Chapter XIII: Section 6: of the Criminal Code was enacted during the Civil War and was (2)

The state anarchy acts are constitutional under the test laid down by the United States Supreme Court in the Schenck case, insofar as they are employed to meet a “clear and present danger” of unlawful conduct. It is probable that the open advocacy of sabotage and the doctrines of revolutionary syndicalism, against which most of these statutes are directed, does present a sufficient danger to bring such speech within the range of legislative discretion, and a few decisions have already so held.[311] On the other hand, the clauses of these statutes which make it criminal _ipso facto_ to belong to organizations like the Industrial Workers of the World, although the accused has never expressed any agreement with the violent portions of its economic theory, raise serious difficulties. This is not punishing a man for what he does, or even for what he says, but for what some one else says, which he may possibly not approve. There are so many reasons why a workman is led to join the labor union to which his fellows belong, that the law should hesitate to attribute to him an active support of every plank in its platform. Apart from questions of constitutionality, it is dubious policy to make membership in a labor union a crime no matter how much we may disagree as I do with its aims and methods. That was the policy of the English Combination Acts of the early nineteenth century. The attempt to break up trade unions by imprisonment was defended because of the violence which had accompanied some of their activities, but the imposition of severe penalties on men who had taken no part in that violence simply strengthened the unions and increased their bitterness. My own hope is that eventually the state may provide an impartial tribunal for the settlement of industrial disputes,[312] just as it formerly brought blood-feuds and quarrels over boundaries into the King’s courts. Until that time comes, although my own sympathies and direct interests are on the side of the employers, I believe it to be a grave error for the state to intervene against the workingmen until immediate violence is threatened. The parties should be left to contend by economic methods. I know that many who would believe in such a policy as regards the American Federation of Labor will not approve its extension to the revolutionary unions. Nevertheless, those who investigated the I.W.W. on behalf of the government during the war found that the causes for its existence were deep-rooted economic factors,[313] and not any widespread desire for political changes or violence for its own sake. Until those factors are dealt with directly, the use of the tremendous power of the state on behalf of the employers and the conservative unions, while it may produce a superficial weakening of revolutionary unionism, is sure to intensify its hostility to the state and the belief that government is only the organ of capital. For instance, the men who have been enjoined by a judge at Spokane “from continuing as members of the I.W.W.”[314] will not thereby be turned into enthusiastic supporters of the country’s laws or alter their economic views. Indeed, careful observers already report a rapid shift of members of the I.W.W. into the A. F. of L., where they are safe from prosecution, and can do infinitely more damage than when they were in the open.[315]

[311] State _v._ Boyd, 86 N. J. L. 75; State _v._ Moilen, 140 Minn. 112. But see 20 _Colum. L. Rev._ 232 (February, 1920); _Ex parte_ Meckel, 220 S. W. 81 (Tex. 1920); dissent in State _v._ Tachin, 108 Atl. 318 (N. J. 1919).

[312] Henry B. Higgins, “A New Province for Law and Order,” 29 _Harv. L. Rev._ 13, 32, _ibid._ 189, summarizes the Australian experience.

[313] The Bibliography lists material on the I.W.W.

[314] 109 _Nation_ 843 (January 3, 1920).

[315] John Graham Brooks, _Labor’s Challenge to the Social Order_, c. XX; Roger Baldwin, conversations; from a different angle, Ole Hanson, _Americanism versus Bolshevism_, c. XII.

When the anarchy acts go still farther and punish discussions of the general strike, or condemn words and symbols, which are inoffensive in themselves, for their bad social, economic, or political tendencies, they clearly infringe the danger-test and ought to be declared void. But I do not think we ought to let the discussion of the state and federal sedition laws turn on the controversy whether they are unconstitutional. The free speech clauses, as I said at the outset of this book, are a declaration of American policy as well as an extreme limit upon legislative power. The most difficult questions are raised by the application of the anarchy acts to the advocacy of “force and violence,” when no immediate violence is liable to take place. Although I do not feel sure that such speech can constitutionally be punished when there is no danger of immediate violence, still both Justice Holmes and Judge Learned Hand would agree that the nature of the words used is an essential factor, apart from the surrounding circumstances, in deciding whether the danger does exist, and the common law cases on solicitation support this view. But even if the statute is constitutional, the most important questions still remain, whether it is expedient and in accord with American traditions, and how it shall be construed. On these points what I have already said of the syndicalism statutes has bearing, but it is upon this ground of sound policy that every thoughtful American ought to consider the proposed federal Sedition Law.

VI. _The Federal Sedition Bills_

Nothing less than a very great national danger should lead us to abandon the American policy of courage and tolerance and re-enact the first Sedition Act in time of peace since the disaster of 1798. The burden of proof rests fairly on those who advocate such a doubtful step. It has already been shown that it is not called for by any immediate danger of revolution, since the Criminal Code will deal with that, and indeed what has been said of the enormously exaggerated accounts of pro-German plots during the war ought to show that “the Red menace” is probably a similar panic.[316] It is of course impossible for a private citizen to assert that no danger exists to justify the officials in their statement that this legislation is necessary, but he may properly assume that the documents in which they set forth that statement embody the principal facts on which it is based. If they have not yet supplied the vital facts, they ought to do so, and not ask this country to reverse its policy of six-score years at a mere trumpet-blast of danger.

[316] See page 70, _supra_, and the speech of George W. Anderson at the Harvard Liberal Club, reported in “The Red Hysteria,” 21 _New Republic_ 250 (January 28, 1920); and _Boston Herald_, January 13, 1920.

The main documents in the case are furnished by the most distinguished supporter of sedition legislation, Mr. A. Mitchell Palmer. In an official Report,[317] he has asked Congress not only to enact an unprecedented statute, but for fear this may not be enough he has also suggested that Congress recommend the passage of similar legislation by all the states. The seditious writer will then be run to earth by the five hundred agents of the Department of Justice, with the aid of twelve thousand policemen and fifty prosecuting attorneys in New York City, and a multitude of others throughout the land. Thus, we can meet “the present intolerable situation.” Why is it intolerable? The Attorney General says that he needs the legislation because of four facts: (1) the presence of “60,000 radically inclined individuals” whose histories have been compiled by his agents; (2) the circulation of 471 “radical newspapers” besides other publications, all of which are “one of the most potent and far-reaching influences in stirring up discontent, race prejudice, and class hatred in this country” and “more than any other one thing, perhaps, are responsible for the spread of the Bolshevik, revolutionary, and extreme radical doctrines”; (3) the fact that the Trading with the Enemy Act, which requires that the local postmaster shall receive a translation of every publication in a foreign language criticising the policies of any government before distribution of any sort expires with the war, and the lapse of this censorship will create a difficult problem in dealing with “radical propaganda of a more violent character”; (4) “practically all of the radical organizations have endeavored to enlist negroes on their side.”

[317] Investigation Activities of the Dept. of Justice, Sen. Doc. No. 53 (66th Cong., 1st Sess.), Wash., 1919. See also his evidence in House Judiciary Hearings and Palmer Deportations Testimony.

If the Attorney General had limited himself to a statute punishing successful and unsuccessful attacks upon federal officials and property, he would have performed a real service in filling gaps in the federal law against violence. Legislation against his hypothetical man who approaches the Chief Justice with a bomb in his hand would not affect freedom of speech. But it should be clearly understood that Mr. Palmer asked much more than this when he sought to legislate out of existence the four kinds of propaganda just mentioned on the ground that these theories and doctrines might conceivably lead to future assaults and revolutions.

In a circular letter sent to the editors of leading magazines,[318] Mr. Palmer shows even more plainly that he is seeking to use the power of the government, not against actual or threatened violence, but against bad ideas. After submitting copies of various publications of the Soviet Government, he states that these documents alone demonstrate: (1) “that the present aim of the Russian Government and its officers is to foment and incite discontent, aiming towards a revolution in this country; (2) that the entire movement is a dishonest and criminal one, in other words, an organized campaign to acquire the wealth and power of all countries for the few agitators and their criminal associates.” Among other qualities of Bolshevism: “It advocates the destruction of all ownership in property, the destruction of all religion and belief in God.... The sabotizing of public thought is an essential of this movement.”

[318] Reprinted in 110 _Nation_ 190 (February 14, 1920). See also Palmer Deportations Testimony, for emphasis on the atheism of prominent radicals as an argument for their deportation.

The Department, as far as existing laws allow, intends to keep up
an unflinching war against this movement no matter how cloaked
or dissembled. We are determined that this movement will not be
permitted to go far enough in this country to disturb our peace
or create any widespread distrust of the people’s government.

There is a menace in this country. It may not be the menace of
revolution.... My one desire is to acquaint people like you with
the real menace of evil-thinking which is the foundation of the
Red movement.

That a Quaker should employ prison and exile to counteract evil-thinking is one of the saddest ironies of our time, and particularly that he should justify this by the religious heresy of his opponents. After all that Milton and Bagehot and Mill have said of the unwisdom of influencing the mind by temporal punishments and burdens, after Justice Holmes’s warning against attempts to check by force “the expression of opinions that we loathe and believe to be fraught with death,” even those who disagree with Bolshevism, anarchism, and revolutionary syndicalism as strongly as I do myself will need no further argument to realize that as theories they must be defeated in some other way. To conduct arguments by violence, even if that violence is employed by government officials under the guise of law, is contrary to sound political policy and to the constitutional guaranties of freedom of speech.

Besides the draft Sedition Act recommended by the Attorney General, which goes so far as to punish writings which “tend to indicate sedition,” Congress has under consideration about seventy similar bills, of which three have attracted public notice.[319] These are the Overman Bill, a peace-time replica of the sedition section of the Espionage Act of 1918, reported in 1919 by the Senate sub-committee to investigate Bolshevism, as the fruit of its labors; the Sterling Bill, the best drawn of the four, passed by the Senate in January, 1920; and the Graham Bill, a very drastic measure with a death penalty and a sweeping postal censorship, which the House Judiciary Committee substituted for the Sterling Bill and recommended for immediate enactment. Its reasons were the attack on Mr. Palmer’s house, the shooting of soldiers at Centralia, “numerous other instances of outrage aimed at the existence of our institutions,” and the vigor and extent of anarchistic teachings as revealed by recent investigations. The Committee does not show why the existing law is not adequate to deal with all these facts except the presence of pernicious and dangerous ideas. Attorney General Palmer refused to support the Graham Bill, and the House Rules Committee decided after several hearings that it was too unsatisfactory to be given any priority in the order of business. Some of these bills impose a maximum sentence of twenty years for unlawful discussion, and in addition aliens are to be deported and naturalized citizens are to be denaturalized and turned loose on the world as men without a country. Indeed, Senator McKellar of Tennessee wanted to go one step farther and deport native-born Americans to a penal colony in Guam, so that we also might have our Devil’s Island or Siberia.[320]

[319] S. 1686; S. 3317; H. R. 11430; Investigation Activities of the Dept. of Justice, 14; see also Report No. 542, H. R. (66th Cong., 2d Sess.). Congress adjourned, June, 1920, without any enactment.

[320] Amendment offered to S. 3317, December 4, 1919.

Energetic opposition to all four bills by the American Federation of Labor and many kinds of other organizations and by the most conservative newspapers and periodicals, makes it improbable that any of them will become law. At all events the kaleidoscopic state of sedition legislation in Congress induces me to avoid going into the details of any pending bill. Instead, I am going to assume for purposes of discussion that Congress may eventually have before it a very simple measure, from which all the obviously objectionable features of the four bills mentioned will be eliminated. This hypothetical bill is limited by its terms to the advocacy of assassination of federal officials, and the use of “force or violence” for the overthrow of our government or all governments, or the attainment of changes in our Constitution and laws. It punishes the individual who urges such “force or violence” orally or in writing, and also any one who imports from abroad or transports from state to state any book or other printed matter which advocates such “force or violence.”

It is improbable that power will be given to the Postmaster General to exclude such material from the mails, for the strongest hostility to the pending bills was directed to such a power. Even if it be said that the Blackstonian test does not forbid the government to control the use of its own machinery, the post-office, it is clear to every newspaper that its exclusion from the mails is equivalent to an absolute censorship. If Mr. Burleson or his successor can exercise the same power in peace that he had during the war to suppress political discussion which he deems objectionable, he has at hand a much more powerful weapon than the Sedition Act of 1798. A newspaper editor fears being put out of business by the administrative denial of the second-class mailing privilege much more than the prospect of prison subject to a jury trial. Even if the periodical is given the right of judicial review, this is of little practical value because of the ruin of circulation during the delay before a court hearing. The same considerations apply to a censorship of the foreign language press, although this presents special problems and dangers. Consequently, the bill before us for discussion imposes no previous restraint, but makes the advocacy of “force or violence” a crime, punishable by a long term in prison and a heavy fine.

Two questions are raised. (A) How far is such a measure constitutional? (B) How far is it wise and expedient?

VII. _The Constitutionality of a Federal Sedition Law_

The constitutional problem involves three points, affirmative power to punish, the treason clause, and the free speech clause.[321]

[321] For a full discussion with citation of cases, see H. W. Biklé, “The Jurisdiction of the United States over Seditious Libel,” 41 _Am. L. Reg._ (N. S.) 1 (1902). His conclusions as to the First Amendment differ very much from mine.

1. What clause in the Constitution gives the United States power to punish seditious utterances? The states face no such difficulty, for they possess all power that is not expressly denied to them by their constitutions, and can reach objectionable writings under their general police power and criminal jurisdiction. The United States Government, on the other hand, has only the powers which are expressly granted to it by its organic document. Most of the discussion in 1787–88 over the need of a free speech clause in the federal Constitution and most of the controversy over the constitutionality of the Sedition Act of 1798 turned on this point. Much has happened since, however, to indicate that the United States has this power to punish verbal opposition unless prohibited by some negative clause in the Constitution. The epoch-making decisions of Marshall show that the government does not have to rely on any one specific grant of power. The Constitution as a whole creates a nation with officers and functions and in Article I, Section 8, gives to Congress the right “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Consequently, no express provision is required to enable the government to operate one or more national banks, or exclude aliens from its shores. Its courts can punish contempts committed against them. The United States Supreme Court has already decided in the Neagle case that the Federal Government has power to protect the lives of its judges engaged in the discharge of judicial duties and in other decisions that it can safeguard even prisoners in its custody. The same principle applies to the President or any other official and it seems immaterial whether they are at the moment occupied with business. Their work may be hindered by threats and other utterances as well as by acts. Similarly words which interfere with express functions of the government like the war power fall within its criminal jurisdiction. The conviction of Emma Goldman for issuing pamphlets urging disobedience to the draft, and all the Espionage Act cases prove this beyond question. It is of course true that revolutionary speeches do not affect any specific function of the government, but they do affect its existence, the most important result of the Constitution. Therefore, on this point I conclude that the United States has affirmative power to protect its own life and the lives of its officers, not only from revolution and assassination, but also from attempts and solicitation directed toward these ends, and even from discussion which might have a remote tendency to produce such evils, unless that power is restricted by either the treason clause or the First Amendment.

2. Section 3 of Article III, which relates to the judicial power of the United States, provides: “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.”

