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FREEDOM  of  SPEECH 


BY 


ZECHARIAH   CHAFEE,   Jk. 

PBOFESSOB  OF  LAW    IN   HABVABD  UNIVERSITY 


"  GIVE  YOUR  MIND  SEA  ROOM  " 


LONDON-    GEORGE   ALLEN  &  UNWIN,  LTD. 
RUSKIN     HOUSE,  40   MUSEUM    STREET,    W.  C.  1 


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


PRINTED    IN    THE    U.S.  A.   BY 

THE    QUINN    ft    BODEN    COMPANY 

RAMWAt.    N      J 


TO 

LEARNED    HAND 

UNITED    STATES    DISTEICT    JUDGE 

FOE    THE    SOUTHEEN    DISTEICT    OP    NEW    YOEK 

WHO    DUEING    THE    TUEMOIL    OP    WAE 

COUEAGEOUSLY    MAINTAINED 

THE    TEADITION    OF    ENGLISH-SPEAKING    FEEEDOM 

AND    GAVE    IT    NEW    CLEAENESS    AND    STEENGTH 

FOE    THE    WISEE    YEAES    TO    COME 


CONTENTS 

CHAPTER 

I.     Freedom  of  Speech  in  War  Time  . 

II.     Opposition  to  the  War  with  Germany  . 

I.     The  Espionage  Acts  of  1917  and  1918 

II.     Masses  Publishing  Co.  v.  Patten 

III.     The  District  Court  Cases     . 

IV.     The  Human  Machinery  of  the  Espio- 
nage Acts     .        .... 

V.     The  Supreme  Court  Decisions 

VI.     Censorship  and  Exile     . 

VII.     State  Espionage  Acts     . 

VIII.     Reflections   During  a   Technical   State 
of  War 

III.     A     Contemporary     State     Trial — The     United 
States  i>.  Jacob  Abrams  et  al.    . 

I.     The  District  Court 

II.     The   Supreme   Court 

IV.     Legislation  against  Sedition  and  Anarchy 

I.     The    Normal    Law    Against    Violence 
and  Revolution     .... 


II.     The  Normal  Criminal  Law  of  Words 

III.  The    Difference    Between   the    Normal 

Law  and  the  New  Legislation  . 

IV.  Radical  Meetings  and  the  Red  Flag 

V.     Criminal   Anarchy  and   Criminal   Syn 
dicalism 

VI.     The  Federal  Sedition  Bills   . 


vi  CONTENTS 

CHAPTER  PAGE 

VII.     The  Constitutionality  of  a  Federal  Sedi- 
tion Law 199 

VIII.     The    Wisdom    and    Expediency    of    a 

Federal  Sedition  Law        .        .        .     207 

V.  The  Deportations 229 

I.     The  Statute  as  to  Deportable  Radicals     230 

II.     The  Administrative  Machinery  for  De- 
porting Radicals  .        .        .        .282 

III.  The  Raids  of  January,  1920       .        .     241 

IV.     The  Arrest  of  American  Citizens   for 

Deportation 252 

V.     A  Review  of  the  Actual  Cases  of  Radi- 
cals Held  for  Deportation       .        .     256 

(1)  Communists — Guilt  by  Associa- 

tion and  Government  Spies     256 

(2)  Industrial    Workers     of    the 

World 272 

(3)  Anarchists        .        .        .        .     275 

VI.     The  Deportations  and  the  Bill  of  Rights     280 

VII.     Suggested  Changes  in  Our  Deportation 

Policy 291 

VI.  John    Wilkes,    Victor    Berger,    and    the    Five 

Members 294 

I.     John  Wilkes 295 

II.     The  Raids  of  1763  and  the  Raids  of 

1919     .       •  ' 296 

III.     The    Exclusion    of    Wilkes    from    the 

House  of  Commons     .        .        .         .311 

IV.  The  Exclusion  of  Victor  L.  Berger  from 

the  House  of  Representatives   .        .      315 

V.     The  Five  Socialist  Members  of  the  New 

York  Assembly 332 

VII.     Freedom  and  Initiative  in  the  Schools     .        .     365 


CONTENTS  vii 

APPENDICES 

APPENDIX  PAGE 

I.  Bibliography  on  Freedom  of  Speech  ....  377 
A.  General  and  Historical;  B.  The  War; 
C.  Radical  Activities  in  the  United  States 
and  Peace-time  Restrictions  upon  Freedom  of 
Speech;  £>.  Power  of  a  Legislature  to  Exclude 
or  Expel  for  Opinions;  E.  Schools. 

II.     Index  of  Reported  Cases  under  the  Espionage  Acts 

of  1917  and  1918 387 

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

IV.     Normal  Law  of  Four  Jurisdictions  Against  Actual 

or  Threatened  Violence 398 

V.     State  War   and   Peace  Statutes  Affecting  Freedom 

of  Speech 399 

Index  of  Cases 407 

General  Index 411 


FREEDOM  OF  SPEECH 

CHAPTER  I 

FREEDOM  OF  SPEECH  IN  WAR  TIME 

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  armi- 
stice by  a  widespread  legislative  consideration  of  bills  pun- 
ishing the  advocacy  of  extreme  radicalism.  It  is  becom- 
ing 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  sup- 
press. 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  lib- 
erty of  speech.  Therefore,  instead  of  beginning  with  an 
abstract  treatment  of  that  problem,  I  shall  take  the  con- 
crete situation  of  opposition  to  war,  and  from  it  endeavor 
to  work  out  the  fundamental  principles  of  the  whole  sub- 
ject. These  can  afterwards  be  tested  by  their  application 
to  radical  agitation  in  peace. 

1 


2  FREEDOM  OF  SPEECH 

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  what- 
ever 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  constitu- 
tional rights,  without  at  all  identifying  himself  with  the  posi- 
tion 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  Loyal- 
ists and  General  Grant  insisted  upon  amnesty  for  Robert  E. 
Lee,  it  is  surprising  how  in  the  last  three  years  it  has  been  im- 
possible for  any  one  to  uphold  the  rights  of  a  minority  with- 
out subjecting  himself  to  the  accusation  that  he  shared  their 
opinions.  If  he  urged  milder  treatment  of  conscientious  ob- 
jectors, 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  sym- 
pathy 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  tem- 
per is  Mr.  Bertrand  Russell.  My  only  interest  is  to  find 
whether  or  not  the  treatment  which  they  have  received  ac- 
cords 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 


FREEDOM  OF  SPEECH  IN  WAR  TIME    3 

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 

The  free  speech  clauses  of  the  American  constitutions 
are  not  merely  expressions  of  political  faith  without  bind- 
ing legal  force.  Their  history  shows  that  they  limit  legis- 
lative action  as  much  as  any  other  part  of  the  Bills  of 
Rights.  The  tJnited  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  in- 
sert a  free  speech  clause,  grouping  liberty  of  the  press  with 
trial  by  jury  and  habeas  corpus  as  "  essentials  in  free  gov- 
ernments." His  suggestion  was  rejected  by  a  slight  ma- 
jority 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  im- 
plied powers.  Hamilton  himself  defended  the  omission  on 
the  ground  that  liberty  of  the  press  was  indefinable  and  de- 
pended 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  free- 

i  Edward  Beecher,  Alton  Riots,  Alton,  111.,  1838  (Widener  Library). 
A  bibliographical  note  to  this  and  other  chapters  will  be  found  in 
Appendix  I. 

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, 


4  FREEDOM  OF  SPEECH 

dom  of  speech  was  repeatedly  condemned  in  the  state  con- 
ventions 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  men- 
tioned shortly.  At  the  first  session  of  Congress  a  Bill  of 
Rights,  including  the  present  First  Amendment,  was  pro- 
posed 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  compensa- 
tion 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  legisla- 
tion which  violates  freedom  of  speech. 

We  shall  not,  however,  confine  ourselves  to  the  question 
whether  a  given  form  of  federal  or  state  action  against  pa- 
cifist 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 

956-958.  Twenty-three  state  constitutions  follow  Hamilton  (note  65, 
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  Constitu- 
tion. 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  dis- 
cussed by  Henry  Schofield,  "  Freedom  of  the  Press  in  the  United  States," 
9  Proc.  Am.  Sociolog.  8oc.  88  ff.,  cited  hereafter  as  Schofield. 


FREEDOM  OF  SPEECH  IN  WAR  TIME     5 

importance  in  the  matter,  and  may  be  henceforth  disre- 
garded. On  the  contrary,  a  provision  like  the  First  Amend- 
ment 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  suppres- 
sion. 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  re- 
luctant 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  prose- 
cuting 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 

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  in- 
scribed 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  influ- 
ence 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. 


6  FREEDOM  OF  SPEECH 

urge  upon  every  official  of  the  three  branches  of  the  state 
a  constant  regard  for  certain  declared  fundamental  policies 
of  American  life.* 

Our  main  task,  therefore,  is  to  ascertain  the  nature  and 
scope  of  the  policy  which  finds  expression  in  the  First  Amend- 
ment 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  particu- 
larly 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  har- 
bors, 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  writ- 
ten opposition  to  this  or  any  future  war,  and  imposes  a 
maximum  penalty  of  $10,000  fine  or  twenty  years'  impris- 
onment, 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,  thought- 
ful men  and  journals  are  asking  how  scores  of  citizens  can 
be  imprisoned  under  this  constitution  only  for  their  open  dis- 
approval 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 

*  "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  legis- 
lators 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. 


FREEDOM  OF  SPEECH  IN  WAR  TIME  7 

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  rec- 
ognize 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  re- 
pudiated.5 At  the  opposite  pole  is  the  belief  of  many  agi- 
tators that  the  First  Amendment  renders  unconstitutional 
any  Act  of  Congress  without  exception  "  abridging  the  free- 
dom 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. 

6  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." 

«  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). 


8  FREEDOM  OF  SPEECH 

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  neces- 
sary 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  win- 
ning judicial  acceptance,  and  frequently  appear  in  the  Es- 
pionage 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  gov- 
ernment 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  Ameri- 
can judges  in  early  contempt  proceedings  and  prosecutions 
for  libel.10    The  Federalist  judges  of  that  time  were  so  noto- 

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." 

»  See  Roscoe  Pound,  "  Equitable  Relief  Against  Defamation  and  In- 
juries 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. 

"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. 


FREEDOM  OF  SPEECH  IN  WAR  TIME     9 

rious  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  con- 
struction 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  interpreta- 
tion 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  prose- 
cution and  punishment  of  utterances,  the  Espionage  Act  is 
unquestionably  constitutional. 

This  Blackstonian  theory  dies  hard,  but  it  ought  to  be 
knocked  on  the  head  once  for  all.  In  the  first  place,  Black- 
stone  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 

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  com- 
mon-sense view   of  the  relations   of  state   and  citizen.      In 

11  Beveridge's  Marshall,  III,  23  if.     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). 

i*  Masses  Pub.  Co.  v.  Patten,  246  Fed.  24  (1917);  U.  S.  v.  Coldwell, 
Bull.  Dept.  Just.,  No.  158,  page  4. 

i5l  Blackstone,  Commentaries,  109;  Willes,  J.,  in  Dean  of  St. 
Asaph's  Case,  4  Doug.  73,  172  (1784). 


10  FREEDOM  OF  SPEECH 

same  respects  this  theory  goes  altogether  too  far  in  restrict- 
ing state  action.  The  prohibition  of  previous  restraint  would 
not  allow  the  government  to  prevent  a  newspaper  from  pub- 
lishing 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  pic- 
tures 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." 

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  censor- 
ship. 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 

is  Mutual  Film  Corporation  v.  Industrial  Commission  of  Ohio,  236 
U.  S.  230,  241  (1915). 

it  252  Fed.  946  (D.  C.  S.  D.  Cal.,  1917),  Bledsoe,  J.  See  also  Gold- 
stein t>.  U.  S.,  258  Fed.  908  (C.  C.  A.  9th,  1919). 

is  John  Galsworthy,  "  American  and  Briton,"  8  Yale  Rev.  27  (October, 
1918).    Cf.  Boswell's  Johnson,  ed.  G.  B.  HM,  IV,  12. 


FREEDOM  OF  SPEECH  IN  WAR  TIME  11 

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 !  " 

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  de- 
lusion, 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  in- 
telligent exercise  of  their  rights  as  citizens. 

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  deci- 

19  Cooley,  Constitutional  Limitations,  7  ed.,  603,  604. 

soLouthan  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  with- 
out 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 


12  FREEDOM  OF  SPEECH 

sions  in  which  a  particular  statute  punishing  for  talking  or 
writing  is  sustained  do  not  rest  upon  the  Blackstonian  in- 
terpretation of  liberty  of  speech,21  but  upon  another  theory, 
now  to  be  considered.  Therefore,  it  is  possible  that  the  se- 
vere punishments  imposed  by  Title  I,  section  3,  of  the  Es- 
pionage Act,  violate  the  First  Amendment,  although  they  do 
not  interfere  with  utterances  before  publication.22 

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  White23  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. 

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 

disbursements  outside  one's  own  county  except  through  a  campaign 
committee;  State  v.  Printing  Co.,  177  Pac.  751  (N.  M.,  1918)— con- 
tempt. Some  of  these  decisions  are  open  to  dispute  on  the  desira- 
bility 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. 

23 Toledo  Newspaper  Co.  v.  United  States,  247  U.  S.  402,  419  (1918). 
24  State  v.  McKee,  73  Conn.  18,  28   (1900). 


FREEDOM  OF  SPEECH  IN  WAR  TIME  13 

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. 

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  counsel- 
ing 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. 

Just  the  same  sort  of  distinction  was  made  by  Lord  Ken- 
yon  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  non- 


A  slightly  more  satisfactory  view  is  adopted  by  Cooley,27 
that  the  clauses  guard  against  repressive  measures  by  the 

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  (la.,  1917),  4,  Wade,  J. 

26  2  Hist.  Crim.  Law  348  n. 

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). 


14  FREEDOM  OF  SPEECH 

several  departments  of  government,  but  not  against  utter- 
ances which  are  a  public  offense,  or  which  injure  the  reputa- 
tion of  individuals.    ,/{/ 

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  op- 
position 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  crim- 
inal 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  admin- 
istration in  office  to  be  a  felony,  punishable  by  ten  years'  im- 
prisonment. Clearly,  the  Constitution  must  limit  the  power 
of  Congress  to  create  crimes.  But  how  far  does  that  limita- 
tion go?  Cooley  suggests  that  the  constitutional  guaranties 
must  be  interpreted  in  the  light  of  the  contemporary  com- 
mon 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  con- 
sidered, but  they  do  not  arbitrarily  fix  the  division  between 
lawful  and  unlawful  speech  for  all  time. 

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

as  Ibid.  604,  612  ff. 


FREEDOM  OF  SPEECH  IN  WAR  TIME         15 

We  can,  of  course,  be  sure  that  certain  forms  of  utter- 
ance, 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  ju- 
dicial 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  exami- 
nation 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  expo- 
sition 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  com- 
petent person  then  or  later,  ever  supposed  that  to  make  criminal 


16  FREEDOM  OF  SPEECH 

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 

How  about  the  man  who  gets  up  in  a  theater  between  the 
acts  and  informs  the  audience  honestly,  but  perhaps  mistak- 
enly, 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.  ces- 
sation 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  exam- 
ples, but  only  by  the  development  of  a  rational  principle  to 
mark  the  limits  of  constitutional  protection. 
J  "  The  gradual  process   of  judicial  inclusion   and   exclu- 

sion," 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  increas- 
ingly plain,  has  as  yet  been  of  very  little  use  for  the  First 
Amendment.  The  cases  are  too  few,  too  varied  in  their  char- 
acter, 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  exclu- 
sion 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  in- 
tuition. 

29  Frohwerk  v.  United  States,  249  U.  S.  204    (1919). 
soSchenck  v.  United  States,  249  U.  S.  47  (1919). 
si  Miller,  J.,  in  Davidson  v.  New  Orleans,  96  U.  S.  97,  104  (1877). 
82  See  note  20,  supra. 


FREEDOM  OF  SPEECH  IN  WAR  TIME  17 

In  the  next  chapter  I  shall  return  to  the  opinions  of  Jus- 
tice Holmes  and  Judge  Hand.  For  the  moment,  however, 
it  may  be  worth  while  to  forsake  the  purely  judicial  discus- 
sion of  free  speech,  and  obtain  light  upon  its  meaning  from 
the  history  of  the  constitutional  clauses  and  from  the  pur- 
pose 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 — "  abso- 
lutely necessary  "  is  Luther  Martin's  phrase.  But  they  say 
very  little  about  its  exact  meaning.  That  should  not  sur- 
prise 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  Be- 
fore 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. 

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. 

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  Establish- 

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

s*  Journal  of  the  Continental  Congress,  Vol.  I  (ed.  1800),  p.  57. 


18  FREEDOM  OF  SPEECH 

ing  Religious  Freedom.85  This  opened  with  a  very  broad 
principle  of  toleration :  "  Whereas,  Almighty  God  hath  cre- 
ated the  mind  free ;  that  all  attempts  to  influence  it  by  tem- 
poral 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. 

One  other  framer  of  our  government  has  stated  his  views 
on  this  matter  in  less  solemn  language,  Benjamin  Franklin.88 
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  tlie  liberty  of  the  cud- 
gel. 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  respon- 
sibility 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. 

The  most  significant  evidence  of  the  meaning  of  the  First 

35  See  note  66,  infra. 

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


FREEDOM  OF  SPEECH  IN  WAR  TIME  19 

Amendment  is  the  reason  given  by  the  Maryland  convention 
of  1788  to  the  people  for  including  such  a  clause  in  the  pro- 
posed 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  Black- 
stonian  limitation  of  the  right  to  absence  of  a  censorship. 

If  we  apply  Coke's  test  of  statutory  construction,  and( 
consider  what  mischief  in  the  existing  law  the  f ramers  of  1 
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  substi- 
tuted 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  de- 
cide 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.  Ac- 
cording 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  pamph- 
lets, 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  ser- 

37  2  Elliot's  Deb.  (2  ed.)  511;  see  the  same  argument  in  news- 
paper letters  given  in  Pennsylvania  and  the  Federal  Constitution,  ed. 
J.  B.  MeMaster  and  F.  D.  Stone,  151,  181.  The  second  letter  sug- 
gests the  possibility  of  a  prohibitive  stamp  tax  as  in  Massachusetts 
to  crush  the  press. 

38Macaulay,  History  of  England,  Chap.  XXI;  C.  A.  Duniway, 
Freedom  of  Speech  in  Massachusetts,  89  note. 


20  FREEDOM  OF  SPEECH 

vants  of  the  people,  who  may  therefore  find  fault  with  their 
servants  and  discuss  questions  of  their  punishment  or  dis- 
missal, and  of  governmental  policy. 

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  pub- 
lication, without  lawful  excuse  or  justification,  of  written 
blame  of  any  public  man,  or  of  the  law,  or  of  any  institu- 
tion established  by  law."  There  was  no  need  to  prove  any 
intention  on  the  part  of  the  defendant  to  produce  disaffec- 
tion 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  sedi- 
tion.89 

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  es- 
sential 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  ap- 
pointees 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 

39  Madison,  Report  on  the  Virginia  Resolutions,  1799,  4  Ell.  Deb. 
(2  ed.)  596  fl\;  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. 


FREEDOM  OF  SPEECH  IN  WAR  TIME         21 

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  differ- 
ent 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  respon- 
sible "  in  all  its  branches  may  well  be  supposed  to  require 
"  a  greater  freedom  of  animadversion  "  than  might  be  toler- 
ated 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  exer- 
cised by  the  press  and  protected  by  public  opinion  far  ex- 
ceeds the  limits  prescribed  by  the  ordinary  rules  of  law."  40 

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 

The  few  early  judicial  decisions  42  to  the  contrary  ought 
not  to  weigh  against  the  statements  of  Franklin,  Jefferson, 

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. 

«  Schofield,  76,  87. 

*2  Cases  in  note  10;  Charge  to  the  Grand  Jury  of  Judge  Addison 
(who  was  born  and  educated  in  the  United  Kingdom),  Addison  Ch.  (Pa.) 


22  FREEDOM  OF  SPEECH 

and  Madison,  and  the  general  temper  of  the  time.  These 
judges  were  surely  wrong  in  holding  as  they  did  that  sedi- 
tion was  a  common-law  crime  in  the  federal  courts,  and  in 
other  respects  they  drew  their  inspiration  from  British  prece- 
dents and  the  British  bench  instead  of  being  in  close  con- 
tact with  the  new  ideas  of  this  country.  "  Indeed,"  as  Sen- 
ator 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  serv- 
ice of  these  judges  in  establishing  the  common  law  as  to  pri- 
vate 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  there- 
fore strongly  dissent,  with  Justice  Holmes,44  from  the  posi- 
tion 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  sedi- 
tious 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 

270.  Marshall's  Minority  Report  in  opposition  to  Madison's  is  chiefly 
devoted  to  establishing  an  implied  power  of  the  government  to  pro- 
tect 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. 

44Abrams  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. 


FREEDOM  OF  SPEECH  IN  WAR  TIME         23 

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  sedi- 
tion 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  Par- 
liament 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  ?  "  61  The  First  Amendment  was  written  by  men 
to  whom  Wilkes  and  Junius  were  household  words,  who  in- 
tended to  wipe  out  the  common  law  of  sedition,  and  make 
further  prosecutions  for  criticism  of  the  government,  without 

47  17  How.  St.  Tr.  675  (1736).  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  con- 
tains 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  Or  eat  American 
Lawyers  1. 

♦s  Newspaper  letter,  reprinted  in  Venn,  and  the  Fed.  Cons.,  151. 

•*9  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  Laxo,  Chap.   XXIV. 

5i3  Beveridge's  Marshall  85. 


24  FREEDOM  OF  SPEECH 

any  incitement  to  law-breaking,  forever  impossible  in  the 
United  States  of  America. 

It  must  not  be  forgotten  that  the  controversy  over  lib- 
erty of  the  press  was  a  conflict  between  two  views  of  gov- 
ernment, that  the  law  of  sedition  was  a  product  of  the 
view  that  the  government  was  master,  and  that  the  Amer- 
ican Revolution  transformed  into  a  working  reality  the 
second  view  that  the  government  was  servant,  and  there- 
fore subjected  to  blame  from  its  master,  the  people.  Con- 
sequently, 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  en- 
danger 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. 

The  repudiation  by  the  constitutions  of  the  English  com- 
mon law  of  sedition,  which  was  also  the  common  law  of 
the  American  colonies,  has  been  somewhat  obscured  by  ju- 
dicial retention  of  the  two  technical  incidents  of  the  old  law 
after  the  adoption  of  the  free  speech  clauses.  Many  judges, 
rightly  or  wrongly,  continued  to  pass  on  the  criminality 
of  the  writing  and  to  reject  its  truth  as  a  defense,53  until 
statutes  or  new  constitutional  provisions  embodying  the  pop- 
ular view  on  these  two  points  were  enacted.54  Doubtless,  a 
jury  will  protect  a  popular  attack  on  the  government  better 
than  a  judge,  and  the  admission  of  truth  as  a  defense  les- 
sens the  evils  of  suppression.  These  changes  help  to  sub- 
stitute the  modern  view  of  rulers  for  the  old  view,  but  they 

B2  2  Stephen,  History  of  the  Criminal  Law,  300.  The  italics  are 
mine.    See  also  Schofield,  9  Proc.  Am.  Sociol.  Soc,  75. 

ssDuniway,  supra,  Chap.  IX;  Commonwealth  v.  Clap,  4  Mass.  163 
(1808);  Commonwealth  v.  Blanding,  3  Pick.   (Mass.)   304   (1825). 

5* Examples  are:  Pa.  Cons.  1790,  Art.  9,  §  7;  N.  Y.  Session  Laws, 
1805,  c.  90;  N.  Y.  Cons.,  1821,  Art.  VII,  §  8;  Mass.  Laws,  1827,  c.  107. 
See  Schofield,  op.  cit.,  95-99. 


FREEDOM  OF  SPEECH  IN  WAR  TIME         25 

are  not  essential.  Sedition  prosecutions  went  on  with  shame- 
ful severity  in  England  after  Fox's  Libel  Act 55  had  given 
the  jury  power  to  determine  criminality.  The  American 
Sedition  Act  of  1798,  which  President  Wilson  declares  to 
have  "  cut  perilously  near  the  root  of  freedom  of  speech 
and  of  the  press,"  56  entrusted  criminality  to  the  jury  and 
admitted  truth  as  a  defense.  On  the  other  hand,  freedom 
of  speech  might  exist  without  these  two  technical  safeguards. 
The  essential  question  is  not,  who  is  judge  of  the  criminality 
of  an  utterance,  but  what  is  the  test  of  its  criminality.  The 
common  law  and  the  Sedition  Act  of  1798  made  the  test 
blame  of  the  government  and  its  officials,  because  to  bring 
them  into  disrepute  tended  to  overthrow  the  state.  The 
real  issue  in  every  free  speech  controversy  is  this — whether 
the  state  can  punish  all  words  which  have  some  tendency, 
however  remote,  to  bring  about  acts  in  violation  of  law,  or 
only  words  which  directly  incite  to  acts  in  violation  of  law. 

If  words  do  not  become  criminal  until  they  have  "  an 
immediate  tendency  to  produce  a  breach  of  the  peace,"  there 
is  no  need  for  a  law  of  sedition,  since  the  ordinary  standards 
of  criminal  solicitation  and  attempt  apply.  Under  those 
standards  the  words  must  bring  the  speaker's  unlawful  in- 
tention reasonably  near  to  success.  Such  a  limited  power 
to  punish  utterances  rarely  satisfies  the  zealous  in  times  of 
excitement  like  a  war.  They  realize  that  all  condemnation 
of  the  war  or  of  conscription  may  conceivably  lead  to  active 
resistance  or  insubordination.  Is  it  not  better  to  kill  the 
serpent  in  the  egg?  All  writings  that  have  even  a  remote 
tendency  to  hinder  the  war  must  be  suppressed. 

Such  has  always  been  the  argument  of  the  opponents  of 
free  speech.  And  the  most  powerful  weapon  in  their  hands, 
since  the  abolition  of  the  censorship,  is  this  doctrine  of  in- 
direct causation,  under  which  words  can  be  punished  for  a 
supposed  bad  tendency  long  before  there  is  any  probability 
that  they  will  break  out  into  unlawful  acts.     Closely  related 

65  32  Geo.  Ill,  c.  60  (1792). 

6«3  Woodrow  Wilson,  History  of  the  American  People,  153. 


26  FREEDOM  OF  SPEECH 

to  it  is  the  doctrine  of  constructive  intent,  which  regards 
the  intent  of  the  defendant  to  cause  violence  as  immaterial 
so  long  as  he  intended  to  write  the  words,  or  else  presumes 
the  violent  intent  from  the  bad  tendency  of  the  words  on 
the  ground  that  a  man  is  presumed  to  intend  the  conse- 
quences of  his  acts.  When  rulers  are  allowed  to  possess 
these  weapons,  they  can  by  the  imposition  of  severe  sen- 
tences create  an  ex  post  facto  censorship  of  the  press.  The 
transference  of  that  censorship  from  the  judge  to  the  jury 
is  indeed  important  when  the  attack  on  the  government 
which  is  prosecuted  expresses  a  widespread  popular  senti- 
ment, but  the  right  to  jury  trial  is  of  much  less  value  in 
times  of  war  or  threatened  disorder  when  the  herd  instinct 
runs  strong,  if  the  opinion  of  the  defendant  is  highly  ob- 
jectionable to  the  majority  of  the  population,  or  even  to 
the  particular  class  of  men  from  whom  or  by  whom  the  jury 
are  drawn. 

Under  Charles  II  trial  by  jury  was  a  blind  and  cruel 
system.  During  part  of  the  reign  of  George  III  it  was,  to 
say  the  least,  quite  as  severe  as  the  severest  judge  without 
a  jury  could  have  been.  The  revolutionary  tribunal  during 
the  Reign  of  Terror  tried  by  a  jury.57  It  is  worth  our  frank 
consideration,  whether  in  a  country  where  the  doctrine  of 
indirect  causation  is  recognized  by  the  courts  twelve  small 
property-holders,  who  have  been  through  an  uninterrupted 
series  of  patriotic  campaigns  and  are  sufficiently  middle- 
aged  to  be  in  no  personal  danger  of  compulsory  military 
service,  are  fitted  to  decide  whether  there  is  a  tendency  to 
obstruct  the  draft  in  the  writings  of  a  pacifist,  who  also 
happens  to  be  a  socialist  and  in  sympathy  with  the  Rus- 
sian Revolution.  This,  however,  is  perhaps  a  problem  for 
the  psychologist  rather  than  the  lawyer. 

Another  significant  fact  in  sedition  prosecutions  is  the 
well-known  probability  that  juries  will  acquit,  after  the  ex- 
citement is  over,  for  words  used  during  the  excitement, 
which  are  as  bad  in  their  tendency  as  other  writings  prose- 

6T 1   Stephen,  History  of  the   Criminal  Law,  569. 


FREEDOM  OF  SPEECH  IN  WAR  TIME         27 

cuted  and  severely  punished  during  the  critical  period.  This 
was  very  noticeable  during  the  reign  of  George  III.  It  is 
also  interesting  to  find  two  juries  in  different  parts  of  the 
country  differing  as  to  the  criminal  character  of  similar 
publications  or  even  the  same  publication.  Thus  Leigh 
Hunt  was  acquitted  for  writing  an  article,  for  the  printing 
of  which  John  Drakard  was  convicted.  The  acquittal  of 
Scott  Nearing  and  the  conviction  by  the  same  jury  of  the 
American  Socialist  Society  for  publishing  his  book  form 
an  interesting  parallel.58 

The  manner  in  which  juries  in  time  of  excitement  may 
be  used  to  suppress  writings  in  opposition  to  the  govern- 
ment, if  bad  tendency  is  recognized  as  a  test  of  criminality, 
is  illustrated  by  the  numerous  British  sedition  trials  during 
the  French  Revolution.  These  were  after  the  passage  of 
Fox's  Libel  Act.  For  instance,  in  the  case  just  mentioned, 
Drakard  was  convicted  for  printing  an  article  on  the  shame- 
ful amount  of  flogging  in  the  army,  under  a  charge  in  which 
Baron  Wood  emphasized  the  formidable  foe  with  whom  Eng- 
land was  fighting,  and  the  general  belief  that  Napoleon  was 
using  the  British  press  to  carry  out  his  purpose  of  securing 
her  downfall.59 

It  is  to  be  feared,  there  are  in  this  country  many  who  are 
endeavoring  to  aid  and  assist  him  in  his  projects,  by  crying  down 
the  establishment  of  the  country,  and  breeding  hatred  against  the 
government.  Whether  that  is  the  source  from  whence  the  paper 
in  question  springs,  I  cannot  say,  but  I  advise  you  to  consider 
whether  it  has  not  that  tendency.  You  will  consider  whether  it 
contains  a  fair  discussion — whether  it  has  not  a  manifest  tendency 
to  create  disaffection  in  the  country  and  prevent  men  enlisting 
into  the  army — whether  it  does  not  tend  to  induce  the  soldier  to 
desert  from  the  service  of  his  country.  And  what  considerations 
can  be  more  awful  than  these?  .    .    . 

The  House  of  Parliament  is  the  proper  place  for  the  discussion 
of  subjects  of  this  nature  .    .    .  It  is  said  that  we  have  a  right  to 

58  Judge  Mayer  has  decided  that  there  is  not  such  inconsistency  in  the 
two  verdicts  as  to  warrant  a  new  trial.  American  Socialist  Society  v. 
United  States,  260  Fed.  885  (1919). 

