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ment 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,22 so that Blackstone's view does not even correspond to the English law of the last hundred and twenty-five 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,23 and was pronounced by one of his own colleagues to have been "we all know, an anti-republican lawyer." 24
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 altogether 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.25 And whatever else may be thought of the decision under the Espionage Act with the unfortunate title, United States v. The Spirit of '76,26 it was clearly previous restraint for a federal court to direct the seizure 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
22 32 GEO. III, c. 60 (1792). See page 948, infra.
23 I BLACKSTONE, COMMENTARIES, 109.
24 Willes, J., in Dean of St. Asaph's Case, 4 Doug. 73, 172 (1784), quoted by Schofield, 9 PROC. AM. SOCIOL. Soc. 85, note.
25 Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S. 230, 241 (1915).
26 BULL. DEPT. JUST., No. 33 (D. C. S. D. Cal., 1917), Bledsoe, J.
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.27 Cooley's comment on Blackstone is unanswerable: 28
"The mere exemption from previous restraints cannot be all that is secured by the constitutional provisions, 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 people 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.29 And most of the decisions in which a particular statute
27 "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).
28 COOLEY, CONSTITUTIONAL LIMITATIONS, 7 ed., 603, 604. 29 Louthan v. Commonwealth, 79 Va. 196 (1884) statute punishing school superintendent for political speeches; Atchison, etc. Ry. v. Brown, 80 Kans. 312, 102 Pac.
punishing for talking or writing is sustained do not rest upon the Blackstonian interpretation of liberty of speech,30 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.31
A second interpretation of the freedom of speech clauses limits them to the protection of the use of utterance and not to its "abuse." It draws the line between "liberty" and "license." Chief Justice White 32 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: 33
"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 459 (1909) — 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 v. 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 candidates 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.
30 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 v. Pioneer Press Co., 100 Minn. 173, 110 N. W. 867 (1907); Cowan v. Fairbrother, 118 N. C. 406, 418 (1896).
31 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.
32 Toledo Newspaper Co. v. United States, 247 U. S. 402, 419 (1918). 33 State v. McKee, 73 Conn, 18, 28, 46 Atl. 409 (1900).
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 use. . . . 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.34
Practically the same view is adopted by Cooley,35 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 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?
34 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 discuss 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.
35 COOLEY, CONSTITUTIONAL LIMITATIONS, 7 ed., 605; quoted by Hough, J., in Fraina v. United States, 255 Fed. 28, 35 (C. C. A. 2d, 1918).
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 ten 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 common law in 1791. No doubt, conditions then must be considered, 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, 1792.36 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
36 2 MAY, CONSTITUTIONAL HISTORY OF ENGLAND, Chap. IX; 2 STEPHEN, HISTORY OF THE CRIMINAL LAW, Chap. XXIV.