out evils in its management like the secret treaties, which its supporters have been too busy to unearth. The history of the last five years shows how the objects of a war may change completely during its progress, and it is well that those objects should be steadily reformulated under the influence of open discussion not only by those who demand a military victory but by pacifists who take a different view of the national welfare. Further argument for the existence of this social interest becomes unnecessary if we recall the national value of the opposition in former wars.

The great trouble with most judicial construction of the Espionage Act is that this social interest has been ignored and free speech has been regarded as merely an individual interest, which must readily give way like other personal desires the moment it interferes with the social interest in national safety. The judge who has done most to bring social interests into legal thinking said years ago, "I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate and often unconscious." 87 The failure of the courts in the past to formulate any principle for drawing a boundary line around the right of free speech has not only thrown the judges into the difficult questions of the Espionage Act without any well-considered standard of criminality, but has allowed some of them to impose standards of their own and fix the line at a point which makes all opposition to this or any future war impossible. For example:

"No man should be permitted, by deliberate act, or even unthinkingly, to do that which will in any way detract from the efforts which the United States is putting forth or serve to postpone for a single moment the early coming of the day when the success of our arms shall be a fact." 88

The true boundary line of the First Amendment can be fixed only when Congress and the courts realize that the principle on which speech is classified as lawful or unlawful involves the balancing

87 Oliver Wendell Holmes, "The Path of the Law," 10 HARV. L. Rev. 457, 467. 88 United States v. "The Spirit of '76," BULL. DEPT. JUST., No. 33, 2 (S. D. Cal., 1917), Bledsoe, J. Another good example is United States v. Schoberg, BULL. DEPT. JUST., No. 149 (E. D. Ky., 1918), Cochran, J.

against each other of two very important social interests, in public safety and in the search for truth. Every reasonable attempt should be made to maintain both interests unimpaired, and the great interest in free speech should be sacrificed only when the interest in public safety is really imperiled, and not, as most men believe, when it is barely conceivable that it may be slightly affected. In war time, therefore, speech should be unrestricted by the censorship or by punishment, unless it is clearly liable to cause direct and dangerous interference with the conduct of the war.

Thus our problem of locating the boundary line of free speech is solved. It is fixed close to the point where words will give rise to unlawful acts. We cannot define the right of free speech with the precision of the Rule against Perpetuities or the Rule in Shelley's Case, because it involves national policies which are much more flexible than private property, but we can establish a workable principle of classification in this method of balancing and this broad test of certain danger. There is a similar balancing in the determination of what is "due process of law." And we can with certitude declare that the First Amendment forbids the punishment of words merely for their injurious tendencies. The history of the Amendment and the political function of free speech corroborate each other and make this conclusion plain.

The Espionage Act of 1917 seems on its face constitutional under this interpretation of the First Amendment, but it may have been construed so extremely as to violate the Amendment. Furthermore, freedom of speech is not only a limit on Congressional power, but a policy to be observed by the courts in applying constitutional statutes to utterance. The scope of that policy is determined by this same method of balancing social interests. The boundary line of punishable speech under this Act was consequently fixed where words come close to injurious conduct by the judge who has given the fullest attention to the meaning of free speech during the war, Judge Learned Hand, of the Southern District of New York.

In Masses Publishing Co. v. Patten 89 Judge Hand was asked to enjoin the postmaster of New York from excluding from the mails The Masses, a monthly revolutionary journal, which contained several articles, poems, and cartoons attacking the war.

The

Espionage Act of 1917 90 made non-mailable any publication which violated the criminal provisions of that act,91 already summarized in this article.92 One important issue was, therefore, whether the postmaster was right in finding such a violation. The case did not raise the constitutional question whether Congress could make criminal any matter which tended to discourage the successful prosecution of the war, but involved only the construction of the statute, whether Congress had as yet gone so far. Judge Hand held that it had not and granted the injunction. He refused to turn the original Act, which obviously dealt only with interference with the conduct of military affairs, 93 into a prohibition of all kinds of propaganda and a means for suppressing all hostile criticism and all opinion except that which encouraged and supported the existing policies of the war, or fell within the range of temperate argument. As Cooley pointed out long ago, you cannot limit free speech to polite criticism, because the greater a grievance the more likely men are to get excited about it, and the more urgent the need of hearing what they have to say.94 The normal test for the suppression of speech in a democratic government, Judge Hand insists, is neither the justice of its substance nor the decency and propriety of its temper, but the strong danger that it will cause injurious acts.

90 Act of June 15, 1917, c. 30, Title XII, § 2, 40 STAT. AT L. 230, U. S. COMP. Stat., 1918. § 10401 a.

91 Act of June 15, 1917, c. 30, Title I, § 3, 40 STAT. AT L. 219, U. S. COMP. STAT., 1917, § 10212c: “Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies, and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both."

