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.' "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.'

9 38

937

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 counseled, not murder, but the cessation of murder, his name for war? The question whether such perplexing cases are within the First Amendment or not cannot be solved by the multiplication of obvious examples, but only by the development of a rational principle to mark the limits of constitutional protection.

99 39

"The gradual process of judicial inclusion and exclusion,' which has served so well to define other clauses in the federal Constitution by blocking out concrete situations on each side of the line until the line itself becomes increasingly plain, has as yet been of very little use for the First Amendment. The cases are too few, too varied in their character, and often too easily solved, to develop any definite boundary between lawful and unlawful speech. Even if some boundary between the precedents could be attained, we could have little confidence in it unless we knew better than now the fundamental principle on which the classification was based. Indeed, many of the decisions in which statutes have been held to violate free speech seem to ignore so seriously the economic and political facts of our time, that they are precedents of very dubious

37 Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. Rep. 249, 250 (1919).

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

39 Miller, J., in Davidson v. New Orleans, 96 U. S. 97, 104 (1877).

value for the inclusion and exclusion process.40 Nearly every free speech decision, outside such hotly litigated portions as privilege and fair comment in defamation, appears to have been decided largely by intuition.

Fortunately Justice Holmes has not left us without some valuable suggestions pointing toward the ultimate solution of the problem of the limits of free speech," and still others are contained in Judge Learned Hand's opinion in Masses v. Patten.42 To these we shall soon return. For the moment, however, it may be worth while to forsake the purely judicial discussion of free speech, and obtain light upon its meaning from the history of the constitutional clauses and from the purpose free speech serves in social and political life. If we apply Coke's test of statutory construction, and consider what mischief in the existing law the framers of the First Amendment wished to remedy by a new safeguard, we can be sure that it was not the censorship. This had expired in England in 1695,43 and in the colonies by 1725.1 44 For years the government here and in England had substituted for the censorship rigorous and repeated prosecutions for criminal libel or seditious libel, as it was often called, which were directed against political discussion, and for years these prosecutions were opposed by liberal opinion and popular agitation. Primarily the controversy raged around two legal contentions of the great advocates for the defense, such as Erskine and Andrew Hamilton. They argued, first, that the jury and not the judge ought to decide the libellous nature of the writing, and secondly, that the truth of the charge ought to prevent conviction. The real issue, however, lay much deeper. Two different views of the relation of rulers and people were in conflict.45 According to one view, the rulers were the superiors of the people, and therefore must not be subjected to any censure that would tend to diminish their authority. The people could not make adverse criticism in newspapers or pamphlets, but only through their lawful representatives in the legislature, who might be petitioned in an orderly. manner. According to the other view, the rulers are agents and

40 See note 29, supra.

の

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

42 244 Fed. 535 (S. D. N. Y., 1917); reversed in 246 Fed. 24 (C. C. A. 2d., 1917).

43 MACAULAY, HISTORY OF ENGLAND, Chap. XIX.

44 C. A. DUNIWAY, FREEDOM OF SPEECH IN MASSACHUSETTS, 89, note.

45 2 STEPHEN, HISTORY OF THE CRIMINAL LAW, 299.

servants of the people, who may therefore find fault with their servants and discuss questions of their punishment or dismissal.

Under the first view, which was officially accepted until the close of the eighteenth century, developed the law of seditious libel. This is defined as "the intentional publication, without lawful excuse or justification, of written blame of any public man, or of the law, or of any institution established by law."46 There was no need to prove any intention on the part of the defendant to produce disaffection or excite an insurrection. It was enough if he intended to publish the blame, because it was unlawful in him merely to find fault with his masters and betters. Such, in the opinion of the best authorities, was the common law of sedition.47

It is obvious that under this law liberty of the press was nothing more than absence of the censorship, as Blackstone said. All through the eighteenth century, however, there existed beside this definite legal meaning of liberty of the press, a definite popular meaning: the right of unrestricted discussion of public affairs. There can be no doubt that this was in a general way what freedom of speech meant to the framers of the Constitution. As Schofield says, "One of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press. Liberty of the press as declared in the First Amendment, and the English common-law crime of sedition, cannot co-exist."'48 I must therefore strongly dissent, as would Professor Schofield, from the conclusion of Dean Vance in a recent article on the Espionage Act, that the founders of our government merely intended by the First Amendment "to limit the new government's statutory powers to penalize utterances as seditious, to those which were seditious under the then accepted common-law rule." 49 The founders had seen seventy English prosecutions for libel since 1760, and fifty convictions under that common-law rule, which made conviction easy.50 That rule had been detested in this country ever since it was repudiated by jury and populace in the famous trial of Peter Zenger,

46 2 STEPHEN, HISTORY OF THE CRIMINAL LAW, 353.

