Chapter I: Freedom of Speech in War Time (1)

And though all the winds of doctrine were let loose to play
upon the earth, so Truth be in the field, we do injuriously by
licensing and prohibiting to misdoubt her strength. Let her and
Falsehood grapple; who ever knew Truth put to the worse, in a
free and open encounter?—MILTON, _Areopagitica_.

Never in the history of our country, since the Alien and Sedition Laws of 1798, has the meaning of free speech been the subject of such sharp controversy as to-day. Over nineteen hundred prosecutions and other judicial proceedings during the war, involving speeches, newspaper articles, pamphlets, and books, have been followed since the armistice by a widespread legislative consideration of bills punishing the advocacy of extreme radicalism. It is becoming increasingly important to determine the true limits of freedom of expression, so that speakers and writers may know how much they can properly say, and governments may be sure how much they can lawfully and wisely suppress. The United States Supreme Court has recently handed down several decisions upon the Espionage Act, which put us in a much better position than formerly to discuss the war-time aspects of the general problem of liberty of speech. Therefore, instead of beginning with an abstract treatment of that problem, I shall take the concrete situation of opposition to war, and from it endeavor to work out the fundamental principles of the whole subject. These can afterwards be tested by their application to radical agitation in peace.

It is already plain, I hope, that this book is an inquiry into the proper limitations upon freedom of speech, and is in no way an argument that any one should be allowed to say whatever he wants anywhere and at any time. We can all agree from the very start that there must be some point where the government may step in, and my main purpose is to make clear from many different angles just where I believe that point to lie. We ought also to agree that a man may believe that certain persons have a right to speak or other constitutional rights, without at all identifying himself with the position and views of such persons. In a country where John Adams defended the British soldiers involved in the Boston Massacre and Alexander Hamilton represented British Loyalists and General Grant insisted upon amnesty for Robert E. Lee, it is surprising how in the last three years it has been impossible for any one to uphold the rights of a minority without subjecting himself to the accusation that he shared their opinions. If he urged milder treatment of conscientious objectors, he was a pacifist. If he held that the treaty with Germany should not violate the terms of the armistice, he was a pro-German. This popular argument reached its climax when an opponent of the disqualified Socialist assemblymen informed the world that he had always suspected Governor Hughes of being disloyal.

I am not an atheist, but I would not roast one at the stake as in the sixteenth century, or even exclude him from the witness-stand as in the nineteenth. Neither am I a pacifist or an anarchist or a Socialist or a Bolshevik. I have no sympathy myself with the views of most of the men who have been imprisoned since the war began for speaking out. The only one, I suppose, of all that number with whom I could sit down for half an hour’s conversation without losing my temper is Mr. Bertrand Russell. My only interest is to find whether or not the treatment which they have received accords with freedom of speech. That principle may be invoked just as eagerly in future years by conservatives. Whatever political or economic opinion falls within the scope of the First Amendment ought to be safeguarded from governmental interference by every man who has sworn to uphold the Constitution of the United States, no matter how much he disagrees with those who are entitled to its protection or how lofty the patriotism of those who would whittle away the Bill of Rights into insignificance.

A friend of Lovejoy, the Abolitionist printer killed in the Alton riots, said at the time that we are more especially called upon to maintain the principles of free discussion in case of unpopular sentiments or persons, as in no other case will any effort to maintain them be needed.[1]

[1] Edward Beecher, _Alton Riots_, Alton, Ill., 1838 (Widener Library). A bibliographical note to this and other chapters will be found in Appendix I.

The free speech clauses of the American constitutions are not merely expressions of political faith without binding legal force. Their history shows that they limit legislative action as much as any other part of the Bills of Rights. The United States Constitution as originally drafted contained no guaranty of religious or intellectual liberty, except that it forbade any religious test oath and gave immunity to members of Congress for anything said in debates. Pinckney, of South Carolina, had sought to insert a free speech clause, grouping liberty of the press with trial by jury and habeas corpus as “essentials in free governments.” His suggestion was rejected by a slight majority as unnecessary, in that the power of Congress did not extend to the press, a natural belief before Hamilton and Marshall had developed the doctrine of incidental and implied powers. Hamilton himself defended the omission on the ground that liberty of the press was indefinable and depended only on public opinion and the general spirit of the people and government for its security, little thinking that he himself would frame a definition now embodied in the constitutions of half the states.[2] The citizens of the states were not satisfied, and the absence of the guaranty of freedom of speech was repeatedly condemned in the state conventions and in outside discussion. Virginia, New York, and Rhode Island embodied a declaration of this right in their ratifications of the federal Constitution. Virginia expressly demanded an amendment and Maryland drafted one in its convention, basing it on a very significant reason, to be mentioned shortly. At the first session of Congress a Bill of Rights, including the present First Amendment, was proposed for adoption by the states, and became part of the Constitution November 3, 1791. Massachusetts, Virginia, and Pennsylvania already had similar provisions, and such a clause was eventually inserted in the constitutions of all other states. Thus the guaranty of freedom of speech was almost a condition of the entry of four original states into the Union, and is now declared by every state to be as much a part of its fundamental law as trial by jury or compensation for property taken by eminent domain. Such a widely recognized right must mean something, and have behind it the obligation of the courts to refuse to enforce any legislation which violates freedom of speech.

[2] The various types of free speech clauses are given in _Index Digest of State Constitutions_, N. Y. State Cons. Conv. Comm., 1915, pp. 700–702, 956–958. Twenty-three state constitutions follow Hamilton (note 330, _infra_) in making truth a defense to criminal libel if published with good motives. The first was _New York Constitution_, 1821, Art. 7, § 8. See _Reports of New York Constitutional Convention of 1821_, pp. 167, 487. All but five states have a clause resembling another sentence of the New York section: “Every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that right; and no law shall be passed, to restrain, or abridge the liberty of speech, or of the press.” Massachusetts, Mississippi, New Hampshire, Vermont, and South Carolina retain a short clause much like the federal Constitution. The express exception of “abuse” was first made by Pennsylvania in 1790 (note 36, _infra_); but since I regard such an exception as implied in the United States form, I have assumed in this book that there is no difference in legal effect. The effect of the Hamiltonian clause is discussed by Henry Schofield, “Freedom of the Press in the United States,” 9 _Proc. Am. Sociolog. Soc._ 88 ff., cited hereafter as Schofield.

We shall not, however, confine ourselves to the question whether a given form of federal or state action against pacifist and similar utterances is void under the constitutions. It is often assumed that so long as a statute is held valid under the Bill of Rights, that document ceases to be of any importance in the matter, and may be henceforth disregarded. On the contrary, a provision like the First Amendment to the federal Constitution,

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for
a redress of grievances,

is much more than an order to Congress not to cross the boundary which marks the extreme limits of lawful suppression. It is also an exhortation and a guide for the action of Congress inside that boundary. It is a declaration of national policy in favor of the public discussion of all public questions. Such a declaration should make Congress reluctant and careful in the enactment of all restrictions upon utterance, even though the courts will not refuse to enforce them as unconstitutional. It should influence the judges in their construction of valid speech statutes, and the prosecuting attorneys who control their enforcement. The Bill of Rights in a European constitution is a declaration of policies and nothing more, for the courts cannot disregard the legislative will though it violates the Constitution.[3] Our Bills of Rights perform a double function. They fix a certain point to halt the government abruptly with a “Thus far and no farther”; but long before that point is reached they urge upon every official of the three branches of the state a constant regard for certain declared fundamental policies of American life.[4]

[3] A. V. Dicey, _Law of the Constitution_, 8 ed., 130: “This curious result therefore ensues. The restrictions placed on the action of the legislature under the French constitution are not in reality laws, since they are not rules which in the last resort will be enforced by the Courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution and from the resulting support of public opinion. What is true of the constitution of France applies with more or less force to other polities which have been formed under the influence of French ideas.”

Probably some Americans anticipated only the same effect from our bills of rights, not realizing that an unconstitutional statute would be held unenforceable. Spencer said in the North Carolina Convention: “If a boundary were set up, when the boundary is passed, the people would take notice of it immediately.” 4 _Elliot’s Debates_ (2 ed.) 175.

[4] “No doubt our doctrine of constitutional law has had a tendency to drive out questions of justice and right, and to fill the mind of legislators with thoughts of mere legality, of what the constitution allows.”—J. B. Thayer, _Legal Essays_, 38. See his quotation from 1 Bryce, _American Commonwealth_, 1 ed., 377.

Our main task, therefore, is to ascertain the nature and scope of the policy which finds expression in the First Amendment to the United States Constitution and the similar clauses of all the state constitutions, and then to determine the place of that policy in the conduct of war, and particularly the war with Germany. The free speech controversy of the last two years has chiefly gathered about the federal Espionage Act. This Act contains a variety of provisions on different subjects, such as the protection of ships in harbors, spy activities, unlawful military expeditions, etc., but the portion which concerns us, Title I, section 3, discussed at length in the next chapter, as it has been interpreted by the courts, makes criminal several kinds of spoken or written opposition to this or any future war, and imposes a maximum penalty of $10,000 fine or twenty years’ imprisonment, or both. Any material violating this section may, under Title XII of the Act, be excluded from the mails. This statute has been enacted and vigorously enforced under a constitution which provides: “Congress shall make no law ... abridging the freedom of speech, or of the press.”

Clearly, the problem of the limits of freedom of speech in war time is no academic question. On the one side, thoughtful men and journals are asking how scores of citizens can be imprisoned under this constitution only for their open disapproval of the war as irreligious, unwise, or unjust. On the other, federal and state officials point to the great activities of German agents in our midst and to the unprecedented extension of the business of war over the whole nation, so that in the familiar remark of Ludendorff, wars are no longer won by armies in the field, but by the _morale_ of the whole people. The widespread Liberty Bond campaigns, and the shipyards, munition factories, government offices, training camps, in all parts of the country, are felt to make the entire United States a theater of war, in which attacks upon our cause are as dangerous and unjustified as if made among the soldiers in the rear trenches. The government regards it as inconceivable that the Constitution should cripple its efforts to maintain public safety. Abstaining from countercharges of disloyalty and tyranny, let us recognize the issue as a conflict between two vital principles, and endeavor to find the basis of reconciliation between order and freedom.

At the outset, we can reject two extreme views in the controversy. First, there is the view that the Bill of Rights is a peace-time document and consequently freedom of speech may be ignored in war. This view has been officially repudiated.[5] At the opposite pole is the belief of many agitators that the First Amendment renders unconstitutional any Act of Congress without exception “abridging the freedom of speech, or of the press,” that all speech is free, and only action can be restrained and punished. This view is equally untenable. The provisions of the Bill of Rights can not be applied with absolute literalness, but are subject to exceptions.[6] For instance, the prohibition of involuntary servitude in the Thirteenth Amendment does not prevent military conscription, or the enforcement of a “work or fight” statute. The difficulty, of course, is to define the principle on which the implied exceptions are based, and an effort to that end will be made subsequently.

[5] Report of the Attorney General of the United States (1918), 20: “This department throughout the war has proceeded upon the general principle that the constitutional right of free speech, free assembly, and petition exist in war time as in peace-time, and that the right of discussion of governmental policy and the right of political agitation are most fundamental rights in a democracy.”

[6] Robertson _v._ Baldwin, 165 U. S. 275, 281 (1897); Selective Draft Law Cases, 245 U. S. 366, 390 (1918); Claudius _v._ Davie, 175 Cal. 208 (1917); State _v._ McClure, 105 Atl. 712 (Del. Gen. Sess., 1919).

Since it is plain that the true solution lies between these two extreme views, and that even in war time freedom of speech exists subject to a problematical limit, it is necessary to determine where the line runs between utterances which are protected by the Constitution from governmental control and those which are not. Many attempts at a legal definition of that line have been made, but two mutually inconsistent theories have been especially successful in winning judicial acceptance, and frequently appear in the Espionage Act cases.

One theory construes the First Amendment as enacting Blackstone’s statement that “the liberty of the press ... consists in laying no _previous_ restraints upon publications and not in freedom from censure for criminal matter when published.”[7] The line where legitimate suppression begins is fixed chronologically at the time of publication. The government cannot interfere by a censorship or injunction _before_ the words are spoken or printed, but can punish them as much as it pleases _after_ publication, no matter how harmless or essential to the public welfare the discussion may be. This Blackstonian definition found favor with Lord Mansfield,[8] and is sometimes urged as a reason why civil libels should not be enjoined,[9] so that on this theory liberty of the press means opportunity for blackmailers and no protection for political criticism. The same definition was adopted by a few American judges in early contempt proceedings and prosecutions for libel.[10] The Federalist judges of that time were so notorious for their slavish adherence to English authorities in disregard of our own constitutions and statutes,[11] that their Blackstonian statements should have little weight in the construction of constitutional guaranties. However, one of these cases was in Massachusetts, whence Justice Holmes carried the Blackstonian definition into the United States Supreme Court.[12] Fortunately he has now repudiated this interpretation of freedom of speech,[13] but not until his dictum had had considerable influence, particularly in Espionage Act cases.[14] Of course, if the First Amendment does not prevent prosecution and punishment of utterances, the Espionage Act is unquestionably constitutional.

[7] 4 Blackstone, _Commentaries_, 151.

[8] King _v._ Dean of St. Asaph, 3 T. R. 428, 431 (1784): “The liberty of the press consists in printing without any previous license, subject to the consequence of law.”

[9] See Roscoe Pound, “Equitable Relief Against Defamation and Injuries to Personality,” 29 _Harv. L. Rev._ 651, and recent federal cases in 32 _ibid._ 938 n. Dean Pound discusses two views besides Blackstone’s. The view mentioned as Story’s is really that of St. George Tucker, whom Story was criticising. 2 Story, _Constitution_, § 1886.

[10] McKean in Respublica _v._ Oswald, 1 Dall. 319 (Pa., 1788), and Trial of William Cobbett, Wharton’s State Trials, 322 (Pa., 1797), Yeates in Respublica _v._ Dennie, 4 Yeates 267 (Pa., 1805); Parker in Comm. _v._ Blanding, 3 Pick. 304 (Mass., 1825). See Schofield in 9 _Proc. Am. Sociolog. Soc._ 69.

[11] Beveridge’s _Marshall_, III, 23 ff. See page 22, _infra_.

[12] Patterson _v._ Colorado, 205 U. S. 454, 462 (1907).

[13] Schenck _v._ U. S., 249 U. S. 47 (1919); Abrams _v._ U. S., 250 U. S. 616 (1919).

[14] Masses Pub. Co. _v._ Patten, 246 Fed. 24 (1917); U. S. _v._ Coldwell, Bull. Dept. Just., No. 158, page 4.

This Blackstonian theory dies hard, but it ought to be knocked on the head once for all. In the first place, Blackstone was not interpreting a constitution, but trying to state the English law of his time, which had no censorship and did have extensive libel prosecutions. Whether or not he stated that law correctly, an entirely different view of the liberty of the press was soon afterwards enacted in Fox’s Libel Act, so that Blackstone’s view does not even correspond to the English law of the last hundred and twenty-five years. Furthermore, Blackstone is notoriously unfitted to be an authority on the liberties of American colonists, since he upheld the right of Parliament to tax them, and was pronounced by one of his own colleagues to have been “we all know, an anti-republican lawyer.”[15]

[15] 1 Blackstone, _Commentaries_, 109; Willes, J., in Dean of St. Asaph’s Case, 4 Doug. 73, 172 (1784).

Not only is the Blackstonian interpretation of our free speech clauses inconsistent with eighteenth-century history, soon to be considered, but it is contrary to modern decisions, thoroughly artificial, and wholly out of accord with a common-sense view of the relations of state and citizen. In some respects this theory goes altogether too far in restricting state action. The prohibition of previous restraint would not allow the government to prevent a newspaper from publishing the sailing dates of transports or the number of troops in a sector. It would render illegal removal of an indecent poster from a billboard or the censorship of moving pictures before exhibition, which has been held valid under a free speech clause.[16] And whatever else may be thought of the decision under the Espionage Act with the unfortunate title, United States _v._ The Spirit of ’76,[17] it was clearly previous restraint for a federal court to direct the seizure of a film which depicted the Wyoming Massacre and Paul Revere’s Ride, because it was “calculated reasonably so to excite or inflame the passions of our people or some of them as that they will be deterred from giving that full measure of co-operation, sympathy, assistance, and sacrifice which is due to Great Britain, as an ally of ours,” and “to make us a little bit slack in our loyalty to Great Britain in this great catastrophe.”

[16] Mutual Film Corporation _v._ Industrial Commission of Ohio, 236 U. S. 230, 241 (1915).

[17] 252 Fed. 946 (D. C. S. D. Cal., 1917), Bledsoe, J. See also Goldstein _v._ U. S., 258 Fed. 908 (C. C. A. 9th, 1919).

On the other hand, it is hardly necessary to argue that the Blackstonian definition gives very inadequate protection to the freedom of expression. A death penalty for writing about socialism would be as effective suppression as a censorship. The government which holds twenty years in prison before a speaker and calls him free to talk resembles the peasant described by Galsworthy:[18]

The other day in Russia an Englishman came on a street-meeting
shortly after the first revolution had begun. An extremist was
addressing the gathering and telling them that they were fools
to go on fighting, that they ought to refuse and go home, and so
forth. The crowd grew angry, and some soldiers were for making a
rush at him; but the chairman, a big burly peasant, stopped them
with these words: “Brothers, you know that our country is now
a country of free speech. We must listen to this man, we must
let him say anything he will. But, brothers, when he’s finished,
we’ll bash his head in!”

[18] John Galsworthy, “American and Briton,” 8 _Yale Rev._ 27 (October, 1918). _Cf._ Boswell’s Johnson, ed. G. B. Hill, IV, 12.

Cooley’s comment on Blackstone is unanswerable:[19]

... The mere exemption from previous restraints cannot be all
that is secured by the constitutional provisions, inasmuch as of
words to be uttered orally there can be no previous censorship,
and the liberty of the press might be rendered a mockery and a
delusion, and the phrase itself a byword, if, while every man was
at liberty to publish what he pleased, the public authorities
might nevertheless punish him for harmless publications, ...
Their purpose [of the free speech clauses] has evidently been
to protect parties in the free publication of matters of public
concern, to secure their right to a free discussion of public
events and public measures, and to enable every citizen at any
time to bring the government and any person in authority to the
bar of public opinion by any just criticism upon their conduct
in the exercise of the authority which the people have conferred
upon them.... The evils to be prevented were not the censorship
of the press merely, but any action of the government by means of
which it might prevent such free and general discussion of public
matters as seems absolutely essential to prepare the people for
an intelligent exercise of their rights as citizens.

[19] Cooley, _Constitutional Limitations_, 7 ed., 603, 604.

If we turn from principles to precedents, we find several decisions which declare the constitutional guarantee of free speech to be violated by statutes and other governmental action which imposed no previous restraint, but penalized publications after they were made.[20] And most of the decisions in which a particular statute punishing for talking or writing is sustained do not rest upon the Blackstonian interpretation of liberty of speech,[21] but upon another theory, now to be considered. Therefore, it is possible that the severe punishments imposed by Title I, section 3, of the Espionage Act, violate the First Amendment, although they do not interfere with utterances before publication.[22]

[20] Louthan _v._ Commonwealth, 79 Va. 196 (1884)—statute punishing school superintendent for political speeches; Atchison, etc. Ry. _v._ Brown, 80 Kans. 312 (1909)—service-letter statute, making employer liable to civil action if he failed to furnish a discharged employee a written statement for the true reason for discharge. St. Louis, etc. Ry. Co. _v._ Griffin, 106 Texas 477 (1914), same; Wallace _v._ Georgia Ry. Co., 94 Ga. 732 (1894), same; _Ex parte_ Harrison, 212 Mo. 88 (1908),—statute punishing voters’ leagues for commenting on candidates for office without disclosing the names of all persons furnishing the information; State _ex rel._ Metcalf _v._ District Court, 52 Mont. 46 (1916)—contempt proceedings for criticism of judge for past decision; State _ex rel._ Ragan _v._ Junkin, 85 Neb. 1 (1909),—statute invalidating nomination of candidates by conventions or any other method except primaries; State _v._ Pierce, 163 Wis. 615 (1916)—corrupt practices act punishing political disbursements outside one’s own county except through a campaign committee; State _v._ Printing Co., 177 Pac. 751 (N. M., 1918)—contempt. Some of these decisions are open to dispute on the desirability of the statutes, and some are opposed by other cases for that reason, but in their repudiation of the Blackstonian test they furnish unquestioned authority.

[21] Examples in such cases of express repudiation of the Blackstonian doctrine are found in Schenck _v._ United States, 249 U. S. 47 (1919); State _v._ McKee, 73 Conn. 18 (1900); State _v._ Pioneer Press Co., 100 Minn. 173 (1907); Cowan _v._ Fairbrother, 118 N. C. 406, 418 (1896).

[22] Title XII of the Espionage Act does impose previous restraint on publications which violate the Act by authorizing the Postmaster General to exclude them from the mails. See page 108, _infra_.

A second interpretation of the freedom of speech clauses limits them to the protection of the use of utterance and not to its “abuse.” It draws the line between “liberty” and “license.” Chief Justice White[23] rejects:

the contention that the freedom of the press is the freedom
to do wrong with impunity and implies the right to frustrate
and defeat the discharge of those governmental duties upon the
performance of which the freedom of all, including that of the
press, depends.... However complete is the right of the press to
state public things and discuss them, that right, as every other
right, enjoyed in human society, is subject to the restraints
which separate right from wrong-doing.

[23] Toledo Newspaper Co. _v._ United States, 247 U. S. 402, 419 (1918).

A statement of the same view in another peace case is made by Judge Hamersley of Connecticut:[24]

Every citizen has an equal right to use his mental endowments, as
well as his property, in any harmless occupation or manner; but
he has no right to use them so as to injure his fellow-citizens
or to endanger the vital interests of society. Immunity in
the mischievous use is as inconsistent with civil liberty as
prohibition of the harmless use.... The liberty protected is
not the right to perpetrate acts of licentiousness, or any act
inconsistent with the peace or safety of the State. Freedom of
speech and press does not include the abuse of the power of
tongue or pen, any more than freedom of other action includes an
injurious use of one’s occupation, business, or property.

[24] State _v._ McKee, 73 Conn. 18, 28 (1900).

The decisions in the war are full of similar language,[25] of which a few specimens will suffice:

In this country it is one of our foundation stones of liberty
that we may freely discuss anything we please, provided that
that discussion is in conformity with law, or at least not in
violation of it.

No American worthy of the name believes in anything else than
free speech; but free speech means, not license, not counseling
disobedience of the law. Free speech means that frank, free,
full, and orderly expression which every man or woman in the
land, citizen or alien, may engage in, in lawful and orderly
fashion.

No one is permitted under the constitutional guaranties to commit
a wrong or violate the law.

[25] Mayer, J., in United States _v._ Phillips, Bull. Dept. Just., No. 14 (S. D. N. Y., 1917), 5; and United States _v._ Goldman, Bull. Dept. Just., No. 41 (S. D. N. Y., 1917), 2; Van Valkenburgh, J., in United States _v._ Stokes, Bull. Dept. Just., No. 106 (W. D. Mo., 1918), 12. See also United States _v._ Pierce, Bull. Dept. Just., No. 52 (S. D. N. Y., 1917), 22, Ray, J.; United States _v._ Nearing, Bull. Dept. Just., No. 192 (S. D. N. Y., 1917), 4, Mayer, J.; United States _v._ Wallace, Bull. Dept. Just. 4 (Ia., 1917), 4, Wade, J.

Just the same sort of distinction was made by Lord Kenyon during the French revolution:

The liberty of the press is dear to England. The licentiousness
of the press is odious to England. The liberty of it can never be
so well protected as by beating down the licentiousness.

This exasperated Sir James Fitzjames Stephen into the comment, “Hobbes is nearly the only writer who seems to me capable of using the word ‘liberty’ without talking nonsense.”[26]

[26] 2 _Hist. Crim. Law_ 348 n.

A slightly more satisfactory view is adopted by Cooley,[27] that the clauses guard against repressive measures by the several departments of government, but not against utterances which are a public offense, or which injure the reputation of individuals.

[27] Cooley, _Constitutional Limitations_, 7 ed., 605; quoted by Hough, J., in Fraina _v._ United States, 255 Fed. 28, 35 (C. C. A. 2d, 1918).

We understand liberty of speech and of the press to imply not
only liberty to publish, but complete immunity from legal censure
and punishment for the publication, so long as it is not harmful
in its character, when tested by such standards as the law
affords.

To a judge obliged to decide whether honest and able opposition to the continuation of a war is punishable, these generalizations furnish as much help as a woman forced, like Isabella in _Measure for Measure_, to choose between her brother’s death and loss of honor, might obtain from the pious maxim, “Do right.” What is abuse? What is license? What standards does the law afford? To argue that the federal Constitution does not prevent punishment for criminal utterances begs the whole question, for utterances within its protection are not crimes. If it only safeguarded lawful speech, Congress could escape its operation at any time by making any class of speech unlawful. Suppose, for example, that Congress declared any criticism of the particular administration in office to be a felony, punishable by ten years’ imprisonment. Clearly, the Constitution must limit the power of Congress to create crimes. But how far does that limitation go? Cooley suggests that the constitutional guaranties must be interpreted in the light of the contemporary common law of blasphemy, obscenity, and defamation, but flatly denies that they enact the common law of sedition and libels against the government.[28] Conditions in 1791 must be considered, but they do not arbitrarily fix the division between lawful and unlawful speech for all time.

[28] _Ibid._ 604, 612 ff.

Clearly, we must look further and find a rational test of what is use and what is abuse. Saying that the line lies between them gets us nowhere. And “license” is too often “liberty” to the speaker, and what happens to be anathema to the judge.

We can, of course, be sure that certain forms of utterance, which have always been crimes or torts at common law, are not within the scope of the free speech clauses. The courts in construing such clauses have, for the most part, done little more than place obvious cases on this or that side of the line. They tell us, for instance, that libel and slander are actionable, or even punishable, that indecent books are criminal, that it is contempt to interfere with pending judicial proceedings, and that a permit can be required for street meetings; and on the other hand, that some criticism of the government must be allowed, that a temperate examination of a judge’s opinion is not contempt, and that honest discussion of the merits of a painting causes no liability for damages. But when we ask where the line actually runs and how they know on which side of it a given utterance belongs, we find little answer in their opinions.

