quoted from the Schenck case seems to mean that the Supreme Court will sanction any restriction of speech that has military force behind it, and reminds us that the Justice used to say when he was young, "that truth was the majority vote of that nation that could lick all others." 130 His liberalism seems held in abeyance by his belief in the relativity of values. It is not by giving way to force and the majority that truth has been won. Hard it may be for a court to protect those who oppose the cause for which men are dying in France, but others have died in the past for freedom of speech.

Inconclusive as the Supreme Court decisions are in many ways, there are three important facts about them. First, they lay down a good test for future free speech cases, "clear and present danger." Secondly, they involved three clear cases and one case close to the line. They do not justify the construction given the Act of 1917 in United States v. Rose Pastor Stokes. Finally, they do not touch the constitutionality of the Espionage Act of 1918. That Act came too late to be much discussed judicially in this war, but it applies in all future wars. It goes so far in punishing discussion for supposed bad tendencies without even recognizing truth as a defense that it is probably unconstitutional.131

130 Oliver Wendell Holmes, "Natural Law," 32 HARV. L. REV. 40 (1918).

131 For further consideration of the Act of 1918, see Z. Chafee, Jr., "Freedom of Speech," 17 NEW Republic, 66 (Nov. 16, 1918). Title I, § 3, as amended, reads as follows (Act of May 16, 1918, 40 STAT. AT L., 219, c. 75, § 1, U. S. COMP. STAT. 1918, § 10212 c):

"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 his enemies, or shall willfully make or convey false reports or false statements, or say or do anything except by way of bona fide and not disloyal advice to an investor or investors, with intent to obstruct the sale by the United States of bonds or other securities of the United States or the making of loans by or to the United States; and whoever, when the United States is at war, shall willfully cause, or attempt to cause, or incite or attempt to incite, 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, and whoever, when the United States is at war, shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States into contempt, scorn, contumely, or disrepute, or shall willfully utter, print,

The federal government has restricted speech in two other ways besides punishment. It has excluded many publications from the mails. This is clearly previous restraint and might seem forbidden by the Blackstonian definition, which, however, is held not to apply to the postal power. 132 This power, like the war power, ought to be subject to the requirements of free speech and due process of law, and there are dicta of the Supreme Court that it is not unlimited.133 Although the post-office may not be strictly a common carrier,13 it is in the nature of a public service company. Its functions have been performed by private persons in the past, and probably would be shared by them now if it were not unlawful because of the greater speed possible.135 According to the political theories of Leon Duguit,136 the government in furnishing public service must be judged by ordinary standards of public callings. If the United States owned the railroads, it ought not to make unreasonable discrimination among passengers any more than a private railroad corporation, and a similar limitation should apply to the postal power. The congressional restrictions which have been upheld by the courts may be considered as reasonable regulations in view of the nature of the service. Even opposition to the government may be entitled to some consideration by the post-office as by the write, or publish any language intended to incite, provoke, or encourage resistance to the United States, or to promote the cause of its enemies, or shall willfully display the flag of any foreign enemy, or shall willfully by utterance, writing, printing, publication, or language spoken, urge, incite, or advocate any curtailment of production in this country of any thing or things, product or products, necessary or essential to the prosecution of the war in which the United States may be engaged, with intent by such curtailment to cripple or hinder the United States in the prosecution of the war, and whoever shall willfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated, and whoever shall by word or act support or favor the cause of any country, with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both."

The italicized words punish language for remote tendencies: Cf. the Sedition Act of 1798.

132 Masses Pub. Co. v. Patten, 246 Fed. 24, 27 (1917), Rogers, J. The operation of our postal censorship is shown by William Hard's articles cited in note 1, supra.

133 Ex Parte Jackson, 96 U. S. 727 (1877); Public Clearing House v. Coyne, 194 U. S. 497, 507 (1904).

134 Masses Pub. Co. v. Patten, 245 Fed. 102, 106 (1917), Hough, J.

125 Something like this happened when the Western Union Telegraph Co. recently tried to carry "night-letters" by messengers on trains.

136 See H. J. Laski in 31 HARV. L. REV. 186; and his AUTHORITY IN THE MODERN STATE, p. 378.

judges, who frequently decide against the United States. It is clear that exclusion from the mails practically destroys the circulation of a book or periodical, and makes free speech to that extent impossible. To say, as many courts do, that the agitator is still at liberty to use the express or the telegraph,137 recalls the remark of the Bourbon princess when the Paris mob shouted for bread, "Why don't they eat cake?"

Still another method of suppression of opinion has been used. Not only have we substantially revived the Sedition Act of 1798, but the Alien Act as well.138 Aliens have been freely deported 139 under statutes passed during the war,140 and even naturalized citizens or native American women marrying foreigners are within the reach of this power. A former German subject who was naturalized in 1882 refused in 1917 to contribute to the Red Cross and the Young Men's Christian Association because he would do nothing to injure the country where he was brought up and educated. His naturalization certificate was revoked after thirty-five years on the presumption that his recent conduct showed that he took the oath of renunciation in 1882 with a mental reservation as to the country of his birth. He may therefore be deported as an enemy alien.141

This completes the record of the restriction of speech in the United States during the late war, except for several decisions in the state courts which need not be discussed in detail.142 Although we have not gone so far as Great Britain 143 in disregarding con

137 This alternative is even less valuable when the government controls the express and the telegraph. The NEW YORK WORLD was recently denied the opportunity to use the telegraph to distribute a criticism of Mr. Burleson. COLLIER'S WEEKLY, May 17, 1919, p. 16.