47 Ibid., 353, and Chap. XXIV, passim; Schofield, in 9 PROC. AM. SOCIOL. Soc., 70 ff., gives an excellent summary with especial reference to American conditions.

48 Schofield, Ibid., 76, 87.

49 W. R. Vance, in "Freedom of Speech and of the Press," 2 MINN. L. REV. 239, 259.

60

2 MAY, CONSTITUTIONAL HISTORY OF ENGLAND, 2 ed., 9, note.

the New York printer, the account of which went through fourteen editions before 1791.51 Nor was this the only colonial sedition prosecution under the common law, and many more were threatened.52 The First Amendment was written by men to whom Wilkes and Junius were household words, who intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America.

It must not be forgotten that the controversy over liberty of the press was a conflict between two views of government, that the law of sedition was a product of the view that the government was master, and that the American Revolution transformed into a working reality the second view that the government was servant, and therefore subjected to blame from its master, the people. Consequently, the words of Sir James Fitzjames Stephen about this second view have a vital application to American law.53

"To those who hold this view fully and carry it out to all its consequences there can be no such offence as sedition. There may indeed be breaches of the peace which may destroy or endanger life, limb, or property, and there may be incitements to such offences, but no imaginable censure of the government, short of a censure which has an immediate tendency to produce such a breach of the peace, ought to be regarded as criminal."

The repudiation by the Constitutions of the English common law of sedition, which was also the common law of the American colonies,

51 17 How. ST. TR. 675 (1735). The fullest account of Zenger and the trial is given by LIVINGSTON RUTHERFORD, JOHN PETER ZENGER, New York, 1904. Rutherford's bibliography lists thirteen editions of the account of the trial before 1781. The Harvard Law School Library contains four of these (London, 1738; London, 1752; London, 1765; New York, 1770), and also an undated copy without specified place differing from any listed by Rutherford. See also the life of Zenger's counsel, Andrew Hamilton, by William Henry Loyd, in 1 GREAT AMERICAN LAWYERS, 1. The close relation between the Zenger trial and the prosecutions under George III in England and America is shown by the quotations on reprints of the trial and the dedication of the 1784 London edition to Erskine.

I

52 C. A. DUNIWAY, FREEDOM OF THE PRESS IN MASSACHUSETTS, 91, 93, 115, 123, 130, and note. In 1767 Chief Justice Hutchinson charged the grand jury on Blackstonian lines, "This Liberty means no more than a Freedom for every Thing to pass from the Press without a License." Ibid., 125.

53 2 STEPHEN, HISTORY OF THE CRIMINAL LAW, 300. The italics are mine. See also Schofield, 9 PROC. AM. SOCIOL. Soc. 75.

has been somewhat obscured by judicial retention of the two technical incidents of the old law after the adoption of the free speech clauses. Many judges, rightly or wrongly, continued to pass on the criminality of the writing and to reject its truth as a defense,54 until statutes or new constitutional provisions embodying the popular view on these two points were enacted.55 Doubtless, a jury will protect a popular attack on the government better than a judge, and the admission of truth as a defense lessens the evils of suppression. These changes help to substitute the modern view of rulers for the old view, but they are not essential. Sedition prosecutions went on with shameful severity in England after Fox's Libel Act 56 had given the jury power to determine criminality. The American Sedition Act of 1798,57 which President Wilson declares to have "cut perilously near the root of freedom of speech and of the press, entrusted criminality to the jury and admitted truth as a defense. On the other hand, freedom of speech might exist without these two technical safeguards. The essential question is not, who is judge of the criminality of an utterance, but what is the test of its criminality. The common law and the Sedition Act of 1798 made the test blame of the government and its officials, because to bring them into disrepute.tended to overthrow the state. The real issue in every free-speech controversy is this whether the state can punish all words which have some tendency, however remote, to bring about acts in violation of law, or only words which directly incite to acts in violation of law.

9958

If words do not become criminal until they have an immediate tendency to produce a breach of the peace, there is no need for a law of sedition, since the ordinary standards of criminal solicitation and attempt apply. Under those standards the words must bring the speaker's unlawful intention reasonably near to success. Such a limited power to punish utterances rarely satisfies the zealous in times of excitement like a war. They realize that all condemnation

54 DUNIWAY, supra, Chap. IX; Commonwealth v. Clap, 4 Mass. 163 (1808); Commonwealth v. Blanding, 3 Pick. (Mass.) 304 (1825).

55 Examples are: PA. CONS. 1790, Art. 9, § 7; N. Y. SESSION LAWS, 1805, c. 90; N. Y. CONS., 1822, Art. VII, § 8; MASS. LAWS, 1827, c. 107. See Schofield, op. cit., 95-99.

57 I STAT. AT L., c. 74, 596, Act of July 14, 1798.

58

3 WOODROW WILSON, HISTORY OF THE AMERICAN PEOPLE, 153.