"attempt,' "obstruct," clearly involves proximate causation. Finally, this is a penal statute and ought to be construed strictly. Attorney General Gregory's charge that judges like Learned Hand "took the teeth" out of the 1917 Act 103 is absurd, for the teeth the government wanted were never there until other judges in an excess of patriotism put in false ones.

Nevertheless, Judge Hand was reversed,104 largely on a point of administrative law,105 but the Circuit Court of Appeals thought it desirable to reject his construction of the Espionage Act and substitute the view that speech is punishable under the Act "if the natural and reasonable effect of what is said is to encourage resistance to law, and the words are used in an endeavor to persuade to resistance." 106 It is possible that the Court of Appeals did not intend to lay down a very different principle from Judge Hand, but chiefly wished to insist that in determining whether there is incitement one must look not only at the words themselves but also at the surrounding circumstances which may have given the words a special meaning to their hearers. Mark Antony's funeral oration, for instance, counselled violence while it expressly discountenanced it.107 However, the undoubted effect of the final decision in Masses v. Patten was to establish the old-time doctrine of indirect causation in the minds of district judges throughout the country. By its rejection of the common-law test of incitement,108 it deprived us of the only standard of criminal speech there was, since there had been no wellconsidered discussion of the meaning of free speech in the First Amendment. It allowed conviction for words which had an indirect effect to discourage recruiting, if the intention to discourage existed," and this requirement of intention became a mere form since it could

103 See page 936, supra.

109

104 Masses Pub. Co. v. Patten, 245 Fed. 102 (C. C. A. 2d, 1917), Hough, J., stayed the injunction; ibid., 246. Fed. 24 (C. C. A. 2d, 1917), Ward, Rogers, and Mayer, JJ., reversed the order granting the injunction.

105 That the postmaster's decision must stand unless clearly wrong. See for authorities against this proposition, 32 HARV. L. REV. 417, 420.

106 Masses v. Patten, 246 Fed. 24, 38, Rogers, J.

107 See the review of Masses v. Patten by Learned Hand, J., in United States v. Nearing, 252 Fed. 223, 227 (S. D. N. Y., 1918).

108 Ibid. Judge Rogers may not have realized he was rejecting it (246 Fed. 38), but the test of common-law incitement has never been applied to the Act by a District Judge since.

109 Masses Pub. Co. v. Patten, 246 Fed. 24, 39 (1917), Ward, J.

111

be inferred from the existence of the indirect effect.110 A few judges, notably Amidon of North Dakota, have stemmed the tide, but of most Espionage Act decisions what Schofield and Stephen and Jefferson said about the prosecutions under George III and the Sedition Act of 1798 can be said once more, that men have been punished without overt acts, with only a presumed intention to cause overt acts, merely for the utterance of words which judge and jury thought to have a tendency to injure the state. Judge Rogers was right in saying 112 that the words of the Espionage Act of 1917 bear slight resemblance to the Sedition Law of 1798, but the judicial construction is much the same, except that under the Sedition Law truth was a defense.

The revival of the doctrines of indirect causation and constructive intent always puts an end to genuine discussion of public matters. It is unnecessary to review the Espionage Act decisions in detail,113 but a few general results may be presented here. The courts have treated opinions as statements of fact and then condemned them as false because they differed from the President's speech or the resolution of Congress declaring war. They have made it impossible for an opponent of the war to write an article or even a letter in a newspaper of general circulation because it will be read in some training camp where it might cause insubordination or interfere with military success. He cannot address a large audience because it is liable to include a few men in uniform; and some judges have held him punishable if it contains men between eighteen and forty-five; while Judge Van Valkenburgh, in United States v. Rose Pastor Stokes,114 would not even require that, because what is said to mothers, sisters, and sweethearts may lessen their enthusiasm for the war, and "our armies in the field and our navies upon the seas can operate and succeed only so far as they are supported and maintained by the folks at home." The doctrine of indirect causation never had

110 Masses Pub. Co. v. Patten, 246 Fed. 24, 39 (1917), Roger, J.: "The court does not hesitate to say that, considering the natural and reasonable effect of the publiIcation, it was intended willfully to obstruct recruiting."

111 See in particular his discussion of "stirring up class against class," in United States v. Brinton, BULL. DEPT. JUST. No. 132 (N. D., 1917).

112 Masses Pub. Co. v. Patten, 246 Fed. 24, 29 (1917).

113 Detailed comment will be found in WALTER NELLES, ESPIONAGE ACT CASES, and in 32 HARV. L. REV. 417.

114 BULL. DEPT. JUST., No. 106, p. 4 (W. D. Mo., 1917).

better illustration than in his charge. Furthermore, although Mrs. Stokes was indicted only for writing a letter, the judge admitted her speeches to show her intent, and then denounced the opinions expressed in those speeches in the strongest language 115 to the jury as destructive of the nation's welfare, so that she may very well have been convicted for the speeches and not for the letter. His decision makes it practically impossible to discuss profiteering, because of "the possible, if not probable effect" 116 on our troops, while a recent case in the Second Circuit 117 makes it equally perilous to urge a wider exemption for conscientious objectors because this tends to encourage more such objectors, a close parallel to the English imprisonment of Bertrand Russell.118 Many men have been imprisoned for arguments or profanity used in the heat of private altercation, and even unexpressed thoughts have been prosecuted through an ingenious method of inquisition.119 And although we are not at war with Russia, three men who opposed our intervention and compared our troops to the Hessians were condemned by Judge Clayton to imprisonment for twenty years. Judge Van Valkenburgh summed up the facts with appalling correctness in view of the long sentences imposed under the Espionage Act, when he said that freedom of speech means the protection of "criticism which is made friendly to the government, friendly to the war, friendly to the policies of the government." 120