59  31  How.  St.  Tr.  495,  535  (1811). 


28  FREEDOM  OF  SPEECH 

discuss  the  acts  of  our  legislature.  That  would  be  a  large  per- 
mission indeed.  Is  there,  gentlemen,  to  be  a  power  in  the  people 
to  counteract  the  acts  of  the  parliament,  and  is  the  libeller  to 
come  and  make  the  people  dissatisfied  with  the  government  under 
which  he  lives  ?  This  is  not  to  be  permitted  to  any  man, — it  is 
unconstitutional  and  seditious. 

The  same  emphasis  on  bad  tendency  appears  in  Lord 
Ellenborough's  charge  at  Leigh  Hunt's  trial,  although  it 
failed  to  secure  his  conviction. 

Can  you  conceive  that  the  exhibition  of  the  words  "  One 
Thousand  Lashes,"  with  strokes  underneath  to  attract  attention, 
could  be  for  any  other  purpose  than  to  excite  disaffection  ?  Could 
it  have  any  other  tendency  than  that  of  preventing  men  from 
entering  into  the  army  ?  60 

The  same  desire  to  nip  revolution  in  the  bud  was  shown 
by  the  Scotch  judges  who  secured  the  conviction  of  Muir 
and  Palmer  for  advocating  reform  of  the  rotten  boroughs 
which  chose  the  House  of  Commons  and  the  extension  of 
the  franchise,  sentences  of  transportation  for  seven  and 
fourteen  years  being  imposed.61 

The  right  of  universal  suffrage,  the  subjects  of  this  country 
never  enjoyed;  and  were  they  to  enjoy  it,  they  would  not  long 
enjoy  either  liberty  or  a  free  constitution.  You  will,  therefore, 
consider  whether  telling  the  people  that  they  have  a  just  right 
to  what  would  unquestionably  be  tantamount  to  a  total  subversion 
of  this  constitution,  is  such  a  writing  as  any  person  is  entitled  to 
compose,  to  print,  and  to  publish. 

American  sentiment  about  sedition  trials  was  decisively 
shown  by  an  expedition  to  New  South  Wales  to  rescue  Muir, 
a  sort  of  reverse  deportation. 

60  31   How.  St.  Tr.  367,  408,  413   (1811). 

«i2  May,  Constitutional  History,  38-41,  on  the  trials  of  Muir  and 
Palmer.  Philip  A.  Brown,  The  French  Revolution  in  English  History, 
97.  Fourteen  years  appears  to  have  been  the  longest  sentence  for  sedi- 
tion imposed  in  Scotland  during  the  French  wars.  Four  years  was 
the  longest  in  England.  See  note  80  in  Chapter  II,  infra,  for  sentences 
under  the  Espionage  Act.  Compare  with  these  charges  that  of  Van 
Valkenburgh,  J.,  in  United  States  v.  Rose  Pastor  Stokes,  infra,  and  the 
remarks  of  Judge  Clayton  in  the  Abrams  trial  in  Chapter  III. 


FREEDOM  OF  SPEECH  IN  WAR  TIME  29 

In  the  light  of  such  prosecutions  it  is  plain  that  the  most 
vital  indication  that  the  popular  definition  of  liberty  of 
the  press,  unpunishable  criticism  of  officials  and  laws,  has 
become  a  reality,  is  the  disappearance  of  these  doctrines 
of  bad  tendency  and  presumptive  intent.  In  Great  Britain 
they  lingered  until  liberalism  triumphed  in  1832,62  but  in 
this  country  they  disappeared  with  the  adoption  of  the  free 
speech  clauses. 

The  revival  of  those  doctrines  is  a  sure  symptom  of  an 
attack  upon  the  liberty  of  the  press. 

Only  once  in  our  history  prior  to  1917  has  an  attempt 
been  made  to  apply  those  doctrines.  In  1798  the  impend- 
ing war  with  France,  the  spread  of  revolutionary  doctrines 
by  foreigners  in  our  midst,  and  the  spectacle  of  the  disas- 
trous operation  of  those  doctrines  abroad, — facts  that  have 
a  familiar  sound  to-day — led  to  the  enactment  of  the  Alien 
and  Sedition  Laws.63  The  Alien  Law  allowed  the  President 
to  compel  the  departure  of  aliens  whom  he  judged  dangerous 
to  the  peace  and  safety  of  the  United  States,  or  suspected, 
on  reasonable  grounds,  of  treasonable  or  secret  machina- 
tions against  our  government.  The  Sedition  Law  punished 
false,  scandalous,  and  malicious  writings  against  the  govern- 
ment, either  House  of  Congress,  or  the  President,  if  pub- 
lished with  intent  to  defame  any  of  them,  or  to  excite  against 
them  the  hatred  of  the  people,  or  to  stir  up  sedition  or  to 
excite  resistance  of  law,  or  to  aid  any  hostile  designs  of  any 
foreign  nation  against  the  United  States.  The  maximum 
penalty  was  a  fine  of  two  thousand  dollars  and  two  years' 
imprisonment.  Truth  was  a  defense,  and  the  jury  had 
power  to  determine  criminality  as  under  Fox's  Libel  Act. 
Despite  the  inclusion  of  the  two  legal  rules  for  which  re- 
formers had  contended,  and  the  requirement  of  an  actual 

«2  That  they  may  not  have  wholly  disappeared  even  yet  is  indi- 
cated by  the  definition  of  sedition  in  Stephen's  Digest  of  Criminal 
Law,  which  should  have  no  application  to  American  law.  See  also  House 
Judiciary  Hearings  on  S.  3317  etc.,  66th  Cong.,  2d  Sess.,  p.  277. 

es  Act  of  June  25,  1798,  1  Stat,  at  L.,  570;  Act  of  July  14,  1798,  1 
Stat,  at  L.,  696.    See  Bibliography  for  other  references  on  these  Acts. 


30  FREEDOM  OF  SPEECH 

intention  to  cause  overt  injury,  the  Sedition  Act  was  bitterly 
resented  as  invading  the  liberty  of  the  press.  Its  constitu- 
tionality was  assailed  on  that  ground  by  Jefferson,  who 
pardoned  all  prisoners  when  he  became  President,  Congress 
eventually  repaid  all  the  fines,  and  popular  indignation  at  the 
Act  and  the  prosecutions  wrecked  the  Federalist  party.  In 
those  prosecutions  words  were  once  more  made  punishable  for 
their  judicially  supposed  bad  tendency,  and  the  judges  re- 
duced the  test  of  intent  to  a  fiction  by  inferring  the  bad  in- 
tent from  this  bad  tendency. 

Whether  or  not  the  Sedition  Act  was  unconstitutional, 
and  on  that  question  Jefferson  seems  right,  it  surely  defeated 
the  fundamental  policy  of  the  First  Amendment,  the  open 
discussion  of  public  affairs.  Like  the  British  trials,  the 
American  sedition  cases  showed,  as  Professor  Schofield  dem- 
onstrates,64 "  the  great  danger  ...  that  men  will  be  fined 
and  imprisoned,  under  the  guise  of  being  punished  for  their 
bad  motives,  or  bad  intent  and  ends,  simply  because  the  pow- 
ers that  be  do  not  agree  with  their  opinions,  and  spokesmen 
of  minorities  may  be  terrorized  and  silenced  when  they  are 
most  needed  by  the  community  and  most  useful  to  it,  and 
when  they  stand  most  in  need  of  the  protection  of  the  law 
against  a  hostile,  arrogant  majority."  When  the  Demo- 
crats got  into  power,  a  common-law  prosecution  for  sedi- 
tious libel  was  brought  in  New  York  against  a  Federalist 
who  had  attacked  Jefferson.  Hamilton  conducted  the  de- 
fense in  the  name  of  the  liberty  of  the  press.65  This  testi- 
mony from  Jefferson  and  Hamilton,  the  leaders  of  both  par- 

e*  Schofield,  op.  cit.,  91,  and  92  note. 

es  People  v.  Croswell,  3  Johns.  Cas.  337  (1804).  New  York  had 
then  no  constitutional  guarantee  of  liberty  of  the  press,  but  Hamilton 
urged  that  under  that  right  at  common  law  truth  was  a  defense  and 
the  jury  could  decide  on  criminality.  He  defined  liberty  of  the  press 
as  "The  right  to  publish,  with  impunity,  truth,  with  good  motives, 
for  justifiable  ends  though  reflecting  on  government,  magistracy,  or 
individuals."  See  Schofield,  op.  cit.,  89  ff.,  for  criticism  of  this  defi- 
nition as  not  in  the  common  law  and  as  too  narrow  a  definition  of 
the  conception  of  free  speech.  However,  it  is  embodied  in  many  state 
constitutions  and  statutes.  Two  out  of  four  judges  agreed  with  Ham- 
ilton. 


FREEDOM  OF  SPEECH  IN  WAR  TIME  31 

ties,  leaves  the  Blackstonian  interpretation  of  free  speech  in 
America  without  a  leg  to  stand  on.  And  the  brief  attempt 
of  Congress  and  the  Federalist  judges  to  revive  the  crime 
of  sedition  had  proved  so  disastrous  that  it  was  not  repeated 
during  the  next  century. 

The  lesson  of  the  prosecutions  for  sedition  in  Great  Britain 
and  the  United  States  during  this  revolutionary  period,  that 
the  most  essential  element  of  free  speech  is  the  rejection  of 
bad  tendency  as  the  test  of  a  criminal  utterance,  was  never 
more  clearly  recognized  than  in  Jefferson's  preamble  to  the 
Virginia  Act  for  establishing  Religious  Freedom.66  His 
words  about  religious  liberty  hold  good  of  political  and 
speculative  freedom,  and  the  portrayal  of  human  life  in 
every  form  of  art. 

To  suffer  the  civil  Magistrate  to  intrude  his  powers  into  the 
field  of  opinion,  and  to  restrain  the  profession  or  propagation  of 
principles  on  supposition  of  their  ill  tendency,  is  a  dangerous 
fallacy,  which  at  once  destroys  all  religious  liberty,  because  he 
being  of  course  judge  of  that  tendency,  will  make  his  opinions 
the  rule  of  judgment,  and  approve  or  condemn  the  sentiments  of 
others  only  as  they  shall  square  with  or  differ  from  his  own. 

Although  the  free  speech  clauses  were  directed  primarily 
against  the  sedition  prosecutions  of  the  immediate  past,  it 
must  not  be  thought  that  they  would  permit  unlimited  pre- 
vious restraint.  They  must  also  be  interpreted  in  the  light 
of  more  remote  history.  The  framers  of  those  clauses  did 
not  invent  the  conception  of  freedom  of  speech  as  a  result 
of  their  own  experience  of  the  last  few  years.  The  idea  had 
been  gradually  molded  in  men's  minds  by  centuries  of  con- 
flict. It  was  the  product  of  a  people  of  whom  the  framers 
were  merely  the  mouthpiece.  Its  significance  was  not  fixed 
by  their  personality,  but  was  the  endless  expression  of  a 

es  Act  of  December  26,  1785,  12  Hening's  Statutes  at  Large  of 
Virginia  (1823),  c.  34,  page  84.  Another  excellent  argument  against 
the  punishment  of  tendencies  is  found  in  Philip  Furneaux,  Letters  to 
Blackstone,  2  ed.,  60-63,  London,  1771;  quoted  in  State  v.  Chandler,  2 
Harr.  (Del.)  553,  576  (1837),  and  in  part  by  Schofield,  op.  cit.,  77. 


32  FREEDOM  OF  SPEECH 

civilization.67  It  was  formed  out  of  past  resentment  against 
the  royal  control  of  the  press  under  the  Tudors,  against  the 
Star  Chamber  and  the  pillory,  against  the  Parliamentary 
censorship  which  Milton  condemned  in  his  Areopagitica, 
by  recollections  of  heavy  newspaper  taxation,  by  hatred  of 
the  suppression  of  thought  which  went  on  vigorously  on  the 
Continent  during  the  eighteenth  century.  Blackstone's  views 
also  had  undoubted  influence  to  bar  out  previous  restraint. 
The  censor  is  the  most  dangerous  of  all  the  enemies  of  lib- 
erty of  the  press,  and  ought  not  to  exist  in  this  country  unless 
made  necessary  by  extraordinary  perils. 

Moreover,  the  meaning  of  the  First  Amendment  did  not 
crystallize  in  1791.  The  framers  would  probably  have  been 
horrified  at  the  thought  of  protecting  books  by  Darwin  or 
Bernard  Shaw,  but  "  liberty  of  speech "  is  no  more  con- 
fined to  the  speech  they  thought  permissible  than  "  com- 
merce "  in  another  clause  is  limited  to  the  sailing  vessels 
and  horse-drawn  vehicles  of  1787.  Into  the  making  of  the 
constitutional  conception  of  free  speech  have  gone,  not  only 
men's  bitter  experience  of  the  censorship  and  sedition  prose- 
cutions before  1791,  but  also  the  subsequent  development 
of  the  law  of  fair  comment  in  civil  defamation,  and  the  phil- 
osophical speculations  of  John  Stuart  Mill.  Justice  Holmes 
phrases  the  thought  with  even  more  than  his  habitual  felic- 
ity.68 "  The  provisions  of  the  Constitution  are  not  mathe- 
matical formulas  having  their  essence  in  their  form;  they 
are  organic  living  institutions   transplanted  from  English 

8011." 

It  is  now  clear  that  the  First  Amendment  fixes  limits  upon 
the  power  of  Congress  to  restrict  speech  either  by  a  censor- 
ship or  by  a  criminal  statute,  and  if  the  Espionage  Act  ex- 
ceeds those  limits  it  is  unconstitutional.  It  is  sometimes 
argued  that  the  Constitution  gives  Congress  the  power  to 
declare  war,  raise  armies,  and  support  a  navy,  that  one  pro- 
vision of  the  Constitution  cannot  be  used  to  break  down 

«7  l  Kohler,  Lehrbuch  des  Biirgerlichen  Bechts,  I,  §  38. 
esGompers  v.  United  States,  233  U.  S.  604,  610   (1914). 


FREEDOM  OF  SPEECH  IN  WAR  TIME  33 

another  provision,  and  consequently  freedom  of  speech  can- 
not be  invoked  to  break  down  the  war  power.69  I  would  reply 
that  the  First  Amendment  is  just  as  much  a  part  of  the 
Constitution  as  the  war  clauses,  and  that  it  is  equally  ac- 
curate to  say  that  the  war  clauses  cannot  be  invoked  to 
break  down  freedom  of  speech.  The  truth  is  that  all  pro- 
visions of  the  Constitution  must  be  construed  together  so  as 
to  limit  each  other.  In  a  war  as  in  peace,  this  process  of  mu- 
tual adjustment  must  include  the  Bill  of  Rights.  There 
are  those  who  believe  that  the  Bill  of  Rights  can  be  set  aside 
in  war  time  at  the  uncontrolled  will  of  the  government.70 
The  first  ten  amendments  were  drafted  by  men  who  had  just 
been  through  a  war.  The  Third  and  Fifth  Amendments 
expressly  apply  in  war.  A  majority  of  the  Supreme  Court 
declared  the  war  power  of  Congress  to  be  restricted  by  the 
Bill  of  Rights  in  Ex  Parte  Milligan,71  which  cannot  be 
lightly  brushed  aside,  whether  or  not  the  majority  went  too 
far  in  thinking  that  the  Fifth  Amendment  would  have  pre- 
vented Congress  from  exercising  the  war  power  under  the 
particular  circumstances  of  that  case.     If  the  First  Amend- 

69  United  States  v.  Marie  Equi,  Bull.  Dept.  Just.,  No.  172,  21  (Ore., 
1918),  Bean,  J. 

70  Henry  J.  Fletcher,  "The  Civilian  and  the  War  Power,"  2  Minn. 
L.  Rev.  110,  expresses  this  view.  See  also  Ambrose  Tighe,  "  The  Legal 
Theory  of  the  Minnesota  *  Safety  Commission  *  Act,"  3  Minn.  L. 
Rev.  1. 

714  Wall.  (U.  S.)  2  (1866).  The  judges  all  agreed  that  Congress 
had  not  authorized  the  trial  of  the  petitioner  by  a  military  tribunal. 
The  majority,  per  Davis,  J.,  took  the  ground  that  the  government  can- 
not have  recourse  to  extraordinary  procedure  until  there  are  extraor- 
dinary conditions  to  justify  it  and  that  under  the  Bill  of  Rights  the 
decision  of  Congress  that  such  procedure  is  necessary  can  be  reviewed 
by  the  courts.  The  minority,  per  Chase,  C.  J.,  declared  that  Con- 
gress is  sole  judge  of  the  expediency  of  military  measures  in  war 
time,  and  that  the  war  power  is  not  abridged  by  any  Amendment. 
The  majority  view  on  this  matter  may  be  accepted  by  one  who  ques- 
tions their  opinion  that  military  tribunals  are  never  justified  outside 
the  theater  of  active  military  operations  in  a  place  where  the  civil 
courts  are  open.  It  may  be  that  military  tribunals  are  necessary 
where  the  machinery  of  the  civil  courts  cannot  adequately  meet  the 
situation  (3  Minn.  L.  Rev.  9),  but  the  civil  courts  must  eventually 
decide  whether  their  machinery  was  adequate  or  not.  Otherwise,  in 
any  war,  no  matter  how  small  or  how  distant,  Congress  could  put  the 
whole   country   under   military   dictatorship. 


34  FREEDOM  OF  SPEECH 

ment  is  to  mean  anything,  it  must  restrict  powers  which 
are  expressly  granted  by  the  Constitution  to  Congress,  since 
Congress  has  no  other  powers.72  It  must  apply  to  those 
activities  of  government  which  are  most  liable  to  interfere 
with  free  discussion,  namely,  the  postal  service  and  the  con- 
duct of  war. 

The  true  meaning  of  freedom  of  speech  seems  to  be  this. 
One  of  the  most  important  purposes  of  society  and  govern- 
ment is  the  discovery  and  spread  of  truth  on  subjects  of 
general  concern.  This  is  possible  only  through  absolutely 
unlimited  discussion,  for,  as  Bagehot  points  out,  once  force 
is  thrown  into  the  argument,  it  becomes  a  matter  of  chance 
whether  it  is  thrown  on  the  false  side  or  the  true,  and  truth 
loses  all  its  natural  advantage  in  the  contest.  Neverthe- 
less, there  are  other  purposes  of  government,  such  as  order, 
the  training  of  the  young,  protection  against  external  ag- 
gression. Unlimited  discussion  sometimes  interferes  with 
these  purposes,  which  must  then  be  balanced  against  free- 
dom of  speech,  but  freedom  of  speech  ought  to  weigh  very 
heavily  in  the  scale.  The  First  Amendment  gives  binding 
force  to  this  principle  of  political  wisdom. 

Or  to  put  the  matter  another  way,  it  is  useless  to  define 
free  speech  by  talk  about  rights.  The  agitator  asserts  his 
constitutional  right  to  speak,  the  government  asserts  its 
constitutional  right  to  wage  war.  The  result  is  a  dead- 
lock. Each  side  takes  the  position  of  the  man  who  was  ar- 
rested for  swinging  his  arms  and  hitting  another  in  the 
nose,  and  asked  the  judge  if  he  did  not  have  a  right  to 
swing  his  arms  in  a  free  country.     "  Your  right  to  swing 

72  United  States  Constitution,  Art.  I,  §  1:  "All  legislative  powers 
herein  granted  shall  be  vested  in  a  Congress."  Amendment  X:  "The 
powers  not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively 
or  to  the  people." 

"This  government  is  acknowledged  by  all  to  be  one  of  enumerated 
powers.  The  principle  that  it  can  exercise  only  the  powers  granted 
to  it,  would  seem  too  apparent." — Marshall,  C.  J.,  in  McCulloch  v. 
Maryland,  4  Wheat.  (U.  S.)  316,  405  (1819).  See  also  Taney,  C.  J., 
in  Ex  parte  Merryman,  Taney,  236,  260  (1861),  and  Brewer,  J.,  in 
Kansas  v.  Colorado,  206  U.  S.  46,  81  (1907). 


FREEDOM  OF  SPEECH  IN  WAR  TIME         35 

your  arms  ends  just  where  the  other  man's  nose  begins." 
To  find  the  boundary  line  of  any  right,  we  must  get  behind 
rules  of  law  to  human  facts.  In  our  problem,  we  must  re- 
gard the  desires  and  needs  of  the  individual  human  being 
who  wants  to  speak  and  those  of  the  great  group  of  human 
beings  among  whom  he  speaks.  That  is,  in  technical  lan- 
guage, there  are  individual  interests  and  socialjnterestsj 
which  must  be  balanced  against  each  otherTlTTEey  conflict, 
in  order  to  determine  which  interest  shall  be  sacrificed  under 
the  circumstances  and  which  shall  be  protected  and  become 
the  foundation  of  a  legal  right.73  It  must  never  be  forgot- 
ten that  the  balancing  cannot  be  properly  done  unless  all 
the  interests  involved  are  adequately  ascertained,  and  the 
great  evil  of  all  this  talk  about  rights  is  that  each  side  is 
so  busy  denying  the  other's  claim  to  rights  that  it  entirely 
overlooks  the  human  desires  and  needs  behind  that  claim. 

The  rights  and  powers  of  the  Constitution,  aside  from 
the  portions  which  create  the  machinery  of  the  federal  sys- 
tem, are  largely  means  of  protecting  important  individual 
and  social  interests,  and  because  of  this  necessity  of  bal- 
ancing such  interests  the  clauses  cannot  be  construed  with 
absolute  literalness.  The  Fourteenth  Amendment  and  the 
obligation  of  contracts  clause,  maintaining  important  in- 
dividual interests,  are  modified  by  the  police  power  of  the 
states,  which  protects  health  and  other  social  interests.  The 
Thirteenth  Amendment  is  subject  to  many  implied  excep- 
tions, so  that  temporary  involuntary  servitude  is  permitted 
to  secure  social  interests  in  the  construction  of  roads,  the 
prevention  of  vagrancy,  the  training  of  the  militia  or  na- 
tional army.  It  is  common  to  rest  these  implied  exceptions  to 
the  Bill  of  Rights  upon  the  ground  that  they  existed  in  1791 
and  long  before,  but  a  less  arbitrary  explanation  is  desirable. 
Not  everything  old  is  good.     Thus  the  antiquity  of  peonage 

73  This  distinction  between  rights  and  interests  clarifies  almost  any 
constitutional  controversy.  The  distinction  originated  with  von  Ihering. 
For  presentation  of  it  in  English,  see  John  Chipman  Gray,  Nature  and 
Sources  of  the  Law,  §  48  ff. ;  Roscoe  Pound,  "  Interests  of  Personality," 
28  Harv.  L.  Rev.  453. 


36  FREEDOM  OF  SPEECH 

does  not  constitute  it  an  exception  to  the  Thirteenth  Amend- 
ment; it  is  not  now  demanded  by  any  strong  social  interest. 
It  is  significant  that  the  social  interest  in  shipping  which 
formerly  required  the  compulsory  labor  of  articled  sailors 
is  no  longer  recognized  in  the  United  States  as  sufficiently 
important  to  outweigh  the  individual  interest  in  free  loco- 
motion and  choice  of  occupation.  Even  treaties  providing 
for  the  apprehension  in  our  ports  of  deserting  foreign  sea- 
men have  been  abrogated  by  the  La  Follette  Seamen's  Act. 
The  Bill  of  Rights  does  not  crystallize  antiquity.  It  seems 
better  to  say  that  long  usage  does  not  create  an  exception  to 
the  absolute  language  of  the  Constitution,  but  demonstrates 
the  importance  of  the  social  interest  behind  the  exception.74 
The  First  Amendment  protects  two  kinds  of  interests  in 
J  free  speech.  There  is  an  individual  interest,  the  need  of 
many  men  to  express  their  opinions  on  matters  vital  to  them 
if  life  is  to  be  worth  living,  and  a  social  interest  in  the  attain- 
ment of  truth,  so  that  the  country  may  not  only  adopt  the 
wisest  course  of  action  but  carry  it  out  in  the  wisest  way. 
This  social  interest  is  especially  important  in  war  time. 
Even  after  war  has  been  declared  there  is  bound  to  be  a 
confused  mixture  of  good  and  bad  arguments  in  its  support, 
and  a  wide  difference  of  opinion  as  to  its  objects.  Truth 
can  be  sifted  out  from  falsehood  only  if  the  government  is  vig- 
orously and  constantly  cross-examined,  so  that  the  funda- 
mental issues  of  the  struggle  may  be  clearly  defined,  and  the 
war  may  not  be  diverted  to  improper  ends,  or  conducted  with 
an  undue  sacrifice  of  life  and  liberty,  or  prolonged  after  its 
just  purposes  are  accomplished.  Legal  proceedings  prove 
that  an  opponent  makes  the  best  cross-examiner.  Conse- 
quently it  is  a  disastrous  mistake  to  limit  criticism  to  those 
who  favor  the  war.  Men  bitterly  hostile  to  it  may  point 
out  evils  in  its  management  like  the  secret  treaties,  which 

74  This  paragraph  rests  on  Butler  v.  Perry,  240  U.  S.  328  (1916); 
Robertson  v.  Baldwin,  165  U.  S.  275,  281  (1897);  Bailey  v.  Alabama, 
219  U.  S.  219  (1911);  Act  of  March  4,  1915,  c.  153,  §  16,  U.  S.  Comp. 
Stat.,  1918,  §  8382  a;  Hurtado  v.  California,  110  U.  S.  516  (1884). 


FREEDOM  OF  SPEECH  IN  WAR  TIME  37 

its  supporters  have  been  too  busy  to  unearth.  If  a  free  can- 
vassing of  the  aims  of  the  war  by  its  opponents  is  crushed  by 
the  menace  of  long  imprisonment,  such  evils,  even  though 
made  public  in  one  or  two  newspapers,  may  not  come  to  the 
attention  of  those  who  had  power  to  counteract  them  until  / 
too  late.75 

The  history  of  the  last  five  years  shows  how  the  objects 
of  a  war  may  change  completely  during  its  progress,  and 
it  is  well  that  those  objects  should  be  steadily  reformulated 
under  the  influence  of  open  discussion  not  only  by  those 
who  demand  a  military  victory,  but  by  pacifists  who  take 
a  different  view  of  the  national  welfare.  Further  argu- 
ment for  the  existence  of  this  social  interest  becomes  unnec- 
essary if  we  recall  the  national  value  of  the  opposition  in 
former  wars. 

The  great  trouble  with  most  judicial  construction  of  the 
Espionage  Act  is  that  this  social  interest  has  been  ignored 
and  free  speech  has  been  regarded  as  merely  an  individual 
interest,  which  must  readily  give  way  like  other  personal 
desires  the  moment  it  interferes  with  the  social  interest  in 
national  safety.  The  judge  who  has  done  most  to  bring 
social  interests  into  legal  thinking  said  years  ago,  "  I  think 
that  the  judges  themselves  have  failed  adequately  to  rec- 
ognize their  duty  of  weighing  considerations  of  social  advan- 
tage. The  duty  is  inevitable,  and  the  result  of  the  often 
proclaimed  judicial  aversion  to  deal  with  such  considera- 
tions is  simply  to  leave  the  very  ground  and  foundation 
of  judgments  inarticulate  and  often  unconscious."  76  The 
failure  of  the  courts  in  the  past  to  formulate  any  principle 
for  drawing  a  boundary  line  around  the  right  of  free  speech 
has  not  only  thrown  the  judges  into  the  difficult  questions 

75 "  Senator  Borah — '  Then  we  had  no  knowledge  of  these  secret 
treaties  so  far  as  our  Government  was  concerned  until  you  reached 
Paris?' 

**  The  President — *  Not  unless  there  was  information  at  the  State 
Department  of  which  I  knew  nothing.' "— N.  Y.  Times,  Aug.  20,  1919. 

76  Oliver  Wendell  Holmes,  "The  Path  of  the  Law,"  10  Harv.  L. 
Rev.    457,   467. 


A 


38  FREEDOM  OF  SPEECH 

of  the  Espionage  Act  without  any  well-considered  standard 
of  criminality,  but  has  allowed  some  of  them  to  impose  stand- 
ards of  their  own  and  fix  the  line  at  a  point  which  makes 
all  opposition  to  this  or  any  future  war  impossible.  For 
example : 

No  man  should  be  permitted,  by  deliberate  act,  or  even  unthink- 
ingly, to  do  that  which  will  in  any  way  detract  from  the  efforts 
which  the  United  States  is  putting  forth  or  serve  to  postpone 
for  a  single  moment  the  early  coming  of  the  day  when  the  success 
of  our  arms  shall  be  a  fact.77 

The  true  boundary  line  of  the  First  Amendment  can  be 
fixed  only  when  Congress  and  the  courts  realize  that  the 
principle  on  which  speech  is  classified  as  lawful  or  unlawful 
involves  the  balancing  against  each  other  of  two  very  im- 
portant social  interests,  in  public  safety  and  in  the  search 
for  truth.  Every  reasonable  attempt  should  be  made  to 
maintain  both  interests  unimpaired,  and  the  great  interest 
in  free  speech  should  be  sacrificed  only  when  the  interest 
in  public  safety  is  really  imperiled,  and  not,  as  most  men 
believe,  when  it  is  barely  conceivable  that  it  may  be  slightly 
affected.  In  war  time,  therefore,  speech  should  be  unre- 
stricted by  the  censorship  or  by  punishment,  unless  it  is 
clearly  liable  to  cause  direct  and  dangerous  interference 
with  the  conduct  of  the  war. 
*y  Thus  our  problem  of  locating  the  boundary  line  of  free 
speech  is  solved.  It  is  fixed  close  to  the  point  where  words 
will  give  rise  to  unlawful  acts.  We  cannot  define  the  right 
of  free  speech  with  the  precision  of  the  Rule  against  Per- 
petuities or  the  Rule  in  Shelley's  Case,  because  it  involves 
national  policies  which  are  much  more  flexible  than  private 
property,  but  we  can  establish  a  workable  principle  of  classi- 
fication in  this  method  of  balancing  and  this  broad  test  of 
certain  danger.  There  is  a  similar  balancing  in  the  deter- 
mination of  what  is  "  due  process  of  law."     We  can  insist 

77  United  States  v.  "  The  Spirit  of  '76,"  252  Fed.  946.  Another  good 
example  is  United  States  v.  Schoberg,  Bull.  Dept.  Just.,  No.  149. 


FREEDOM  OF  SPEECH  IN  WAR  TIME         39 

upon  various  procedural  safeguards  which  make  it  more 
probable  that  a  tribunal  will  give  the  value  of  open  dis- 
cussion its  proper  weight  in  the  balance.  Fox's  Libel  Act 
is  such  a  safeguard,  and  others  will  be  considered  in  the 
next  chapter.  And  we  can  with  certitude  declare  that  the 
First  Amendment  forbids  the  punishment  of  words  merely 
for  their  injurious  tendencies.  The  history  of  the  Amend- 
ment and  the  political  function  of  free  speech  corroborate 
each  other  and  make  this  conclusion  plain. 


CHAPTER  II 
OPPOSITION  TO  THE  WAR  WITH  GERMANY 

Vital  as  is  the  necessity  in  time  of  war  not  to  hamper  acts  of 
the  executive  in  the  defense  of  the  nation  and  in  the  prosecution 
of  the  war,  of  equal  and  perhaps  greater  importance,  is  the  pre- 
servation of  constitutional  rights. — Judge  Mayer,  in  Ex  parte 
Gilroy,  257  Fed.   110,   114    (1919). 

On  April  6,  1917,  Congress  declared  war  against  Germany. 
On  May  18  it  enacted  the  Selective  Service  Act  for  raising 
a  National  Army.  The  people,  by  an  overwhelming  major- 
ity, believed  conscription  to  be  a  necessary  and  just  method 
of  waging  an  unavoidable  war,  and  the  machinery  for  enforc- 
ing the  draft  by  civilian  aid  was  admirably  planned.  "  The 
result,"  says  Attorney  General  Gregory,1  "  was  that  the  ulti- 
mate opposition  to  the  draft  by  those  liable  was  surpris- 
ingly small,  considering  the  persistent  propaganda  carried  on 
against  the  policy  of  the  law  and  against  its  constitution- 
ality." And  his  Assistant,  Mr.  John  Lord  O'Brian,  adds, 
"  No  anti-draft  propaganda  had  the  slightest  chance  of 
success."  The  decision  of  the  Supreme  Court  sustaining 
the  validity  of  the  statute  2  merely  fulfilled  the  general  ex- 
pectation. 

Besides  the  military  and  civilian  organization  for  reach- 
ing the  men  who  were  liable  to  registration  and  subsequently 
called  into  service,  the  government  had  at  its  disposal  sev- 
eral criminal  statutes  enacted  during  the  Civil  War,  which  it 
could  and  did  use  to  punish  conspiracies  to  resist  recruiting 
and  conscription  by  riots  s  and  other  forcible  means,  or  seek- 
ing by  speeches  and  publications  to  induce  men  to  evade  the 

i  Report  of  the  Attorney  General,  1917,  p.  74.  "  Civil  Liberty  in  War 
Time,"  John  Lord  O'Brian,  42  Rep.  N.  Y.  Bar  Assn.  275,  291  (1919), 
cited  hereafter  as  O'Brian. 

2  Selective  Draft  Law  Cases,  245  U.  S.  366  (1918). 

s  Bryant  v.  U.  S.,  257  Fed.  378  (C.  C.  A.,  1919) ;  Orear  i>.  U.  S.,  261 

40 

I 


THE  WAR  WITH  GERMANY  41 

draft.4  In  some  respects,  however,  these  statutes  were  felt  to 
be  incomplete.  It  was  not  a  crime  to  persuade  a  man  not  to 
enlist  voluntarily,  and  an  attempt  by  an  isolated  individual  to 
obstruct  the  draft,  if  unsuccessful,  was  beyond  the  reach  of 
the  law,  unless  his  conduct  was  sufficiently  serious  to  amount 
to  treason.  The  treason  statute,  the  only  law  on  the  books 
affecting  the  conduct  of  the  individual,  was  of  little  service,6 
since  there  was  considerable  doubt  whether  it  applied  to 
utterances.  Therefore,  although  it  is  probable  that  under 
the  circumstances  the  existing  conspiracy  statutes  would 
have  met  any  serious  danger  to  the  prosecution  of  the  war, 
new  legislation  was  demanded. 

If  the  government  had  been  content  to  limit  itself  to 
meeting  the  tangible  needs  just  mentioned,  the  effect  on  dis- 
cussion of  the  war  would  probably  have  been  very  slight, 
for  treason,  conspiracies,  and  attempts  constitute  a  direct 
and  dangerous  interference  with  the  war,  outside  the  pro- 
tection of  freedom  of  speech  as  defined  in  the  preceding 
chapter.  Two  additional  factors,  however,  influenced  the 
terms  of  the  new  statutes,  and  even  more  the  spirit  in  which 
they  were  enforced.  First,  came  the  recollection  of  the  oppo- 
sition during  the  Civil  War,  which  was  handled  under  mar- 
tial law  in  so  far  as  it  was  suppressed  at  all,  a  matter  which 
I  shall  take  up  later.  Some  persons,  full  of  old  tales  of 
Copperheads,  were  for  stigmatizing  all  opponents  of  this 
war  as  traitors.  Senator  Chamberlain  of  Oregon  intro- 
duced a  bill  which  made  the  whole  United  States  "  a  part 
of  the  zone  of  operations  conducted  by  the  enemy,"  and  de- 
clared any  person  who  endangered  or  interfered  with  the 
successful  operation  of  our  forces  by  publishing  anything 

Fed.  257  (C.  C.  A.,  1919) ;  U.  S.  v.  Reeder,  Bull.  Dept.  Just.,  No.  161 
(1918);  Reports  of  the  Attorney  General,  1917,  p.  75;  1918,  p.  45. 

*Emma  Goldman  v.  U.  S.,  245  U.  S.  474  (1918);  Wells  v.  U.  S.,  257 
Fed.  605  (C.  C.  A.,  1919) ;  U.  S.  v.  Phillips,  Bull.  Dept.  Just.,  No.  14 
(1917);  and  other  cases  in  the  bulletins;  Reports  of  the  Attorney  Gen- 
eral, supra. 

s  O'Brian,  277.  Among  the  treason  cases  of  the  war  were  U.  S.  v. 
Werner,  247  Fed.  708  (1918),  and  Nelles,  Espionage  Act  Cases,  4, 
cited  hereafter  as  Nelles;  U.  S.  v.  Robinson,  259  Fed.  685  (1919); 
U.  S.  v.  Fricke,  259  Fed.  673  (1919).    See  Bibliography,  on  treason. 


42  FREEDOM  OF  SPEECH 

to  be  a  spy  subject  to  trial  by  court  martial  and  the  penalty 
of  death.  The  bill  was  dropped  upon  receipt  of  a  letter 
from  the  President,  in  which  he  attacked  the  constitution- 
ality and  advisability  of  the  law.6  Whatever  control  was 
exercised  over  civilians  should  be  through  the  ordinary  courts, 
and  it  was  evident  that  the  conspiracy  statutes  did  not  make 
that  possible  on  a  large  scale.  The  second  factor  was  the  fear 
of  German  propaganda  and  the  knowledge  of  legislation  and 
administrative  regulations  guarding  against  it  in  Great  Brit- 
ain 7  and  Canada.8  Although  we  did  not  adopt  the  British 
administrative  control,  which  combined  flexibility  with  possi- 
bilities of  despotism,  it  was  easy  to  forget  our  own  policy 
of  non-interference  with  minorities  and  put  the  United  States 
also  in  a  position  to  deal  severely  with  written  and  spoken 
opposition  to  the  war. 

I.  The  Espionage  Acts  of  1917  and  1918 

The  result  of  these  various  influences  was  the  third  sec- 
tion of  Title  I  of  the  Espionage  Act.  As  original^  enacted 
on  June  15, 1917,  this  section  established  three  new  offenses :  9 

(1)  Whoever,  when  the  United  States  is  at  war,  shall  willfully 
make  or  convey  false  reports  or  false  statements  with  intent  to 
interfere  with  the  operation  or  success  of  the  military  or  naval 

« "Freedom  of  Speech  and  of  the  Press  in  War  Time:  the  Espionage 
Act,"  Thomas  F.  Carroll,  17  Mich.  L.  Rev.  663  note;  cited  hereafter  as 
Carroll.  Such  a  bill  seems  clearly  unconstitutional  in  view  of  the  Fifth 
Amendment  and  Ex  parte  Milligan.    See  note  71  in  Chapter  I. 

7  The  Defense  of  the  Realm  Consolidation  Act,  1914,  5  Geo.  5,  c. 
8,  §1,  gives  His  Majesty  in  Council  power  "to  issue  regulations."  A 
very  wide  scope  is  given  to  this  power  by  the  House  of  Lords  in  Rex 
v.  Halliday  (1917)  A.  C.  260,  Lord  Shaw  of  Dunfermline  dissenting. 
See  31  Harv.  L.  Rev.  296.  Regulation  27  of  the  Orders  in  Council 
makes  various  forms  of  speech,  writing,  etc.,  offenses.  Regulation  51  A 
provides  for  the  seizure  of  publications  on  warrant,  and  Regulation  56 
(13)  for  the  punishment  of  press  offenses.  See  Pulling,  Defense  of  the 
Realm  Manual,  revised  monthly.  These  regulations  have  been  construed 
in  Norman  v.  Mathews,  32  T.  L.  R.  303,  369  (1915);  Fox  v.  Spicer,  33 
T.  L.  R.  172  (1917);  Rex  v.  Bertrand  Russell,  infra,  note  37.  The 
practical  effect  has  been  to  establish  an  administrative  censorship.  H.  J. 
Laski,  Authority  in  the  Modern  State,  101. 

s  Carroll,  17  Mich.  L.  Rev.  621  note. 

»  Act  of  June  15,  1917,  c.  30,  Title  I,  §  3.  The  numerals  are  in- 
serted by  me. 


THE  WAR  WITH  GERMANY  43 

forces  of  the  United  States  or  to  promote  the  success  of  its  enemies 
(2)  and  whoever,  when  the  United  States  is  at  war,  shall  willfully 
cause  or  attempt  to  cause  insubordination,  disloyalty,  mutiny,  or 
refusal  of  duty,  in  the  military  or  naval  forces  of  the  United 
States,  (3)  or  shall  willfully  obstruct  the  recruiting  or  enlistment 
service  of  the  United  States,  to  the  injury  of  the  service  or  of  the 
United  States,  shall  be  punished  by  a  fine  of  not  more  than 
$10,000  or  imprisonment  for  not  more  than  twenty  years,  or  both. 

Although  most  of  the  Espionage  Act  deals  with  entirely 
different  subjects,  like  actual  espionage,  the  protection  of 
military  secrets,  and  the  enforcement  of  neutrality  in  future 
conflicts  between  other  nations,  the  section  just  quoted  is 
buttressed  by  four  provisions.  Section  4  of  the  same  Title 
punishes  persons  conspiring  to  violate  section  3,  if  any  one 
of  them  does  any  act  to  effect  the  object  of  the  conspiracy. 
Section  5  imposes  a  penalty  of  $10,000  or  two  years'  impris- 
onment for  harboring  or  concealing  any  person  suspected  of 
committing  or  being  about  to  commit  any  of  the  offenses 
already  mentioned.  Title  XI  authorizes  the  issue  of  search 
warrants  for  the  seizure  of  property  used  as  the  means  of 
committing  a  felony,  which  would  include  violations  of  the 
section  just  quoted.  It  was  under  this  provision  that  the 
moving-picture  film  was  confiscated  in  the  Spirit  of  976 
case,  and  raids  were  made  on  the  offices  of  anti-war  organiza- 
tions. Finally,  Title  XII  made  non-mailable  any  matter  vio- 
lating the  Act,  or  advocating  treason,  insurrection,  or  forci- 
ble resistance  to  any  law  of  the  United  States,  directed  that 
it  should  not  be  conveyed  or  delivered,  and  imposed  heavy 
penalties  for  attempting  to  use  the  mails  for  its  transmission. 

Attorney  General  Gregory  reports  that,  although  this 
Act  proved  an  effective  instrumentality  against  deliberate 
or  organized  disloyal  propaganda,  it  did  not  reach  the  in- 
dividual casual  or  impulsive  disloyal  utterances.  Also  some 
District  Courts  gave  what  he  considered  a  narrow  construc- 
tion of  the  word  "  obstruct  "  in  clause  (3),  so  that,  as  he 
puts  it,  "  most  of  the  teeth  which  we  tried  to  put  in  were 
taken  out."  10 

10  4  Am.  Bar  Assoc.  Journ.  306. 


44  FREEDOM  OF  SPEECH 

These  individual  disloyal  utterances,  however,  occurring  with 
considerable  frequency  throughout  the  country,  naturally  irritated 
and  angered  the  communities  in  which  they  occurred,  resulting 
sometimes  in  unfortunate  violence  and  lawlessness  and  everywhere 
in  dissatisfaction  with  the  inadequacy  of  the  Federal  law  to  reach 
such  cases.  Consequently  there  was  a  popular  demand  for  such 
an  amendment  as  would  cover  these  cases.11 

The  history  of  what  then  happened  in  Congress  is  not 
without  interest.  The  Attorney  General  asked  for  a  brief 
amendment  of  the  Act  by  the  addition  of  attempts  to 
obstruct  the  recruiting  service,  and  the  punishment  of  efforts 
intentionally  made  for  the  purpose  of  discrediting  and  in- 
terfering with  the  flotation  of  war  loans.  The  Senate  Com- 
mittee on  the  Judiciary,  being  thus  stirred  up,  took  the  bit 
in  its  teeth,  and  decided  to  stamp  on  all  utterances  of  a  dis- 
loyal character.  It  went  for  a  model  of  legislation  affect- 
ing freedom  of  discussion  to  a  recent  sedition  statute  of 
the  state  of  Montana,  and  borrowed  a  large  number  of  its 
clauses  for  the  new  federal  law.  While  this  measure  was 
pending  in  Congress  it  was  proposed  to  incorporate  a  pro- 
vision exempting  anti-war  utterances  if  made  with  good 
motives  and  for  justifiable  ends.  Mr.  Gregory  informed 
Congress  that  the  experience  of  his  department  had  shown 
"  that  some  of  the  most  dangerous  types  of  propaganda 
were  either  made  from  good  motives  or  else  that  the  trait- 
orous motive  was  not  provable,"  and  that  the  defense  would 
"  in  effect  destroy  the  value  of  the  Espionage  Act  as  a 
weapon  against  propaganda."  The  bill  became  law  without 
the  proviso. 

This  amendment  of  May  16,  191 8,12  which  is  sometimes 
called  the  Sedition  Act,  inserted  "  attempts  to  obstruct " 
in  the  third  of  the  original  offenses,  and  added  nine  more 
offenses,  as  follows:  (4)  saying  or  doing  anything  with  in- 
tent to  obstruct  the  sale  of  United  States  bonds,  except  by 

ii  The  history  of  the  amendment  is  taken  from  Report  of  the 
Attorney  General  of  the  United  States  (1918),  18;  and  O'Brian,  302. 
See  Montana  Laws,  1918,  sp.,  c.  11. 

12  The  full  text  of  this  Amendment  is  in  Appendix  III. 


THE  WAR  WITH  GERMANY  45 

way  of  bona  fide  and  not  disloyal  advice;  (5)  uttering,  print- 
ing, writing,  or  publishing  any  disloyal,  profane,  scurrilous, 
or  abusive  language,  or  language  intended  to  cause  contempt, 
scorn,  contumely  or  disrepute  as  regards  the  form  of  govern- 
ment of  the  United  States;  (6)  or  the  Constitution;  (7) 
or  the  flag;  (8)  or  the  uniform  of  the  Army  or  Navy;  (9) 
or  any  language  intended  to  incite  resistance  to  the  United 
States  or  promote  the  cause  of  its  enemies;  (10)  urging 
any  curtailment  of  production  of  any  things  necessary  to 
the  prosecution  of  the  war  with  intent  to  hinder  its  prose- 
cution; (11)  advocating,  teaching,  defending,  or  suggesting 
the  doing  of  any  of  these  acts;  and  (12)  words  or  acts  sup- 
porting or  favoring  the  cause  of  any  country  at  war  with 
us,  or  opposing  the  cause  of  the  United  States  therein. 
Whoever  commits  any  one  of  these  offenses  in  this  or  any 
future  war  is  liable  to  the  maximum  penalty  of  the  original 
act,  $10,000  fine  or  twenty  years'  imprisonment,  or  both. 

The  buttressing  provisions  of  the  Act  of  1917  apply  to 
this  1918  Act  and  the  non-mailable  provision  is  made  still 
more  severe.  The  Postmaster  General  can  now,  if  "  on  evi- 
dence satisfactory  to  Mm  "  he  thinks  anything  mailed  con- 
stitutes any  one  of  the  twelve  offenses  of  the  Sedition  Act, 
prevent  the  sender  from  receiving  any  mail  at  all,  however 
innocent.  Without  any  jury  trial  or  hearing  before  a  judge, 
the  citizen  in  question  becomes  for  the  post-office  an  outlaw. 

The  Espionage  Act  of  1918  has  been  defended  on  the 
ground  that  when  the  public  found  that  many  obnoxious 
utterances  were  regarded  by  United  States  District  Attor- 
neys as  outside  the  simple  Act  of  1917,  loyal  people  would 
take  matters  into  their  own  hands.  Two  lynchings  and  many 
horsewhippings  and  tar-and-featherings  had  occurred,  and 
over  two  hundred  miners,  mostly  members  of  the  I.  W.  W., 
were  forcibly  deported  from  their  homes  in  Bisbee,  Arizona, 
into  the  desert.13     Congress  responded  to  this  outcry  by  the 

13  See  note  11.  Many  cases  of  mob  violence  are  listed  on  pp.  5-13 
of  War-time  Prosecutions  and  Mob  Violence,  N.  Y.,  1919.  ,  The 
Bisbee  deportations  were  held  not  to  be  a  federal  crime,  U.  S.  v. 
Wheeler,  264  Fed.  611  (1918).     State  prosecutions  are  now  pending. 


46  FREEDOM  OF  SPEECH 

passage  of  the  Sedition  Law.  Doubtless  some  governmen- 
tal action  was  required  to  protect  pacifists  and  extreme 
radicals  from  mob  violence,  but  incarceration  for  a  period 
of  twenty  years  seems  a  very  queer  kind  of  protection.  If 
Congress  had  adopted  some  plan  by  which  persons  outside  the 
existing  conspiracy  statutes  whose  speeches  and  writings  were 
really  causing  trouble  could  be  tried  and  confined  until  the 
actual  emergency  was  passed,  and  in  no  case  beyond  the 
termination  of  hostilities,  this  would  have  prevented  every 
danger  to  such  men,  and,  what  is  more,  every  danger  from 
them,  and  would  have  accorded  with  the  preventive  but  not 
punitive  policy  pursued  by  Lincoln  in  the  Civil  War  toward 
his  most  disloyal  opponents.  Instead,  many  persons  con- 
victed under  the  Espionage  Act  remained  out  on  bail  for 
months,  often  until  the  war  was  over,  so  that  all  the  pre- 
ventive purposes  of  the  statute  were  defeated,  and  then  were 
sent  to  prison  for  years.14 

The  chief  importance  of  the  new  crimes  created  by  the 
Espionage  Act  of  1918  is  in  their  effect  on  future  wars,  for 
the  amendment  came  so  late  in  this  war  that  all  the  big 
cases,  except  the  Abrams  prosecution,  turned  on  the  mean- 
ing of  the  three  original  offenses  of  the  1917  Act  or  on  "  at- 
tempts to  obstruct."  As  the  Abrams  case  is  reserved  for  a 
chapter  by  itself,  I  shall  hereafter  in  this  chapter  confine 
myself  to  those  three  offenses  except  when  I  expressly  refer 
to  the  statute  of  1918. 

II.  Masses  Publishing  Co.  v.  Patten 

The  framers  of  the  First  Amendment  knew  that  the  right  to 
criticise  might  weaken  the  support  of  the  Government  in  a  time 
of  war.  They  appreciated  the  value  of  a  united  public  opinion 
at  such  a  time.  They  were  men  who  had  experienced  all  those 
things  in  the  war  of  the  Revolution,  and  yet  they  knew  too 
that  the  republic  which  they  were  founding  could  not  live  unless 
the  right  of  free  speech,  of  freedom  of  the  press  was  maintained 
at  such  a  time.  They  balanced  these  considerations  and  then 
wrote  the  First  Amendment. — Judge  Charles  F.  Amidon. 

i*(yBrian,  311. 


THE  WAR  WITH  GERMANY  47 

The  Espionage  Act  of  1917  seems  on  its  face  constitu- 
tional under  the  interpretation  of  the  First  Amendment 
reached  in  this  book,  but  it  may  have  been  construed  so 
extremely  as  to  violate  the  Amendment.  Furthermore,  free- 
dom of  speech  is  not  only  a  limit  on  Congressional  power, 
but  a  policy  to  be  observed  by  the  courts  in  applying  con- 
stitutional statutes  to  utterance.  The  scope  of  that  policy 
is  determined  by  the  same  method  of  balancing  social  in- 
terests. The  boundary  line  of  punishable  speech  under  this 
Act  was  consequently  fixed  at  the  point  where  words  come 
close  to  injurious  conduct  by  that  judge  who  during  the  war 
gave  the  fullest  attention  to  the  meaning  of  free  speech, — 
Judge  Learned  Hand,  of  the  Southern  District  of  New  York. 

In  Masses  Publishing  Co.  v.  Patten  15  Judge  Hand  was 
asked  to  enjoin  the  postmaster  of  New  York  from  exclud- 
ing from  the  mails  the  August  issue  of  The  Masses,  a  monthly 
revolutionary  journal,  which  contained  several  articles, 
poems,  and  cartoons  attacking  the  war.  When  noti- 
fied of  the  exclusion,  the  publisher  had  offered  to  delete 
any  passages  pointed  out  by  the  postmaster,  but  was  re- 
fused such  information.  After  suit  was  started,  the 
postmaster,  while  objecting  generally  that  the  whole  pur- 
port of  the  number  was  unlawful,  since  it  tended  to  encour- 
age the  enemies  of  the  United  States  and  hamper  the  gov- 
ernment in  the  conduct  of  the  war,  specified  four  cartoons, 
entitled  "Liberty  Bell,"  "Conscription,"  "Making  the 
World  Safe  for  Capitalism,"  and  "  Congress  and  Big  Busi- 
ness " ;  also  a  poem,  which  declared  Emma  Goldman  and 
Alexander  Berkman,  who  were  in  prison  for  conspiracy  to 
resist  the  draft,  to  be  "  elemental  forces  " — 

Like  the  water  that  climbs  down  the  rocks; 

Like  the  wind  in  the  leaves; 

Like  the  gentle  night  that  holds  us. 

He   also   objected   to   three   articles   admiring  the   "  sacri- 
fice "  of  conscientious  objectors,  and  praising  Goldman  and 
Berkman  as  "  friends  of  American  freedom." 
15  244  Fed.  536   (S.  D.  N.  Y.,  1917). 


48  FREEDOM  OF  SPEECH 

The  Espionage  Act,  it  will  be  remembered,  made  non- 
mailable any  publication  which  violated  the  criminal  pro- 
visions of  the  section  already  quoted.  One  important  issue 
was,  therefore,  whether  the  postmaster  was  right  in  finding 
such  a  violation.  The  case  did  not  raise  the  constitutional 
question  whether  Congress  could  make  criminal  any  matter 
which  tended  to  discourage  the  successful  prosecution  of  the 
war,  but  involved  only  the  construction  of  the  statute, 
whether  Congress  had  as  yet  gone  so  far.  Judge  Hand  held 
that  it  had  not  and  granted  the  injunction.  He  refused  to 
turn  the  original  Act,  which  obviously  dealt  only  with  in- 
terference with  the  conduct  of  military  affairs,16  into  a  pro- 
hibition of  all  kinds  of  propaganda  and  a  means  for  sup- 
pressing all  hostile  criticism  and  all  opinion  except  that 
which  encouraged  and  supported  the  existing  policies  of  the 
war,  or  fell  within  the  range  of  temperate  argument.  As 
Cooley  pointed  out  long  ago,  you  cannot  limit  free  speech 
to  polite  criticism,  because  the  greater  a  grievance  the  more 
likely  men  are  to  get  excited  about  it,  and  the  more  urgent 
the  need  of  hearing  what  they  have  to  say.17  The  normal 
test  for  the  suppression  of  speech  in  a  democratic  govern- 
ment, Judge  Hand  insists,  is  neither  the  justice  of  its  sub- 
stance nor  the  decency  and  propriety  of  its  temper,  but  the 
strong  danger  that  it  will  cause  injurious  acts.  The  Es- 
pionage Act  should  not  be  construed  to  reverse  this  national 
policy  of  liberty  of  the  press  and  silence  hostile  criticism, 
unless  Congress  had  given  the  clearest  expression  of  such  an 
intention  in  the  statute. 

Congress  had  shown  no  such  intention.    Moreover,  whether 


ifl  The  plain  fact  that  the  original  Espionage  Act  is  a  military 
statute  and  not  a  sedition  statute  is  also  recognized  by  United  States 
v.  Fontana,  Bull.  Dept.  Just.,  No.  148  (N.  D.  1917),  Amidon,  J.; 
United  States  v.  Wishek,  Bull.  Dept.  Just.,  No.  153  (N.  D.,  1917), 
Amidon,  J.;  United  States  v.  Henning,  Bull.  Dept.  Just.,  No.  184 
(Wis.,  1917),  Geiger,  D.  J.;  and  implied  by  other  cases.  The  large 
number  of  cases  which  ignore  the  clear  meaning  of  the  statute  is 
astounding  in  view  of  the  rule  that  criminal  statutes  must  be  con- 
strued strictly. 

it  Cooley,  Constitutional  Limitations,  7  ed„  613. 


THE  WAR  WITH  GERMANY  49 

or  not  it  could  create  a  personal  censorship  of  the  press 
under  the  war  power,  it  had  not  yet  done  so.  Since  the 
portions  of  The  Mmses  selected  by  the  postmaster  did  not 
actually  advocate  violence,  he  had  no  right  to  suppress  the 
magazine  "  on  the  doctrine  that  the  general  tenor  and  animus 
of  the  paper  were  subversive  to  authority  and  seditious  in 
effect." 

The  tradition  of  English-speaking  freedom  has  depended  in  no 
small  part  upon  the  merely  procedural  requirement  that  the  state 
point  with  exactness  to  just  that  conduct  which  violates  the  law. 
It  is  difficult  and  often  impossible  to  meet  the  charge  that  one's 
general  ethos  is  treasonable. 

Judge  Hand  places  outside  the  limits  of  free  speech  one 
who  counsels  or  advises  others  to  violate  existing  laws. 
Language  is  not  always  exempt  from  punishment.  "  Words 
are  not  only  the  keys  of  persuasion,  but  the  triggers 
of  action,  and  those  which  have  no  purport  but  to 
counsel  the  violation  of  law  cannot  by  any  latitude  of  in- 
terpretation be  a  part  of  that  public  opinion  which  is  the 
final  source  of  government  in  a  democratic  state."  It  is  also 
true,  he  says,  that  any  discussion  designed  to  show  that  ex- 
isting laws  are  mistaken  in  means  or  unjust  in  policy  may 
result  in  their  violation.  Nevertheless,  if  one  stops  short  of 
urging  upon  others  that  it  is  their  duty  or  their  interest  to 
resist  the  law,  he  should  not  be  held  to  have  attempted  to 
cause  illegal  conduct.  If  this  is  not  the  test,  the  1917  Act 
punishes  every  political  agitation  which  can  be  shown  to  be 
apt  to  create  a  seditious  temper.  The  language  of  the 
statute  proves  that  Congress  had  no  such  revolutionary  pur- 
pose in  view. 

According  to  this  view,  criminality  under  the  Espionage 
Act  of  1917  would  be  determined  by  an  objective  test,  the 
nature  of  the  words  used.  The  jury  could  pass  on  this  much 
better  than  on  questions  of  political  and  economic  tendency. 
Moreover,  the  Act  would  have  a  meaning  easily  understood 
by  the  opponents  of  the  war.     They  could  safely  engage  in 


50  FREEDOM  OF  SPEECH 

discussion  of  its  merits  and  the  justice  of  war  policies,  so 
long  as  they  refrained  from  urging  violation  of  laws.  The 
Act,  thus  interpreted,  does  not  go  to  the  limits  of  Congress- 
ional power  as  I  have  construed  them.  Under  some  circum- 
stances an  expression  of  opinion  which  does  not  counsel  any 
unlawful  act  may  be  highly  dangerous.  Even  Mill  would 
punish  a  statement  that  grain-dealers  are  starvers  of  the 
poor,  or  that  private  property  is  robbery,  when  delivered 
orally  to  an  excited  mob  assembled  before  the  house  of  a 
grain-dealer.18  A  scathing  analysis  of  the  incompetence 
of  the  commanding  general  circulated  among  the  troops  on 
the  eve  of  battle  would  be  a  direct  and  dangerous  inter- 
ference with  the  war.  But  military  law  would  deal  with  this 
offense  within  the  lines,  and  the  law  of  illegal  assembly  will 
come  into  play  elsewhere,  as  in  Mill's  case.  There  is  no 
need  to  make  the  expression  of  opinion  in  itself  criminal. 
It  has  not  been  so  normally  in  this  country,  especially  not 
under  federal  law,  and  the  Espionage  Act  of  1917  (unlike 
that  of  1918)  contains  nothing  to  indicate  such  an  inter- 
ference with  the  attainment  and  dissiemination  of  truth. 
That  statute  by  its  terms  fills  in  the  gap  between  the  treason 
and  the  conspiracy  laws  by  reaching  the  individual  who 
actually  attempts  or  incites  interference  with  the  war, 
whether  by  acts  like  assaulting  a  recruiting  officer  or  by 
words  whose  tenor  shows  that  they  have  very  little  to  do 
with  the  social  interest  in  truth,  since  they  do  not  discuss 
the  merits  of  the  war,  but  counsel  immediate  and  injurious 
acts.  In  other  words,  Congress  was  punishing  dangerous 
acts  and  such  words  as  had  all  the  effect  of  acts,  because 
they  could  have  no  other  purpose  but  a  direct  and  dan- 
gerous interference  with  the  war. 

There  was  during  the  war  no  finer  judicial  statement  of 
the  right  of  free  speech  than  these  words  of  Judge  Hand : 

Political  agitation,  by  the  passions  it  arouses  or  the  convictions 
it  engenders,  may  in  fact  stimulate  men  to  the  violation  of  law. 

is  Mill,  Liberty,  opening  of  c.  3. 


THE  WAR  WITH  GERMANY  51 

Detestation  of  existing  policies  is  easily  transformed  into  forcible 
resistance  of  the  authority  which  puts  them  in  execution,  and  it 
would  be  folly  to  disregard  the  causal  relation  between  the  two. 
Yet  to  assimilate  agitation,  legitimate  as  such,  with  direct  incite- 
ment to  violent  resistance,  is  to  disregard  the  tolerance  of  all 
methods  of  political  agitation  which  in  normal  times  is  a  safe- 
guard of  free  government.  The  distinction  is  not  a  scholastic 
subterfuge,  but  a  hard-bought  acquisition  in  the  fight  for  freedom. 

Look  at  the  Espionage  Act  of  1917  19  with  a  post-armistice 
mind,  and  it  is  clear  that  Judge  Hand  was  right.  There 
is  not  a  word  in  it  to  make  criminal  the  expression  of  pacifist 
or  pro-German  opinions.  It  punishes  false  statements  and 
reports — necessarily  limited  to  statements  of  fact — but  be- 
yond that  does  not  contain  even  a  provision  against  the 
use  of  language.  It  differs  entirely  from  the  Act  of  1918, 
and  from  state  laws  making  utterances  criminal  for  their 
own  sake  as  nuisances  or  breaches  of  the  peace.  Utterances 
(except  false  statements)  are  punishable,  if  at  all,  because 
of  their  relation  to  specified  acts.  Clauses  (2)  and  (3) 
punish  successful  interference  with  military  affairs  and  at- 
tempts to  interfere,  which  would  probably  include  incite- 
ment.20 The  tests  of  criminal  attempt  and  incitement  are 
well  settled.21  The  first  requirement  is  the  intention  to  bring 
about  the  overt  criminal  act.  But  the  law  does  not  punish 
bad  intention  alone,  or  even  everything  done  with  a  bad  in- 
tention. A  statute  against  murder  will  not  be  construed  to 
apply  to  discharging  a  gun  with  the  intention  to  kill  a  man 
forty  miles  away.  Writing  a  letter  to  a  firm  in  San  Fran- 
cisco requesting  a  shipment  of  liquor  into  Alaska  is  not  an 
attempt  to  import  liquor  into  Alaska  until  it  is  brought  near 
the  borders,  headlands,  or  waters  of  that  territory.  At- 
tempts and  incitement  to  be  punishable  must  come  danger- 
is  See  page  42,  supra,  for  text  of  the  Act. 

20  Attempts  do  not  ordinarily  include  solicitation,  see  Beale,  infra, 
16  Harv.  L.  Rev.  491,  506  note  1;  but  attempts  to  commit  offenses 
under  the  1917  Espionage  Act  would  naturally  be  by  incitement. 

21  Joseph  H.  Beale,  "  Criminal  Attempts,"  16  Harv.  L.  Rev.  491 ;  U.  S. 
v.  Stephens,  12  Fed.  52.    See  also  32  Harv.  L.  Rev.  417. 


52  FREEDOM  OF  SPEECH 

ously  near  success,  and  bad  intention  is  merely  one  modify- 
ing factor  in  determining  whether  the  actual  conduct  is  thus 
dangerous.  A  speaker  is  guilty  of  solicitation  or  incite- 
ment to  a  crime  only  if  he  would  have  been  indictable  for 
the  crime  itself,  had  it  been  committed,  either  as  accessory 
or  principal.22  Of  course  his  liability  when  nothing  really 
happens  will  not  be  greater  than  if  his  conduct  leads  to 
actual  crime.  Now  even  in  that  event,  at  common  law  the 
utterer  of  written  or  spoken  words  is  not  criminally  liable 
merely  because  he  knows  they  will  reach  those  who  may  find 
in  them  the  excuse  for  criminal  acts.  The  assassin  of  Presi- 
dent McKinley  may  have  been  influenced  by  the  denunciatory 
cartoons  of  "  Willy  and  his  Papa  "  in  the  Hearst  news- 
papers, but  the  artist  was  not  an  accessory  to  the  murder. 

Wharton,  a  leading  writer  on  criminal  law,  shows  how 
wise  the  common  law  was  in  refusing  to  establish  any  rule  of 
indirect  causation  with  respect  to  utterances: 

For  we  would  be  forced  to  admit,  if  we  hold  that  solicitations 
to  criminality  are  generally  indictable,  that  the  propagandists, 
even  in  conversation,  of  agrarian  or  communistic  theories  are  liable 
to  criminal  prosecutions;  and  hence  the  necessary  freedom  of 
speech  and  of  the  press  would  be  greatly  infringed.  It  would  be 
hard,  also,  we  must  agree,  if  we  maintain  such  general  responsibil- 
ity, to  defend,  in  prosecutions  for  soliciting  crime,  the  publishers 
of  Byron's  Don  Juan,  of  Rousseau's  Emile,  or  of  Goethe's 
Elective  Affinities.  Lord  Chesterfield,  in  his  letters  to  his  son, 
directly  advises  the  latter  to  form  illicit  connections  with  married 
women ;  Lord  Chesterfield,  on  the  reasoning  here  contested,  would 
be  indictable  for  solicitation  to  adultery.  Undoubtedly,  when  such 
solicitations  are  so  publicly  and  indecently  made  as  to  produce 
public  scandal,  they  are  indictable  as  nuisances  or  as  libels.  But 
to  make  bare  solicitations  or  allurements  indictable  as  attempts, 
not  only  unduly  and  perilously  extends  the  scope  of  penal  ad- 
judication, but  forces  on  the  courts  psychological  questions  which 
they  are  incompetent  to  decide,  and  a  branch  of  business  which 
would  make  them  despots  of  every  intellect  in  the  land.23 

22  See  Beale,  swpra,  16  Harv.  L.  Rev.  491,  505.  Under  the  federal 
statutes  he  would  be  a  principal.  Rev.  Stat.  §§  5323,  5427;  March  4, 
1909,  c.  321,  §332;  U.  S.  Comp.  Stat.,  1918,  §10506  (Crim.  Code,  §332). 

28  Wharton,  Criminal  Law,  I  (9  ed.),  §  179. 


THE  WAR  WITH  GERMANY  53 

On  the  contrary,  the  rule  has  always  been  that,  to  estab- 
lish criminal  responsibility,  the  words  uttered  must  consti- 
tute dangerous  progress  toward  the  consummation  of  the 
independent  offense  attempted  and  amount  to  procurement, 
counsel,  or  command  to  commit  the  forbidden  acts.24  This 
standard  can  be  applied,  not  only  to  attempts  to  cause  in- 
subordination and  obstruction  of  the  draft,  where  the  ulti- 
mate result  would  be  a  crime,  but  also  to  the  persuasion  of 
men  not  to  volunteer.  Their  failure  to  enlist  is  not  a  crime, 
but  is  a  serious  injury  to  the  government.  The  speaker  is 
interfering  with  the  right  of  the  army  to  a  free  labor  mar- 
ket, in  a  manner  analogous  to  picketing  and  boycotting  in 
private  business,  which  often  constitute  civil  wrongs,  com- 
pensated by  damages.25  Such  interference  may  justly  be 
made  criminal,  but  only  if  it  is  direct  and  dangerous,  for 
the  measure  of  liability  ought  not  to  be  larger  than  for 
solicitation  to  a  criminal  result  like  evasion  of  the  draft.26 

Consequently,  no  one  should  have  been  held  under  clauses 
(2)  and  (3)  of  the  Espionage  Act  of  1917  who  did  not  sat- 
isfy these  tests  of  criminal  attempt  and  incitement.  As 
Justice  Holmes  said  in  Commonwealth  v.  Peaslee,27  "  It  is  a 
question  of  degree."  We  can  suppose  a  series  of  opinions, 
ranging  from  "  This  is  an  unwise  war  "  up  to  "  You  ought 
to  refuse  to  go,  no  matter  what  they  do  to  you,"  or  an 
audience  varying  from  an  old  women's  home  to  a  group  of 
drafted  men  just  starting  for  a  training  camp.  Somewhere 
in  such  a  range  of  circumstances  is  the  point  where  direct 
causation  begins  and  speech  becomes  punishable  as  incite- 
ment under  the  ordinary  standards  of  statutory  construction 

2*4  Blackstone's  Commentaries  36. 

zsGompers  v.  Bucks  Stove  and  Range  Co.,  221  U.  S.  418  (1911); 
Vegelahn  v.  Guntner,  167  Mass.  92  (1896).  The  boycott  may  become 
a  crime  under  the  Sherman  Law,  Loewe  v.  Lawlor  (Danbury  Hatters' 
Case),  208  U.  S.  274  (1908). 

26  See  Hand  in  U.  S.  v.  Nearing,  252  Fed.  223,  227  (1918).  The 
same  principle  applies  to  interference  with  Liberty  Bond  sales  under  the 
1918  Act. 

27  177  Mass.  267,  272  (1901).  See  also  his  opinion  in  Swift  v.  U.  S., 
196  U.  S.  375,  396  (1905). 


54  FREEDOM  OF  SPEECH 

and  the  ordinary  policy  of  free  speech,  which  Judge  Hand 
applied.  Congress  could  push  the  test  of  criminality 
back  beyond  this  point,  although  eventually  it  would  reach 
the  extreme  limit  fixed  by  the  First  Amendment,  beyond 
which  words  cannot  be  restricted  for  their  remote  tendency 
to  hinder  the  war.28  In  other  words,  the  ordinary  tests  pun- 
ish agitation  just  before  it  begins  to  boil  over;  Congress 
could  change  those  tests  and  punish  it  when  it  gets  really 
hot,  but  it  is  unconstitutional  to  interfere  when  it  is  merely 
warm.  And  there  is  not  a  word  in  the  1917  Espionage  Act 
to  show  that  Congress  did  change  the  ordinary  tests  or 
make  any  speech  criminal  except  false  statements  and  in- 
citement to  overt  acts.  Every  word  used,  "  cause,"  "  at- 
tempt," "  obstruct,"  clearly  involves  proximate  causation, 
a  close  and  direct  relation  to  actual  interference  with  the 
operations  of  the  army  and  navy,  with  enlistment  and  the 
draft.  Finally,  this  is  a  penal  statute  and  ought  to  be  con- 
strued strictly.  Attorney  General  Gregory's  charge  that 
judges  like  Learned  Hand  "  took  the  teeth "  out  of  the 
1917  Act 29  is  absurd,  for  the  teeth  the  government  wanted 
were  never  there  until  other  judges  in  an  excess  of  patriotism 
put  in  false  ones. 

Nevertheless,  Judge  Hand  was  reversed30  on  a  point  of 
administrative  law,  that  the  postmaster's  decision  must  stand 
unless  clearly  wrong,31  but  the  Circuit  Court  of  Appeals 
thought  it  desirable  to  reject  his  construction  of  the  Espion- 
age Act  and  substitute  the  view  that  speech  is  punishable 
under  the  Act  "  if  the  natural  and  reasonable  effect  of  what 
is  said  is  to  encourage  resistance  to  law,  and  the  words  are 
used  in  an  endeavor  to  persuade  to  resistance."  His  ob- 
jective test  of  the  nature  of  the  words  was  considered  un- 

28  See  the  quotation  from  Justice  Brandeis,  page  99,  infra. 

29  See  note  10,  supra. 

so  Masses  Pub.  Co.  v.  Patten,  245  Fed.  102  (C.  C.  A.  2d,  1917), 
Hough,  J.,  stayed  the  injunction;  ibid.  246,  Fed.  24  (C.  C.  A.  2d,  1917), 
Ward,  Rogers,  and  Mayer,  J  J.,  reversed  the  order  granting  the  injunc- 
tion. 

3i  See  for  authorities  against  this  proposition,  32  Harv.  L.  Rev.  417, 
420.     See  page  106,  infra,  VI.  Censorship;  also  Chapter  V. 


THE  WAR  WITH  GERMANY  55 

sound.  Advice  in  direct  language  was  repudiated  as  a  requi- 
site of  guilt.  Judge  Hough  used  the  Sermon  on  the  Mount 
as  a  precedent  for  the  government's  war  policy :  "  It  is  at 
least  arguable  whether  there  can  be  any  more  direct  incite- 
ment to  action  than  to  hold  up  to  admiration  those  who  do 
act.  .  .  The  Beatitudes  have  for  some  centuries  been  con- 
sidered highly  hortatory,  though  they  do  not  contain  the  in- 
junction: 'Go  thou  and  do  likewise.'"  It  is  possible  that 
the  Court  of  Appeals  did  not  intend  to  lay  down  a  very 
different  principle  from  Judge  Hand,  but  chiefly  wished  to 
insist  that  in  determining  whether  there  is  incitement  one 
must  look  not  only  at  the  words  themselves  but  also  at  the 
surrounding  circumstances  which  may  have  given  the  words 
a  special  meaning  to  their  hearers.  Judge  Hand  agrees  with 
this,  and  regards  Mark  Antony's  funeral  oration,  for  in- 
stance, as  having  counseled  violence  while  it  expressly  dis- 
countenanced it.  However,  the  undoubted  effect  of  the  final 
decision  in  Masses  v.  Patten  was  to  establish  the  old-time 
doctrine  of  remote  bad  tendency  in  the  minds  of  district 
judges  throughout  the  country.  By  its  rejection  of  the 
common-law  test  of  incitement,32  it  deprived  us  of  the  only 
standard  of  criminal  speech  there  was,  since  there  had  never 
been  any  well-considered  discussion  of  the  meaning  of  "  free- 
dom of  speech  "  in  the  First  Amendment. 

As  a  result  of  this  and  similar  decisions,  the  district  judges 
ignored  entirely  the  first  element  of  criminal  attempt  and 
solicitation,  that  the  effort,  though  unsuccessful,  must  ap- 
proach dangerously  near  success.  They  repudiated  the 
test  of  guilt  under  the  Act  laid  down  by  Judge  Hand, 
that  the  words  must  in  themselves  urge  upon  their  readers 
or  hearers  a  duty  or  an  interest  to  resist  the  law  or  the 
appeal  for  volunteers,  and  substituted  the  test  that  the  words 
need  only  have  a  tendency  to  cause  unrest  among  soldiers 
or  to  make  recruiting  more  difficult.    The  remaining  element, 

32  See  the  review  of  Masses  v.  Patten  by  Learned  Hand,  J.,  in  U.  S. 
v.  Nearing,  252  Fed.  223,  227  (1918).  Judge  Rogers  may  not  have 
realized  he  was  rejecting  it  (246  Fed.  38),  but  the  test  of  common-law 
incitement  has  never  been  applied  to  the  Act  by  a  District  Judge  since. 


56  FREEDOM  OF  SPEECH 

intention  to  cause  the  bad  overt  action,  they  retained.  This 
new  standard  of  guilt  allowed  conviction  for  any  words  which 
had  an  indirect  effect  to  discourage  recruiting  and  the  war 
spirit,  like  the  poem  about  Emma  Goldman  and  the  wind,  if 
only  the  intention  to  discourage  existed.  Intention  thus 
became  the  crucial  test  of  guilt  in  any  prosecution  of  opposi- 
tion to  the  government's  war  policies,  and  this  requirement 
of  intention  became  a  mere  form  since  it  could  be  inferred 
from  the  existence  of  the  indirect  injurious  effect.33  A 
few  judges,  notably  Amidon  of  North  Dakota,  have  stemmed 
the  tide,  but  of  most  Espionage  Act  decisions  what  Jefferson 
and  Stephen  and  Schofield  said  about  the  prosecutions  under 
George  III  and  the  Sedition  Act  of  1798  can  be  said  once 
more,  that  men  have  been  punished  without  overt  acts,  with 
only  a  presumed  intention  to  cause  overt  acts,  merely  for 
the  utterance  of  words  which  judge  and  jury  thought  to 
have  a  tendency  to  injure  the  state.  Judge  Rogers  was 
right  in  saying84  that  the  words  of  the  Espionage  Act  of 
1917  bear  slight  resemblance  to  the  Sedition  Law  of  1798, 
but  the  judicial  construction  is  much  the  same,  except  that 
under  the  Sedition  Law  truth  was  a  defense. 

III.  The  District  Court  Cases 

The  effect  of  the  prosecutions  under  this  Act  has,  no  doubt,  been 
beneficial  in  maintaining  law  and  order. — Report  of  the  Attorney 
General,  1919. 

The  revival  of  the  doctrines  of  bad  tendency  and  con- 
structive intent  always  puts  an  end  to  genuine  discussion 
of  public  matters.  It  is  unnecessary  to  review  the  two 
thousand  Espionage  Act  prosecutions  in  detail,  but  a  few 
general  results  may  be  presented  here.  The  courts  have 
treated    opinions    as    statements    of    fact    and    then    con- 

33  Masses  Pub.  Co.  v.  Patten,  246  Fed.  24,  39  (1917),  Ward,  J.;  and 
Rogers,  J.:  "The  court  does  not  hesitate  to  say  that,  considering  the 
natural  and  reasonable  effect  of  the  publication,  it  was  intended  will- 
fully to  obstruct  recruiting." 

s*  Ibid.  29. 


THE  WAR  WITH  GERMANY  57 

demned  them  as  false  because  they  differed  from  the  Presi- 
dent's speech  or  the  resolution  of  Congress  declaring  war. 
Their  construction  of  this  first  clause  of  the  Act  will  be 
considered  in  connection  with  the  Supreme  Court  decisions. 
Under  the  second  and  third  clauses  against  causing  insub- 
ordination or  obstructing  recruiting,  only  a  few  persons 
have  been  convicted  for  actually  urging  men  to  evade  the 
draft  or  not  to  enlist.  Almost  all  the  convictions  have  been 
for  expressions  of  opinion  about  the  merits  and  conduct  of  the 
war.  It  became  criminal  to  advocate  heavier  taxation  instead 
of  bond  issues,  to  state  that  conscription  was  unconstitutional 
though  the  Supreme  Court  had  not  yet  held  it  valid,  to  say 
that  the  sinking  of  merchant  vessels  was  legal,  to  urge  that 
a  referendum  should  have  preceded  our  declaration  of  war,  to 
say  that  war  was  contrary  to  the  teachings  of  Christ.  Men 
have  been  punished  for  criticising  the  Red  Cross  and  the 
Y.M.C.A.,  while  under  the  Minnesota  Espionage  Act  it  has 
been  held  a  crime  to  discourage  women  from  knitting  by  the 
remark,  "  No  soldier  ever  sees  these  socks."  35  It  was  in  no 
way  necessary  that  these  expressions  of  opinion  should  be  ad- 
dressed to  soldiers  or  men  on  the  point  of  enlisting  or  being 
drafted.  Most  judges  held  it  enough  if  the  words  might  con- 
ceivably reach  such  men.  They  have  made  it  impossible  for 
an  opponent  of  the  war  to  write  an  article  or  even  a  letter  in 
a  newspaper  of  general  circulation  because  it  will  be  read  in 
some  training  camp  where  it  might  cause  insubordination  or 
interfere  with  military  success.  He  cannot  address  a  large 
audience  because  it  is  liable  to  include  a  few  men  in  uniform ; 
and  some  judges  have  held  him  punishable  if  it  contains  men 

35  State  v.  Freerks,  140  Minn.  349  (1918).  References  to  all  cases 
mentioned  by  name  in  succeeding  paragraphs  will  be  found  indexed 
in  Appendix  II.  Among  the  many  other  cases  illustrating  the  statements 
of  this  paragraph  may  be  mentioned  the  trials  of  Sandberg,  Miller, 
Nagler,  Goldsmith,  Kaufman,  Weist,  Kirchner,  Shaffer,  Albers,  Krafft, 
Boutin,  Granzow,  Hitchcock,  Weinsberg,  Denson,  Von  Bank,  White 
(all  in  Appendix  II).  A  few  of  these  convictions  have  been  reversed, 
but  this  does  not  excuse  the  conduct  of  the  trial  courts.  See  also 
the  Supreme  Court  cases  discussed  infra.  See  32  Harv.  L.  Rev.  417, 
and  other  references  in  Appendix  I.  The  facts  of  many  cases  are  in 
War-time  Prosecutions  and  Mob  Violence. 


58  FREEDOM  OF  SPEECH 

between  eighteen  and  forty-five,  since  they  may  be  called  into 
the  army  eventually;  some  have  emphasized  the  possible 
presence  of  shipbuilders  and  munition-makers.  All  genuine 
discussion  among  civilians  of  the  justice  and  wisdom  of 
continuing  a  war  thus  becomes  perilous. 

Judge  Van  Valkenburgh,  in  United  States  v.  Rose  Pastor 
Stokes,  would  even  make  it  criminal  to  argue  to  women 
against  a  war,  by  the  words,  "  I  am  for  the  people  and  the 
government  is  for  the  profiteers,"  because  what  is  said  to 
mothers,  sisters,  and  sweethearts  may  lessen  their  enthusiasm 
for  the  war,  and  "  our  armies  in  the  field  and  our  navies 
upon  the  seas  can  operate  and  succeed  only  so  far  as  they 
are  supported  and  maintained  by  the  folks  at  home."  The 
doctrine  of  indirect  causation  never  had  better  illustration 
than  in  his  charge.  It  shows  how  a  very  able  judge  of 
large  experience  can  be  swept  from  his  moorings  by  war 
passion.  Furthermore,  although  Mrs.  Stokes  was  in- 
dicted only  for  writing  a  letter,  the  judge  admitted  her 
speeches  to  show  her  intent,  and  then  denounced  the  opin- 
ions expressed  in  those  speeches  in  the  strongest  language 
to  the  jury  as  destructive  of  the  nation's  welfare,  so  that 
she  may  very  well  have  been  convicted  for  the  speeches  and 
not  for  the  letter. 

Just  as  Lord  Kenyon,  while  trying  a  man  who  happened 
to  sympathize  with  the  French  Revolution,  went  out  of  his 
way  to  emphasize  its  massacres  as  a  consequence  of  theories 
like  the  defendant's,36  so  Judge  Van  Valkenburgh  denounced 
the  Russian  Revolution  as  "  the  greatest  betrayal  of  the 
cause  of  democracy  the  world  has  ever  seen,"  and  made  use 
of  Mrs.  Stokes'  declared  sympathy  with  that  Revolution,  an 
offense  not  punishable  even  under  the  Espionage  Act,  to  show 
how  dangerous  it  was  for  her  to  talk  about  profiteers. 

Of  course,  the  jury  convicted  Mrs.  Stokes  after  such  a 
charge.  They  found  that  the  words,  "  I  am  for  the  people, 
and  the  government  is  for  the  profiteers,"  were  a  false  state- 
ment, known  to  be  false  and  intended  and  calculated  to  inter- 

86  Rex.  v.  Cuthell,  27  How.  St.  Tr.  642,  674   (1799). 


THE  WAR  WITH  GERMANY  59 

fere  with  the  success  of  our  military  and  naval  forces,  that 
they  were  an  attempt  to  cause  insubordination  in  those 
forces,  and  that  they  obstructed  recruiting.  The  judge 
sentenced  her  to  ten  years  in  prison.  The  Circuit  Court 
of  Appeals  set  aside  this  conviction  in  March,  1920,  but 
it  stood  all  during  the  war  as  a  stern  example  that  it  was 
a  heinous  crime  to  discuss  profiteering,  because  of  "  the  pos- 
sible, if  not  probable  effect  on  our  troops." 

A  case  in  the  Second  Circuit  makes  it  equally  peril* 
ous  to  urge  a  wider  exemption  for  conscientious  objectors 
because  this  tends  to  encourage  more  such  objectors,  a  close 
parallel  to  the  English  imprisonment  of  Bertrand  Russell.37 

Many  men  have  been  imprisoned  for  arguments  or  pro- 
fanity used  in  the  heat  of  private  altercation,  on  a  railroad 
train,  in  a  hotel  lobby,  or  at  that  battle-ground  of  disputa- 
tion, a  boarding-house  table.38  In  one  case,39  two  strangers 
came  to  a  farmhouse  and  asked  the  owner  if  he  could  let 
them  have  some  gasoline,  saying  that  they  had  been  stranded 
out  in  the  country.  He  not  only  gave  them  the  gasoline,  but 
invited  them  to  dinner.  An  argument  arose  during  the  meal, 
and  the  farmer  used  scurrilous  and  presumably  unpatriotic 
language  in  the  presence  of  his  guests,  two  hired  men,  two 
nieces,  and  some  children.  The  guests  reported  his  language, 
and  he  was  convicted  of  a  willful  attempt  to  cause  disloyalty, 
insubordination,  mutiny,  and  refusal  of  duty  in  the  military 
and  naval  forces  of  the  United  States.  Even  unexpressed 
thoughts  have  been  prosecuted  through  an  ingenious  method 
of  inquisition.  A  German- American  who  had  not  subscribed 
to  Liberty  bonds  was  visited  in  his  house  by  a  committee 

37Fraina  v.  United  States,  255  Fed.  28  (C.  C.  A.  2d,  1918),  for 
conspiracy  and  not  under  the  Espionage  Act;  Rex  v.  Bertrand  Rus- 
sell, Littell's  Living  Age,  Feb.  15,  1919,  p.  385. 

38  For  instance,  Sandberg,  Albers,  Goldsmith,  Denson.  But  Judge 
Bourquin  refused  to  let  the  jury  pass  on  such  evidence  in  the  case  of 
V.  Hall,  involving  "  kitchen  gossip  and  saloon  debate." 

3»  U.  S.  v.  Harshfield,  260  Fed.  659  (C.  C.  A.,  8th,  1919),  revers- 
ing the  conviction.  In  Schoberg  v.  U.  S.,  264  Fed.  1,  under  1918  Act, 
three  elderly  German  Americans,  hobnobbing  together  in  the  cobbler's 
shop  of  one  of  them  and  growling  about  the  war,  were  convicted  by 
means  of  a  dictagraph. 


60  FREEDOM  OF  SPEECH 

who  asked  his  reasons  and  received  a  courteous  reply  that 
he  did  not  wish  either  side  to  win  the  war  and  could  not  con- 
scientiously give  it  his  aid.  He  was  thereupon  arrested  and 
held  in  confinement  until  released  by  a  district  court.40 

A  few  concrete  cases  of  convictions  that  have  been  upheld 
will  show  how  the  Espionage  Act  operates  to  punish  expres- 
sions of  opinion. 

J.  P.  Doe,  son  of  the  great  Chief  Justice  of  New  Hamp- 
shire, while  living  in  Colorado  because  of  bad  health,  mailed 
an  "  endless  chain  "  letter,  to  be  sent  "  to  friends  of  imme- 
diate peace,"  which  stated  that  although  the  President  and 
Secretary  of  State  had  said  Germany  had  broken  her  prom- 
ise to  end  submarine  warfare,  Germany  had  made  no  such 
promise,  but  had  reserved  in  the  Sussex  note  complete 
liberty  of  decision  as  to  the  future.  Doe's  statement  was 
a  legitimate  inference  from  the  note,  whatever  its  bearing  on 
the  merits  of  our  position — and  this  he  did  not  discuss.  Yet 
he  was  convicted  for  it,  the  alleged  intent  to  obstruct  re- 
cruiting being  evidenced  by  passages  from  a  long  personal 
letter  to  his  sister.  The  Court  of  Appeals  said  it  was  a 
fair  construction  of  the  circular  that  Doe  intended  to  con- 
vey the  idea  that  the  United  States  was  wrong  in  relying 
on  the  alleged  promise  as  a  cause  of  war ;  "  such  an  argu- 
ment would  have  a  direct  tendency  to  obstruct  the  recruit- 
ing and  enlistment  service."  Doe  was  sentenced  to  eight- 
een months  in  prison. 

Robert  Goldstein,  who  had  been  connected  with  D.  W. 
Griffith  in  producing  "  The  Birth  of  a  Nation,"  a  well-known 
moving-picture  film  of  the  Civil  War,  planned  a  similar 
presentation  of  the  Revolution  in  a  film  called  "  The  Spirit 
of  '76,"  which  contained  such  scenes  as  Patrick  Henry's 
Speech,  the  Signing  of  the  Declaration  of  Independence, 
and  Valley  Forge.  After  a  year  and  a  half  of  work  the 
picture  was  finished,  just  before  the  outbreak  of  our  war 
with  Germany.    The  film  was  displayed  in  Los  Angeles  to  the 

40  United  States  v.  Pape,  253  Fed.  270  (1918).  State  v.  Ludemann, 
172  N.  W.   (Minn.)   887   (1919),  ace 


THE  WAR  WITH  GERMANY  61 

usual  audience,  which  was  not  shown  to  contain  either  soldiers 
or  sailors.  The  government  thereupon  indicted  Goldstein  for 
presenting  a  play  designed  and  intended  to  arouse  antago- 
nism, hatred  and  enmity  between  the  American  people,  par- 
ticularly the  armed  forces,  and  the  people  of  Great  Britain, 
particularly  their  armed  forces,  when  Great  Britain  was  "  an 
ally  "  of  the  United  States,  because  one  scene,  the  Wyoming 
Massacre,  portrayed  British  soldiers  bayoneting  women  and 
children  and  carrying  away  girls.  The  film  was  seized,  the 
business  was  thrown  from  prosperity  into  bankruptcy  with 
a  loss  of  over  $100,000,  and  Goldstein  was  convicted  of  at- 
tempting to  cause  insubordination,  etc.,  in  the  armed  forces 
and  sentenced  to  ten  years  in  the  federal  penitentiary  at 
Steilacoom,  Washington.  His  punishment  for  depicting  the 
origin  of  this  nation  has  been  commuted  to  three  years.41 

Rev.  Clarence  H.  Waldron,  of  Windsor,  Vermont,  was 
charged  with  handing  to  five  persons,  among  whom  were  a 
woman,  two  men  apparently  above  military  age,  and  another 
clergyman,  a  pamphlet  to  show  where  he  himself  stood  on  the 
war.  The  judge  in  his  charge  quoted  the  following  state- 
ments from  the  pamphlet : 

Surely,  if  Christians  were  forbidden  to  fight  to  preserve  the 
Person  of  their  Lord  and  Master,  they  may  not  fight  to  preserve 
themselves,  or  any  city  they  should  happen  to  dwell  in.  Christ 
has  no  kingdom  here.    His  servants  must  not  fight. 

The  Christian  may  not  go  to  "  the  front "  to  repel  the  foe — 
for  there  he  is  required  to  kill  men. 

They  (referring  to  the  Twelve  Apostles)  knew  the  force  of 
their  Lord's  example,  and  whether  to  save  themselves  or  to  save 
others — never,  never  use  the  sword. 

Better  a  thousand  times  to  die  than  for  a  Christian  to  kill  his 
fellow. 

«258  Fed.  908;  252  Fed.  946.  This  conviction  has  been  defended  on 
two  grounds.  (1)  That  Goldstein  inserted  the  massacre  at  the  public 
performance,  though  he  had  omitted  it  at  a  preliminary  representation  be- 
fore officials.  If  they  had  no  right  to  censor  by  previous  restraint  any 
way  (cf.  Dailey  v.  Superior  Court,  112  Cal.  94),  this  fact  seems  imma- 
terial. In  any  event  it  does  not  merit  three  years  in  jail.  (2)  That  he 
had  attempted  to  finance  the  enterprise  by  appeal  to  the  anti-British 
sentiments  of  German-Americans.  As  this  was  before  we  entered  the 
war,  it  should  have  no  bearing  whatever  even  if  true. 


62  FREEDOM  OF  SPEECH 

I  do  not  say  that  it  is  wrong  for  a  nation  to  go  to  war  to 
preserve  its  interests,  but  it  is  wrong  to  the  Christian,  absolutely, 
unutterably  wrong. 

Under  no  circumstances  can  I  undertake  any  service  that  has 
for  its  purpose  the  prosecution  of  war. 

Mr.  Waldron  was  convicted  for  causing  insubordination 
and  obstructing  recruiting,  and  sentenced  to  fifteen  years  in 
prison.42 

D.  H.  Wallace,  an  ex-British  soldier,  was  sentenced  to 
twenty  years  for  saying: 

That  when  a  soldier  went  away  he  was  a  hero  and  that  when 
he  came  back  flirting  with  a  hand  organ  he  was  a  bum,  and  that 
the  asylums  will  be  filled  with  them ;  that  the  soldiers  were  giving 
their  lives  for  the  capitalists,  that  40  per  cent  of  the  ammunition 
of  the  allies  or  their  guns  was  defective  because  of  graft. 

Wallace  went  insane  and  died  in  jail. 

D.  T.  Blodgett  was  given  the  same  sentence  by  the  same 
judge,  Wade,  for  circulating  a  pamphlet  urging  the  voters 
of  Iowa  not  to  re-elect  the  Congressmen  who  voted  for  con- 
scription, and  reprinting  an  argument  of  Thomas  E.  Wat- 
son, of  Georgia,  against  the  constitutionality  of  the  Draft 
Act.  This  was  before  its  validity  had  been  upheld  by  the 
Supreme  Court.  Judge  Wade  charged  that  the  govern- 
ment had  passed  the  Espionage  Act,  "  realizing  that  it  must 
protect  the  feeling  and  spirit  of  the  American  people  against 
the  work  of  those  who  defy  authority;  it  was  not  intended 
for  ninety-five  per  cent  of  the  American  people,  but  neces- 
sary for  the  few  who  will  not  heed  the  judgment  of  the  ninety- 
five  per  cent ;  who  assume  to  know  more  than  all  the  others 
put  together.  It  is  not  a  harsh  Act."  He  recalled  the 
draft  riots  of  the  Civil  War,  and  suggested  that  Blodgett 
had  felt  that  a  little  mutiny  might  aid  his  political  cause. 
"  Just  look  at  this  that  he  wants  drafted  men  to  buy : " 

In  Washington  City  it  is  a  carnival,  a  wild  extravagance;  an 
orgy  of  prodigal  waste ;  a  Bacchanalian  revel  of  men  who  act  as 

« He  was  pardoned  after  a  year  in  prison. 


THE  WAR  WITH  GERMANY  63 

though  they  were  drunk  on  power  and  had  lost  every  sense  of 
shame,  duty  and  responsibility.  The  huge  appropriations  made 
will  accrue  to  the  benefit  of  the  classes.  Great  is  the  gathering 
of  the  vultures  at  the  National  Capital,  for  never  before  has  there 
been  such  a  carcase  inviting  them  to  the  feast.  Three  thousand 
millions  of  dollars  in  one  appropriation,  and  the  vultures  fiercely 
shrieking  for  more. 

"  There  is  no  better  way,"  said  the  judge,  "of  unsettling 
the  confidence  of  the  people  and  stirring  their  souls  against 
the  war  than  to  paint  it  as  a  war  of  capitalism,  organized 
by  capitalists  and  for  capitalists,  and  painting  the  officers 
of  the  government  as  representing  willing  tools  of  Wall 
Street.     There  is  no  better  way." 

Undoubtedly  in  all  these  cases,  intention  to  cause  insub- 
ordination or  obstruct  recruiting  was  made  a  test  of  guilt. 
It  may  seem  to  many  persons  that,  so  long  as  a  speaker  talks 
with  such  a  purpose  it  makes  no  difference  whether  he  sat- 
isfies Judge  Hand's  objective  standard  by  saying,  "Don't 
enlist,  don't  register,  shoot  over  the  enemies'  heads,"  or 
whether  he  confines  himself  to  statements  about  the  horrors 
of  a  modern  battlefield  and  opinions  about  the  legality  of  the 
German  entry  into  Belgium.  Very  likely  the  moral  quality 
of  the  two  methods  is  the  same;  the  tendency  to  prevent 
enlistment  may  be  the  same.  But  the  reason  that  makes 
it,  if  not  unconstitutional,  at  least  very  unwise,  to  punish 
the  second  type  of  utterance,  the  expression  of  fact  or  opin- 
ion, is  that  it  is  only  by  absence  of  penalties  for  such  utter- 
ances that  a  self-governing  people  can  learn  and  disseminate 
the  truth  on  public  affairs.  The  first  type  of  utterance,  on 
the  other  hand,  has  practically  no  value  for  such  a  purpose. 
When  the  public  is  interested,  bad  motives  ought  not  to  de- 
prive it  of  the  benefit  of  what  is  said.  Opposition  to  govern- 
mental action  through  discussion,  like  opposition  to  private 
action  through  law-suits,  is  the  alternative  to  the  use  of 
force.  If  the  law  should  require  litigants  to  have  good  mo- 
tives, it  might  as  well  shut  up  the  courts.  In  the  same  way, 
truth  is  truth,  and  just  as  valuable  to  the  public,  whether 


64  FREEDOM  OF  SPEECH 

it  comes  from  the  most  enthusiastic  supporter  of  the  war 
or  from  a  pro-German,  and  in  order  to  get  the  truth,  con- 
flicting views  must  be  allowed.  What  a  pacifist  says  about 
the  extravagance  of  Congress  or  bad  camp  conditions  dur- 
ing the  influenza  epidemic  or  the  desire  of  France  for  the 
left  bank  of  the  Rhine,  may  be  worth  hearing  and  acting 
on,  and  it  will  be  just  as  important,  although  he  does  it  with 
the  hope  of  hindering  the  war.  If  disclosures  like  those  made 
by  Admiral  Sims  are  true,  they  would  have  been  very  valuable 
if  made  by  some  private  citizen  during  the  war,  and  no  less  so 
if  printed  in  Berger's  Milwaukee  Leader.  So  long  as  the 
speaker  creates  no  great  danger  of  losing  the  war,  so  long  as 
the  discouraging  effects  of  his  utterances  can  be  checked 
by  the  draft  organization,  the  four-minute  men,  and  the 
general  loyalty,  it  is  wiser  to  let  him  talk  for  the  sake  of 
possible  good. 

The  last  case  reviewed,  Judge  Wade's  trial  of  Blodgett, 
brings  out  my  point  clearly.  Every  one  will  admit  that 
Congress  may  properly  consider  ending  a  war.  If  so,  the 
men  to  favor  this  must  be  elected,  as  many  of  them  were  in 
1864,  and  the  election  will  be  a  poor  expression  of  the  popu- 
lar will  unless  it  is  preceded  by  discussion  of  the  merits  of 
beginning  and  continuing  the  war.  Once  more,  that  discus- 
sion will  have  little  value  for  the  formation  of  opinion  if  the 
presence  of  a  man  within  draft  age  brings  it  within  the  scope 
of  the  Espionage  Act,  and  if  those  who  oppose  the  war  vig- 
orously are  cowed  into  silence  by  twenty-year  sentences. 
It  must  never  be  forgotten  that  the  Espionage  Act 
applies  to  all  future  wars,  and  the  next  one  may 
be  as  questionable  as  those  of  1812  and  1846.  The  same 
considerations  apply  to  the  right  of  petitioning  Congress 
and  high  officials,  which  is  expressly  secured  by  the  First 
Amendment.  Twenty-seven  South  Dakota  farmers  were  op- 
posed to  the  draft  and  believed  that  an  unduly  high  quota 
was  exacted  from  their  county.  They  petitioned  various 
state  officers,  asking  a  new  arrangement,  a  referendum  on 
the  war,  payment  of  war  expenses  from  taxation  and  repu- 


THE  WAR  WITH  GERMANY  65 

diation  of  war  debts.  As  an  alternative  they  threatened  de- 
feat to  the  officers,  their  party,  and  the  nation.  Foolish  as 
this  petition  was,  it  stated  a  grievance  which  deserved  in- 
quiry. Instead,  the  twenty-seven  were  sentenced  to  more 
than  a  year  in  prison.  This  conviction,  Attorney  General 
Gregory  declares  to  have  been  "  one  of  the  greatest  deter- 
rents against  the  spread  of  hostile  propaganda,  and  par- 
ticularly that  class  of  propaganda  which  advanced  and 
played  upon  the  theme  that  this  was  a  capitalists'  war." 
Yet  after  it  had  served  this  suppressive  purpose,  and  reached 
the  Supreme  Court,  he  confessed  that  the  conviction  was  er- 
roneous.43 

In  the  same  way,  punishment  of  alleged  evil  tendency 
coupled  with  unlawful  intention  limits  the  general  influence 
of  the  press  on  legislation  and  administrative  policies,  which 
is  a  recognized  part  of  American  democracy.  Undoubtedly, 
the  statement  that  $640,000,000  had  been  spent  on  aeroplanes 
without  a  single  machine  in  France  had  as  great  a  tendency 
to  weaken  the  national  morale  as  any  event  of  the  war.  The 
District  Court  test  makes  it  criminal  for  an  editor  to  mention 
that  fact  with  the  purpose  of  turning  public  opinion  against 
the  war.  It  is  true  that  no  prosecutions  were  brought  on 
that  account,  but  are  we  any  worse  off  without  them?  Was 
it  not  an  advantage  to  have  the  fact  as  widely  known  as 
possible  so  as  to  produce  a  complete  alteration  of  govern- 
ment methods?  And  so  with  respect  to  the  territorial  and 
commercial  aims  of  our  associates  in  the  war,  which  have 
caused  us  so  much  concern  since  the  armistice.  In  short,  the 
truth  may  be  told  with  a  bad  purpose,  but  it  is  none  the  less 
truth;  and  the  most  dangerous  falsehoods  (like  the  report  of 
the  premature  armistice,  which  probably  cost  a  very  great 
loss  of  production  of  munitions),  may  be  committed  from 
motives  of  the  highest  patriotism.  Even  on  the  assump- 
tion, which  I  shall  soon  show  to  be  questionable,  that  all  the 

43Baltzer  case;  Report  of  Attorney  General,  1918,  48.  Jared  Peck 
was  indicted  under  the  Sedition  Act  of  1798  for  circulating  a  petition  to 
Congress  for  the  repeal  of  the  Act. — Beveridge's  Marshall,  III,  42  note. 


66  FREEDOM  OF  SPEECH 

persons  convicted  under  the  Espionage  Act  intended  to 
hinder  the  war,  intention  is  a  very  poor  test  of  the  truth  and 
value  of  reports  and  opinions,  and  in  effect  results  in  the 
punishment  of  men,  not  for  any  actual  or  probable  injury, 
but  for  their  state  of  mind. 


IV.  The  Hwman  Machinery  of  the  Espionage  Acts 

If  there  be  a  scintilla  of  real  evidence  that  seditious  rags  are 
infecting  the  Native  Army,  nobody  would  refuse  suppression. 
Only  you  won't  forget  that  in  moments  of  excitement,  such  as 
this  may  become,  people  are  uncommonly  liable  to  confuse  sus- 
picions and  possibilities  with  certainty  and  reality. — Morley, 
Recollections.    Letter  to  the  Viceroy  of  India. 

A  less  obvious  but  not  less  vital  objection  to  the  District 
Court  test  is  its  unfitness  for  practical  administration.  Even 
if  we  decide  that  the  man  who  makes  discouraging  utter- 
ances in  war  time  with  a  bad  intention  deserves  punishment, 
we  ought  not  to  lay  down  a  rule  of  law  to  punish  him,  unless 
we  can  be  sure  that  in  its  actual  operation  it  will  catch  him 
and  let  the  man  with  good  intention  go.  A  rule  is  not  de- 
sirable simply  because  it  reads  well.  It  must  also  work  well. 
The  law  is  not  self-operating  and  it  cannot  pick  out  the 
bad  man  automatically.  It  must  discover  him  through  hu- 
man machinery,  and  the  defects  of  this  machinery  are  the 
very  greatest  reason  for  preserving  an  immunity  of  speech 
from  prosecution  far  wider  than  the  District  Court  test. 

"  We  have  to  consider,"  said  Macaulay  of  a  theory  of 
criminal  law  very  similar  to  this  test,44  "  not  merely  the  good- 
ness of  the  end,  but  also  the  fitness  of  the  means.  .  .  .  There 
is  surely  no  contradiction  in  saying  that  a  certain  section 
of  the  community  may  be  quite  competent  to  protect  the 
persons  and  property  of  the  rest,  yet  quite  unfit  to  direct 
our  opinions." 

4*  Essay  on  Southey's  Colloquies.  The  whole  is  worth  re-reading 
to-day,  especially  the  warning  against  a  Paul  Pry  government,  declaring 
what  we  shall  think  and  what  we  shall  drink. 


THE  WAR  WITH  GERMANY  67 

Jefferson  pointed  out  in  the  Virginia  Toleration  Statute, 
quoted  in  the  first  chapter,45  the  unfitness  of  this  machinery 
for  discriminating  between  utterances  of  good  tendency  and 
utterances  of  bad  tendency.  Its  unsuitability  to  separate 
good  from  bad  intention  is  just  as  great.48  The  trouble  with 
the  District  Court  test  is,  that  in  making  intention  the  crucial 
fact  in  criminality,  it  exposes  all  who  discuss  heated  ques- 
tions to  an  inquiry  before  a  jury  as  to  their  purposes.  That 
inquiry  necessarily  is  of  the  widest  scope  and  if  the  general 
attitude  of  the  person  is  singular  and  intransigeant,  there 
is  an  insufficient  protection.  You  cannot  tell  a  man's  in- 
tention by  looking  at  his  forehead,  you  must  look  through  it 
to  the  inside  of  his  head,  and  no  judge  and  jury  are  capable 
of  looking  through  the  skull  of  a  man  who  has  done  nothing 
but  talk,  to  see  what  goes  on  inside.  It  is  true  that  intention 
is  material  in  other  crimes,  such  as  murder,  but  in  dealing 
with  an  overt  criminal  act  the  intention  is  evidenced  by  many 
other  acts,  which  are  a  kind  of  fact  with  which  the  jurymen 
are  familiar  and  capable  of  dealing.  On  the  other  hand, 
the  intention  in  making  utterances  is  evidenced  by  inferences 
drawn  from  the  supposed  bad  tendency  of  the  words  them- 
selves, and  by  other  utterances,  which  will  also  be  viewed 
under  the  obnoxious  test  of  bad  tendency.  For  instance, 
in  the  Stokes  and  Doe  cases  the  judge  admitted  speeches 
or  letters  not  included  in  the  indictment.  In  many  cases 
opinions  expressed  before  the  United  States  entered  the  war 
have  also  been  admitted,  opinions  which  the  defendants  then 
shared  with  many  persons  who  afterwards  supported  the  war. 
No  matter  how  carefully  the  judge  instructs  the  jury  to  dis- 
regard such  prior  language  except  as  evidence  of  intention, 

«  See  page  31,  supra. 

46  "  It  seems  to  me  perfectly  clearly  established,  that  no  official  yet 
born  on  this  earth  is  wise  enough  or  generous  enough  to  separate  good 
ideas  from  bad  ideas,  good  beliefs  from  bad  beliefs,  and  that  the  utmost 
that  anybody  can  ask  of  a  government,  is  that  if  it  is  efficient  it  should 
detect  and  run  down  criminal  acts;  that  beyond  reaching  words  which 
are  the  direct  and  immediate  incitement  to  criminal  acts,  no  govern- 
ment dare  go." — Walter  Lippmann,  Bull.  League  of  Free  Nations  Assn., 
Mar.,  1920. 


68  FREEDOM  OF  SPEECH 

there  can  be  no  doubt  that  it  is  human  nature  to  lump  to- 
gether all  the  utterances,  inside  and  outside  the  indict- 
ment, and  decide  whether  or  not  the  defendant  deserves 
punishment  for  everything  he  said.  The  Abrams  case  in 
the  next  chapter  will  bring  this  out  very  clearly. 

The  parallelism  with  the  French  revolutionary  trials  is 
often  curiously  close.  Just  as  Lord  Ellenborough  could 
see  no  motive  for  Leigh  Hunt's  attack  on  flogging  in  the 
army  except  to  cause  a  mutiny,  so  the  District  Court  judges 
have  often  been  ready  to  infer  a  similar  criminal  intent  from 
talk  of  profiteering  or  Wall  Street.  It  is  easy  for  the  sup- 
porters of  a  war  to  class  all  its  opponents  as  traitors,  forget- 
ting that  some  of  them  argue  against  it  merely  because  they 
cannot  bear  to  see  what  seems  to  them  a  needless  conflict, 
cripple  or  destroy  the  lives  of  thousands  of  their  fellow- 
countrymen.  A  lawyer  who  has  defended  many  Espionage 
Act  cases  tells  me  that  there  was  much  speculation 
among  his  clients  as  to  whether  they  actually  pos- 
sessed the  requisite  criminal  intent.  A  few  of  them  admitted 
to  him  that  they  had  it,  and  there  is  not  much  question 
that  some  of  the  utterances  which  were  prosecuted  were 
made  with  the  purpose  of  obstructing  recruiting  or  the 
draft,  although  the  danger  of  their  doing  so  was  usually 
non-existent.  But  it  is  impossible  to  read  over  the  various 
cases  without  coming  to  the  conclusion  that  most  of  the 
defendants  had  no  real  intention  to  cause  trouble,  but  were 
only  engaged  in  heated  altercations  or  expounding  economic 
doctrines. 

A  saw  is  a  very  good  thing,  but  not  to  shave  with,  and 
a  judge  and  jury  are  an  excellent  instrument  to  pass  on 
overt  acts.  They  are  also  well-fitted  to  decide  the  effect  of 
words  upon  the  reputation  of  an  individual,  when  the  harm- 
fulness  of  the  language  can  be  easily  tested  by  common- 
sense  standards,  and  its  counterbalancing  benefit  to  the  pub- 
lic, if  any,  is  indicated  by  well-established  principles  of  law 
as  to  privilege  and  fair  comment.  But  they  are  not  trained 
and  they  are  not  able  to  apply  such  vague  and  misleading 


THE  WAR  WITH  GERMANY  69 

tests  of  the  criminality  of  utterances  as  bad  tendency  and 
presumptive  intent. 

It  is  on  this  account  that  I  have  spent  so  much  time  in 
emphasizing  the  difference  between  Judge  Hand's  test  and 
the  District  Court  test,  in  what  may  seem  to  many  of  my 
readers  a  mere  interest  in  technicalities,  far  removed  from 
the  broad  principles  of  freedom  of  speech.  They  forget 
that  the  technical  rules  of  the  common  law  are  often  the 
greatest  safeguards  of  freedom.  As  Sir  Henry  Maine  said, 
"  Substantive  law  has  at  first  the  look  of  being  gradually 
secreted  in  the  interstices  of  procedure."  47  It  is  only  neces- 
sary to  recall  the  tremendous  importance  to  human  liberty 
of  such  procedural  regulations  as  the  Habeas  Corpus  Act, 
Fox's  Libel  Act,  and  the  rule  that  no  man  shall  be  com- 
pelled to  give  evidence  against  himself.  This  is  the  great 
value  of  Judge  Hand's  test,  which  was  the  only  sort  of  rule 
about  war-time  utterances  which  should  have  been  permitted. 
If  it  was  not  the  correct  interpretation  of  the  language  of 
the  Espionage  Act,  then  an  act  with  different  language  ought 
to  have  been  passed.  Even  if  not  the  only  constitutional 
construction,  it  was  the  only  workable  construction.  His 
rule  gave  the  jury  something  definite  to  consider,  the  actual 
nature  of  the  words  and  the  danger  of  interference  with 
the  armed  forces.  The  District  Court  test  left  them  noth- 
ing but  speculation  upon  the  remote  political  and  economic 
effect  of  words  and  the  probable  condition  of  mind  of  a  per- 
son whose  ideas  were  entirely  different  from  their  own. 

In  peaceable  and  quiet  times,  our  legal  rights  are  in  little  danger 
of  being  overborne ;  but  when  the  wave  of  power  lashes  itself  into 
violence  and  rage,  and  goes  surging  up  against  the  barriers  which 
were  made  to  confine  it,  then  we  need  the  whole  strength  of  an 
unbroken  Constitution  to  save  us  from  destruction.48 

Judge  Hand's  test  would  have  been  a  sea-wall  against 
these  surging  waves,  but  the  District  Court  test  was  nothing 
but  a  mud-bank  which  was  rapidly  swept  away. 

47  Early  Law  and  Custom,  389. 

«  Jeremiah  Black,  arguing  in  Ex  parte  Milligan,  4  Wall.  2,75  (1866). 


70  FREEDOM  OF  SPEECH 

No  one  reading  the  simple  language  of  the  Espionage 
Act  of  1917  could  have  anticipated  that  it  would  be  rapidly 
turned  into  a  law  under  which  opinions  hostile  to  the  war 
had  practically  no  protection.  Such  a  result  was  made  pos- 
sible only  by  the  District  Court  test  and  by  the  tremendous 
wave  of  popular  feeling  against  pacifists  and  pro-Germans 
during  the  war.  This  feeling  was  largely  due  to  the  hys- 
terical fear  of  spies  and  other  German  propaganda.  All 
of  us  on  looking  back  to  1917  and  1918  are  now  sure  that 
the  emotions  of  ourselves  and  every  one  else  were  far  from 
normal.  I  remember  hearing  one  woman  in  a  railroad  train 
say  to  another,  "  Yes,  my  brother  was  going  to  France  with 
the  Y.M.C.A.,  but  the  sailing  of  his  boat  has  been  put 
off  and  put  off.  I  don't  like  to  say  that  it's  German  propa- 
ganda, but  it  certainly  looks  like  it." 

Mr.  John  Lord  O'Brian,  Assistant  to  the  Attorney  Gen- 
eral in  the  prosecution  of  the  most  important  Espionage 
Act  cases,  gives  a  vivid  account  of  the  false  stories  of  ene- 
my activities  within  the  United  States,  put  forth  through 
the  medium  of  press  dispatches,  pamphlets  of  patriotic  so- 
cieties, and  occasionally  speeches  on  the  floor  of  Congress :  49 

A  phantom  ship  sailed  into  our  harbors  with  gold  from  the 
Bolsheviki  with  which  to  corrupt  the  country;  another  phantom 
ship  was  found  carrying  ammunition  from  one  of  our  harbors  to 
Germany;  submarine  captains  landed  on  our  coasts,  went  to  the 
theater  and  spread  influenza  germs;  a  new  species  of  pigeon, 
thought  to  be  German,  was  shot  in  Michigan;  mysterious  aero- 
planes floated  over  Kansas  at  night,  etc.  Then  there  were  the 
alleged  spies  themselves, — Spoermann,  alleged  intimate  of  Bern- 
storff,  landed  on  our  coasts  by  the  U-53,  administrator  of  large 
funds,  caught  spying  in  our  camps,  who  turned  out  to  be  a 
plumber  from  Baltimore.  Several  other  alleged  spies  caught  on 
the  beaches  signaling  to  submarines  were  subsequently  released 
because  they  were,  in  the  several  cases,  honest  men,  one  of  whom 
had  been  changing  an  incandescent  light  bulb  in  his  hotel  room, 

4S52  N.  Y.  Bar  Assn.  Rep.  281  (1919).  Judge  G.  W.  Anderson,  who 
was  U.  S.  District  Attorney  in  Massachusetts  in  1917,  says,  "  More  than 
ninety-nine  per  cent  of  the  advertised  and  reported  pro-German  plots 
never  existed." — 21  New  Republic  251. 


THE  WAR  WITH  GERMANY  71 

another  of  whom  was  trying  to  attract  the  attention  of  a  passerby 
on  the  beach,  etc.  There  was  no  community  in  the  country  so 
small  that  it  did  not  produce  a  complaint  because  of  failure  to 
intern  or  execute  at  least  one  alleged  German  spy.  These  in- 
stances are  cited,  not  to  make  light  of  the  danger  of  hostile  ac- 
tivities, nor  to  imply  that  incessant  vigilance  was  not  necessary 
in  watching  the  German  activities,  but  to  show  how  impossible  it 
was  to  check  that  kind  of  war  hysteria  and  war  excitement  which 
found  expression  in  impatience  with  the  civil  courts  and  the  oft- 
recurring  and  false  statement  that  this  government  showed  undue 
leniency  toward  enemies  within  our  gates. 

Yet  not  one  case  under  this  part  of  the  statute  shows 
the  slightest  evidence  that  the  utterances  were  actuated  by 
German  money  or  German  plans.  Mr.  O'Brian  says  it  is 
doubtful  if  even  the  I.W.W.  had  any  degree  of  German  sup- 
port. Besides  this  fear  of  spies  another  influence  which  made 
fair  trials  under  the  Espionage  Act  very  difficult  was  the 
passion  for  becoming  spies.  Not  only  did  the  American  Pro- 
tective League  act  as  auxiliary  to  the  Department  of  Justice, 
but  as  the  same  authority  says : 50 

Throughout  the  country  a  number  of  large  organizations  and 
societies  were  created  for  the  purpose  of  suppressing  sedition.  All 
of  these  were  the  outgrowth  of  good  motives  and  manned  by  a 
high  type  of  citizens.  The  membership  of  these  associations  ran 
into  the  hundreds  of  thousands.  One  of  them  carried  full  page 
advertisements  in  leading  papers  from  the  Atlantic  to  the  Pacific, 
offering  in  substance  to  make  every  man  a  spy  chaser  on  the  pay- 
ment of  a  dollar  membership  fee.  These  associations  did  much 
good  in  awakening  the  public  to  the  danger  of  insidious  propa- 
ganda, but  no  other  one  cause  contributed  so  much  to  the  op- 
pression of  innocent  men  as  the  systematic  and  indiscriminate 
agitation  against  what  was  claimed  to  be  an  all-pervasive  system  of 
German  espionage. 

It  is  obvious  that  the  presence  of  members  of  these  socie- 
ties on  juries  made  a  just  determination  of  such  vague  facts 
as  the  bad  tendency  of  utterances  and  the  intention  of  the 
defendant  impossible.    Once  more  we  have  a  curious  parallel- 

60  O'Brian,  279,  292,  297.    On  the  I.W.W.,  299. 


72  FREEDOM  OF  SPEECH 

ism  with  the  experiences  of  England  during  the  French  Revo- 
lution:51 

Another  agency  was  evoked  by  the  spirit  of  the  times,  dangerous 
to  the  liberty  of  the  press,  and  to  the  security  of  domestic  life. 
Voluntary  societies  were  established  in  London  and  throughout 
the  country,  for  the  purpose  of  aiding  the  executive  Government 
in  the  discovery  and  punishment  of  seditious  writings  or  language. 
.  .  .  These  societies,  supported  by  large  subscriptions,  were  busy 
in  collecting  evidence  of  seditious  designs,  often  consisting  of 
anonymous  letters,  often  of  the  report  of  informers,  liberally  re- 
warded for  their  activity.  They  became,  as  it  were,  public  prose- 
cutors, supplying  the  Government  with  proof  of  supposed  offenses, 
and  quickening  its  zeal  in  the  prosecution  of  offenders.  Every 
unguarded  word  at  the  club,  the  market-place  or  the  tavern,  was 
reported  to  these  credulous  alarmists  and  noted  as  evidence  of 
disaffection. 

Such  associations  were  repugnant  to  the  policy  of  our  laws, 
by  which  the  Crown  is  charged  with  the  office  of  bringing  offenders 
to  justice,  while  the  people,  represented  by  juries,  are  to  judge, 
without  favor  or  prejudice,  of  their  guilt  or  innocence.  But  here 
the  people  were  invited  to  make  common  cause  with  the  Crown 
against  offenders,  to  collect  the  evidence,  and  prejudge  the  guilt. 
How  then  could  members  of  these  societies  assist  in  the  pure 
administration  of  justice,  as  jurymen  and  justices  of  the  peace? 
In  the  country  especially  was  justice  liable  to  be  warped. 

Attorney  General  Gregory  corroborates  Mr.  O'Brian's 
statement : 62 

The  department  has  also  been  hampered  by  the  circulation  of 
unfounded  reports,  running  into  the  hundreds,  of  supposed  un- 
punished alien  enemy  activities  in  the  way  of  fires  alleged  to  have 
been  caused  by  enemy  agents,  alleged  uses  of  poison  by  enemy 
agents,  alleged  uses  of  ground  glass,  alleged  damage  to  Red  Cross 
supplies,  etc.  In  view  of  the  necessity  for  constant  vigilance  on 
the  part  of  the  public,  it  has  not  always  seemed  advisable  to  this 
department  to  enter  into  controversies  as  to  the  truth  of  these 
irresponsible  reports. 

It  was  with  the  country  in  the  atmosphere  above  described 
that  the  laws  affecting  free  speech  received  the  severest  test 

6i  May,  Constitutional  History,  II,  36.  W  Report,  1918,  23. 


THE  WAR  WITH  GERMANY  73 

thus  far  placed  upon  them  in  our  history.53  It  is  obvious 
that  a  country  full  of  would-be  spies  chasing  imaginary 
spies  and  finding  only  pro-Germans  and  pacifists  is  a  very 
unfit  place  for  the  decision  of  those  psychological  questions,  . 
which,  as  Wharton  pointed  out,54  inevitably  arise  from  the 
prosecution  of  utterances.  It  may  be  helpful  to  examine 
briefly  the  effect  of  this  atmosphere  upon  the  three  main 
parts  of  the  human  machinery  through  which  the  Espionage 
Act  necessarily  operated,  namely,  the  prosecuting  officials, 
the  juries,  and  the  trial  judges. 

The  Assistants  to  the  Attorney  General  in  charge  of  the 
administration  of  the  Espionage  Act  were  John  Lord  O'Brian 
of  Buffalo,  so  frequently  quoted  in  these  pages,  and  Alfred 
Bettman  of  Cincinnati.  Although  these  men  enforced  the 
statute  in  accordance  with  the  District  Court  test,  which 
in  my  opinion  made  the  maintenance  of  a  real  freedom  of 
speech  impracticable,  nevertheless  they  were  firm  believers  in 
that  principle  and  singularly  free  from  the  effects  of  war 
emotion.  In  particular,  great  praise  must  be  given  to  their 
thorough  investigation  of  hundreds  of  convictions,  as  a  re- 
sult of  which  the  sentences  imposed  by  the  judges  were  in 
many  instances  commuted  by  the  President  to  a  small  frac- 
tion of  their  original  length.55  Unfortunately,  it  was  very 
hard  for  these  officials  in  Washington  to  impress  their  ideas 
of  fairness  and  open  discussion  upon  some  of  their  subordi- 
nates and  upon  the  public,  and  consequently  to  keep  control 
of  prosecutions  throughout  the  country.  Mr.  O'Brian  sums 
up  this  local  situation : 

It  has  been  quite  unnecessary  to  urge  upon  the  United  States 
Attorneys  the  importance  of  prosecuting  vigorously,  and  there  has 
been  little  difficulty  in  securing  convictions  from  juries.  On  the 
contrary,  it  has  been  necessary  at  all  times  to  exercise  caution 
in  order  to  secure  to  defendants  accused  of  disloyalty  the  safe- 
guard of  fair  and  impartial  trials.  In  addition  to  the  causes 
already  recited  there  were  the  patriotic  agitations  continually 

63  O'Brian,  299. 

5*  See  page  52,  supra. 

65  Report  of  the  Atty.  Gen.,  1919,  Exhibit  21. 


74  FREEDOM  OF  SPEECH 

being  carried  on  by  the  Liberty  Loan  speakers,  four-minute  men 
and  others,  all  of  which  worked  the  whole  country  up  to  a  pitch 
of  intense  patriotism,  resulting  in  instinctive  aversion  toward  any- 
one even  under  suspicion  for  disloyalty. 

The  situation  became  particularly  serious  after  the  pas- 
sage of  the  Espionage  Act  of  1918.  Despite  the  very  wide 
scope  given  the  Act  of  1917  by  the  judges,  it  did  after  all 
require  some  connection  between  the  expressions  of  opinion 
and  the  raising  of  our  armed  forces  and  did  not  punish  dis- 
loyal utterances  as  such.  Before  the  Amendment,  isolated 
disloyal  utterances  had  been  treated  in  many  parts  of  the 
country  as  incitement  to  disorder  and  had  been  summarily 
disposed  of  under  a  rather  generous  interpretation  of  state 
or  local  laws  providing  punishment  for  disorderly  conduct. 
The  Act  of  1918  threw  upon  the  law  machinery  of  the  Federal 
Government  a  great  burden  which  it  was  ill-adapted  to  as- 
sume. It  was  almost  impossible  for  the  law  officials  to  keep 
abreast  of  the  complaints,  and  the  result  everywhere  tended  to 
encourage  impatience  with  the  action  of  civil  tribunals. 

The  general  publicity  given  the  statute  through  the  newspapers 
and,  in  many  cases,  through  employers,  who  circularized  their 
employees  with  copies  of  the  act  (calling  attention  to  the  dangers 
of  strike  activities),  fanned  animosities  into  flame,  vastly  increas- 
ing the  amount  of  suspicion  and  complaints  throughout  the  coun- 
try. This,  in  turn,  resulted  in  a  large  increase  in  the  amount  of 
prosecutions,  backed  up  by  strong  local  patriotic  sentiment.  Up 
to  the  time  that  this  statute  went  into  practical  operation  the 
United  States  Attorneys  throughout  the  country,  except  in  genuine 
cases  of  treason,  had  each  acted  as  the  supreme  law  official  of 
his  district,  exercising  on  his  own  account  full  discretion  in  all 
matters  as  to  prosecution.56 

Under  these  circumstances,  on  May  23,  1918,  the  Attorney 
General  issued  to  all  United  States  attorneys  a  circular  about 
the  amended  act.  It  stated  that  the  prompt  and  aggressive 
enforcement  of  the  act  was  of  the  highest  importance,  but  it 

66  O'Brian,  304,  305,  309.  See  the  facts  of  some  of  the  local  cases  in 
War-lime  Prosecutions,  27  ff.,  listing  126  convictions  under  local  laws 
(a  few  under  state  sedition  statutes). 


THE  WAR  WITH  GERMANY  75 

was  also  of  great  importance  that  it  should  be  administered 
with  discretion  and  should  not  be  permitted  to  become  the 
medium  whereby  efforts  were  made  to  suppress  honest,  legiti- 
mate criticism  of  the  administration  or  discussion  of  govern- 
ment policies,  or  for  personal  feuds  or  persecution.57  It  is 
obvious  that  this  circular  simply  transferred  the  strain  from 
the  judge  and  jury  to  another  portion  of  the  human  machin- 
ery, the  district  attorney,  who  is  a  government  official,  and 
naturally  less  impartial.  Opinions  may  differ  as  to  the  wis- 
dom of  enacting  a  very  broad  criminal  statute  which  enables 
the  government  to  deal  with  persons  who  are  really  dan- 
gerous and  ignore  others  who  are  actually  within  its  terms. 
Such  irregularity  of  application  is  certainly  novel  in  our 
system  of  criminal  law.  It  has  been  well  said  that  this  cir- 
cular "  converts  every  United  States  attorney  into  an  angel 
of  life  and  death  clothed  with  the  power  to  walk  up  and 
down  his  district,  saying,  •  This  one  will  I  spare,  and  that 
one  will  I  smite.'  If  the  law  leaves  it  to  the  district  attorney 
to  determine  when  an  act  shall  be  prosecuted  as  a  crime  and 
when  it  shall  not  be,  how  is  a  citizen  to  know  when  he  is 
exercising  his  constitutional  right,  and  when  he  is  commit- 
ting a  crime?  Of  course  such  conduct  in  administering 
criminal  law,  punishable  by  imprisonment  for  twenty  years, 
simply  converts  government  into  a  government  of  men  and 
not  of  law."  The  Department  of  Justice  eventually  real- 
ized this,  wide  divergencies  appearing  in  the  theories  enter- 
tained by  the  various  prosecuting  attorneys,  so  that  the 
Attorney  General  about  a  month  before  the  end  of  the  war 
issued  a  circular  directing  district  attorneys  to  send  no  more 
cases  to  grand  juries  under  the  Espionage  Act  of  1918,  with- 
out first  submitting  a  statement  of  facts  to  the  Attorney 
General  and  receiving  by  wire  his  opinion  as  to  whether 
or  not  the  facts  constituted  an  offense  under  the  Act.58 
"  This  circular,"  says  Mr.  O'Brian,  "  is  suggestive  of  the 
immense  pressure  brought  to  bear  throughout  the  war  upon 
the  Department  of  Justice  in  all  parts  of  the  country  for 
57  Rep.  Atty.  Gen.,  1918,  674.  58  Ibid.;  O'Brian,  306. 


76  FREEDOM  OF  SPEECH 

indiscriminate  prosecution  demanded  in  behalf  of  a  policy 
of  wholesale  repression  and  restraint  of  public  opinion." 
Doubtless  this  circular  made  it  possible  for  the  Attorney 
General  to  weed  out  mere  "  clamor  "  cases,  but  it  came  too 
late  in  the  war  to  have  any  practical  effect.  Until  that 
time  all  persons  who  were  opposed  to  the  war  were  practi- 
cally at  the  mercy  of  the  local  district  attorneys,  and  under 
the  District  Court  test  of  the  1917  Act  or  the  express  lan- 
guage of  the  1918  Act  prosecution  almost  invariably  re- 
sulted in  conviction. 

For  the  human  machinery  broke  down  at  a  second  point — 
the  jury.  It  is  sometimes  suggested  that  a  jury  trial  gives 
a  sufficient  protection  for  freedom  of  speech,  and  that  public 
sentiment  will  inevitably  reflect  itself  in  verdicts  of  acquittal 
if  the  prosecution  seems  unjust.59  It  is  undoubtedly  true 
that  in  England  freedom  of  discussion  is,  as  Dicey  says, 
"  little  else  than  the  right  to  write  or  say  anything  which 
a  jury,  consisting  of  twelve  shopkeepers,  think  it  expedient 
should  be  said  or  written."  In  my  first  chapter,  however, 
I  have  endeavored  to  show  that  this  protection  is  entirely 
inadequate  and  that  the  constitutional  provision  must  mean 
much  more.  It  is  only  in  times  of  popular  panic  and  indig- 
nation that  freedom  of  speech  becomes  important  as  an  insti- 
tution, and  it  is  precisely  in  those  times  that  the  protection 
of  the  jury  proves  illusory.  As  the  Assistant  to  the  Attor- 
ney General  admits,  "  There  has  been  little  difficulty  in  secur- 
ing convictions  from  juries." 

Judge  Amidon,  who  has  had  much  Experience  in  Espionage 
Act  cases,  says: 

Only  those  who  have  administered  the  Espionage  Act  can  under- 
stand the  danger  of  such  legislation.  When  crimes  are  defined 
by  such  generic  terms,  instead  of  by  specific  acts,  the  jury  becomes 

59  E.g.,  W.  R.  Vance  in  2  Minn.  L.  Rev.  260;  33  Harv.  L.  Rev.  448.  In 
England  freedom  of  speech  is  necessarily  protected  only  by  jury  trial 
plus  the  common  law  rules  of  criminal  attempt  and  solicitation,  unlaw- 
ful meetings,  etc.  See  Dicey,  Law  of  the  Constitution,  chapters  VI  and 
VII.  Without  the  guidance  of  these  rules  the  jury  would  be  far  less 
valuable.     Hence  the  merit  of  Judge  Hand's  test. 


THE  WAR  WITH  GERMANY  77 

the  sole  judge,  whether  men  shall  or  shall  not  be  punished.  Most 
of  the  jurymen  have  sons  in  the  war.  They  are  all  under  the 
power  of  the  passions  which  war  engenders.  For  the  first  six 
months  after  June  15,  1917,  I  tried  war  cases  before  jurymen 
who  were  candid,  sober,  intelligent  business  men,  whom  I  had 
known  for  thirty  years,  and  who  under  ordinary  circumstances 
would  have  had  the  highest  respect  for  my  declarations  of  law, 
but  during  that  period  they  looked  back  into  my  eyes  with  the 
savagery  of  wild  animals,  saying  by  their  manner,  "  Away  with 
this  twiddling,  let  us  get  at  him."  Men  believed  during  that 
period  that  the  only  verdict  in  a  war  case,  which  could  show 
loyalty,  was  a  verdict  of  guilty. 

There  are  strong  indications  of  other  influences  which 
accentuated  the  effect  of  the  general  war  emotion,  of  cir- 
cumstances which  resemble  the  situation  in  England  during 
the  French  Revolution,  when  the  juries  were  chosen  largely 
from  men  much  opposed  to  the  prisoners.60  Mr.  O'Brian 
tells  61  how  the  administration  of  the  Act  was  affected  by 
economic  conflicts  growing  out  of  the  activities  of  the  Non- 
partisan League  and  the  I.W.W.  Although  the  Attorney 
General  insisted  upon  the  doctrine  that  guilt  was  per- 
sonal and  refused  to  proscribe  any  group  as  such,  the  effect 
on  juries  in  federal  and  state  prosecutions  was  probably 
serious.  For  instance,  in  the  trial  of  the  president  of  the 
Non-Partisan  League,  under  the  Minnesota  Espionage  Act, 
the  jury  was  chosen  from  the  regular  term  panel  of  thirty- 
two  men,  which  in  turn  was  selected  by  lot  from  a  total  panel 
of  one  hundred  and  forty-four,  picked  from  among  the  voters 
by  the  County  Commissioner.  Three  "  triers  "  also  aided, 
who  are  charged  with  hostility  to  the  League.  Although  the 
farmers  of  Jackson  County  were  sharply  divided  into  mem- 
bers of  the  Non-Partisan  League  and  bitter  opponents  with 
practically  no  neutrals,  and  the  League  candidate  at  the 
last  election  had  fallen  only  thirty-one  short  of  a  majority, 
the  panel  of  one  hundred  and  forty-four  contained  not  a  sin- 
gle member  of  the  League,  but  consisted  of  men  from  sections 
of  the  county  which  League  organizers  and  speakers  were 

eo  May,  II,  36,  87.  ei  O'Brian,   295. 


78  FREEDOM  OF  SPEECH 

barred  from  visiting.  The  defense  had  only  four  peremptory 
challenges.  The  jury  was  not  segregated,  but  was  subjected 
to  the  heat  of  popular  discussion  during  the  trial.62 

This  was  not  a  federal  case,  but  similar  problems  are 
raised  by  the  method  of  selecting  juries  in  the  federal  courts. 
As  long  ago  as  the  Sedition  trials  of  1798  the  method  of 
securing  indictments  and  convictions  met  with  public  con- 
demnation because  of  the  men  from  whom  and  by  whom  the 
jury  were  chosen.  Mr.  Beveridge  says,63  "  In  many  states 
the  United  States  Marshals  selected  what  persons  they 
pleased  as  members  of  the  grand  juries  and  trial  juries. 
These  officers  of  the  National  courts  were,  without  exception, 
Federalists;  in  many  cases,  Federalist  politicians.  When 
making  up  juries  they  selected  only  persons  of  the  same  man- 
ner of  thinking  as  that  of  the  marshals  and  judges  them- 
selves. So  it  was  that  the  juries  were  nothing  more  than 
machines  that  registered  the  will,  opinion,  or  even  inclina- 
tion of  the  National  judges  and  the  United  States  District 
Attorneys.  In  short,  in  these  prosecutions,  trial  by  jury  in 
any  real  sense  was  not  to  be  had." 

It  would  certainly  be  improper  without  a  very  elaborate 
investigation  to  assert  that  such  conditions  exist  in  federal 
juries  at  the  present  time..  The  method  of  selection  varies 
so  much  that  generalization  is  impossible.  There  can  be  no 
doubt,  however,  that  in  some  districts  a  wide  power  of 
selection,  otherwise  than  by  lot,  is  exercised  by  the  offi- 
cials. Federal  juries  in  civil  cases  are  considered  by 
members  of  the  bar  to  be  superior  in  quality  to 
state  juries,  and  this  is  accounted  for  by  the  practice  of 
the  officials  to  go  through  the  lists  carefully  and  exclude 
persons  who  are  considered  undesirable.  While  this  method 
may  not  have  been  exercised  with  any  desire  to  prejudice  the 

«2  See  Bibliography  on  Townley  trial. 

63  Beveridge's  Marshall,  III,  42.  F.  M.  Anderson,  "  The  Enforcement 
of  the  Alien  and  Sedition  Laws,"  Rep.  Am.  Hist.  Assn.  (1912),  125, 
says  that  the  grand  juries  were  composed  preponderantly,  if  not  exclu- 
sively, of  Federalists;  that  the  Callender  trial  jury  was  drawn  in  a 
manner  that  went  far  toward  justifying  the  charge  of  packing,  and  that 
other  juries  could  scarcely  be  called  impartial. 


THE  WAR  WITH  GERMANY  79 

jury  in  Espionage  Act  cases,  the  jury  might  naturally  be 
limited  to  men  of  means  who  were  not  likely  to  understand 
at  all  the  position  of  a  person  opposed  to  the  war  for  eco- 
nomic reasons.  On  the  other  hand,  federal  jurors  in  New 
York  City  are  said  by  a  member  of  the  Department  of  Jus- 
tice to  be  inferior  to  those  in  the  state  courts.  The  govern- 
ment had  more  difficulty  there  in  securing  convictions  in  war 
cases  than  almost  anywhere  else,  and  this  was  attributed  by 
some  of  the  government  counsel  to  the  presence  on  the  jury 
list  of  many  persons  with  radical  tendencies  of  thought. 
Without  framing  any  conclusions  myself  on  this  extremely 
delicate  matter,  I  shall  present  certain  statements  made  on 
behalf  of  the  defendants  in  various  cases  as  material  for 
criticism  and  subsequent  investigation  by  other  persons  in- 
terested in  this  field. 

Max  Eastman  in  his  account  of  the  Debs  case  speaks 
from  the  point  of  view,  obviously  partisan  but  worth  atten- 
tion, of  one  who  has  himself  been  on  trial  under  the  Espionage 
Act:64 

As  to  the  jury  .  .  .  they  were  about  seventy-two  years  old, 
worthy  fifty  to  sixty  thousand  dollars,  retired  from  business,  from 
pleasure,  and  from  responsibility  for  all  troubles  arising  outside 
of  their  own  family.  An  investigator  for  the  defense  computed 
the  average  age  of  the  entire  venire  of  100  men;  it  was  seventy 
years.  Their  average  wealth  was  over  $50,000.  In  the  jury 
finally  chosen  every  man  was  a  retired  farmer  or  a  retired  mer- 
chant, but  one,  who  was  a  contractor  still  active.  They  were 
none  of  them  native  to  leisure,  however,  but  men  whose  faces  were 
bitterly  worn  and  wearied  out  of  all  sympathy  with  a  struggle 
they  had  individually  surmounted. 

Berger's  counsel  made  the  following  statement  to  the  Com- 
mittee of  the  House  of  Representatives : 65 

e* "The  Trial  of  Eugene  Debs,"  1  Liberator,  No.  9  (Nov.,  1918),  9. 

The  charge  of  Mayer,  J.,  in  United  States  v.  Phillips,  was  so  favor- 
able to  the  defendant  that,  I  am  informed  by  an  eyewitness,  an  acquit- 
tal was  generally  expected  in  the  court-room,  but  the  defendants  were 
•convicted. 

•*«  Victor  L.  Berger;  Hearings  before  the  Special  Committee,  I,  63fc 


80  FREEDOM  OF  SPEECH 

On  the  selection  and  composition  of  the  jury,  I  want  to  say 
that  out  of  a  panel  that  was  examined  of  fully  50  there  was  only 
one  laboring  man  who  appeared,  out  of  a  90  per  cent,  population 
of  that  judicial  district,  on  the  panel,  and  he  was  promptly  treated 
as  though  he  were  a  spy  in  camp.  The  jury  was  made  up  of  a 
number  of  insurance  brokers  of  the  city  of  Chicago,  of  a  number 
of  very  wealthy  farmers,  retired  farmers,  I  think  five,  all  men  of 
much  acreage  and  wealth  in  Illinois,  and  two  bankers.  Racially,  it 
was  utterly  unrepresentative.  I  mean  the  whole  panel  was  utterly 
unrepresentative  of  the  racial,  national,  or  industrial  composition 
of  the  masses  of  the  people  in  that  district.  .  .  .  It  is  the  mar- 
shal's personal  selection.  It  is  the  most  extraordinary  thing 
and  the  judicial  system  of  our  country  ought  to  be  corrected, 
because  he  is  the  appointee  of  the  civil  administration. 

Whether  or  not  these  accusations  are  just,  they  certainly 
present  a  problem  in  the  trial  of  persons  of  radical  inclina- 
tions, which  must  be  solved  in  the  future  with  considerable 
thought.  The  solution  should  not  only  give  justice,  but  be  so 
plain  as  to  satisfy  all  classes,  in  so  far  as  that  is  possible, 
that  they  are  getting  justice. 

The  third  point  at  which  the  human  machinery  breaks 
down  in  the  enforcement  of  a  sedition  law  is  the  trial  judges. 
Some  of  the  English  charges  against  agitators  have  already 
been  mentioned.  It  is  well  known  that  one  of  the  worst  fea- 
tures of  the  Sedition  Act  of  1798  was  its  administration  by 
the  Federalist  judges,  which  afterwards  caused  a  determined 
assault  upon  the  National  Judiciary.  In  their  charges  to 
grand  juries,  they  lectured  and  preached  on  religion,  on 
morality,  on  partisan  politics.  At  the  trials,  freedom  of 
speech  was  ignored,  no  distinction  was  made  between  fact 
and  opinion,  and  prosecutions  for  "  wholly  justifiable  politi- 
cal criticisms — some  of  them  trivial  and  even  amusing  " — 
were  allowed  to  go  to  the  jury.  Although  the  deportment 
of  the  judges,  with  the  exception  of  Chase,  was  substantially 
correct  and  the  charges  were  usually  right  in  what  they 
said,  convictions  followed  because  of  what  was  omitted  or 

See  John  Wurts,  "  The  Jury  System  under  Changing  Social  Conditions," 
47  Am.  L.  Rev.  67;  Mamaux  v.  U.  S.,  264  Fed.  816. 


THE  WAR  WITH  GERMANY  81 

because  the  jury  should  have  been  prevented  by  a  direction 
of  acquittal  from  passing  on  the  cases  at  all.66 

Some  Espionage  Act  charges  which  merit  a  similar  criti- 
cism have  already  been  mentioned,  and  make  it  plain  that 
in  contrast  to  the  Civil  War  judges  who  stood  rock-ribbed 
for  legality,67  a  few  men  on  the  present  United  States  bench 
felt  it  to  be  their  duty  to  deliver  stump  speeches  to  the  jury 
as  if  they  were  soliciting  subscriptions  to  a  Liberty  Loan. 
One  more  instance  may  be  given. 

Judge  Aldrich  in  a  New  Hampshire  case  charged :  68 

These  are  not  times  for  fooling.  The  times  are  serious.  No- 
body knows  what  is  going  to  happen  to  our  institutions  within 
the  next  year,  or  the  next  month.  Out  West  they  are  hanging 
men  for  saying  such  things  as  this  man  is  accused  of  saying. 
They  are  feeling  outraged  by  such  expressions  to  such  extent  that 
they  are  taking  the  law  into  their  own  hands.  Now,  that  is  a 
very  bad  thing  to  do.  We  do  not  want  that  in  New  Hampshire, 
but  we  do  want  a  courageous  enforcement  of  the  law. 

Besides  this  attitude  toward  opposition  to  the  war  in  gen- 
eral, some  judges  have  expressed  an  attitude  on  economic 
questions  which  seriously  affects  not  only  the  enforcement 
of  Espionage  Act  cases  but  of  the  Deportation  law  and  of 
a  federal  peace-time  Sedition  law,  should  one  be  enacted.  A 
considerable  portion  of  hostility  to  the  declaration  of  war  and 
conscription  was  due  to  the  belief  of  radicals  that  it  repre- 
sented a  sacrifice  of  working-class  lives  for  the  benefit  of  the 
wealthy.  This  belief  was  expressed  by  many  members  of 
the  Non-Partisan  League,  the  Socialist  Party,  and  the  In- 
dustrial Workers  of  the  World.  Sympathy  with  the  Rus- 
es Beveridge's  Marshall,  III,  30  note;  II,  421;  and  III,  29-49  passim; 
F.  M.  Anderson,  op.  cit^  126. 

^  E.g.,  Taney's  decision  in  Ex  parte  Merryman,  Taney,  246  (1861); 
and  the  release  of  the  Copperhead  Milligan,  4  Wall.  2  (1866). 

es  U.  S.  v.  Taubert,  Bull.  Dept.  Just.,  No.  108.  He  was  sentenced 
to  three  years  for  obstructing  bond  sales  by  saying,  "  This  was  a 
Morgan  war  and  not  a  war  of  the  people."  There  is  nothing  about 
bonds  in  the  1917  Act,  but  Judge  Aldrich  held  it  covered  them  because 
an  army  could  not  be  raised  without  them  and  "the  Government  must 
not  be  embarrassed  in  those  respects  by  unreasonable  opposition." 


82  FREEDOM  OF  SPEECH 

sian  Revolution  was  also  a  complicating  factor.  It  was 
clearly  the  duty  of  the  judges  to  keep  their  minds  free  from 
economic  prejudices  and  to  warn  the  jury  that  just  because 
a  defendant  held  unpopular  radical  views  this  in  no  way  af- 
fected his  guilt  for  interference  with  the  war.  Of  course 
judges,  like  other  men,  are  entitled  to  definite  opinions  on 
vital  controversies  of  the  day,  and  most  of  them  will  nat- 
urally favor  only  gradual  changes  in  the  present  order,  but 
the  increasingly  frequent  part  which  radicalism  is  playing 
in  legal  proceedings  of  various  kinds,  and  particularly  in 
sedition  prosecutions  during  and  since  the  war,  makes  it  es- 
sential that  the  judge  hearing  such  cases  shall  have  a  schol- 
arly and  dispassionate  attitude  and  an  ability  to  discriminate 
between  different  schools  of  revolutionary  thought.  The 
warning  of  Justice  Holmes  deserves  reprinting : 69 

When  twenty  years  ago  a  vague  terror  went  over  the  earth  and 
the  word  socialism  began  to  he  heard,  I  thought  and  still  think 
that  fear  was  translated  into  doctrines  that  had  no  proper  place 
in  the  Constitution  or  the  common  law.  Judges  are  apt  to  be 
naif,  simple-minded  men,  and  they  need  something  of  Mephisto- 
pheles.  We  too  need  education  in  the  obvious — to  learn  to  tran- 
scend our  own  convictions  and  to  leave  room  for  much  that  we 
hold  dear  to  be  done  away  with  short  of  revolution  by  the  orderly 
change  of  law. 

Consequently,  it  is  a  cause  for  grave  concern  when  we  find 
Judge  Albert  B.  Anderson,  who  later  enjoined  the  coal  strike, 
using  this  language  from  the  bench,  even  though  in  the  par- 
ticular case  he  made  a  very  good  decision : 70 

I  think  that  about  the  least  commendable  sort  of  folks  I  know 
are  these  Russians,  who  have  fled  to  this  country,  and  are  not 
anything  like  satisfied  with  what  they  have  here.  Why  ?  Because 
we  do  not  give  them  everything  they  want.  Mary  Antin  was 
here  not  long  ago  and  delivered  an  address,  but  she  didn't  simply 
want  the  Jews  to  have  their  rights.    The  trouble  with  Mary  Antin 

ee  Speeches  by  Oliver  Wendell  Holmes,  101;  quoted  in  29  Harv.  L, 
Rev.  691. 

to  U.  S.  v.  Zimmerman,  Nelles,  10-13- 


THE  WAR  WITH  GERMANY  83 

is  that  she  wanted  the  Jews  to  have  everything  that  we  have  got ; 
and  that  is  the  way  with  this  gentleman.  .  .  .  I  do  not  like 
the  word  "  Socialist  '•  or  these  Socialists.  The  Socialist  always 
flatters  himself  when  he  calls  himself  a  Socialist.  He  means  to 
leave  the  impression  that  he  is  more  generous  and  more  unselfish 
than  the  average  run  of  men ;  but  he  doesn't  want  to  be  called  an 
anarchist.  ...  If  I  had  time  I  would  like  to  have  somebody 
explain  what  it  means  except  for  the  "  have-nots "  to  take 
it  away  from  the  "  haves  ".  That  is  all  there  is  to  it ;  so  I  have 
not  much  patience  with  that  sort  of  thing  or  soap-box  orators. 
Why  don't  they  go  hire  a  hall? 

One  fears  that  he  will  not  always  add  as  he  wisely  did: 

Free  speech  means  the  right  to  say  foolish  things  as  well  as 
the  right  to  say  sensible  things. 

Judge  Wade  said  in  sentencing  Mrs.  O'Hare : 71 

Well,  I  tell  you,  if  that  is  the  sort  of  stuff  the  socialist  party 
stands  for,  if  its  gospel  is  the  gospel  of  hate,  and  contempt  of 
religion  and  charity,  it  has  not  any  place  on  the  American  soil 
either  in  times  of  war  or  times  of  peace. 

The  feeling  against  the  I.W.W.  was  very  bitter  in  the 
West,  and  convictions  were  numerous.  One  of  these  has 
been  reversed  because  Judge  Wolverton  in  Oregon  charged : 72 

The  I.W.W.  is  a  disloyal  and  unpatriotic  organization.  Adher- 
ents thereof  owe  no  allegiance  to  any  organized  government,  and 
so  far  as  the  government  is  concerned  the  organization  itself  is 
thoroughly  bad. 

Contrast  with  this  language  the  words  of  Judge  Amidon 
in  trying  a  member  of  the  Non-Partisan  League: 73 

The  head  and  front  of  it  is  that  the  speech  tended  to  array 
class  against  class.  I  have  been  on  this  earth  quite  a  spell  myself. 
I  never  have  known  of  any  great  reform  being  carried  through 

7i  Nelles,  47. 

72  Kumpula  v.  U.  S.,  261  Fed.  49.  Another  case  of  reversal  for  the 
prejudicial  attitude  of  the  court  is  Rutherford  v.  U.  S.,  258  Fed.  855. 
See  "  Lawless  Enforcement  of  Law,"  33  Harv.  Law  Rev.  956. 

"  U.   S.  v.   Brinton,  Bull.  Dept.  Just.,  No.   132. 


84  FREEDOM  OF  SPEECH 

where  the  people  whose  established  condition  would  be  disturbed 
by  the  carrying  out  of  the  reform  did  not  say  that  the  people  who 
were  trying  to  bring  about  the  reform  were  stirring  up  class 
against  class.  That  is  an  argument  that  I  know  to  be  at  least 
3,500  years  old  from  my  knowledge  of  history,  and  it  is  repeated 
in  every  effort  to  change  an  existing  condition. 

Besides  the  war  spirit  and  economic  opinions,  one  more 
factor  must  be  mentioned  which  may  possibly  have  affected 
the  Espionage  Act  cases,  the  supervision  of  United  States 
judges  by  the  Department  of  Justice.  Here,  as  with  regard 
to  the  methods  of  jury  selection,  I  draw  no  conclusions  what- 
ever because  of  the  insufficiency  of  data,  but  present  the 
charge  which  has  been  made,  that  special  agents  have  watched 
the  proceedings  of  the  courts  and  the  district  attorneys, 
swift  to  report  to  Washington  any  charge  or  action  which 
has  seemed  to  their  excited  temper  not  to  measure  up  to  the 
full  standard  of  patriotic  duty.  In  his  book  on  Juridical 
Reform,74  John  D.  Works,  formerly  Justice  of  the  Supreme 
Court  of  California,  and  United  States  Senator  for  that 
state,  points  out : 

Practically,  Federal  judges  are  selected  by  the  Attorney  Gen- 
eral of  the  United  States.  All  applications  for  appointment  are 
referred  to,  investigated  by,  and  reported  upon  by  him,  and,  where 
there  are  a  number  of  applicants,  he  recommmends  to  the 
President  the  one  selected  by  him,  and  usually  his  recommenda- 
tion is  approved  and  the  applicant  of  his  choice  appointed.  The 
Attorney  General  is  also  the  attorney  of  the  Government  in  all 
its  litigation  before  the  judges  he  has  selected.  Not  only  this, 
but  he  assumes,  and  actually  exercises,  the  right  to  investigate  and 
supervise  the  course  and  conduct  of  these  same  judges,  and  has 
in  some  instances, — whether  generally  or  not  is  not  known, — 
made  secret  investigations  of  Federal  judges  through  secret  agents 
and  without  the  knowledge  of  such  judges. 

If  these  charges  are  not  proved  untrue,  a  very  serious 
danger  in  all  sedition  legislation  is  revealed,  for  there  is  no 

T4N.  Y.,  1919,  pp.  123-125.  Senator  Works  recommends  that  the 
power  of  selecting,  recommending,  and  investigating  judges  be  vested 
elsewhere  than  in  the  Department  of  Justice. 


THE  WAR  WITH  GERMANY  85 

branch  of  the  criminal  law  where  convictions  may  on  occa- 
sion become  so  important  in  the  eyes  of  a  government. 

The  number  of  Espionage  Act  judges  who  are  guilty  of 
actually  prejudicial  conduct  at  the  trials  is  comparatively 
few,  and  in  many  respects  the  judges  deserve  the  praise 
which  Mr.  O'Brian  expresses  75  for  giving  great  latitude  to 
the  defendant's  proof  76  and  urging  upon  the  jury  the  neces- 
sity for  the  dispassionate  consideration  of  evidence.  The 
defect  is,  for  the  most  part,  not  so  much  in  what  they  said 
as  in  what  they  did  not  say.  In  the  first  place,  despite  the 
vagueness  of  the  District  Court  test,  common  sense  ought 
to  have  led  them  to  withdraw  many  more  cases  of  remote 
language  from  the  jury,  as  Justice  Brandeis  has  forcibly 
insisted  in  his  Tageblatt  opinion.77  And  whenever  there  was 
enough  apparent  relation  to  the  raising  of  armies  to  justify 
the  submission  of  the  evidence  to  the  jury,  they  should  have 
cautioned  them  against  convicting  because  the  words  might 
possibly  and  indirectly  cause  discontent  in  the  forces  or  a 
refusal  to  enlist.  The  juries  needed  much  more  careful  guid- 
ance on  the  issue  of  intent  and  far  more  discretion  should 
have  been  exercised  in  the  admission  of  prior  utterances, 
because  of  the  danger  that  the  jury  would  convict  the  de- 
fendant as  an  undesirable  citizen,  who,  taken  all  in  all,  ought 
to  be  shut  up.78  Furthermore,  whenever  a  charge  does  men- 
tion freedom  of  speech,  it  is  almost  sure  to  say  or  imply  that 

75  O'Brian,  310. 

76  On  the  importance  of  such  a  policy  in  political  criminal  trials,  see 
Robert  Ferrari  in  3  Minn.  L.  Rev.  365,  and  66  Dial  647  (June  28,  1919). 
Cf.  the  opportunity  given  Debs,  Nearing,  Eastman,  and  even  the 
I.W.W.'s  at  Chicago  to  speak  in  their  own  defense  with  the  refusal 
of  the  Minnesota  state  court  to  hear  Townley,  when  at  the  close  of  his 
case  he  arose  in  the  hot  night  with  coat  off  to  address  the  jury.  109 
Nation  144. 

77  See  page  100,  infra.  Cf.  O'Brian,  309:  "  The  chief  difficulty  on  any 
trial  has  naturally  been  the  question  of  what  quantum  of  evidence 
would,  as  a  matter  of  law,  justify  submitting  to  the  jury  the  question 
of  unlawful  intent  and  the  question  of  the  reasonable  and  natural 
result  of  the  utterance  complained  of." 

7  8  Admissibility  of  such  utterances  has  been  contested,  but  see  the 
Abrams  decision.  Cf.  People  v.  Molyneux,  168  N.  Y.  264,  a  famous  case 
of  the  other  view.    See  Wigmore  on  Evidence,  §§  302,  367. 