138 See 952, supra.

139 CHARLES RECHT, AMERICAN DEPORTATION AND EXCLUSION LAWS, Boston, League for Democratic Control, 1919.

140 Act of Feb. 5, 1917, 39 STAT. AT L. c. 29, § 19, p. 889; U. S. COMP. STAT. 1918, § 42894 jj; Act of Oct. 16, 1918, c. 186.

141 United States v. Wusterbarth, 249 Fed. 908 (N. J., 1918), Haight, J.; see also United States v. Darmer, 249 Fed. 989 (W. D. Wash., 1918), Cushman, J.

142 State Espionage Acts: State v. Holm, 166 N. W. 181 (Minn., 1918); State v. Spartz, 167 N. W. 547 (Minn., 1918); State v. Tachin, 106 Atl. 145 (N. J., 1919). Municipal Ordinance regulating newspapers invalid: Star v. Brush, 170 N. Y. Supp. 987 (1918); 172 N. Y. Supp. 851 (1918). Libel in war controversy: Van Lonkhuyzen v. Daily News, 195 Mich. 283, 161 N. W. 979 (1917), 170 N. W. 93 (1918). Expulsion of college student for pacifism: not reviewed, Samson v. Columbia, 101 N. Y. Misc. 146, 167 N. Y. Supp. 202 (1917).

143 The Defence of the Realm Consolidation Act, 1914, 5 GEO. 5, c. 8, § 1, gives His

stitutional guarantees, we have gone much farther than in any other war, even in the Civil War with the enemy at our gates.144 Undoubtedly some utterances had to be suppressed. We have passed through a period of danger, and have reasonably supposed the danger to be greater than it actually was, but the prosecutions in Great Britain during a similar period of peril in the French Revolution have not since been regarded with pride. Action in proportion to the emergency was justified, but we have censored and punished speech which was very far from direct and dangerous interference with the conduct of the war. The chief responsibility for this must rest, not upon Congress which was content for a long period with the moderate language of the Espionage Act of 1917, but upon the officials of the Department of Justice and the Post-office, who turned that statute into a drag-net for pacifists, and upon the judges who upheld and approved this distortion of law. It may be questioned, too, how much has actually been gained. Men have been imprisoned, but their words have not ceased to spread.145 The poetry in the Masses was excluded from the mails only to be given a far wider circulation in two issues of the Federal Reporter. The mere publication of Mrs. Stokes' statement in the Kansas City Star, "I am for the people and the Government is for the profiteers,' Majesty in Council power "to issue regulations." A very wide scope is given to this power by the House of Lords in Rex v. Halliday, [1917] A. C. 260, Lord Shaw of Dunfermline dissenting. See 31 HARV. L. REV. 296. Regulation 27 of the Orders in Council makes various forms of speech, writing, etc., offenses. Regulation 51 A provides for the seizure of publications on warrant, and Regulation 56 (13) for the punishment of press offenses. See Pulling, Defense of the Realm Manual, revised monthly. These regulations have been construed in Norman v. Mathews, 32 T. L. R. 303, 369 (1915); Fox v. Spicer, 33 T. L. R. 172 (1917); Rex v. Bertrand Russell, supra, note 128. The practical effect has been to establish an administrative censorship. H. J. LASKI, AUTHORITY IN THE MODERN STATE, 101.

144 J. F. RHODES, HISTORY OF THE UNITED STATES, III, 553, IV, 245-253, 267 note, 467, 473, VI, 78, 96. For Lincoln's refusal to allow General Burnside and his subordinates to suppress the Chicago Times and other newspapers of Copperhead tendencies in Illinois, Indiana, and Ohio, see also Official Record of the Rebellion, Series II, Vol. V, 723, 741; Series III, Vol. III, 252.

The case of Ex parte Vallandigham, 1 Wall. (U. S.) 243 (1863), is sometimes supposed to support the unlimited exercise of the war power to restrict speech. See Ambrose Tighe in 3 MINN. L. REV. I (1918). The decision merely holds that the writ of certiorari does not lie to a military tribunal. Nothing is said as to the existence of some other remedy such as habeas corpus, or an action for false imprisonment. Ex parte Vallandigham, 28 Fed. Cas. 874 (1863), lends support to Mr. Tighe. The treatment of Vallandigham is considered illegal by Rhodes, op. cit., IV, 245-52.

145 Cf. a similar experience of the Emperor Tiberius, TACITUS, ANNALS, IV, c. 35.

146

was considered so dangerous to the morale of the training camps that she was sentenced to ten years in prison, and yet it was repeated by every important newspaper in the country during the trial. There is an unconscious irony in all suppression. It lurks behind Judge Hough's comparison of the Masses to the Beatitudes,1 and in the words of Lord Justice Scrutton during this struggle against autocracy: "It had been said that a war could not be conducted on the principles of the Sermon on the Mount. It might also be said that a war could not be conducted on the principles of Magna Charta.” 147

Those who gave their lives for freedom would be the last to thank us for throwing aside so lightly the great traditions of our race. Not satisfied to have justice and almost all the people with our cause, we insisted on an artificial unanimity of opinion behind the war. Keen intellectual grasp of the President's aims by the nation at large was very difficult when the opponents of his idealism ranged unchecked while the men who urged greater idealism went to prison. In our efforts to silence those who advocated peace without victory we prevented at the very start that vigorous threshing out of fundamentals which might to-day have saved us from a victory without peace.

CAMBRIDGE, MASS.

Zechariah Chafee, Jr.

146 Masses Pub. Co. v. Patten, 245 Fed. 102, 106 (C. C. A. 2d, 1917).

147 Ronnfeldt v. Phillips, 35 T. L. R. 46 (1918, C. A.).