Chapter I: Front Matter

TRANSCRIBER’S NOTE

Italic text is denoted by _underscores_.

Footnotes have been renumbered to be unique throughout the book. References to notes have been updated to the new numbers. Footnote anchors are denoted by [number], and the footnotes have been placed at the end of the paragraph and after quotations.

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Some minor changes to the text are noted at the end of the book.

FREEDOM _of_ SPEECH

BY
ZECHARIAH CHAFEE, JR.
PROFESSOR OF LAW IN HARVARD UNIVERSITY

“GIVE YOUR MIND SEA ROOM”

NEW YORK
HARCOURT, BRACE AND HOWE
1920

COPYRIGHT, 1920, BY
HARCOURT, BRACE AND HOWE, INC.

THE QUINN & BODEN COMPANY
RAHWAY, N. J.

TO

LEARNED HAND

UNITED STATES DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF NEW YORK
WHO DURING THE TURMOIL OF WAR
COURAGEOUSLY MAINTAINED
THE TRADITION OF ENGLISH-SPEAKING FREEDOM
AND GAVE IT NEW CLEARNESS AND STRENGTH
FOR THE WISER YEARS TO COME

CONTENTS

CHAPTER PAGE

I. FREEDOM OF SPEECH IN WAR TIME 1

II. OPPOSITION TO THE WAR WITH GERMANY 40

I. The Espionage Acts of 1917 and 1918 42
II. Masses Publishing Co. _v._ Patten 46
III. The District Court Cases 56
IV. The Human Machinery of the Espionage Acts 66
V. The Supreme Court Decisions 87
VI. Censorship and Exile 106
VII. State Espionage Acts 110
VIII. Reflections During a Technical State of War 113

III. A CONTEMPORARY STATE TRIAL—THE UNITED STATES _v._ JACOB
ABRAMS _et al._ 120

I. The District Court 125
II. The Supreme Court 148

IV. LEGISLATION AGAINST SEDITION AND ANARCHY 161

I. The Normal Law Against Violence and Revolution 165
II. The Normal Criminal Law of Words 169
III. The Difference Between the Normal Law and the New
Legislation 173
IV. Radical Meetings and the Red Flag 180
V. Criminal Anarchy and Criminal Syndicalism 187
VI. The Federal Sedition Bills 194
VII. The Constitutionality of a Federal Sedition Law 199
VIII. The Wisdom and Expediency of a Federal Sedition Law 207

V. THE DEPORTATIONS 229

I. The Statute as to Deportable Radicals 230
II. The Administrative Machinery for Deporting Radicals 232
III. The Raids of January, 1920 241
IV. The Arrest of American Citizens for Deportation 252
V. A Review of the Actual Cases of Radicals Held for
Deportation 256
(1) Communists—Guilt by Association and Government
Spies 256
(2) Industrial Workers of the World 272
(3) Anarchists 275
VI. The Deportations and the Bill of Rights 280
VII. Suggested Changes in Our Deportation Policy 291

VI. JOHN WILKES, VICTOR BERGER, AND THE FIVE MEMBERS 294

I. John Wilkes 295
II. The Raids of 1763 and the Raids of 1919 296
III. The Exclusion of Wilkes from the House of Commons 311
IV. The Exclusion of Victor L. Berger from the House of
Representatives 315
V. The Five Socialist Members of the New York Assembly 332

VII. FREEDOM AND INITIATIVE IN THE SCHOOLS 365

APPENDICES

APPENDIX

I. Bibliography on Freedom of Speech 377
_A._ General and Historical; _B._ The War;
_C._ Radical Activities in the United States
and Peace-time Restrictions upon Freedom of
Speech; _D._ Power of a Legislature to Exclude
or Expel for Opinions; _E._ Schools.

II. Index of Reported Cases under the Espionage Acts of 1917
and 1918 387

III. Text and Construction of the Espionage Act of 1918 395

IV. Normal Law of Four Jurisdictions Against Actual or Threatened
Violence 398

V. State War and Peace Statutes Affecting Freedom of Speech 399

Index of Cases 407

General Index 411

FREEDOM OF SPEECH