86  FREEDOM  OF  SPEECH 

it  has  nothing  to  do  with  opposition  to  war  and  class  such 
opposition  with  such  extreme  utterances  like  advocacy  of  a 
natural  right  to  kill  men  or  outrage  women.  Almost  no 
emphasis  is  laid  on  the  desirability  of  wide  discussion  so  long 
as  there  is  no  real  interference  with  the  raising  of  armies, 
even  discussion  by  those  opposed  to  the  war.  The  charge  of 
Judge  Augustus  Hand  in  the  trial  of  Max  Eastman  is  a 
notable  exception :  79 

Every  citizen  has  a  right,  without  intent  to  obstruct  the  recruit- 
ing or  enlistment  service,  to  think,  feel,  and  express  disapproval 
or  abhorrence  of  any  law  or  policy  or  proposed  law  or  policy, 
including  the  Declaration  of  War,  the  Conscription  Act,  and  the 
so-called  sedition  clauses  of  the  Espionage  Act;  belief  that  the  war 
is  not  or  was  not  a  war  for  democracy;  belief  that  our  participa- 
tion in  it  was  forced  or  induced  by  powers  with  selfish  interests 
to  be  served  thereby;  belief  that  our  participation  was  against 
the  will  of  the  majority  of  the  citizens  or  voters  of  the  country; 
belief  that  the  self-sacrifice  of  persons  who  elect  to  suffer  for 
freedom  of  conscience  is  admirable;  belief  that  war  is  horrible; 
belief  that  the  Allies'  war  aims  were  or  are  selfish  and  undemo- 
cratic ;  belief  that  the  Hon.  Elihu  Root  is  hostile  to  socialism,  and 
that  his  selection  to  represent  America  in  a  socialistic  republic  was 
ill-advised. 

It  is  the  constitutional  right  of  every  citizen  to  express  his 
opinion  about  the  war  or  the  participation  of  the  United  States 
in  it ;  about  the  desirability  of  peace ;  about  the  merits  or  demerits 
of  the  system  of  conscription,  and  about  the  moral  rights  or  claims 
of  conscientious  objectors  to  be  exempt  from  conscription.  It  is 
the  constitutional  right  of  the  citizen  to  express  such  opinions,  even 
though  they  are  opposed  to  the  opinions  or  policies  of  the  adminis- 
tration; and  even  though  the  expression  of  such  opinion  may 
unintentionally  or  indirectly  discourage  recruiting  and  enlistment. 

In  one  matter  over  which  they  had  complete  control,  the 
District  Court  judges  must  bear  a  lasting  blame.  The  only 
proceedings  in  our  law  comparable  to  the  Espionage  Act 

7»  Nelles,  29,  30.  As  this  charge  was  not  reprinted  in  the  Bulletins 
of  the  Department  of  Justice,  it  had  no  effect  upon  other  district 
judges,  except  possibly  in  U.  S.  v.  Debs,  which  permits  "  reasonable  and 
tempered  discussions."  Bull.  Dept.  Just.,  No.  155,  p.  12.  Judge  Clayton 
refused  to  repeat  Judge  Hand's  words  in  his  Abrams  charge. 


THE  WAR  WITH  GERMANY  87 

sentences  are  the  sedition  prosecutions  under  George  III, 
with  which  so  many  parallels  have  been  found.  Indeed,  at 
this  point  the  parallelism  breaks  down.  The  longest  sen- 
tences for  sedition  in  England  were  four  years,  and  even 
Braxfield  and  his  Scotch  colleagues  did  not  exceed  fourteen 
years,  of  transportation  and  not  imprisonment.  Our  judges 
have  condemned  at  least  eleven  persons  to  prison  for  ten 
years,  six  for  fifteen  years,  and  twenty- four  for  twenty 
years.80  Judge  Van  Valkenburgh  summed  up  the  facts  with 
appalling  correctness  in  view  of  the  virtual  life  terms  im- 
posed under  the  Espionage  Act,  when  he  said  that  freedom 
of  speech  means  the  protection  of  "  criticism  which  is  made 
friendly  to  the  government,  friendly  to  the  war,  friendly  to 
the  policies  of  the  government."  81 

V.  The  Supreme  Court  Decisions 

To  me  it  seems  simply  a  case  of  flagrant  mistrial,  likely  to 
result  in  disgrace  and  great  injustice,  probably  in  life  imprison- 
ment for  two  old  men,  because  this  court  hesitates  to  exercise  the 
power,  which  it  undoubtedly  possesses,  to  correct,  in  this  calmer 
time,  errors  of  law  which  would  not  have  been  committed  but  for 
the  stress  and  strain  of  feeling  prevailing  in  the  early  months 
of  the  late  deplorable  war. — Justice  Clarke,  dissenting  in  the 
Tageblatt  case. 

The  United  States  Supreme  Court  did  not  have  an  oppor- 
tunity to  consider  the  Espionage  Act  until  1919,  after  the 
armistice  was  signed  and  almost  all  the  District  Court  cases 
had  been  tried.    Several  appeals  from  conviction  had  resulted 

so  These  figures  include  only  sentences  stated  in  Rep.  Atty.  Gen., 
1919,  Exh.  21,  and  in  the  reported  cases,  listed  in  Appendix  II,  except 
the  I.W.W.  case  (U.  S.  v.  Haywood),  which  is  omitted  because  I  do  not 
know  how  far  the  sentences  were  imposed  because  of  counts  under  the  old 
conspiracy  statutes.  There  are,  however,  many  unreported  cases  with 
long  sentences,  e.g.,  26  at  Sacramento  for  ten  years.  No  omission  is 
made  for  reversals  and  commutations,  because  they  do  not  lessen  the 
responsibility  of  the  district  court  judges,  whose  work  is  at  this  point 
under  review.  Indeed,  there  could  be  no  more  biting  comment  on  the 
way  these  judges  administered  the  Act  than  the  enormous  reductions  in 
scores  of  sentences  recommended  by  the  Department  of  Justice.  See 
Appendix  II  for  instances. 

8i  United  States  v.  Rose  Pastor  Stokes,  p.  14. 


88  FREEDOM  OF  SPEECH 

in  a  confession  of  error  by  the  government,82  but  at  last  four 
cases  were  heard  and  decided  against  the  accused.83  Of  these 
the  Schenck  case  was  one  of  the  few  reported  prosecutions 
under  the  Act  where  there  clearly  was  incitement  to  resist 
the  draft.  The  defendants  had  mailed  circulars  to  men 
who  had  passed  exemption  boards,  which  not  only  declared 
conscription  to  be  unconstitutional  despotism,  but  urged  the 
recipients  in  impassioned  language  to  assert  their  rights. 
Such  utterances  could  fairly  be  considered  a  direct  and  dan- 
gerous interference  with  the  power  of  Congress  to  raise  ar- 
mies, and  were  also  counseling  unlawful  action  within  Judge 
Hand's  interpretation  of  the  statute.  Consequently,  no  real 
question  of  free  speech  arose.  Nevertheless,  the  defense  of 
constitutionality  was  raised,  and  denied  by  Justice  Holmes: 

We  admit  that  in  many  places  and  in  ordinary  times  the 
defendants  in  saying  all  that  was  said  in  the  circular  would  have 
been  within  their  constitutional  rights.  But  the  character  of 
every  act  depends  upon  the  circumstances  in  which  it  is  done.  .  .  . 
The  question  in  every  case  is  whether  the  words  used  are  used 
in  such  circumstances  and  are  of  such  a  nature  as  to  create  a  clear 
and  present  danger  that  they  will  bring  about  the  substantive  evils 
that  Congress  has  a  right  to  prevent.  It  is  a  question  of  proximity 
and  degree.  When  a  nation  is  at  war  many  things  that  might  be 
said  in  time  of  peace  are  such  a  hindrance  to  its  effort  that  their 
utterance  will  not  be  endured  so  long  as  men  fight  and  that  no 
Court  could  regard  them  as  protected  by  any  constitutional  right. 

Although  "  the  substantive  evils  "  are  not  specifically  de- 
fined, they  mean  successful  interference  with  the  particular 
power  of  Congress  that  is  in  question — in  this  instance,  the 
war  power.  Since  Congress  is  authorized  to  declare  war  and 
raise  armies,  it  can  expedite  its  task  by  punishing  those  who 
actually  keep  men  out  of  the  service,  whether  by  starting  a 
draft  riot  or  by  effectually  persuading  men  not  to  register 
or  not  to  enlist.    And  Congress  can  go  one  step  farther.    Be- 

82Baltzer  and  Head  cases,  249  U.  S.  593. 

«3  Schenck  v.  U.  S.,  249  U.  S.  47  (1919);  Sugarman  v.  U.  S.,  ibid. 
130;  Frohwerk  v.  U.  S-,  ibid.  204;  Debs  v.  U.  S.,  ibid.  211.  The  italics 
,*re  mine. 


THE  WAR  WITH  GERMANY  89 

sides  punishing  overt  acts  of  interference  with  the  war,  it 
can  prevent  such  acts  from  occurring  by  penalizing  unsuc- 
cessful efforts  to  interfere,  whether  they  are  acts  or  words. 
But  this  desire  to  head  off  actual  injury  to  the  government 
is,  we  have  seen,  the  basis  of  all  suppression  of  discussion, 
unless  it  is  limited  very  narrowly.  In  order  to  give  force 
to  the  First  Amendment,  Justice  Holmes  draws  the  boundary 
line  very  close  to  the  test  of  incitement  at  common  law  and 
clearly  makes  the  punishment  of  words  for  their  remote  bad 
tendency  impossible.  Moreover,  the  close  relation  between 
freedom  of  speech  and  criminal  attempts  is  indicated  by  the 
use  of  a  phrase  employed  by  the  Justice  in  a  leading  attempt 
case,  Commonwealth  V,  Peaslee.84  Justice  Holmes  interprets 
the  Espionage  Act  more  widely  than  Judge  Hand,  in  making 
the  nature  of  the  words  only  one  element  of  danger,  and  in 
not  requiring  that  the  utterances  shall  in  themselves  satisfy 
an  objective  standard.  Thus  he  loses  the  great  administra- 
tive advantages  of  Judge  Hand's  test.  But  while  the  decision, 
like  the  District  Courts,  allows  conviction  for  expressions 
of  opinion  uttered  with  a  bad  intention,  it  imposes  additional 
requirements,  which  most  trial  courts  had  neglected.  Words 
are  criminal  under  the  second  and  third  clauses  of  the  Act 
only  because  of  their  relation  to  the  armed  forces,  and  that 
relation  must  be  so  close  that  the  words  constitute  "  a  clear 
and  present  danger  "  of  injury  to  the  raising  of  those  forces 
or  of  mutiny  and  similar  breaches  of  discipline.  Words  and 
intentions  are  not  punishable  for  their  own  sake,  or  merely 
for  their  tendency  to  discourage  citizens  at  war.  Thus  the 
opinion,  especially  the  italicized  sentence,  substantially  agrees 
with  the  conclusion  reached  by  investigation  of  the  history 
and  political  purpose  of  the  First  Amendment.  The  concept 
of  freedom  of  speech  received  for  the  first  time  an  authorita- 
tive judicial  interpretation  in  accord  with  the  purpose  of  the 
framers  of  the  Constitution. 

The  Sugarman  decision,  written  by  Justice  Brandeis, 
was   much  like   the   Schenck   case,    as    there   was   evidence 

8*177  Mass.  267,  272  (1901).    See  page  53,  supra. 


90  FREEDOM  OF  SPEECH 

that  the  defendant  had  in  a  speech  advised  a  number  of 
registrants  not  to  report  for  military  service  when  called. 
The  Espionage  Act  plainly  covers  such  utterances,  and  they 
would  have  been  criminal  under  the  conspiracy  statutes  of 
the  Civil  War,  if  other  persons  had  been  associated  with  the 
speaker.  The  Frohwerk  decision  was  more  difficult,  and  Jus- 
tice Holmes'  opinion  recognizes  that  if  more  evidence  had 
been  presented  on  the  inadequately  prepared  record  there 
might  have  been  cause  for  reversal.  The  defendant  had  in- 
serted several  articles  in  the  Missouri  Staats-Zeitung  on  the 
constitutionality  and  merits  of  the  draft  and  on  the  pur- 
poses of  the  war.  Even  in  the  Department  of  Justice  there 
was  considerable  question  whether  these  were  not  an  advocacy 
of  a  change  in  governmental  policy  as  distinguished  from 
advocacy  of  obstruction  of  such  policy,  and  it  did  not  appear 
that  there  was  any  special  effort  to  reach  men  who  were 
subject  to  the  draft.  Justice  Holmes  thought,  however,  that 
on  the  record  as  it  was  the  evidence  might  conceivably  have 
been  sufficient  to  sustain  a  conviction,  since  the  circumstances 
and  the  intention,  though  not  the  words  per  se,  might  satisfy 
the  danger-test. 

It  may  be  that  all  this  might  be  said  or  written  even  in  time 
of  war  in  circumstances  that  would  not  make  it  a  crime.  We 
do  not  lose  our  right  to  condemn  either  measures  or  men  because 
the  country  is  at  war.  .  .  .  But  we  must  take  the  case  on  the 
record  as  it  is,  and  of  that  record  it  is  impossible  to  say  that  it 
might  not  have  been  found  that!  the  circulation  of  the  paper  was 
in  quarters  where  a  little  breath  would  be  enough  to  kindle  a  flame 
and  that  the  fact  was  known  and  relied  on  by  those  who  sent  that 
paper  out. 

If  the  Supreme  Court  had  applied  this  same  standard  of 
"  clear  and  present  danger  "  to  the  utterances  of  Eugene 
V.  Debs,  in  the  remaining  decision,  it  is  hard  to  see  how  he 
could  have  been  held  guilty.  The  test  is  not  mentioned, 
however,  but  Justice  Holmes  is  willing  to  accept  the  verdict 
as  proof  that  actual  interference  with  the  war  was  intended 
and  was  the  proximate  effect  of  the  words  used.    It  is  regret- 


THE  WAR  WITH  GERMANY  91 

table  that  he  should  have  felt  unable  to  go  behind  a  verdict 
which  had  been  found  without  any  reference  to  the  danger 
of  the  utterances.  The  point  is  that  Judge  Westenhaver  did 
not  instruct  the  jury  according  to  the  Supreme  Court  test 
at  all,  but  allowed  Debs  to  be  found  guilty,  in  Justice 
Holmes's  words,  because  of  the  "  natural  tendency  and  rea- 
sonably probable  effect  "  of  his  speech,  and  gave  a  fairly 
wide  scope  to  the  doctrines  of  indirect  causation  and  con- 
structive intent,  so  that  the  defendant  could  have  been  and 
probably  was 85  convicted  for  an  exposition  of  socialism, 
merely  because  the  jury  thought  his  speech  had  a  tendency 
to  bring  about  resistance  to  the  draft.  If  the  Supreme  Court 
test  is  to  mean  anything  more  than  a  passing  observation, 
it  must  be  used  to  upset  convictions  for  words  when  the  trial 
judge  did  not  insist  that  they  must  create  "  a  clear  and 
present  danger  "  of  overt  acts. 

Justice  Holmes  seems  to  discuss  the  constitutionality  of 
the  Espionage  Act  of  1917  rather  than  its  construction. 
There  can  be  little  doubt  that  it  is  constitutional  under  any 
test  if  construed  naturally,  but  it  has  been  interpreted  in 
such  a  way  as  to  violate  the  free  speech  clause  and  the  plain 
words  of  the  statute,  to  say  nothing  of  the  principle  that 
criminal  statutes  should  be  construed  strictly.  If  the  Su- 
preme Court  test  had  been  laid  down  in  the  summer  of  1917 
and  followed  in  charges  by  the  District  Courts,  the  most 
casual  perusal  of  the  utterances  prosecuted  makes  it  sure 
that  there  would  have  been  many  more  acquittals.  Instead, 
bad  tendency  and  presumed  intent  have  been  the  tests  of 
criminality,  tests  which  this  article  has  endeavored  to  prove 
wholly  inconsistent  with  freedom  of  speech,  and  any  genuine 
discussion  of  public  affairs. 

The  decision  shows  clearly  the  evils  of  the  broad  con- 

85  United  States  v.  Debs,  Bull.  Dept.  Just.,  No.  155  (N.  D.  Oh., 
1918).  See  especially  t'.e  last  paragraphs  on  page  8,  and  page  15: 
"  In  deciding  what  the  defendant's  intention  was,  permit  me  to  sug- 
gest to  you  these  questions:  Ought  he  not  to  have  reasonably  foreseen 
that  the  natural  and  probable  consequences  of  such  words  and  utter- 
ances would  or  might  be  to  cause  insubordination,  etc.?" 


92  FREEDOM  OF  SPEECH 

struction  of  the  Espionage  Act,  which  rejected  the  objective 
standard  of  the  meaning  of  the  words  used.  Debs  was  con- 
victed of  an  attempt  to  cause  insubordination  in  the  army 
and  obstruct  recruiting,  yet  no  provocation  to  any  such 
definite  and  particular  acts  was  proved.  He  spoke  to  a 
convention  of  Socialists  in  support  of  their  economic  views, 
instancing  the  war  as  the  supreme  curse  of  capitalism.  In 
a  few  sentences  he  approved  the  conduct  of  persons  convicted 
of  like  offenses,  saying,  for  example,  that  if  Mrs.  Stokes 
was  guilty  so  was  he.  Her  conviction  has  since  been  re- 
versed. Not  one  word  was  designed  for  soldiers,  not  one 
word  urged  his  hearers  to  resist  the  draft,  objectionable  as 
he  considered  it.  Undoubtedly  he  admitted  at  his  trial  that 
he  had  obstructed  the  war — "  I  abhor  war.  I  would  oppose 
the  war  if  I  stood  alone.  When  I  think  of  a  cold,  glitter- 
ing steel  bayonet  being  plunged  in  the  white,  quivering  flesh 
of  a  human  being,  I  recoil  with  horror."  But  the  only 
question  before  the  jury  was  whether  he  had  tried  to  ob- 
struct it  in  the  ways  made  unlawful  in  the  statute.  If  all 
verbal  or  written  opposition  to  the  war  furnishes  a  basis 
for  conviction,  because  it  is  dangerous  under  the  circum- 
stances and  indicates  a  criminal  mind,  then  none  but  the 
most  courageous  will  dare  speak  out  against  a  future 
war. 

"  It  is  useless,"  writes  Ernst  Freund,86  "  to  over-empha- 
size the  substantive  limitations  of  the  constitution;  the  real 
securities  of  rights  will  always  have  to  be  found  in  the 
painstaking  care  given  to  the  working  out  of  legal  princi- 
ples. So  long  as  we  apply  the  notoriously  loose  common 
law  doctrines  of  conspiracy  and  incitement  to  offenses 
of  a  political  character,  we  are  adrift  on  a  sea  of  doubt  and 
conjecture.  To  know  what  you  may  do  and  what  you  may 
not  do,  and  how  far  you  may  go  in  criticism,  is  the  first  con- 
dition of  political  liberty ;  to  be  permitted  to  agitate  at  your 

se  Ernst  Freund,  "  The  Debs  Case  and  Freedom  of  Speech,"  19 
New  Republic  13  (May  3,  1919) ;  and  the  correspondence  in  19  ibid. 
lfil   (May  31,  1919). 


THE  WAR  WITH  GERMANY  93 

own  peril,  subject  to  a  jury's  guessing  at  motive,  tendency 
and  possible  effect,  makes  the  right  of  free  speech  a  pre- 
carious gift." 

The  last  sentence  of  the  passage  quoted  from  the  Schenck 
case  seems  to  mean  that  the  Supreme  Court  will  sanction  any 
restriction  of  speech  that  has  military  force  behind  it,  and 
reminds  us  that  the  Justice  used  to  say  when  he  was  young, 
"  that  truth  was  the  majority  vote  of  that  nation  that  could 
lick  all  others."  87  His  liberalism  seems  in  these  decisions 
to  be  held  in  abeyance  by  his  belief  in  the  relativity  of  values. 
It  is  not  by  giving  way  to  force  and  the  majority  that  truth 
has  been  won.  Hard  it  may  be  for  a  court  to  protect  those 
who  oppose  the  cause  for  which  men  are  dying  in  France,  but 
others  have  died  in  the  past  for  freedom  of  speech. 

After  all,  whatever  we  may  think  about  such  a  close 
case  as  the  Debs  decision,  it  can  best  be  regarded  as  a  rea- 
son for  repealing  the  Espionage  Act,  if  it  must  be  so  con- 
strued. And  surely  the  cause  of  freedom  of  speech  profited 
in  the  long  run  from  Justice  Holmes's  opinion  in  these  three 
cases  more  than  if  he  had  favored  reversal,  for  subsequent  de- 
cisions prove  that  he  would  then  have  been  in  the  minority 
and  would  not  have  been  able,  as  he  was,  to  announce  with 
the  backing  of  a  unanimous  court  the  rule  of  clear  and 
present  danger,  which  should  serve  as  a  guiding  principle 
in  the  future.  Already  its  application  in  the  Circuit  Courts 
of  Appeals  has  led  to  the  setting  aside  of  some  convic- 
tions,88 and  it  ought  to  make  impossible  hereafter  a  repe- 
tition of  some  of  the  worst  decisions  under  the  Espionage 
Act. 

That  it  has  not,  however,  made  freedom  of  speech  secure 
is  proved  by  the  later  interpretations  of  that  statute  in 
the  Supreme  Court.  In  November,  1919,  came  a  second 
group  of  cases,  of  which  one  turned  largely  on  procedure,89 

87  Oliver  Wendell  Holmes,  "Natural  Law,"  32  Harv.  L.  Rev.  40 
(1918). 

ss  Kammann  v.  U.  S.,  259  Fed.  192;  Harshfield  v.  U.  S.,  260  Fed.  659. 
8»Stilson  v.  U.  S.,  250  U.  S.  583  (1919). 


94  FREEDOM  OF  SPEECH 

and  the  other,  Abrams  v.  United  States,  has  been  reserved 
for  a  separate  chapter,  because  it  involves  the  special  ele- 
ment of  opposition  to  Russian  intervention  and  because  it 
furnishes  a  valuable  example  of  the  way  political  crimes, 
which  were  first  known  in  this  country  because  of  the  Es- 
pionage Act,  are  liable  to  be  tried.  Justice  Holmes  and 
Justice  Brandeis  have  now  and  henceforth  parted  company 
with  the  rest  of  the  court. 

In  the  opening  of  1920  came  a  third  group  of  two  deci- 
sions,90 which  were  chiefly  concerned  with  the  first  clause 
of  the  Espionage  Act  of  1917,  punishing  willfully  pub- 
lished u  false  reports  and  statements  with  intent  to  inter- 
fere with  the  operation  or  success  of  the  military  or  naval 
forces  of  the  United  States  or  to  promote  the  success  of 
its  enemies."  Thus  far,  very  little  has  been  said  of  this 
clause  and  of  the  District  Court  cases  which  construed  it 
to  apply  to  opinions  about  the  causes  of  the  war,  or  the  in- 
fluence of  profiteers. 

Conspicuous  among  such  cases  was  the  conviction  of  five 
officers  of  the  corporation  issuing  the  Philadelphia  Tage- 
blatt,  a  German-language  daily  and  Sunday  newspaper. 
After  an  acquittal  on  the  charge  of  treason  for  publishing 
fifteen  articles,  which  were  most  assuredly  unpatriotic  in 
tone,  glorifying  German  strength  and  success,  abusing  our 
allies,  and  attacking  the  sincerity  of  the  United  States, 
they  were  indicted  in  nine  counts  under  the  Espionage  Act 
for  the  same  utterances  and  all  found  guilty.  In  Schaefer 
v.  United  States  two  defendants  were  discharged  by  the  Su- 
preme Court  for  want  of  responsibility  for  the  articles. 
Three  convictions  (two  for  five  years,  one  for  two  years) 
were  affirmed  by  a  majority  of  six  speaking  through  Justice 
McKenna ;  Justice  Brandeis  filed  a  dissenting  opinion  on 
behalf  of  himself  and  Justice  Holmes;  and  Justice  Clarke, 
who  had  spoken  for  the  majority  in  the  Abrams  case,  now 
also  dissented,  not  because  he  found  any  violation  of  the 
First  Amendment,  but  upon  the  ground  that  the  Act  had 

eo  Schaefer  v.  U.  S.,  251  U.  S.  468;  Pierce  v.  U.  S.,  40  Sup.  Ct.  205. 


THE  WAR  WITH  GERMANY  95 

been  misinterpreted  by  the  trial  court,  whose  charge  "  was 
so  utterly  unadapted  to  the  case  ...  as  to  be  valueless  or 
worse  as  a  direction  to  the  jury." 

This  newspaper  was  so  poor  financially  that  it  was  not 
able  to  have  any  telegraphic  service,  and  consequently  filled 
its  columns  with  clippings  from  other  newspapers.  As  it 
did  not  print  so  many  columns  as  they,  it  was  necessarily 
obliged  to  cut  and  condense  both  the  headlines  and  the 
body  of  the  articles.  It  did  not  indicate  the  source  of  its 
articles  or  imply  that  they  were  complete  copies.  The 
falsity  alleged  by  the  government  was  not  that  the  arti- 
cles which  were  published  were  false  in  fact,  but  merely 
that  they  differed  from  the  originals,  and  had  been  altered 
or  mistranslated  so  as  to  bear  a  changed  meaning  which 
was  depressing  or  detrimental  to  patriotic  ardor.  For  in- 
stance, the  news  editor  quoted  an  Amsterdam  dispatch 
about  the  shortage  of  food  in  Holland  because  of  our  sei- 
zure of  ships,  and  was  convicted  for  adding  a  sentence  of 
comment  that  our  proposal  for  sending  food  would  be  re- 
jected, although  this  sentence  was  not  made  part  of  the 
quotation,  but  was  clearly  indicated  for  what  it  was.91  He 
was  convicted  for  copying  an  account  of  the  fall  of  Riga, 
and  omitting  one  sentence  from  the  original,  "  From  this 
it  can  be  concluded  that  the  fall  of  Riga  has  united  the 
opposing  political  factions  in  Russia."  He  was  convicted 
because  in  translating  a  speech  of  Senator  La  Follette,  pre- 
dicting bread-lines  as  a  consequence  of  the  failure  to  tax 
profiteers,  the  word  Brot-riots  was  used  instead  of  Brod- 
reihen.  The  wide  divergence  of  opinion  in  the  Court  is 
indicated  by  Justice  McKenna's  statement,  "  There  could 
be  no  more  powerful  or  effective  instruments  of  evil  than 
two  German  newspapers  organized  and  conducted  as  these 
papers  were  organized  and  conducted,"  as  against  that  of 
Justice  Brandeis,  "  To  hold  that  such  harmless  additions 
to  or  omissions  from  news  items,  and  such  impotent  ex- 
pressions of  editorial  opinion,  as  were  shown  here,  can  af- 
8i  U.  S.  v.  Werner,  247  Fed.  708. 


96  FREEDOM  OF  SPEECH 

ford  the  basis  even  of  a  prosecution,  will  doubtless  discour- 
age criticism  of  the  policies  of  the  Government." 

A  comparison  of  the  opinions  of  Justice  McKenna  and 
Justice  Brandeis  will  form  a  valuable  study  in  judicial  method 
and  in  the  two  ways  of  solving  any  problem  of  freedom  of 
speech.     Of  course  we  shall  not   find   that  total  ignoring 
of  the  social  interest  in  discussion,  which  blots  many  Dis- 
trict Court  cases,  in  a  member  of  the  Supreme  Court.     The 
difference  between  the  two  Justices  is   a  difference  in  the 
degree  of  emphasis  placed  upon  that  interest  and  in  their 
approach  to   the  case.      Since   the  limits   of   the   right   of 
freedom  of  speech  in  war  time  necessarily  involve  a   con- 
flict  between   the   desirability   of  public   knowledge   of   the 
truth  about  the  war  and  the  danger  of  defeat,  it  makes 
all  the  difference  in  the  world  whether  the  judge  who  sets 
out  to   determine  those  limits   starts   from  the  unqualified 
language  of  the  First  Amendment,  which,  unlike  the  Habeas 
Corpus  clause,  makes  no  exception  of  invasion,92  and  seeks 
to  give  to  public  opinion  as  much  scope  as  is  possible  in 
view  of  the  danger  and  the  precise  words  of  the  statute; 
or  whether  he  is  primarily  concerned  to  avert  all  influences 
which   might   conceivably   delay   or   forfeit  victory   and   is 
anxious  not  to  go  any  farther  to  permit  words  of  that  tend- 
ency than  seems  absolutely  necessary  if  we  are  to  have  any 
discussion  about  a  war  at  all.     Again,  it  makes  all  the  dif- 
ference in  the  world  whether  this  judge  is  satisfied  to  say, 
"  Free  speech  is  not  an  absolute  right,  and  when  it  or  any 
right  becomes  wrong  by  excess  is  somewhat  elusive  of  defi- 
nition," without  seeking  to  define  it,  or  whether  he  insists 
that  the  preservation  of  this  right  must  inevitably  depend 
on  the  latitude  allowed  to  the  human  machinery  adminis- 
tering the  law. 

Justice  McKenna  approaches  the  problem  from  the  side 
of  the  war  power,  and  entrusts  freedom  of  speech  to  the 

82 "  Not  one  of  these  safeguards  [in  the  Bill  of  Rights]  can  the 
President,  or  Congress,  or  the  Judiciary  disturb,  except  the  one  con- 
cerning the  writ  of  habeas  corpus.' — Field,  J.,  in  Ex  parte  Milligan,  2 
Wall.  125. 


THE  WAR  WITH  GERMANY  97 

jury's  sense  of  fairness  rather  than  to  any  guiding  prin- 
ciples. In  his  opinion  the  restraints  of  the  Espionage  Act 
are  not  excessive  or  ambiguous,  and  the  trial  court  gives 
sufficient  protection  to  the  right  of  free  speech  if  it  admon- 
ishes the  jury  to  decide  impartially  after  close  attention 
to  the  evidence.  The  statute  is  directed  against  conduct 
which  might  cause  our  armies  "  to  operate  to  defeat  and 
the  immeasurable  horror  and  calamity  of  it."  He  is  sur- 
prised that  the  Constitution  should  have  been  invoked  to 
protect  "  the  activities  of  anarchy  or  of  the  enemies  of  the 
United  States."  This  is  an  argument  always  used  to  under- 
mine freedom  of  speech,  for  if  it  does  not  protect  criticism 
hostile  to  the  government  it  has  little  value,  and  such  criti- 
cism in  the  times  when  it  is  most  needed  is  invariably  de- 
nounced by  the  supporters  of  the  government  as  revolution 
or  treason.  Only  wide  discussion  and  time  can  tell  whether 
the  activities  of  the  opponents  of  our  wars,  James  Russell 
Lowell,  the  Hartford  Convention,  William  Graham  Sum- 
ner, Vallandigham,  were  the  activities  of  the  enemies  of 
the  United  States  or  of  its  friends. 

To  all  the  passages  he  applies  the  eighteenth-century 
tests  of  bad  tendency  and  presumptive  intent  to  see  whether 
the  evidence  would  justify  conviction.  The  only  limit  on 
remoteness  which  he  recognizes  seems  to  depend  on  the  will 
of  the  jury.  Thus  he  says  of  the  conviction  for  obstruct- 
ing enlistment  by  a  reprint  from  a  Berlin  paper,  entitled 
"  Yankee  Bluff,"  which  ridiculed  the  possibility  of  our  giv- 
ing any  aid  to  the  Entente,  so  slow  were  our  war  prepara- 
tions, that  the  article  might  seem  to  its  readers  truly  de-. 
scriptive  of  American  inability  to  combat  German  prowess 
and  thereby  "  chill  and  check  the  ardency  of  patriotism 
and  make  it  despair  of  success  and  in  hopelessness  relax 
energy  both  in  preparation  and  in  action."  What  was 
its  purpose  if  not  that?  We  cannot  conclude  that  the  ob- 
servations were  the  mere  expression  of  peevish  discontent, 
but  must  take  them  at  their  word,  as  the  jury  did,  and 
ascribe  a  more  active  and  sinister  aim.     Success  is  unnec- 


98  FREEDOM  OF  SPEECH 

essary.  The  tendency  of  the  articles  and  their  efficacy  were 
enough  for  offense,  and  this  is  all  that  "  intent "  and  "  at- 
tempt "  mean.  To  require  more  would  make  the  law  use- 
less, for  it  was  passed  in  precaution,  and  the  consequences 
of  its  violation  might  appear  only  in  disaster.  In  other 
words,  any  newspaper  editor  who  reprints  German  brag- 
ging is  liable  to  imprisonment  unless  he  can  furnish  a  clean 
bill  of  health  as  to  his  loyal  intentions. 