We do have two very able judicial statements which take us far toward the ultimate solution of the problem of the limits of free speech, but they unfortunately lack the weight of binding adjudications, for one is a decision by Judge Learned Hand which was subsequently reversed on appeal and the other a dissenting opinion by Justice Holmes. Therefore, it is regrettable that when Justice Holmes spoke for all members of the United States Supreme Court in the earlier Espionage Act decisions, he did not feel at liberty to go beyond the particular facts before him into a fuller exposition of fundamental principles, and make articulate for us that major premise, under which judges ought to classify words as inside or outside the scope of the First Amendment. He, we then hoped, would concentrate his great abilities on fixing the line. Instead, like other judges, he told us that certain plainly unlawful utterances are, to be sure, unlawful.

The First Amendment ... obviously was not intended to give
immunity for every possible use of language.... We venture
to believe that neither Hamilton nor Madison, nor any other
competent person then or later, ever supposed that to make
criminal the counselling of a murder ... would be an
unconstitutional interference with free speech.[29]

The most stringent protection of free speech would not protect a
man in falsely shouting fire in a theater and causing a panic.[30]

[29] Frohwerk _v._ United States, 249 U. S. 204 (1919).

[30] Schenck _v._ United States, 249 U. S. 47 (1919).

How about the man who gets up in a theater between the acts and informs the audience honestly, but perhaps mistakenly, that the fire exits are too few or locked? He is a much closer parallel to Frohwerk or Debs. How about James Russell Lowell when he counseled, not murder, but the cessation of murder, his name for war? The question whether such perplexing cases are within the First Amendment or not cannot be solved by the multiplication of obvious examples, but only by the development of a rational principle to mark the limits of constitutional protection.

“The gradual process of judicial inclusion and exclusion,”[31] which has served so well to define other clauses in the federal Constitution by blocking out concrete situations on each side of the line until the line itself becomes increasingly plain, has as yet been of very little use for the First Amendment. The cases are too few, too varied in their character, and often too easily solved, to develop any definite boundary between lawful and unlawful speech. Even if some boundary between the precedents could be attained, we could have little confidence in it unless we knew better than now the fundamental principle on which the classification was based. Indeed, many of the decisions in which statutes have been held to violate free speech seem to ignore so seriously the economic and political facts of our time, that they are precedents of very dubious value for the inclusion and exclusion process.[32] Nearly every free speech decision, outside such hotly litigated portions as privilege and fair comment in defamation, appears to have been decided largely by intuition.

[31] Miller, J., in Davidson _v._ New Orleans, 96 U. S. 97, 104 (1877).

[32] See note 20, _supra_.

In the next chapter I shall return to the opinions of Justice Holmes and Judge Hand. For the moment, however, it may be worth while to forsake the purely judicial discussion of free speech, and obtain light upon its meaning from the history of the constitutional clauses and from the purpose free speech serves in social and political life.

The framers of the First Amendment make it plain that they regarded freedom of speech as very important—“absolutely necessary” is Luther Martin’s phrase. But they say very little about its exact meaning. That should not surprise us if we recall our own vagueness about freedom of the seas. Men rarely define their inspirations until they are forced into doing so by sharp antagonism. Therefore, it is not until the Sedition Law of 1798 made the limits of liberty of the press a concrete and burning issue that we get much helpful expression of opinion on our problem.[33] Before that time, however, we have a few important pieces of evidence to show that the words were used in the Constitution in a wide and liberal sense.

[33] See Appendix I for references on the Law of 1798.

On October 26, 1774, the Continental Congress issued an address to the inhabitants of Quebec, declaring that the English colonists had five invaluable rights, representative government, trial by jury, liberty of the person, easy tenure of land, and freedom of the press:[34]

The last right we shall mention regards the freedom of the press.
The importance of this consists, besides the advancement of
truth, science, morality and arts in general, in its diffusion of
liberal sentiment on the administration of government, its ready
communication of thoughts between subjects, and its consequential
promotion of union among them, whereby oppressive officials are
shamed or intimidated into more honorable and just modes of
conducting affairs.

[34] Journal of the Continental Congress, Vol. I (ed. 1800), p. 57.

In 1785 Virginia, which was the first state to insert a clause protecting the liberty of the press in its constitution (1776), enacted a statute drawn by Jefferson for Establishing Religious Freedom.[35] This opened with a very broad principle of toleration: “Whereas, Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness——” While this relates specifically to religion, it shows the trend of men’s thoughts, and the meaning which “liberty” had to Jefferson long before the bitter controversy of 1798.

[35] See note 66, _infra_.

One other framer of our government has stated his views on this matter in less solemn language, Benjamin Franklin.[36] In discussing the brief “freedom of speech” clause in the Pennsylvania Constitution of 1776, he said in 1789, that if by the liberty of the press were to be understood merely the liberty of discussing the propriety of public measures and political opinions, let us have as much of it as you please. On the other hand, if it means liberty to calumniate another there ought to be some limit; but he has been at a loss to imagine any that may not be construed an infringement of the sacred _liberty of the press_. At length, however, he thinks he has found one that instead of diminishing general liberty shall augment it; he means _the liberty of the cudgel_. If, however, it should be thought that this proposal of his may disturb the public peace, he would humbly recommend to our legislators to take up the consideration of both liberties, that of the _press_, and that of the _cudgel_, and by an explicit law mark their extent and limits. Thus Franklin construed this clause so widely as even to grant immunity from private libel actions. Next year the Pennsylvania Constitution was amended to impose responsibility for the abuse of the liberty, but no such exception was thought necessary in the United States Constitution, probably because private libels were not within the purview of the federal law.

