governor thereon. This statute confers upon the attorney-general concurrent jurisdiction with the district attorneys of the various counties of this state the power to prosecute violations of the criminal anarchy statute of this state, and places at the disposal of the attorneygeneral the necessary men and resources for the proper enforcement of the criminal anarchy statute.

By this statute it is not sought to usurp the functions of the district attorneys, nor to displace them, but by giving the attor ney general concurrent jurisdiction in the prosecution of violators of the criminal anarchy statute, it is believed that there will be a more uniform administration of this law, and a better check kept on those who seek to violate it.

The bill follows:

: