Chapter XIV: Section 6: of the Criminal Code was enacted during the Civil War and was (3)

To recapitulate, we began to discuss the Sedition Law with the assumption that it would punish only the man who talks out-and-out revolution and whom we know to intend out-and-out revolution. Such a man seems entitled to no protection. Now we see that we are not dealing with such a man at all. We must encounter much vaguer language and we can never be sure that a man’s mind is bad. In its actual application the law must necessarily convict any man whom the judge and jury consider to be using language of bad political tendency with a bad intention, whether or not the judge and jury are right. The desirability of the statute ought to depend very largely on the question whether human beings are likely to be right in forming such a judgment. The answer is that history shows they are very liable to be wrong.

Without the slightest imputation of corruption or malice, we can all agree that a juryman’s judgment of the remote political and economic effects of a book or speech is inevitably warped by his own views to a much greater degree than if he is determining the path of a bullet or the value of a house or even the effect of a lie on a woman’s reputation. And the moral quality of another’s mind is even more difficult to determine fairly when there is no criminal act, as in ordinary crimes, to check it up by. A bad intention is easily inferred from what we consider bad opinions. The consequence of such vague standards is that objectionable men and doctrines are easily decided to be advocating violence. Thus, a Winnipeg strike leader has just been prosecuted for sedition, solely on the ground in one count of the indictment that he “seditiously” published two verses of Isaiah, beginning, “Woe unto them that decree unrighteous decrees.”[345] Intention, that is, presumed intention, becomes the essence of the crime, and the thing actually done immaterial. Once more, the prisoner is convicted, not for what he does but for what he thinks.

[345] “Quoting Isaiah in Winnipeg,” A. V. Thomas, 109 _Nation_ 850 (January 3, 1920). The case was afterwards dropped. 110 _ibid._ 292.

Whether we believe that the Espionage Act decisions were necessary in time of war or not, we ought to hesitate to enact in peace a statute which is sure to be construed as widely as the simple words of the 1917 Act, and to subject all adverse criticism of the government to the risk of suppression so forcibly presented by Justice Brandeis in a recent Espionage Act case:[346]

The jury which found men guilty for publishing news items or
editorials like those here in question must have supposed it to
be within their province to condemn men not merely for disloyal
acts but for a disloyal heart; provided only that the disloyal
heart was evidenced by some utterance. To prosecute men for
such publications reminds of the days when men were hanged for
constructive treason. To hold that such harmless additions to
or omissions from news items, and such impotent expressions of
editorial opinion, as were shown here, can afford the basis
even of a prosecution will doubtless discourage criticism of
the policies of the Government. To hold that such publications
can be suppressed as false reports, subjects to new perils the
constitutional liberty of the press, already seriously curtailed
in practice under powers assumed to have been conferred upon
the postal authorities. Nor will this grave danger end with the
passing of the war. The constitutional right of free speech has
been declared to be the same in peace and in war. In peace, too,
men may differ widely as to what loyalty to our country demands;
and an intolerant majority, swayed by passion or by fear, may be
prone in the future, as it has often been in the past, to stamp
as disloyal opinions with which it disagrees. Convictions such as
these, besides abridging freedom of speech, threaten freedom of
thought and of belief.

[346] Schaefer _v._ U. S., 251 U. S. 466, 493 (1920), dissenting opinion.

Secondly, men who use revolutionary language should not be suppressed in the absence of very serious and pressing danger, because they almost always have a grievance. Very few people want to smash things for the fun of it like small boys breaking windows. Whether the grievance is well founded or not, the defenders of the existing order ought to know about it so that they may correct it or show by counter-argument that it does not exist. The agitator would be much wiser and more effective if he expressed his case calmly without threats, but we ought not to punish him for this mistake. He is not an educated man, he is not a lawyer, he is not accustomed to weighing his words carefully, and he is only too apt in a heated argument to let himself go. And on the whole, society gains if he is free to do so. The worse the grievance, the more likely the victim is to get angry and urge violent measures. Yet that is the grievance which most needs removal.[347] Reformers who get excited are pretty sure to take the position that force is justifiable if peaceful methods fail to gain what they consider right. Even the supporters of existing institutions have been known to lose their tempers and suggest lamp-posts and ropes. In the past we have felt it wiser to let the opponents of the government talk than to cause much greater bitterness in them and in their friends by throwing them into prison. Nor will this treatment silence those who are really dangerous. A friend of mine wants all “Bolshevists” shut up till the jails are so crowded that their feet hang out of the windows, but the daily letters from political prisoners in the radical newspapers show that their tongues hang out too. Putting radicals to death is the only way to get rid of them, and for that we have lost our nerve. Anything less only increases their power for harm. If they can say, “This government of capitalists denies us a decent life and now it won’t even let us tell our wrongs,” the natural conclusion is, “If it will not let us talk, our only resort is to fight.” The passage last quoted from the President’s Message hammers this truth home.

[347] See the thoughtful statement by Judge Cooley in his _Constitutional Limitations_ (7 ed.) 613, of the great danger of a rule against intemperate discussion, ending: “If they exceed all the proper bounds of moderation, the consolation must be, that the evil likely to spring from the violent discussion will probably be less, and its correction by public sentiment more speedy, than if the terrors of the law were brought to bear to prevent the discussion.” Mill adds very strong arguments against the same rule at the close of c. 2 of his _Liberty_.

Thirdly, a Sedition Act will suppress much discussion which is not within its terms. Men assume that such a law affects only a speech or a book which devotes itself entirely to the advocacy of violence. This is not so. For instance, any small conservative group in the community which wants to prevent radical agitators from bringing disagreeable facts to public attention will be enabled by such a statute to go through their speeches and pamphlets with a fine-tooth comb and probably find a sentence here or there which can be interpreted (in the light of the Abrams decision) as advocating revolution. Thus, it will be possible to imprison almost any radical agitator in the absence of any real danger of revolution. Of course, trivial offenses will not be punished in ordinary times, but during the excitement of a great strike or some other widespread unrest the partisans of law and order will hardly be able to resist the temptation to make use of this law to bottle up labor leaders and other agitators whom they fear and dislike. Witness the sentences of ten, fifteen, twenty years imposed upon leading Socialists under the Espionage Act, so that further activity on their part is conveniently prevented during the time they are likely to live. And in a government of laws and not of men, no one human being ought to be entrusted with the power to give or withhold the heavy sentences of a Sedition Law for the light offenses included within its provisions.

The effect of a Sedition Law upon books is even more injurious. An _ex post facto_ censorship of the press is created by the provision that a book which advocates force and violence must not be sold or imported from abroad or transported from state to state. It may be asked, why should any one honestly want to possess a book which urges revolution or even the violation of law? Why should we allow such books to come into the country or be put on sale? It must be remembered that a book falls under the penalties of the law if only a part of it is revolutionary. There are many books and pamphlets which for the most part contain elaborate discussions of social and economic questions, which it is very desirable to read. Here and there the writer is so impressed with the hopelessness of legal change in the present system that he advocates resort to force if nothing else serves. That alone will render circulation of the whole book a heinous crime under this Act. Many of the classics of modern economics will be put on this new Index Expurgatorius. The law will prevent a loyal citizen from obtaining from abroad or another state the works of Marx, Proudhon, Bakunin, or Stirner, and will make it criminal for a loyal bookseller to buy these books for him.

One particular instance will show the evil of such a statute. Harvard University is now planning to collect in its library all books, pamphlets, posters, and other material relating to the Russian Revolution. After the French Revolution nothing of the sort was attempted for many years, and in consequence all collections of documents of that period are very imperfect. It is the intention of the Harvard Library to avoid such a loss in the case of the Russian Revolution, which everybody, no matter what his opinion of it may be, recognizes as one of the great events in the history of the world. Most of the pending sedition bills would make it a crime to import a large part of this material from Russia or even transport it from New York to Cambridge.

Furthermore, if any one who obtains this revolutionary material runs the risk of long imprisonment, sober men who would read and refute it will leave it alone, and it will still fall into the hands of agitators who are willing to take chances. The bulk of the people will be virtually ignorant of what the left-wing radicals are really planning. One of the most effective weapons against anarchy was an exhaustive article in the _New York Times_[348] translating anarchistic passages from the foreign language press. It warned the American people of the thought which we ought to seek to counteract by education, Americanization, constructive propaganda, and the cure of grievances. Such an article would be criminal under most of the proposed legislation. The Attorney General’s Report to the Senate could not be distributed because of its extracts from the revolutionary press. Prosecutions of radical newspaper editors cannot be fully reported in the daily press, so that the public cannot know what men are convicted for, and it will be possible for the government under cover of such a practice to withhold from the people knowledge of punishment for legitimate political discussion. Even officials cannot lawfully import revolutionary literature under these bills, and an exception in their favor would be an insult to the citizens of the United States. This law is a kindergarten measure which assumes that the American people are so stupid and so untrustworthy that it is unsafe to let them read anything about anarchy and criminal syndicalism because they would immediately become converted. Above all, we shall not be able to meet this great danger of lawlessness if we refuse to look the enemy in the face. The habits of the ostrich are instinctive in many human beings, but they have not been conspicuous for success.

[348] June 8, 1919.

Even if we could wisely dispense with these left-wing books, much less radical publications will become criminal if advocacy of revolution by force and violence is punished. For example, one of the sanest discussions of contemporary thought, which has had a large sale in this country, is Bertrand Russell’s _Proposed Roads to Freedom_. Further distribution will become a crime because of its extracts from the Communist Manifesto of 1848: “The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of all existing social conditions. Let the ruling classes tremble at a Communistic revolution.”

Or take his quotation from an anarchist song:

Si tu veux être heureux,
Nom de Dieu!
Pends ton propriétaire.[349]

[349] Russell, _op. cit._, 17, 53.

Of course, any anti-socialistic book which gives an adequate historical account of its opponents will fall under the same condemnation.

And we shall have some surprises nearer home. It is advocacy of revolution by force and violence to write: “I hold a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.”[350] Out go the works of Thomas Jefferson. It is advocacy of change of government by assassination to say, “The right of a nation to kill a tyrant in cases of necessity can no more be doubted than to hang a robber, or kill a flea.”[351] Jefferson is followed by his old antagonist, John Adams, the author of the Sedition Law of 1798. The Declaration of Independence will be barred in this country as it was once upon a time in the Philippines, since it is a most eloquent advocate of change in the form of government by force without stint or limit. And the censorship can hardly overlook Lincoln’s First Inaugural:

This country with its institutions belongs to the people who
inhabit it. Whenever they shall grow weary of the existing
government, they can exercise their constitutional right of
amending it, or their revolutionary right to dismember or
overthrow it.

[350] Writings of Jefferson, ed. P. L. Ford, IV, 362; see also 370 and 467.

[351] Works of John Adams, ed. C. F. Adams, VI, 130.

It may be objected that of course no one will be prosecuted for selling such books. Perhaps not, but do we as a fair-minded people want a statute under which the very ideas which will be immune when cloth-bound in a respectable book store will constitute a penitentiary offense in a Yiddish hand-bill?

If this legislation is to be enforced with any impartiality, it must necessarily cut us off from our own revolutionary heritage and from the economic and political thought of Europe in our own time. During the last five years this nation has entered into the affairs of the world for the realization of noble aims. It cannot do this and at the same time propose to pass its existence for the next score of years like some Lady of Shalott, shut off from the turbulent life of European mankind.

Much more could be said, but I hope it is now clear that the really bad man is only an incidental victim of any federal Sedition Law in time of peace. Indeed, it is only too probable that he will be ingenious enough to hide his tracks and escape. Meanwhile, the law will suppress the discussion of public questions at point after point.

During the war the advocates of strong measures assured those who thought our traditional freedom of speech in peril, that suppression would disappear when the fighting stopped, and remarked with Lincoln that a man could not contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life.[352] The war is over, actually if not technically, the Espionage Act has suspended any widespread operation till the next conflict, but nearly every state in the Union has proceeded to make the expression of certain opinions criminal, and Congress is now considering a much more rigorous Espionage Act for times of peace. The truth is that persecution of unpopular doctrines is not an emetic at all, but a drug. A nation cannot indulge in an orgy of intolerance and console itself like Rip Van Winkle with the thought that “This time doesn’t count!” Nobody enjoyed gasless Sundays or sugarless coffee so much that we are likely to continue them in peace, but the pleasure of being able to silence the pro-Germans and pacifists and Socialists who had irritated us in 1915 and 1916 was so agreeable in 1917 and 1918 that it will be abandoned with extreme reluctance, and we long for more suppression to satisfy the appetite which has been created contrary to our former national tradition of open political discussion.

[352] Letter to Erastus Corning and others (June 12, 1863), _Works of Lincoln_, ed. Nicolay and Hay, VIII, 309.