[36] _Works_, ed. A. H. Smyth, X, 36 ff. See Pa. Cons. (1776), c. I, sect. 12; Pa. Cons. (1790), Art. IX, sect. 7.

The most significant evidence of the meaning of the First Amendment is the reason given by the Maryland convention of 1788 to the people for including such a clause in the proposed federal Bill of Rights:[37] “In prosecutions in the federal courts, for libels, the constitutional preservation of this great and fundamental right may prove invaluable.” This is, of course, absolutely inconsistent with any Blackstonian limitation of the right to absence of a censorship.

[37] 2 Elliot’s Deb. (2 ed.) 511; see the same argument in newspaper letters given in _Pennsylvania and the Federal Constitution_, ed. J. B. McMaster and F. D. Stone, 151, 181. The second letter suggests the possibility of a prohibitive stamp tax as in Massachusetts to crush the press.

If we apply Coke’s test of statutory construction, and consider what mischief in the existing law the framers of the First Amendment wished to remedy by a new safeguard, we can be sure that it was not the censorship. This had expired in England in 1695, and in the colonies by 1725.[38] For years the government here and in England had substituted for the censorship rigorous and repeated prosecutions for criminal libel or seditious libel, as it was often called, which were directed against political discussion, and for years these prosecutions were opposed by liberal opinion and popular agitation. Primarily the controversy raged around two legal contentions of the great advocates for the defense, such as Erskine and Andrew Hamilton. They argued, first, that the jury and not the judge ought to decide the libellous nature of the writing, and secondly, that the truth of the charge ought to prevent conviction. The real issue, however, lay much deeper. Two different views of the relation of rulers and people were in conflict. According to one view, the rulers were the superiors of the people, and therefore must not be subjected to any censure that would tend to diminish their authority. The people could not make adverse criticism in newspapers or pamphlets, but only through their lawful representatives in the legislature, who might be petitioned in an orderly manner. According to the other view, the rulers are agents and servants of the people, who may therefore find fault with their servants and discuss questions of their punishment or dismissal, and of governmental policy.

[38] Macaulay, _History of England_, Chap. XXI; C. A. Duniway, _Freedom of Speech in Massachusetts_, 89 note.

Under the first view, which was officially accepted until the close of the eighteenth century, developed the law of seditious libel. This is defined as “the intentional publication, without lawful excuse or justification, of written blame of any public man, or of the law, or of any institution established by law.” There was no need to prove any intention on the part of the defendant to produce disaffection or excite an insurrection. It was enough if he intended to publish the blame, because it was unlawful in him merely to find fault with his masters and betters. Such, in the opinion of the best authorities, was the common law of sedition.[39]

[39] Madison, Report on the Virginia Resolutions, 1799, 4 Ell. Deb. (2 ed.) 596 ff.; 2 Stephen, _History of the Criminal Law_, 299, 353, and Chap. XXIV., _passim_; Schofield, in _9 Proc. Am. Sociol. Soc._ 70 ff., gives an excellent summary with especial reference to American conditions.

It is obvious that under this law liberty of the press was nothing more than absence of the censorship, as Blackstone said. All through the eighteenth century, however, there existed beside this definite legal meaning of liberty of the press, a definite popular meaning: the right of unrestricted discussion of public affairs. There can be no doubt that this was in a general way what freedom of speech meant to the framers of the Constitution. Thus Madison in 1799 bases his explanation of the First Amendment on “the essential difference between the British Government and the American constitutions.” In England, he says, Parliament is omnipotent and all the ramparts for protecting the rights of the people are reared only against the royal prerogative. Therefore, exemption from the censorship of the king’s appointees is the only freedom secured to the press. In the United States, however, the people and not the government possess the absolute sovereignty, and the legislature as well as the executive is under limitations of power. The effective security of the press requires that it should be exempt not only from previous restraint by the executive as in England, but from legislative restraint also through the subsequent penalty of laws. After this repudiation of the Blackstonian doctrine, Madison goes on to reject the theory that the legislature is free to punish anything which was criminal at English common law. Here again, he says, the different natures of the two governments must have its effect and contemplate a different degree of liberty in the use of the press. A government which is “elective, limited and responsible” in all its branches may well be supposed to require “a greater freedom of animadversion” than might be tolerated by one that is composed of an irresponsible hereditary king and upper house, and an omnipotent legislature. This inference is favored, he continues, by the actual English practice. “Notwithstanding the general doctrine of the common law, on the subject of the press, and the occasional punishment of those who use it with a freedom offensive to the Government, it is well known that with respect to the responsible measures of the Government, where the reasons operating here become applicable there, the freedom exercised by the press and protected by public opinion far exceeds the limits prescribed by the ordinary rules of law.”[40]

[40] Madison’s Report on the Virginia Resolutions, 4 Ell. Deb. (2 ed.) 596–598. The same distinction was made by Erastus Root, _Report of the New York Constitutional Convention of 1821_, p. 489. See also _Speeches of Charles Pinckney_, 1800, p. 116 ff.