We shall in discussing the Berger case return to the question of what is treason in war when there are “enemies,” but in peace, treason is narrowly limited in this country to “levying war,” and Chief Justice Marshall decided in the case of Aaron Burr that that crime requires an actual assemblage of forces. Consequently, the conduct we have in mind is not punishable as treason under our Constitution. Does this prevent it from being punishable otherwise? Under the English treason statute of 25 Edw. III, c. 2, very many kinds of action which interfered with the state were defined as treason. The courts construed these clauses very widely to reach as “constructive treasons,” conduct very remote from the defined crimes.[322] This practice became so notorious that the framers of the Constitution wisely prevented it by rejecting most of the English categories and narrowly restricting the evidence on which conviction can be secured. Can Congress accomplish these undesired results by calling the same conduct, not treason but sedition or something else?

[322] 2 Stephen, _History of the Criminal Law_, c. 23 on High Treason.

For example, under the English statute it was treason to “compass or imagine the death of our lord the king.” This was interpreted to include threats against him. By analogy, it would be treason to threaten the life of the President, if our Constitution had not definitely provided otherwise. Congress in 1917 created the crime of threats against the President.[323] Is such a statute an unconstitutional evasion of the treason clause?

[323] U. S. _Comp. Stat._, § 10200 a, Act of February 14, 1917, c. 64. See 32 _Harv. L. Rev._ 724.

Again, if the _Biglow Papers_ were not “aid and comfort to the enemy”—a problem to which I shall return in the sixth chapter—could Congress treat them as severely as if they were treasonable by creating the crime of seditious libel with a punishment of death? A similar question was put to the counsel for the United States in the Abrams case by Justice Brandeis, who got the reply, “Of course, we wouldn’t go that far.” But if Congress and the Department of Justice have power to go that far, the value of the treason clause is considerably weakened. All the acts which were constructive treasons under the English law could be made criminal without even the security of two witnesses or the provisions against corruption of the blood and forfeiture.

On the other hand, it is argued that the treason clause is not placed among the restrictions on Congress. It simply prevents the courts from construing the word “treason” in a statute to extend beyond the constitutional definition, even if the statute gives it a wider definition. Congress is not prohibited from punishing on other grounds and under other names crimes which were treason in England, if these are within the federal criminal jurisdiction. The same act might be both treason and something else. Thus killing the king was treason and murder. Congress can punish the murder of the President but not the treason. Or rather, it can punish it not as murder, but as an interference with an express function of the government. It is settled that the United States can prevent assaults on federal judges though that is analogous to treason in England. Counterfeiting money was treason there and is expressly punishable under the Constitution.

This argument seems to me more satisfactory when applied to active interferences with specific functions of the government, than when extended to utterances which have a tendency to weaken the sovereignty of the state as a whole. Are they treason in England plus something else? Was it not this tendency to weaken which made them constructive treason, and when they cannot be criminal on that account, does not all ground of jurisdiction fail?

This is a problem somewhat foreign to my province, so that I prefer not to state a definite conclusion, which can only be reached after more judicial interpretation of the treason clause.

3. The First Amendment seems clearly to be violated by many clauses in pending federal sedition bills, which punish words merely for their assumed tendency to produce bad consequences in the remote future, for instance, that section of the Graham Bill which excludes from the mails under heavy penalty “printed matter ... whereby the use of force ... is ... defended ... as a means towards the accomplishment of industrial, economic, social, or political change, or whereby an appeal is made to racial prejudice the intended or probable result of which appeal is to cause rioting or the resort to force and violence within the United States....” The first clause would affect every history of the American Revolution, Macaulay’s _History of England_, and W. R. Thayer’s _Life of Cavour_. The second would suppress all but the most carefully guarded presentations of the wrongs of the negro.[324] This attempt to enlist popular support for attacks on radicalism by uniting fear of the blacks to fear of the reds has become a favorite device of late. Attorney General Palmer hints that negroes must not be allowed to join radical organizations. The Lusk Committee seizes an unanswered letter to the Rand School suggesting the spread of socialism among the negroes (without a word about violence) and presents it as a menacing scheme adopted _by_ the School “for the spreading of Bolshevist propaganda among negroes in the South,” so that the _New York Times_ runs front-page headlines: “Moves to Close the Rand School—District Attorney Takes Steps Toward Revoking Radical Institution’s Charter—Planned Negro Uprising.”[325]

[324] Ho. Cal. No. 129, § 6. For restrictions of race-irritation in moving-picture films, see W. Va. Laws, 1919, c. 117.

[325] _New York Times_, June 28, 1919; see also July 9.

The Sedition Act of 1798 was also a violation of the First Amendment, especially as it included criticism of the President and Congress, which was very remotely injurious to the United States.[326]

[326] See page 29, _supra_. Biklé admits it was probably invalid for the reason stated above.