The United States Supreme Court did not have an opportunity to consider the Espionage Act until 1919, after the armistice was

115 BULL. DEPT. JUST., No. 106, p. 4 (W. D. Mo. 1917), passim, making use of Mrs. Stokes' declared sympathy with the Russian Revolution, an offense not punishable even under the 1917 Espionage Act, to show how dangerous it was for her to talk about profiteers. His vigorous denunciation of that Revolution, totally unconnected with the indictment, recalls Lord Kenyon's similar use of the massacres of the French Revolution in Rex v. Cuthell, 27 How. St. Tr. 642, 674 (1799). Utterances not covered by the indictment were also admitted in Doe v. United States, 253 Fed. 903 (C. C. A. 8th, 1918). 116 United States v. Rose Pastor Stokes, supra, p. 8.

117 Fraina v. United States, 255 Fed. 28 (C. C. A. 2d, 1918).

118 Rex v. Bertrand Russell, LITTELL'S LIVING AGE, Feb. 15, 1919, p. 385. 119 United States v. Pape, 253 Fed. 270 (1918). A German-American who had not subscribed to Liberty bonds was visited in his house by a committee who asked his reasons and received a courteous reply that he did not wish either side to win the war and could not conscientiously give it his aid. He was thereupon arrested and held in confinement until released by a district court.

120 United States v. Rose Pastor Stokes, supra, p. 14. At least twelve persons have been sentenced for ten years, five for fifteen years, and twenty-one for twenty years.

signed and almost all the District Court cases had been tried. Several appeals from conviction had resulted in a confession of error by the government,121 but at last four cases were heard and decided against the accused. Of these three were clear cases of incitement to resist the draft,122 so that no real question of free speech arose. Nevertheless the defense of constitutionality was raised, and denied by Justice Holmes. His fullest discussion is in Schenck v. United States: 123

"We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . 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."

This portion of the opinion, especially the italicized sentence, substantially agrees with the conclusion reached by Judge Hand, by Schofield, and by investigation of the history and political purpose of the First Amendment. It is unfortunate that "the substantive evils" are not more specifically defined, but if they mean overt acts of interference with the war, then Justice Holmes draws the boundary line very close to the test of incitement at common law and clearly makes the punishment of words for their bad tendency impossible. Moreover, the close relation between free speech and criminal attempts is recognized by the use of a phrase employed by the Justice in an attempt case, Commonwealth v. Peaslee.124

If the Supreme Court had applied this same standard of "clear and present danger" to the utterances of Eugene V. Debs, in the remaining decision,125 it is hard to see how he could have been held

121 32 HARV. L. REV. 420, note 22.

122 Sugarman v. United States, 249 U. S. 130, 39 Sup. Ct. Rep. 191 (1919); Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247 (1919); Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. Rep. 249 (1919).

123 249 U. S. 47, 39 Sup. Ct. Rep. 247, 249. The italics are mine.

124 177 Mass. 267, 272, 59 N. E. 55 (1901). See 963, supra.

125 Debs v. United States, 39 Sup. Ct. Rep. 252 (1919).

guilty. The test is not mentioned, however, but Justice Holmes is willing to accept the verdict as proof that actual interference with the war was intended and was the proximate effect of the words used. The point is that Judge Westenhaver did not instruct the jury according to the Supreme Court test at all, but allowed Debs to be found guilty, in Justice Holmes's words, because of the "natural tendency and reasonably probable effect" of his speech,126 and gave a fairly wide scope to the doctrines of indirect causation 127 and constructive intent,128 so that the defendant could have been and probably was 129 convicted, merely because the jury thought his speech had a tendency to bring about resistance to the draft. If the Supreme Court test is to mean anything more than a passing observation, it must be used to upset convictions for words when the trial judge did not insist that they must create "a clear and present danger" of overt acts.

Justice Holmes seems to discuss the constitutionality of the Espionage Act of 1917 rather than its construction. There can be little doubt that it is constitutional under any test if construed naturally, but it has been interpreted in such a way as to violate the free speech clause and the plain words of the statute, to say nothing of the principle that criminal statutes should be construed strictly. If the Supreme Court test had been laid down in the summer of 1917 and followed in charges by the District Courts, the most casual perusal of the utterances prosecuted makes it sure that there would have been many more acquittals. Instead, bad tendency has been the test of criminality, a test which this article has endeavored to prove wholly inconsistent with freedom of speech, or any genuine discussion of public affairs.

Furthermore, it is regrettable that Justice Holmes did nothing to emphasize the social interest behind free speech, and show the need of balancing even in war time. The last sentence of the passage 126 Debs v. United States, 249 U. S. 211, 39 Sup. Ct. Rep. 252, 254. The italics are mine.

127 United States v. Debs, BULL. DEPT. JUST., No. 155 (N. D. Oh., 1918). See especially the last paragraphs on page 8.

128 Ibid., 15: "In deciding what the defendant's intention was, permit me to suggest to you these questions: Ought he not to have reasonably foreseen that the natural and probable consequences of such words and utterances would or might be to cause insubordination, etc.?”

129 Ernst Freund, "The Debs Case and Freedom of Speech," 19 NEW REPUBLIC, 13 (May 3, 1919); and the correspondence in 19 ibid. 151 (May 31, 1919).