This contemporary testimony corroborates the conclusion of Professor Schofield:

One of the objects of the Revolution was to get rid of the
English common law on liberty of speech and of the press....
Liberty of the press as declared in the First Amendment, and the
English common-law crime of sedition, cannot co-exist.[41]

[41] Schofield, 76, 87.

The few early judicial decisions[42] to the contrary ought not to weigh against the statements of Franklin, Jefferson, and Madison, and the general temper of the time. These judges were surely wrong in holding as they did that sedition was a common-law crime in the federal courts, and in other respects they drew their inspiration from British precedents and the British bench instead of being in close contact with the new ideas of this country. “Indeed,” as Senator Beveridge says, “some of them were more British than they were American.” “Let a stranger go into our courts,” wrote one observer, “and he would almost believe himself in the Court of the King’s Bench.”[43] Great as was the service of these judges in establishing the common law as to private rights, their testimony as to its place in public affairs is of much less value than the other contemporary evidence of the men who sat in the conventions and argued over the adoption of the Constitution. The judges forgot the truth emphasized by Maitland: “The law of a nation can only be studied in relation to the whole national life.” I must therefore strongly dissent, with Justice Holmes,[44] from the position sometimes taken in arguments on the Espionage Act, that the founders of our government left the common law as to seditious libel in force and merely intended by the First Amendment “to limit the new government’s statutory powers to penalize utterances as seditious, to those which were seditious under the then accepted common-law rule.”[45] The founders had seen seventy English prosecutions for libel since 1760, and fifty convictions under that common-law rule, which made conviction easy.[46] That rule had been detested in this country ever since it was repudiated by jury and populace in the famous trial of Peter Zenger, the New York printer, the account of which went through fourteen editions before 1791.[47] The close relation between the Zenger trial and the prosecutions under George III in England and America is shown by the quotations on reprints of the trial and the dedication of the 1784 London edition to Erskine, as well as by reference to Zenger in the discussions preceding the First Amendment.[48] Nor was this the only colonial sedition prosecution under the common law, and many more were threatened.[49] All the American cases before 1791 prove that our common law of sedition was exactly like that of England, and it would be extraordinary if the First Amendment enacted the English sedition law of that time, which was repudiated by every American and every liberal Englishman,[50] and altered through Fox’s Libel Act by Parliament itself in the very next year, 1792. We might well fling at the advocates of this common law view the challenge of Randolph of Roanoke, “whether the common law of libels which attaches to this Constitution be the doctrine laid down by Lord Mansfield, or that which has immortalized Mr. Fox?”[51] The First Amendment was written by men to whom Wilkes and Junius were household words, who intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America.

[42] Cases in note 10; Charge to the Grand Jury of Judge Addison (who was born and educated in the United Kingdom), Addison Ch. (Pa.) 270. Marshall’s Minority Report in opposition to Madison’s is chiefly devoted to establishing an implied power of the government to protect itself against libels. His discussion of the First Amendment, while undoubtedly opposed to my view, is little more than a repetition of Blackstone. _The Address of the Minority in the Virginia Legislature_, etc. (Library of Congress, Class E 327, Book A 22; extracts in U. S. reply brief in Debs _v._ U. S.)

[43] Beveridge’s _Marshall_, III, 23–29.

[44] Abrams _v._ U. S., 250 U. S. 616 (1919).

[45] W. R. Vance, in “Freedom of Speech and the Press,” 2 _Minn. L. Rev._ 239, 259.

[46] 2 May, _Constitutional History of England_, 2 ed., 9 note.

[47] 17 How. St. Tr. 675 (1735). The fullest account of Zenger and the trial is given by Livingston Rutherford, _John Peter Zenger_, New York, 1904. Rutherford’s bibliography lists thirteen editions of the account of the trial before 1791. The Harvard Law School Library contains four of these (London, 1738; London, 1752; London, 1765; New York, 1770), and also an undated copy without specified place, differing from any listed by Rutherford. See also the life of Zenger’s counsel, Andrew Hamilton, by William Henry Loyd, in 1 _Great American Lawyers_ 1.

[48] Newspaper letter, reprinted in _Penn. and the Fed. Cons._, 151.

[49] C. A. Duniway, _Freedom of the Press in Massachusetts_, 91, 93, 115, 123, 130, and note. In 1767 Chief Justice Hutchinson charged the grand jury on Blackstonian lines, “This Liberty means no more than a Freedom for every Thing to pass from the Press without a License.” _Ibid._, 125.

[50] 2 May, _Constitutional History of England_, Chap. IX; 2 Stephen, _History of the Criminal Law_, Chap. XXIV.

[51] 3 Beveridge’s _Marshall_ 85.

It must not be forgotten that the controversy over liberty of the press was a conflict between two views of government, that the law of sedition was a product of the view that the government was master, and that the American Revolution transformed into a working reality the second view that the government was servant, and therefore subjected to blame from its master, the people. Consequently, the words of Sir James Fitzjames Stephen about this second view have a vital application to American law.[52]

To those who hold this view fully and carry it out to all its
consequences there can be no such offense as sedition. There may
indeed be breaches of the peace which may destroy or endanger
life, limb, or property, and there may be incitements to such
offenses, but no imaginable censure of the government, _short
of a censure which has an immediate tendency to produce such a
breach of the peace_, ought to be regarded as criminal.

[52] 2 Stephen, _History of the Criminal Law_, 300. The italics are mine. See also Schofield, 9 _Proc. Am. Sociol. Soc._, 75.