If, however, we consider a federal bill such as I have suggested, which, like the Massachusetts and New Jersey Anti-Anarchy Acts, eliminates all clauses obviously punishing bad tendency and penalizes only the advocacy of force and violence, much more difficult questions of constitutionality arise. It may be helpful to examine various kinds of utterances successively. If one directly incites another to murder an official and the murder takes place, the speaker is, of course, punishable. The same holds good, even if the incitement proves unsuccessful. If the speaker does not solicit any particular person, but eloquently appeals to a large audience for some new Charlotte Corday, or if naming no specific victim he urges the assassination of an indefinite number of men from some hated group, the case is not altered. Even if he alleges the loftiest motives, the social interest in truth and progress is far outweighed by the interest in order, and there is a direct interference with the safety of life. When he does not ask for any future killing, but merely glorifies such an event in the past, the danger lessens and the power to punish becomes more uncertain.[327] The time elapsed is perhaps an element. A distinction might be drawn between praise of the assassin of McKinley, and “Cæsar had his Brutus, Charles I. his Cromwell.” Yet even Patrick Henry’s speech might be held advocacy of force and within the hypothetical Sedition Law. A further step is the discussion of tyrannicide as an abstract proposition of morality. Mill was willing to allow the fullest liberty even for this,[328] but it is probable that assassination is so easily carried out that there is always a sufficiently clear and present danger of its occurrence to bring such discussions within the range of legislative discretion.

[327] For opposing views on the question whether praise of a criminal can be considered incitement to crime, see Masses Pub. Co. _v._ Patten, 244 Fed. 535; 245 Fed. 102.

[328] Mill, _Liberty_, note at opening of c. II.

Advocacy of revolution is much less dangerous except in extraordinary times of great tension. The chances of success are so infinitesimal that the probability of any serious attempt following the utterances seems too slight to make them punishable by the Federal Government. This is especially true if the speaker urges revolution at some future day, so that no immediate check is required to save the country. Even if several men talk like this with very bad intentions, they should not be held guilty of conspiracy under section 6 of the United States Criminal Code unless the danger-test is satisfied. There is no “clear and present danger” in a revolution announced for 1948.

The Federal Government has nothing to do with the question whether such discussion is a public nuisance or a breach of the peace under state law. Johann Most was convicted on both sides of the Atlantic for advocacy of assassination,[329] but those decisions are based on present injury to the peace and not on danger to the rulers. When, however, the audience joins in the speaker’s inflammatory utterances the assembly becomes unlawful, and may possibly constitute a conspiracy under the federal Criminal Code. Thus, Most at a New York meeting on the morrow of the Spies executions doomed to an early death the prosecuting attorney; the trial judge; the Supreme Court of Illinois; “the highest murderers in the land, the Supreme Court of the United States”; and the Governor of Illinois. His hearers exhibited warm approval, and when he said, “The day of revolution is not far distant,” one of the audience rose and said excitedly: “Why not to-night, for we are ready and prepared?” The address by itself appears to have been deemed insufficient to support a criminal prosecution, but he was convicted of participating in an unlawful assembly.[330] Possibly there was also a conspiracy within the United States Criminal Code, but the absence of any real danger to the Federal Government makes this improbable.

[329] Reg. _v._ Most, 7 Q. B. D. 244 (1881); P. _v._ Most, 171 N. Y. 423 (1902).

[330] P. _v._ Most, 128 N. Y. 108 (1891); see Freund on the Police Power, § 477.

This case shows how much the danger of utterances is affected by surrounding circumstances as well as by the words used. A soap-box orator on a street-corner shouting to casual passers-by is far less perilous than if he delivers the same address in a hall overcrowded with sympathetic listeners. A pamphlet is less dangerous than any speech, a book than a pamphlet. A threat of revolution over the family tea-table is innocuous. Every one will admit that these considerations affect the wise drafting and enforcement of sedition legislation, and some at least hold that they may decrease the danger from objectionable utterances until they sink below the minimum limit of Congressional power. Thus, Freund says:[331]

The doctrine that crime may under given conditions become
justifiable or that it may have a tendency to arouse the public
conscience should not in itself be held to constitute a crime. It
is clear that an exposition of social wrong or injustice must be
allowed, nor can the necessary liberty of agitation be said to be
overstepped by appeals to sentiment rather than to reason; and
if it is said that appeal to sentiment is appeal to passion and
must lead to disorder and violence, it must be answered that this
was always the plea upon which political agitation was formerly
suppressed. Not even the fact that an adherent of the doctrine
commits a crime is conclusive that the teaching of the doctrine
amounts to incitement; for the crime may as well have been
induced by a morbid brooding over conditions which are the cause
of social discontent.... The constitutional guaranty of freedom
of speech and press and assembly demands the right to oppose all
government and to argue that the overthrow of government cannot
be accomplished otherwise than by force.... It is probably true
to say ... that it is impossible to strike at anarchism as a
doctrine without jeopardizing valuable constitutional rights.

[331] _Op. cit._, §§ 476, 478.

Nevertheless, the Abrams and Schaefer decisions in the Supreme Court should deter any one from predicting unconstitutionality under the First Amendment for the Threats against the President Act, or the Sterling Bill, or the hypothetical statute I have been considering, which is carefully limited to “force and violence.” The “nature of the words used” may be held to create sufficient danger to support the restriction on freedom of speech. Moreover, the real issues of constitutional law, as in Masses _v._ Patten and the Abrams trial, are likely to arise from a loose construction of the statute, even if its wording is valid. Therefore, I consider it a much more fertile subject of discussion to turn to the wisdom and policy of a federal sedition law against the advocacy of “force and violence.”

