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formerly to discuss the war-time aspects of the general problem of liberty of speech, and this article will approach the general problem from that side. At some later day it may be possible to discuss the proper limits of radical agitation in peace, and also to make a detailed historical examination of the events and documents leading up to the free speech clauses in our state and federal constitutions. For the present it is not feasible to do more than consider the application of those clauses to the treatment of opposition to war.

We shall not, however, confine ourselves to the question whether a given form of federal or state action against pacifist and similar utterances is void under the constitutions. It is often assumed that so long as a statute is held valid under the Bill of Rights, that document ceases to be of any importance in the matter, and may be henceforth disregarded. On the contrary, a provision like the First Amendment to the federal Constitution,

"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 their grievances,"

is much more than an order to Congress not to cross the boundary which marks the extreme limits of lawful suppression. It is also an exhortation and a guide for the action of Congress inside that boundary. It is a declaration of national policy in favor of the public discussion of all public questions. Such a declaration should make Congress reluctant and careful in the enactment of all restrictions upon utterance, even though the courts will not refuse to enforce them as unconstitutional. It should influence the judges in their construction of valid speech statutes, and the prosecuting attorneys who control their enforcement. The Bill of Rights in a European constitution is a declaration of policies and nothing more, for the courts cannot disregard the legislative will though it violates the constitution. Our Bills of Rights perform a double

39 Sup. Ct. Rep. 249, BULL. DEPT. JUST., No. 197 (1919); Debs v. United States, 249 U. S. 211, 39 Sup. Ct. Rep. 252, BULL. DEPT. JUST., No. 196 (1919); Sugarman v. United States, 249 U. S. 182, 39 Sup. Ct. Rep. 191, BULL. DEPT. JUST., No. 195 (1919).

A. V. DICEY, LAW OF THE CONSTITUTION, 8 ed., 130: "This curious result therefore ensues. The restrictions placed on the action of the legislature under the French constitution are not in reality laws, since they are not rules which in the last resort

function. They fix a certain point to halt the government abruptly with a “Thus far and no farther"; but long before that point is reached they urge upon every official of the three branches of the state a constant regard for certain declared fundamental policies of American life.4

Our main task, therefore, is to ascertain the nature and scope of the policy which finds expression in the First Amendment to the United States Constitution and the similar clauses of all the state constitutions, and then to determine the place of that policy in the conduct of war, and particularly the war with Germany. The free speech controversy of the last two years has chiefly gathered about the federal Espionage Act. This Act contains a variety of provisions on different subjects, such as the protection of ships in harbors, spy activities, unlawful military expeditions, etc., but the portion which concerns us is the third section of Title 1.6 As originally enacted on June 15, 1917, this section established three new offenses: (1) false statements or reports interfering with military or naval operations or promoting the success of our enemies; (2) causing or attempting to cause insubordination, disloyalty, mutiny or refusal of duty in the military and naval forces; (3) obstruction of enlistments and recruiting. Attorney General Gregory reports that, although this Act proved an effective instrumentality against deliberate or organized disloyal propaganda, it did not reach the individual, casual, or impulsive disloyal utterances. Also some District Courts gave what he considered a narrow con

will be enforced by the Courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution and from the resulting support of public opinion. What is true of the constitution of France applies with more or less force to other polities which have been formed under the influence of French ideas."

"No doubt our doctrine of constitutional law has had a tendency to drive out questions of justice and right, and to fill the mind of legislators with thoughts of mere legality, of what the constitution allows." J. B. THAYER, LEGAL ESSAYS, 38. See his quotation from 1 BRYCE, AMERICAN COMMONWEALTH, 1 ed., 377.

5 Massachusetts, New Hampshire, Vermont, North and South Carolina retain a short clause like the federal Constitution. The other states follow the New York form: NEW YORK CONSTITUTION, 1822, Art. 7, § 8. "Every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that right; and no law shall be passed, to restrain, or abridge the liberty of speech, or of the press." See Schofield in 9 PROC. AM. SOCIOLOG. SOC. 95.

Act of June 15, 1917, c. 30, tit. 1, § 3; 40 STAT. AT. L. 217, 219; COMP. STAT. 1918, §10212c amended by Act of May 16, 1918, c. 75. The full text of the original and amended sections will be found in notes 91 and 131, infra.

struction of the word "obstruct" in clause (3), so that as he puts it, "most of the teeth which we tried to put in were taken out." 7

"These individual disloyal utterances, however, occurring with considerable frequency throughout the country, naturally irritated and angered the communities in which they occurred, resulting sometimes in unfortunate violence and lawlessness and everywhere in dissatisfaction with the inadequacy of the Federal law to reach such cases. Consequently there was a popular demand for such an amendment as would cover these cases.'


On May 16, 1918, Congress amended the Espionage Act by what is sometimes called the Sedition Act, adding nine more offenses to the original three, as follows: (4) saying or doing anything with intent to obstruct the sale of United States bonds, except by way 'of bona fide and not disloyal advice; (5) uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language, or language intended to cause contempt, scorn, contumely or disrepute as regards the form of government of the United States; (6) or the Constitution; (7) or the flag; (8) or the uniform of the Army or Navy; (9) or any language intended to incite resistance to the United States or promote the cause of its enemies; (10) urging any curtailment of production of any things necessary to the prosecution of the war with intent to hinder its prosecution; (11) advocating, teaching, defending, or suggesting the doing of any of these acts; and (12) words or acts supporting or favoring the cause of any country at war with us, or opposing the cause of the United States therein. Whoever commits any one of these offenses in this or any future war is liable to a maximum penalty of $10,000 fine or twenty years' imprisonment, or both.

This statute has been enacted and vigorously enforced under a constitution which provides: "Congress shall make no law. . . abridging the freedom of speech, or of the press.”

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 irreligious, unwise, or unjust. On the other, federal and state officials point


4 AM. BAR Assoc. JOURN. 306.


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 peacetime 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 cannot be applied with absolute literalness but are subject to exceptions.1 For instance, the prohibition of involuntary servitude in the Thirteenth Amendment does not prevent military conscription,11 or the enforcement of a "work or fight" statute.12 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

• 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."

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

11 Selective Draft Law Cases, 245 U. S. 366, 390 (1918); Claudius v. Davie, 175 Cal. 208 (1917).

12 State v. McClure, 105 Atl. 712 (DEL. Gen. Sess., 1919).

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,13 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." 14 The line where legitimate suppression begins is fixed chronologically at the time of publication. The government cannot 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,15 and is sometimes urged as a reason why libels should not be enjoined.16 It was adopted by American judges in several early prosecutions for libel,1 one of which was in Massachusetts,18 whence Justice Holmes carried it into the United States Supreme Court.19 Fortunately he has now repudiated this interpretation of freedom of speech,20 but not until his dictum had had considerable influence, particularly in Espionage Act cases.21 Of course if the First Amend

13 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, § 1886.


15 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."

16 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).

17 Respublica v. Oswald, 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. AM. SOCIOL. SOC. 69.

18 Commonwealth v. Blanding, 3 Pick. (Mass.) 304, 313 (1825).

19 Patterson v. Colorado, 205 U. S. 454, 462 (1907).

20 Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247, 249 (1919).

21 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.

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