92 Page 935, supra.

93 Masses Publishing Co. v. Patten, supra, 539. The plain fact that the original Espionage Act is a military statute and not a sedition statute is also recognized by United States v. Fontana, BULL. DEPT. JUST., No. 148 (N. D. 1917), Amidon, J.; United States v. Wishek, BULL. DEPT. JUST., No. 153 (N. D., 1917), Amidon, J.; United States v. Henning, BULL. Dept. Just., No. 184 (Wis., 1917), Geiger, D. J.; and implied by other cases. The large number of cases which ignore the clear meaning of the statute is astounding in view of the rule that criminal statutes must be construed strictly.

94 COOLEY, CONSTITUTIONAL LIMITATIONS, 7 ed., 613.

The Espionage Act should not be construed to reverse this national policy of liberty of the press and silence hostile criticism, unless Congress has given the clearest expression of such an intention in the statute.

Judge Hand places outside the limits of free speech one who counsels or advises others to violate existing laws. It is true, he says, that any discussion designed to show that existing laws are mistaken in means or unjust in policy may result in their violation,9% but if one stops short of urging upon others that it is their duty or their interest to resist the law, he should not be held to have attempted to cause illegal conduct. If this is not the test, the 1917 Act punishes every political agitation which can be shown to be apt to create a seditious temper. The language of the statute proves that Congress had no such revolutionary purpose in view. There is no finer judicial statement of the right of free speech than these words of Judge Hand:

"Political agitation, by the passions it arouses or the convictions it engenders, may in fact stimulate men to the violation of law. Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them in execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government. The distinction is not a scholastic subterfuge, but a hard-bought acquisition in the fight for freedom." 96

Look at the Espionage Act of 1917 97 with a post-armistice mind, and it is clear that Judge Hand was right. There is not a word in it to make criminal the expression of pacifist or pro-German opinions. It punishes false statements and reports - necessarily limited to statements of fact-but beyond that does not contain even a provision against the use of language. Clauses (2) and (3) punish successful interference with military affairs and attempts to interfere, which would probably include incitement. 98 The tests

95 He expresses this idea both in Masses Publishing Co. v. Patten, supra, and in United States v. Scott Nearing, 252 Fed. 223, BULL. DEPT. JUST., No. 129 (S. D. N. Y., 1918).

96 Masses Pub. Co. v. Patten, 244 Fed. 535, 540 (1917).

97 See note 91, supra, for text of the act.

98 Attempts do not ordinarily include solicitation, see Beale, infra, 16 HARV. L.

100

of criminal attempt and incitement are well settled.99 The first requirement is the intention to bring about the overt criminal act. But the law does not punish bad intention alone, or even everything done with a bad intention. A statute against murder will not be construed to apply to discharging a gun with the intention to kill a man forty miles away." Attempts and incitement to be punishable must come dangerously near success. A speaker is guilty of solicitation or incitement to a crime only if he would have been indictable for the crime itself, had it been committed, either as accessory or principal.101 Consequently, no one should have been held under clauses (2) and (3) of the Espionage Act of 1917 who did not satisfy these tests of criminal attempt and incitement. As Justice Holmes said in Commonwealth v. Peaslee,102 "It is a question of degree." We can suppose a series of opinions, ranging from "This is an unwise war" up to "You ought to refuse to go, no matter what they do to you," or an audience varying from an old women's home to a group of drafted men just starting for a training-camp. Somewhere in such a range of circumstances is the point where direct causation begins and speech becomes punishable as incitement under the ordinary standards of statutory construction and the ordinary policy of free speech, which Judge Hand applied. Congress could push the test of criminality back beyond this point, although eventually it would reach the extreme limit fixed by the First Amendment, beyond which words cannot be restricted for their remote tendency to hinder the war. In other words, the ordinary tests punish agitation just before it begins to boil over; Congress could change those tests and punish it when it gets really hot, but it is unconstitutional to interfere when it is merely warm. And there is not a word in the 1917 Espionage Act to show that Congress did change the ordinary tests or make any speech criminal except false statements and incitement to overt acts. Every word used, " cause, REV. 491, 506, note 1; but attempts to commit offences under the 1917 Espionage Act would naturally be by incitement.

99 Joseph H. Beale, "Criminal Attempts," 16 HARV. L. REV. 491; Commonwealth v. Peaslee, 177 Mass. 267, 59 N. E. 55 (1901), Holmes, C. J.; United States v. Stephens 12 Fed. 52 (Ore. 1882), Deady, D. J. See also 32 HARV. L. Rev. 417.

100 United States v. Stephens, supra, illustrates the same principle.

101 See Beale, supra, 16 HARV. L. REV. 491, 505. Under the federal statutes he would be a principal. REV. STAT. §§ 5323, 5427, March 4, 1909, c. 321 § 332; 35 STAT. AT L. 1152; U. S. COMP. STAT. 1918, § 10506 (Crim. Code, § 332).

102 177 Mass. 267, 272, 59 N. E. 55 (1901).