VIII. _The Wisdom and Expediency of a Federal Sedition Law_

No one knows what blasphemy is or what sedition is, but all know
that they are vague words which can be fitted to any meaning that
shall please the ruling powers.—WALTER BAGEHOT.

“No man,” says Attorney General Palmer, “can go further than I will go in his earnestness to protect the people in the guaranty of free speech.” Nevertheless, he insists that there must be a dead-line, and this he finds it easy to draw at the place where there is a threat or promise or necessary implication of the use of physical force or violence.[332] So long as Congress does no more than punish this sort of language, how can any one reasonably object? The public seems at first sight to get no benefit from such talk, and clearly the speaker has no claim to encouragement. Men may well inquire how the interest of society in the attainment of truth and progress is served by threats to kill officials, blow up buildings, and bring in the dictatorship of the proletariat with a holocaust of vengeance. Consequently, the question whether a law against the advocacy of force and violence is wise may be thought to admit only of an affirmative answer.

[332] Testimony before House Judiciary Committee, _New York Times_, February 5, 1920. House Judiciary Hearings, 21.

I believe, however, that the problem is far less simple than it seems. Although the opponent of the proposed legislation apparently occupies a very bad position, that of standing up for force and violence, yet it may be possible to show that such legislation is dangerous, far more dangerous than the agitation it expects to suppress. If a federal law against violent talk and writings which create no immediate danger of injurious action is not only constitutional but highly desirable and necessary, why is it that we have had only one such law in the past, and that one a stupendous failure? Even the state laws against inflammatory utterances as breaches of the peace have been used very sparingly against soap-box orators and revolutionary literature. We have refused to make arrests unless there was a real danger that the lawlessness which was advocated would immediately take place. Surely, there is nothing to be ashamed of in urging a continuance of this traditional American policy.

Most of us believe that our Constitution makes it possible to change all bad laws through political action. We ought to disagree vehemently with those who urge violent methods, and whenever necessary take energetic steps to prevent them from putting such methods into execution. This is a very different matter from holding that all discussion of the desirability of resorting to violence for political purposes should be ruthlessly stamped out. There is not one among us who would not join a revolution if the reason for it be made strong enough. Californians would take up arms against an amendment passed by Congress and the other state legislatures for the cession of California to an Oriental power. And talk about violence is far more common. Tobacco will not follow alcohol into oblivion without some murmurs of a fight from the most peaceable citizens.

The United States is the last place on earth where mere talk about resistance and revolution ought to be treated as inherently vicious and intolerable. The founders of the colonies broke the religious laws of England before they came here and some of them engaged in a large-sized rebellion. The founders of the United States urged the destruction of property by the destruction of tea and the burning of stamped paper. They went further. They advocated the overthrow of this or any other government by force and violence when they adopted a well-known document which reads, “That whenever any form of government becomes destructive of these ends, it is the right of the people to alter and abolish it.”

If a federal statute against the advocacy of force and violence had been enacted in the Abolition period, several distinguished citizens of Massachusetts would have been criminals. Wendell Phillips advocated opposition to the Fugitive Slave Law, and his statue is in the Public Gardens of Boston. William Lloyd Garrison did so, and his statue is on Commonwealth Avenue. The Overseers of Harvard College dismissed a law teacher, Edward G. Loring, because he carried out his oath of office as United States Commissioner by enforcing that law, and for the same reason both houses of the Massachusetts legislature requested the Governor to remove him from a probate judgeship, and he was removed. Theodore Parker, George L. Stearns, Thomas Wentworth Higginson, and Frank B. Sanborn contributed funds to send John Brown to Harper’s Ferry to use force and violence.

These men believed that some bad laws are so powerfully supported that the only way to obtain their repeal is to violate them. They believed that no decent man could sit silent and inactive while the Fugitive Slave Law was enforced. Perhaps they were all of them wrong. Some of them were clearly liable as accessories to criminal acts. I insist that such acts must be punished, however noble the motive. But we cannot honor and praise these men for their courageous onslaughts on established evils, and at the same time pronounce it a heinous crime for any one to-day to urge the removal of wrongs by force. Above all, we cannot draw a distinction between those days and ours on the ground that the government was bad then and is now good. I believe that to be true, but time alone will prove which is right, the left-wing Socialist or I. We must not forget how Braxfield justified his ferocious sentences by saying that the British Constitution of 1794 was the best in the world. The law and order men of 1774 and 1854 did not consider their governments and laws bad. They would have been glad to incarcerate Otis and Adams, Garrison and Sumner, if they had had Mr. Palmer’s bill in force. Yet the advocates of repression in those days were not a race of tyrants. They were respectable citizens just like ourselves. They were merely mistaken. Can we be any more sure of our infallibility than of theirs? And how do we know that we are infallible until we hear the men on the other side, however excitable and given to threats?

This is not indifferentism. We must take our stand for private property if we believe in it, put our backs to the wall, and fight for it with all our strength. Nevertheless, there are many ways of fighting. The American policy is to meet force by force, and talk by talk.

Furthermore, as soon as the danger-test is abandoned, bad tendency inevitably becomes the standard of criminality. Any attempt to distinguish between liberty and license will break down in administration for sheer vagueness, and sooner or later officials will swing toward the view of Lord Holt in 1704:[333]

If men should not be called to account for possessing the people
with an ill opinion of the government, no government can subsist;
for it is very necessary for every government, that the people
should have a good opinion of it. And nothing can be worse to any
government, than to endeavor to produce animosities as to the
management of it. This has always been looked upon as a crime,
and no government can be safe unless it be punished.

[333] Tuchin’s Case, Holt 424 (1704).

England in the eighteenth century and Russia in the nineteenth[334] applied this test of bad tendency. The United States has hitherto preferred to follow the principle of Madison:[335]

Some degree of abuse is inseparable from the proper use of
everything; and in no instance is this more true, than in that of
the press.

[334] See the summary of Russian law in Freund, _op. cit._, § 471 note.

[335] Report on the Virginia Resolutions, 4 Elliot’s Deb. (2 ed.), 598. Marshall told Talleyrand the same truth, Beveridge, II, 329.

Consequently, the President’s Message is attempting the impossible when it supports Mr. Palmer’s sedition bill on this high ground:[336] “With the free expression of opinion and with the advocacy of political change, however fundamental, there must be no interference, but toward passion and malevolence tending to incite crime and insurrection under guise of political evolution there should be no leniency.” No one has yet invented a gun which will kill a wolf in sheep’s clothing and will not hit a sheep. We should all be glad to have a law, “Bad men shall be imprisoned,” if it would work, but we know that it would not. A law against “passion and malevolence” is just as bad. Far wiser is the statement of the former Democratic President, just quoted, far wiser the language in a later part of Mr. Wilson’s own Message, which seems so inconsistent with the endorsement of the Sedition Bill that it might almost be the work of another man:

The only way to keep men from agitating against grievances is to
remove the grievances. An unwillingness even to discuss these
matters produces only dissatisfaction and gives comfort to
the extreme elements in our country which endeavor to stir up
disturbances in order to provoke Governments to embark upon a
course of retaliation and repression. The seed of revolution is
repression.

[336] _New York Times_, December 3, 1919.

Most acts of violence urged as a reason for sedition legislation, the Gimbel bombs, the May explosions, the Centralia shooting, followed immediately on some act of suppression,—the Debs decision, the Roxbury Riot sentences, the Massachusetts Anti-Anarchy Act, raids on I.W.W. offices and statutes against Syndicalism. The men responsible for these outbreaks should be tried and severely punished if found guilty, as much as the Southern lynchers and the Omaha mob that nearly hanged the mayor. It is an altogether different matter to make these affairs the basis of further suppression. The advocates of such a policy are doing their best to get this country into the vicious circle of outrages, coercion,—coercion, outrages, from which John Morley spent his whole official career vainly trying to extricate Ireland and India.[337]

[337] See especially the fine letter on the Phœnix Park murders, in his _Recollections_, I, 178.

Contrast the American policy of punishing acts and letting talk run to waste. We have stuck by the schoolboy maxim, “Sticks and stones will break my bones, but words will never hurt me.” Recent riots which have nothing to do with radicalism show that our criminal machinery is very unsuccessfully dealing with acts of violence. That is its absorbing task. It has no more time than it ever had to bother with the men who merely talk. If there is any immediate danger of revolution, the Attorney General should be employing the Criminal Code instead of asking for a sedition law. If there is not, as he himself admits, then, much as every one of us dislikes the advocate of force and violence, we shall be wise if we seek remedial and not punitive methods to make his talk of no effect. In particular, let me mention three concrete reasons why a sedition law will fail to accomplish its purpose of getting the really bad man and leaving valuable discussion untouched.

In the first place, simple as a law against incitement to force and violence appears on its face, it will be a very difficult statute to construe, unless the courts adhere closely to the ordinary rules of criminal attempt. Of course, the man who shouts, “We want to kill the President and blow up the Capitol,” presents no difficulties, and he is the man whom most people who discuss the proposed statute suppose it is meant to reach. These few plain cases, which are almost labeled “force and violence,” will form only a very small part of the prosecutions. For instance, the Attorney General wants to imprison the editors of radical newspapers who have, he says, “a subtle way” of placing their propaganda for the overthrow of the government before their readers, but the reader understands what is meant.[338] The question is whether he or any one else can draft a statute which makes it possible for fallible human beings to distinguish good attacks on the government from bad attacks which sound as if they were good. Jeffreys, Braxfield, and Kenyon, thought they were punishing “passion and malevolence,” but posterity has condemned them for interfering with the “advocacy of orderly political change.”

[338] Investigation Activities of the Dept. of Justice, 11.

Whatever law is passed will be used to prosecute speeches and books full of general language. The question whether such language is advocacy of force and violence must of course be determined by a judge and jury. Such men are trained to decide about overt acts, but problems of “subtle” propaganda are an entirely different matter. The normal law of criminal attempt offers to this tribunal a considerable amount of tangible fact. There is, of course, a mental element, the intention of the defendant to bring about the criminal act, but in addition the jury must find a clear and present danger to society in view of the nature of the words _and the surrounding circumstances_. Now, unless the proposed sedition law practically codifies the ordinary rules of attempt, the most tangible factor of the crime disappears; the jury can disregard the absence of danger in the external situation, and look merely at the intention of the prisoner and the nature of his words. This must be so, for the federal act is expressly intended to prevent the remote possibility of revolution and punish violent language for its own sake. Consequently, the jury are cut loose entirely from overt acts and the world of the five senses. They are adrift on a sea of speculation.