Consequently we ought to cross-question acutely our present conviction that the repression of ideas is essential to the public safety, and ask ourselves how far that conviction results from the mood of the moment. Indeed, it may be conjectured that just as some soldiers were given ether to make them go “over the top” better, so a nation cannot enter whole-heartedly into the horrors of a war without some benumbing of its reasoning powers, from which it may not yet have recovered. Is it not psychologically probable that our minds have been so shaken by excitement, fear, and hatred, so stretched to one absorbing purpose, that they are slow to return to normal, and that we still crave something to fear and hate, some exceptional cause for which we can continue to evoke enthusiasm?

A very serious situation confronts us. For three years the government has pursued the policy advocated by Judge Van Valkenburgh when he tried Rose Pastor Stokes for her denunciation of profiteering:[353] “The President could not stop in the face of the enemy and effect domestic reforms. We do not ordinarily clean house and hang out the bedding when there is a thunderstorm on. We wait until it is over, go dirty a little longer.” A good deal of soiled linen has accumulated, and the consequences are far from agreeable. The discussion of the radicals is bound to be doubly violent because it was postponed, and now it can be postponed no longer unless we mean to suppress it altogether. By doing that we shall not end it, but only drive it underground.

[353] Bull. Dept. Just., No. 106, p. 18.

A Sedition Law is not the proper way to deal with anarchy. Outside of a few intellectuals, anarchy is the creation of discontent, and this law will increase discontent. Nothing adds more to men’s hatred for government than its refusal to let them talk, especially if they are the type of person anarchists are, to whom talking a little wildly is the greatest joy of life. Besides, suppression of their mere words shows a fear of them, which only encourages them to greater activity in secret. A widespread belief is aroused that the government would not be so anxious to silence its critics unless what they have been saying is true. A wise and salutary neglect of talk, coupled with vigorous measures against plans for actual violence and a general endeavor to end discontent, is the best legal policy toward anarchy and criminal syndicalism.

To quote from an extra-judicial decision of Justice Holmes:[354]

With effervescing opinions, as with the not yet forgotten
champagnes, the quickest way to let them get flat is to let them
get exposed to the air.

[354] Letter to the Harvard Liberal Club, reprinted in 21 _New Republic_ 250, and _Boston Herald_, January 13, 1920.

Undoubtedly, there are elements in our population, small in number, but reckless and aggressive, who are ready to act on incitement to revolution, but the real danger lies in the existence of large masses of unthinking radicals. This danger cannot be met directly by clubbing such men into loyalty. We must first understand the causes of their discontent, studying with open minds all the existing information, and then take constructive steps to end that discontent and substitute positive ideals for those we want to drive out. To modernize an old illustration from Herbert Spencer, any one who has watched a tinsmith mend a crumpled mud-guard on an automobile will observe that he never pounds the protuberant spot. To do so would either be ineffective or would simply raise a hump at some other place. Instead, he begins at a distance and hammers all around the critical point, gradually drawing the metal away from it until all is symmetrical as before.

If we have taken reasonable precautions against violence, we should not be disappointed at not securing absolute unanimity among our population on political and economic matters. If Americanism means anything concrete, it certainly means tolerance for opinions widely different from our own, however objectionable they seem to us. Such is the tradition handed down to us by Roger Williams and Thomas Jefferson. In the past we have been proud to believe that the arguments for law and order, the common sense of the American people, including those who have come from Europe to help build our industries, and the noble qualities of our institutions, would win out over any revolutionary talk or writing. The proposed Sedition Bills show a serious distrust in these three great stabilizing forces of American life. Not for the sake of the radicals, but for our own sake, should we oppose this unprecedented legislation, whose enforcement will let loose a horde of spies and informers, official and unofficial, swarming into our private life, stirring up suspicion without end, making all attacks on government either impotent or unsafe. The supporters of this gag-law assume that our patriotism and our institutions are so weak as to crumble away at any talk of revolution. Surely that time has not come, will never come. Let us put an end once for all to this cowardice, and take to heart the words of a great English Liberal:[355]

We talk much—and think a great deal too much—of the wisdom of our
ancestors. I wish we could imitate the courage of our ancestors.
They were not ready to lay their liberties at the feet of the
Government upon every vain or imaginary alarm.

[355] Lord John Russell, quoted in G. W. E. Russell, _Prime Ministers_, N. Y., 1919, 21.

There should be no legislation against sedition and anarchy. We must legislate and enforce the laws against the use of force, but protect ourselves against bad thinking and speaking by the strength of argument and a confidence in American common sense and American institutions, including that most characteristic of all, which stands at the head of the Bill of Rights, freedom of thought.