At the very outset the same controversy will arise as in Masses _v._ Patten. It is the old question of Mark Antony’s funeral oration. Does a man advocate force and violence when he uses comparatively innocent words with the intention of producing assassination and revolution? Or must the statute be confined to words which taken by themselves are directly provocative of assassination and revolution?

Even this latter and narrower view involves great difficulties of application. This is evident from the experience of the courts with existing federal legislation based on the same “force and violence” principle. The statute making “matter of a character tending to incite arson, murder, or assassination” indecent and non-mailable, has not yet been much construed,[339] but abundant litigation has been caused by the statute which imposes imprisonment of five years maximum upon any one who knowingly and willfully makes a threat to take the life of the President or inflict bodily harm upon him.[340] The threat need not be communicated to the President, and if in a letter it need not be seen by any one except officials, so that the element of dangerous circumstances is eliminated. Already it has proved very hard to decide what words constitute a threat, and some of the practical effects of the statute should discourage imitation. A Syracuse woman of German descent, exasperated by her fellow employees who continually picked on her and called her the Kaiser, finally burst out that she would poison the President if she had him there. She pleaded guilty before Judge Ray, and was fined $300, “not because the court regarded her as a dangerous person, but to show all quick-tempered or alien-minded persons that they must not threaten to do the President bodily harm or utter unpatriotic sentiments in such times as these.”[341] In another case, the words were, “I wish Wilson was in hell, and if I had the power I would put him there.” The judges held this revolting language to be a threat to kill the President, because how could he be in hell unless he were dead?[342]

[339] U. S. Comp. Stat., 1918, § 10381; Magon _v._ U. S., 248 Fed. 201 (C. C. A., 1918).

[340] U. S. Comp. Stat., 1918, § 10200 a; see 32 _Harv. L. Rev._ 724.

[341] A Memorandum concerning Political Prisoners within the Jurisdiction of the Dept. of Justice in 1919, 22, (in Harv. Law School Library).

[342] U. S. _v._ Clark, Bull. Dept. Just., No. 101; affd., 250 Fed. 449 (C. C. A., 1918).

The kind of language which will be held to advocate force and violence under a peace-time Sedition Law may be clearly foreshadowed by the construction which the Supreme Court in the Abrams decision put upon the exhortation:

Workers of the World! Awake! Rise! Put down your enemy and mine!
Yes, friends, there is only one enemy of the workers of the world
and that is Capitalism.

Here is not a word to indicate violence or negative the use of political and economic pressure, but Justice Clarke declares:

This is clearly an appeal to the workers of this country to arise
and put down by force the Government of the United States.

If he is right, the traditional language of socialism becomes advocacy of “force or violence,” as has already been held of the general strike under the similar terms of the New York Anarchy Act. If Justice Clarke is wrong, lesser judges may err. In either case, the Sedition Law will become a drag-net for every form of radicalism.

So far I have assumed that the nature of the words will determine criminality, and that if a man uses the ordinary language of political agitation with intent to produce a revolution, he will not be punishable. I doubt very much if the Act will receive any such narrow construction. When Judge Hand held in Masses _v._ Patten that the equally simple terms of the Espionage Act of 1917 would not be violated if the speaker stopped short of urging upon others that it was their duty or their interest to resist the law, he was reversed, and the upper court said that if the defendant is endeavoring to persuade to resistance, it is not necessary that the incitement to crime shall be direct. Enough “if the natural and reasonable effect of what is said is to encourage resistance.”[343] The majority of the Supreme Court took the same position in the Schaefer case. In short, of the three elements of criminal attempt, (1) bad intention, (2) dangerous words, and (3) dangerous external circumstances, the third vanishes entirely, the second is whittled down to require only words of a bad tendency, and the first alone remains intact. And since the judges who construed the Espionage Act of 1917 will also construe the Sedition Law, they will probably interpret it in much the same way. We have traveled very far from the realm of overt acts.

[343] 244 Fed. @ 540; 246 Fed. @ 38.

It is unnecessary to repeat the argument of the first chapter and the experience of the eighteenth century in England, that the risk of the suppression of opinion is very great when the bad political tendency of words and the bad intention of the defendant become the only tests of criminality. Furthermore, we must not forget that we can never be sure that the tendency is bad or the intention evil. These are not visible facts. We have to depend on the opinions of the judge and jury as to the merits of the tendency and the morality of what they can guess about the inside of a man’s head. Of course, one evidence and often the main evidence of bad intention will be the supposed bad tendency of the language he employs. In short, any peace-time Sedition Law is open to exactly the objections which Jefferson stated in the Virginia Toleration Act,[344] that when the expression of opinion is made criminal, the tribunal will acquit or convict accordingly as the sentiments of the prisoner square with or differ from its own.

[344] Page 31, _supra_.