Justice  McKenna  also  regards  it  as  criminal  to  predict 
turbulent  resistance  to  a  war,  as  in  the  La  Follette  report, 
or  to  say  that  the  war  was  commenced  without  the  people's 
consent.  Of  an  article,  attacking  "  the  pro-British  policy 
of  the  Government,"  he  says,  in  language  that  leaves  no 
room  for  questioning  as  to  the  righteousness  of  any  war: 

Its  statements  were  deliberate  and  willfully  false,  the  purpose 
being  to  represent  that  the  war  was  not  demanded  by  the  people 
but  was  the  result  of  the  machinations  of  executive  power,  and 
thus  to  arouse  resentment  to  it  and  what  it  would  demand  of 
ardor  and  effort.  In  final  comment  we  may  say  that  the  article 
in  effect  justified  the  German  aggressions. 

Justice  Brandeis,  on  the  other  hand,  starts  from  the 
danger-test  of  freedom  of  speech  in  the  Schenck  case  and 
from  the  actual  words  of  the  Espionage  Act.  He  even 
goes  back  to  an  important  circumstance  preceding  the  stat- 
ute, the  recommendation  of  the  War  College  for  legislation 
to  prevent  injurious  disclosures  on  military  matters,  to  get 
help  on  the  meaning  of  the  "  false  statement  clause." 

Congress  sought  thereby  to  protect  the  American  people  from 
being  willfully  misled  to  the  detriment  of  their  cause  by  one 
actuated  by  the  intention  to  further  the  cause  of  the  enemy. 
Willfully  untrue  statements  which  might  mislead  the  people 
as  to  the  financial  condition  of  the  Government  and  thereby  em- 
barrass it;  as  to  the  adequacy  of  the  preparations  for  war  or  the 
support  of  the  forces ;  as  to  the  sufficiency  of  the  food  supply ;  or 
willfully  untrue  statements  or  reports  of  military  operations  which 
might  mislead  public  opinion  as  to  the  competency  of  the  army  or 
navy  or  its  leaders   [see  "  The  Relation  Between  the  Army  and 


THE  WAR  WITH  GERMANY  99 

the  Press  in  War  Time,"  War  College  Publication,  191 6] ;  or  will- 
fully untrue  statements  or  reports  which  might  mislead  officials 
in  the  execution  of  the  law,  or  military  authorities  in  the  dis- 
position of  the  forces.  Such  is  the  kind  of  false  statement  and  the 
only  kind  which,  under  any  rational  construction,  is  made  criminal 
by  the  act.  Could  the  military  and  naval  forces  of  the  United 
States  conceivably  have  been  interfered  with  or  the  success  of  the 
enemy  conceivably  have  been  promoted  by  any  of  the  three  pub- 
lications set  forth  above? 

And  in  connection  with  the  "  Yankee  Bluff  "  article,  he 
applied  the  same  tests  of  danger  and  statutory  wording 
to  the  recruiting  clause  of  the  1917  Act,  confirming  the 
interpretation  of  the  Act  advanced  earlier  in  this  chapter:93 

It  is  not  apparent  on  a  reading  of  this  article — which  is  not 
unlike  many  reprints  from  the  press  of  Germany  to  which  our 
patriotic  societies  gave  circulation  in  order  to  arouse  the  American 
fighting  spirit — how  it  could  rationally  be  held  to  tend  even  re- 
motely or  indirectly  to  obstruct  recruiting.  But  as  this  court 
has  declared  .  .  .  the  test  to  be  applied — as  in  the  case  of 
criminal  attempts  and  incitements — is  not  the  remote  or  possible 
effect.  There  must  be  the  clear  and  present  danger.  Certainly 
men  judging  in  calmness  and  with  this  test  presented  to  them 
could  not  reasonably  have  said  that  this  coarse  and  heavy  humor 
immediately  threatened  the  success  of  recruiting. 

The  most  important  part  of  his  opinion  is  the  repeated 
criticism  of  the  administration  of  the  statute  in  the  trial 
below.  The  jury,  however  much  instructed  to  be  calm  and 
unbiassed,  were  authorized  to  convict  for  any  words  which 
would  lessen  u  our  will  to  win,  or,  as  it  is  generally  ex- 
pressed, our  will  to  conquer."  Jurymen  need  something 
more  than  "  a  sense  of  duty  and  a  sense  of  justice."  They 
need  hard  and  fast  tests  of  criminality,  which  will  bring 
home  to  them  the  standard  of  "  clear  and  present  danger." 
And  in  this  case  that  test  should  have  prevented  the  evi- 
dence, so  remote  is  it,  from  going  to  the  jury  at  all.  After 
quoting  the  words  of  the  unanimous  Court  in  the  Schenck 
case,  he  said: 

93  Page  54,  supra. 


100  FREEDOM  OF  SPEECH 

This  is  a  rule  of  reason.  Correctly  applied,  it  will  preserve 
the  right  of  free  speech  both  from  suppression  by  tyrannous,  well- 
meaning  majorities  and  from  abuse  by  irresponsible,  fanatical 
minorities.  Like  many  other  rules  for  human  conduct,  it  can  be 
applied  correctly  only  by  the  exercise  of  good  judgment;  and  to 
the  exercise  of  good  judgment,  calmness  is,  in  times  of  deep 
feeling  and  on  subjects  which  excite  passion,  as  essential  as 
fearlessness  and  honesty.  The  question  whether  in  a  particular 
instance  the  words  spoken  or  written  fall  within  the  permissible 
curtailment  of  free  speech  is,  under  the  rule  enunciated  by  this 
Court,  one  of  degree.  And  because  it  is  a  question  of  degree  the 
field  in  which  the  jury  may  exercise  its  judgment  is,  necessarily, 
a  wide  one.  But  its  field  is  not  unlimited.  The  trial  provided 
for  is  one  by  judge  and  jury;  and  the  judge  may  not  abdicate 
his  function.  If  the  words  were  of  such  a  nature  and  were  used 
under  such  circumstances  that  men,  judging  in  calmness,  could 
not  reasonably  say  that  they  created  a  clear  and  present  danger 
that  they  would  bring  about  the  evil  which  Congress  sought  and 
had  a  right  to  prevent,  then  it  is  the  duty  of  the  trial  judge  to 
withdraw  the  case  from  the  consideration  of  the  jury;  and  if 
he  fails  to  do  so,  it  is  the  duty  of  the  appellate  court  to  correct 
the  error. 

Then  he  emphasized  a  principle  which  has  often  been 
ignored  in  sedition  trials,  and  which  might  have  affected 
the  Debs  decision,  as  well  as  the  Abrams  case,  that  the 
appellate  court  ought  not  to  determine  the  nature  and 
possible  effect  of  a  speech  or  writing  simply  by  culling 
here  and  there  a  sentence  and  presenting  it  separated  from 
the  context.  It  ought  to  be  read  as  a  whole,  and  often 
considered  with  other  evidence  which  may  control  its  mean- 
ing. 

Finally,  he  warned  the  Court,  in  a  passage  which  I  shall 
quote  later  with  reference  to  peace-time  Sedition  laws,  that 
the  sweeping  application  of  a  criminal  statute  to  utterances 
with  scant  regard  for  the  First  Amendment  would  have 
disastrous  consequences  for  freedom  of  speech  in  future 
periods  of  excitement.  In  truth,  the  passage  of  the  simple 
language  of  the  Espionage  Act  of  1917  was,  little  as  we 
thought  it  at  the  time,  the  deadliest  blow  ever  struck  at  a 
free  press   in  the  United   States,   and   the  beginning  of  a 


THE  WAR  WITH  GERMANY  101 

series  of  encroachments  on  civil  rights  of  every  kind,  whose 
full  consequences  we  are  dimly  beginning  to  realize. 

The  latest  decision  is  United  States  v.  Pierce.  This  was 
a  prosecution  for  distributing  "  The  Price  We  Pay,"  one 
of  those  leaflets  which,  like  "  The  Finished  Mystery "  of 
the  Pastor  Russell  sect,  figure  in  several  Espionage  Act 
cases.  The  pamphlet  was  a  highly  colored  and  sensational 
document  by  St.  John  Tucker,  one  of  the  defendants  in  the 
Berger  case.  It  was  issued  by  the  national  office  of  the 
Socialist  Party  at  Chicago,  and  "  contained  much  in  the 
way  of  denunciation  of  war  in  general,  the  pending  war  in 
particular,  something  in  the  way  of  assertion  that  under 
Socialism  things  would  be  better,  little  or  nothing  in  the 
way  of  fact  or  argument  to  support  the  assertion."  The 
four  defendants  in  New  York  had  refrained  from  circu- 
lating it  until  after  a  prosecution  of  other  persons  in  Mary- 
land, based  on  the  same  pamphlet  but  under  the  con- 
spiracy statutes  for  obstruction  of  the  draft,  had  termi- 
nated in  a  directed  acquittal  on  the  ground  that  it  was 
intended  to  get  recruits  for  the  Socialist  Party,  and  not 
even  an  attempt  to  persuade  men  to  disobey  the  draft  law.94 
Pierce  and  his  associates  were  then  arrested  and  convicted. 
Seven  judges  through  Justice  Pitney  sustained  the  convic- 
tion, while  Justice  Brandeis  dissented  with  the  concurrence 
of  Justice  Holmes. 

The  principal  ground  of  conviction  was  the  false  state- 
ments clause.  Justice  Brandeis  pointed  out  that  the  danger- 
test  applies  to  this  clause  as  much  as  the  other  two,  and 
that  three  additional  elements  of  crime  must  be  established: 
(1)  The  statement  or  report  must  be  of  something  capable  of 
being  proved  false  in  fact.  The  expression  of  an  opinion, 
for  instance,  whether  sound  or  unsound,  might  conceivably 
afford  a  sufficient  basis  for  the  charge  of  attempting  to 
cause  insubordination,  disloyalty  or  refusal  of  duty,  or  for 
the  charge  of  obstructing  recruiting;  but,  because  an  opin- 
ion is  not  capable  of  being  proved  false  in  fact,  a  statement 

94  U.  S.  v.  Baker,  247  Fed.  124  (1917). 


102  FREEDOM  OF  SPEECH 

of  it  cannot  be  made  the  basis  of  a  prosecution  under  this 
clause.  (2)  The  statement  or  report  must  be  proved  to  be 
false.  (3)  The  statement  or  report  must  be  known  by 
the  defendant  to  be  false  when  made  or  conveyed. 

Three  passages,  consisting  of  five  sentences  in  all,  were 
culled  from  this  long  document  as  constituting  the  false 
statements  or  reports: 

1.  Into  your  homes  the  recruiting  officers  are  coming.  They 
will  take  your  sons  of  military  age  and  impress  them  into  the 
army.    .    .    . 

And  still  the  recruiting  officers  will  come ;  seizing  age  after  age, 
mounting  up  to  the  elder  ones  and  taking  the  younger  ones  as 
they  grow  to  soldier  size. 

2.  The  Attorney  General  of  the  United  States  is  so  busy  send- 
ing to  prison  men  who  do  not  stand  up  when  the  Star  Spangled 
Banner  is  played,  that  he  has  no  time  to  protect  the  food  supply 
from  gamblers. 

3.  Our  entry  into  it  was  determined  by  the  certainty  that  if 
the  allies  do  not  win,  J.  P.  Morgan's  loans  to  the  allies  will  be 
repudiated,  and  those  American  investors  who  bit  on  his  promises 
would  be  hooked. 

Only  the  last  passage  need  detain  us.  The  first  is  clearly 
true,  since  "  recruiting M  was  held  in  the  Schenck  case  to 
include  the  draft,  though  a  regular  army  major  gravely 
testified  at  the  trial  that  it  had  only  to  do  with  the  volun- 
teer service.  The  prediction  that  older  and  younger  per- 
sons would  be  drafted  was,  of  course,  fulfilled.  Yet  the 
point  was  left  to  the  jury.  While  civilians  could  not  be 
prosecuted  for  sitting  during  the  National  Anthem,  such 
an  obviously  figurative  way  of  saying  that  the  Attorney 
General  was  devoting  important  time  to  trivial  sedition 
cases  could  not  properly  be  regarded  as  a  statement  of 
fact  within  a  twenty-year  criminal  penalty.95 

Justice  Pitney  held  that  these  passages  satisfied  the  three 
requirements  laid  down  by  Justice  Brandeis. 

»5  Under  a  local  law,  J.  W.  Beckstrom  of  Chicago  was,  since  the 
Pierce  trial,  fined  $50  for  refusing  to  stand  when  the  "  Star-Spangled 
Banner"  was  played  in  a  theater. — War-time  Prosecutions,  30. 


THE  WAR  WITH  GERMANY  103 

On  the  points  of  intention  and  proximate  cause  he  said 
that  the  jury  might  fairly  believe  that  the  leaflet  "  would 
have  a  tendency  to  cause  insubordination  " ;  and  that  it  was 
intended  to  bring  home  to  eligible  men  and  especially  to 
"  their  parents,  sisters,  wives,  and  sweethearts,"  a  sense  of 
impending  personal  loss,  calculated  to  discourage  men  from 
entering  the  service,  to  arouse  suspicion  whether  the  chief 
law  officer  was  not  more  concerned  in  enforcing  the  strictness 
of  military  discipline  than  in  protecting  the  people  against 
improper  speculation  in  their  food  supply,  and  to  produce 
a  belief  that  our  participating  in  the  war  was  the  product 
of  sordid  and  sinister  motives.  One  rubs  his  eyes  and  won- 
ders whether  he  has  dreamed  himself  back  into  the  eighteenth 
century. 

The  most  dangerous  aspect  of  this  case,  however,  is  the 
decision  that  the  opinion  about  the  economic  cause  of  the 
war  is  a  false  statement  and  known  to  be  false.  Justice 
Pitney  says: 

Common  knowledge  (not  to  mention  the  President's  Address  to 
Congress  of  April  2,  1917,  and  the  Joint  Resolution  of  April  6 
declaring  war,  which  were  introduced  in  evidence)  would  have 
sufficed  to  show  at  least  that  the  statements  as  to  the  causes  that 
led  to  the  entry  of  the  United  States  into  the  war  against  Germany 
were  grossly  false;  and  such  common  knowledge  went  to  prove 
also  that  defendants  knew  they  were  untrue.  That  they  were  false 
if  taken  in  a  literal  sense  hardly  is  disputed. 

Justice  Pitney  is  a  great  equity  judge,  and  often  a  man 
is  held  subject  to  the  equitable  rights  of  others  because  he 
ought  reasonably  to  know  of  them  though  in  fact  he  does 
not,  but  such  constructive  notice  has  never  before  been 
made  the  basis  of  criminal  responsibility.  For  example,  a 
man  purchasing  land  cannot  get  rid  of  a  heavy  recorded 
mortgage  just  because  he  was  ignorant  of  it,  but  if  he  resells 
the  land  without  mentioning  this  still  unknown  mortgage 
he  is  not  guilty  of  obtaining  money  under  false  pretenses. 
Yet  the  Supreme  Court  is  willing  to  say  that  men  who 
wrangled  with  their  neighbors  for  years  about  the  capitalistic 


104  FREEDOM  OF  SPEECH 

causes  of  the  war  and  clung  to  their  views  with  pig-headed 
devotion  knew  they  were  wrong  just  because  they  were  in  a 
small  minority. 

Consider  where  this  leads.  If  opinions  about  the  origin 
and  justice  of  a  war  are  to  be  regarded  as  false  statements 
if  the  jury  find  them  erroneous,  the  proof  of  truth  or  fal- 
sity involves  logically  all  available  evidence  about  the  causes 
of  the  war,  a  staggering  task.  The  proof  surely  ought  not 
to  be  limited  to  the  President's  Message  or  the  Resolution 
of  Congress,  for  then  conviction  would  be  a  foregone  con- 
clusion. Neither  by  sight  nor  by  hearing  can  the  jury  in- 
vestigate this  "  question  of  fact."  It  is  a  matter  of  infer- 
ence from  the  complex  and  obscure  political,  economic,  and 
social  conditions  of  the  nation  or  even  of  the  world.  The 
data  for  such  a  judgment,  even  if  a  jury  had  the  very 
slightest  capacity  for  making  it,  are  not  available  during 
a  war  or  for  years  afterwards.  Imagine  John  Bright  or 
James  Russell  Lowell  trying  to  convince  a  jury  that  the 
Crimean  or  the  Mexican  Wars  were  due  to  sinister  motives, 
a  question  on  which  men  are  still  disputing. 

What  minority  opinion  can  be  safe  in  war  time  under 
Justice  Pitney's  test?  Surely,  language  which  is  immune 
from  civil  defamation  suits  as  comment  on  a  public  matter 
ought  to  be  equally  immune  from  the  sterner  rigors  of  the 
federal  penitentiary.  If  everything  an  opponent  of  a  war 
says  is  to  be  adjudged  false  because  the  jury  and  the  Su- 
preme Court  disagree  with  it,  and  then  he  is  declared  to 
know  it  is  false  because  most  people  think  it  so,  the  whole 
value  of  the  First  Amendment  as  a  means  of  learning  the 
truth  about  future  wars  is  lost. 

Into  this  technical  reasoning,  which  virtually  ignores 
the  standard  of  clear  and  present  danger  and  revives  the 
District  Court  test  of  remotely  injurious  tendency,  cuts  the 
common  sense  of  Justice  Brandeis.  The  so-called  state- 
ment of  fact  about  the  Morgan  loans  is,  he  says,  merely  a 
conclusion  or  deduction  from  facts.  True,  it  is  not  a  con- 
clusion of  law,  but  it  is  not  an  evidentiary  fact.     In  its 


THE  WAR  WITH  GERMANY  105 

essence  it  is  the  expression  of  a  judgment,  like  the  state- 
ments of  many  so-called  historical  facts.  There  is  no  exact 
standard  of  absolute  truth  by  which  to  prove  the  assertion 
false.*6  Himself  a  strong  supporter  of  the  war,  he  recognizes 
nevertheless  the  possibility  of  divergent  views: 

The  cause  of  a  war — as  of  most  human  action — is  not  single. 
War  is  ordinarily  the  result  of  many  co-operating  causes,  many 
different  conditions,  acts  and  motives.  Historians  rarely  agree 
in  their  judgment  as  to  what  was  the  determining  factor  in  a 
particular  war,  even  when  they  write  under  circumstances  where 
detachment  and  the  availability  of  evidence  from  all  sources  mini- 
mizes both  prejudice  and  other  sources  of  error.  For  individuals, 
and  classes  of  individuals,  attach  significance  to  those  things  which 
are  significant  to  them.  And,  as  the  contributing  causes  cannot 
be  subjected,  like  a  chemical  combination  in  a  test  tube,  to  qualita- 
tive and  quantitative  analysis  so  as  to  weigh  and  value  the 
various  elements,  the  historians  differ  necessarily  in  their  judg- 
ments. One  finds  the  determining  cause  of  war  in  a  great  man, 
another  in  an  idea,  a  belief,  an  economic  necessity,  a  trade  advan- 
tage, a  sinister  machination,  or  an  accident.  It  is  for  this  reason 
largely  that  men  seek  to  interpret  anew  in  each  age,  and  often 
with  each  new  generation,  the  important  events  in  the  world's 
history. 

Not  all  who  voted  for  the  declaration  of  war  did  so  for 
the  President's  reasons,  and  the  previous  debate,  Justice 
Brandeis  reminds  us,  includes  many  statements  that  the  vast 
loans  were  instrumental  in  causing  a  sentiment  through  the 
nation  in  favor  of  war. 

However  strongly  we  may  believe  that  these  loans  were  not  the 
slightest  makeweight,  much  less  a  determining  factor,  in  the 
country's  decision,  the  fact  that  some  of  our  representatives  in 
the  Senate  and  the  House  declared  otherwise  on  one  of  the  most 
solemn  occasions  in  the  history  of  the  Nation,  should  help  us  to 
understand  that  statements  like  that  here  charged  to  be  false 
are  in  essence  matters  of  opinion  and  judgment,  not  matters  of 
fact  to  be  determined  by  a  jury  upon  or  without  evidence;  and 

9«  Citing  American  School  of  Magnetic  Healing  v.  Mc Annuity,  187 
U.  S.  94,  104,  which  held  that  the  Postmaster  General  could  not  exclude 
from  the  mails  as  fraudulent,  proposals  to  cure  disease  by  mental  treat- 
ment, *since  the  claim  was  not  subject  to  proof  as  to  its  falsity. 


106  FREEDOM  OF  SPEECH 

that  even  the  President's  address,  which  set  forth  high  moral 
grounds  justifying  our  entry  into  the  war,  may  not  be  accepted 
as  establishing  beyond  a  reasonable  doubt  that  a  statement  ascrib- 
ing a  base  motive  was  criminally  false.  All  the  alleged  false 
statements  were  an  interpretation  and  discussion  of  public  facts  of 
public  interest.  .  .  .  To  hold  that  a  jury  may  make  punishable 
statements  of  conclusions  or  of  opinion,  like  those  here  involved, 
by  declaring  them  to  be  statements  of  facts  and  to  be  false  would 
practically  deny  members  of  small  political  parties  freedom  of 
criticism  and  of  discussion  in  times  when  feelings  run  high  and 
the  questions  involved  are  deemed  fundamental. 

It  seems  extremely  ominous  that  at  a  time  when  the 
Supreme  Court  has  shown  such  solicitude  in  the  United 
States  Steel  Corporation  and  stock  dividend  cases,97  and 
rightly  as  I  believe,  in  protecting  large  bodies  of  capital 
from  unlawful  governmental  action,  it  should  have  been  so 
careless  in  its  safeguarding  of  the  fundamental  human  need  of 
freedom  of  speech,  so  insistent  in  this  sphere  that  the  inter- 
ests of  the  government  should  be  secured  at  all  costs. 
Progress  is  possible  only  through  a  genuine  application  of 
the  great  principle  behind  that  Amendment  which  the 
Abrams,  Schaefer,  and  Pierce  decisions  have  reduced  almost 
to  a  pious  hope. 

The  fundamental  right  of  free  men  to  strive  for  better  condi- 
tions through  new  legislation  and  new  institutions  will  not  be 
preserved,  if  efforts'  to  secure  it  by  argument  to  fellow  citizens 
may  be  construed  as  criminal  incitement  to  disobey  the  existing 
law — merely,  because  the  argument  presented  seems  to  those 
exercising  judicial  power  to  be  unfair  in  its  portrayal  of  existing 
evils,  mistaken  in  its  assumptions,  unsound  in  reasoning  or  intem- 
perate in  language.98 

VI.  Censorship  and  Exile 

The  Federal  Government  has  restricted  speech  in  two  ways 
besides  punishment.      It  possesses   a  virtual   censorship  in 

87  U.  S.  v.  U.  S.  Steel  Corp.,  251  U.  S.  417  (1920) ;  Eisner  v.  Ma- 
comber,  40  Sup.  Ct.  189  (1920). 

88  Brandeis,  J.,  in  Pierce  v.  U.  S.,  supra. 


THE  WAR  WITH  GERMANY  107 

war  time  over  all  criticism  of  its  policies,  and  exercises  this 
power  at  the  arbitrary  will  of  an  administrative  official,  who 
is  of  course  directly  interested  to  preserve  those  policies 
from  attack,  especially  when  they  touch  his  own  department. 
That  this  official  is  not  called  a  censor  is  immaterial.  Under 
the  Espionage  Act  the  Postmaster  General  can  exclude  from 
the  mails,  the  only  profitable,  and  often  the  only  possible 
means  of  effective  publication,  anything  which  he  considers 
to  be  in  violation  of  the  statute.  In  no  case  during  the  war 
has  any  court  set  aside  his  decision  by  injunction  or  man- 
damus since  Judge  Hand  was  reversed  as  to  the  Masses, 
Some  judges  say  that  they  will  not  review  his  ruling  unless 
it  is  clearly  wrong,  which  means  never.  Others  declare  that 
an  opponent  of  the  war  does  not  come  into  court  with  clean 
hands  and  therefore  cannot  get  judicial  relief  even  though 
the  ruling  is  illegal.  And  the  power  of  the  Postmaster  Gen- 
eral is  not  limited  to  the  particular  issue  of  the  periodical 
which  he  declares  non-mailable.  For  instance,  after  Mr. 
Burleson  had  suppressed  the  August  number  of  the  Masses, 
he  refused  to  admit  the  September  or  any  future  issues  to 
the  second-class  mailing  privilege,  even  if  absolutely  free 
from  any  objectionable  passages,  on  the  ground  that  since 
the  magazine  had  skipped  a  number,  viz.,  the  July  number, 
it  was  no  longer  a  periodical,  since  it  was  not  regularly 
issued !  He  took  the  same  position  as  to  Berger's  Milwaukee 
Leader,  and  in  both  instance  the  courts  sustained  him,  thus 
confirming  his  right  to  drive  a  newspaper  or  magazine  out 
of  existence  for  one  violation  as  determined  by  him. 

Let  us  now  see  what  Mr.  Burleson  has  considered  to  vio- 
late the  Espionage  Act.  By  no  means  did  he  limit  himself 
to  pro-German  and  pacifist  articles  and  books,  like  Latzko's 
Men  in  War.  He  suppressed  an  issue  of  the  Public  for  urg- 
ing that  more  money  be  raised  by  taxes  and  less  by  loans. 
He  suppressed  Lenine's  Soviets  at  Work,  a  purely  economic 
pamphlet,  although  we  were  not  at  war  with  Russia.  He 
suppressed  the  Nation  of  September  14,  1918,  either  for 
criticising  the  great  slacker  round-up  in  New  York  City, 


108  FREEDOM  OF  SPEECH 

which  Mr.  O'Brian  states  to  have  been  in  contravention  of 
specific  instructions  from  the  Attorney  General  and  a  mis- 
take which  could  not  be  condoned,"  or  more  probably  for 
attacking  Mr.  Gompers.  He  censored  any  adverse  com- 
ment on  the  affairs  of  the  British  Empire.  He  censored  a 
pamphlet  by  La j  pat  Rai  on  India.  He  censored  the 
Freeman's  Journal  and  Catholic  Register  for  reprinting 
Jefferson's  opinion  that  Ireland  should  be  a  republic;  the 
Gaelic  American  for  denouncing  the  felicitous  remarks  of 
F.  E.  Smith  during  his  flying  trip  to  this  country,  and  say- 
ing, "  The  clear-headed,  keen-witted  Yankees  who  read 
his  bitter  attack  on  the  Irish  will  not  wonder  at  the  Irish 
for  refusing  to  fight  for  a  government  of  which  Smith  is  a 
member  " ;  and  the  Irish  World  for  expressing  the  expecta- 
tion that  Palestine  would  not  be  a  Jewish  kingdom,  but  on 
the  same  footing  as  Egypt,  and  that  the  trend  of  French 
life  and  ideals  for  a  century  has  been  toward  mate- 
rialism. And  finally,  Thorstein  Veblen's  Imperial  Germany 
and  the  Industrial  Revolution,  which  was  published  in  1915, 
was  recommended  by  Mr.  Creel's  Committee  on  Public  In- 
formation as  containing  damaging  data  about  Germany,  and 
then  excluded  by  Mr.  Burleson  from  the  mails. 

This  is  clearly  previous,  restraint  and  might  seem  for- 
bidden by  the  Blackstonian  definition,  which,  however,  is  held 
not  to  apply  to  the  postal  power.100  This  power,  like  the 
war  power,  ought  to  be  subject  to  the  requirements  of  free 
speech  and  due  process  of  law,  and  there  are  dicta  of  the 
Supreme  Court  that  it  is  not  unlimited.101  Although  the 
post-office  may  not  be  strictly  a  common  carrier,102  it  is  in 
the  nature  of  a  public  service  company.     Its  functions  have 

99  O'Brian,  292. 

ioo  Masses  Pub.  Co.  v.  Patten,  246  Fed.  24,  27  (1917),  Rogers,  J. 
The  operation  of  our  postal  censorship  is  shown  by  material  cited  in 
the  Bibliography.  The  cases  are  at  the  end  of  Appendix  II.  See  also 
the  Trading  with  the  Enemy  Act  for  regulation  of  the  foreign  language 
press.     U.  S.  Comp,  Stat.   1918,  §3115y2  j. 

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

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


THE  WAR  WITH  GERMANY  109 

been  performed  by  private  persons  in  the  past,  and  if  it  were 
not  unlawful,  would  probably  be  shared  by  them  now  because 
of  the  greater  speed  possible.103  According  to  the  political 
theories  of  Leon  Duguit,104  the  government  in  furnishing 
public  service  must  be  judged  by  ordinary  standards  of  pub- 
lic callings.  If  the  United  States  owned  the  railroads,  it 
ought  not  to  make  unreasonable  discrimination  among  pas- 
sengers any  more  than  a  private  railroad  corporation,  and 
a  similar  limitation  should  apply  to  the  postal  power.  The 
congressional  restrictions  which  have  been  upheld  by  the 
courts  may  be  considered  as  reasonable  regulations  in  view 
of  the  nature  of  the  service.  Even  opposition  to  the  gov- 
ernment may  be  entitled  to  some  consideration  by  the  post- 
office  as  by  the  judges,  who  frequently  decide  against  the 
United  States.  It  is  clear  that  exclusion  from  the  mails 
practically  destroys  the  circulation  of  a  book  or  periodical, 
and  makes  free  speech  to  that  extent  impossible.  To  say, 
as  many  courts  do,  that  the  agitator  is  still  at  liberty  to 
use  the  express  or  the  telegraph,105  recalls  the  remark  of 
the  Bourbon  princess  when  the  Paris  mob  shouted  for  bread, 
"  Why  don't  they  eat  cake?  " 

Still  another  method  of  suppression  of  opinion  has  been 
used.  Not  only  have  we  substantially  revived  the  Sedition 
Act  of  1798,  but  the  Alien  Act  as  well.  Aliens  have  been 
freely  deported  under  statutes  passed  during  the  war,  to 
be  discussed  in  a  later  chapter,  and  even  naturalized  citizens 
or  native  American  women  marrying  foreigners  are  within 
the  reach  of  this  power.  A  former  German  subject  who  was 
naturalized  in  1882  refused  in  1917  to  contribute  to  the 
Red  Cross  and  the  Young  Men's  Christian  Association  be- 

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

104  Law  in  the  Modem  State,  translated  by  F.  and  H.  Laski,  N.  Y., 
1919.  See  H.  J.  Laski  in  31  Harv.  L.  Rev.  186;  and  his  Authority  in 
the  Modern  State,  p.  378. 

i°5  This  alternative  is  even  less  valuable  when  the  government  con- 
trols the  express  and  the  telegraph.  The  New  York  World  was  denied 
the  opportunity  to  use  the  telegraph  to  distribute  a  criticism  of  Mr. 
Burleson.     Collier's  Weekly,  May  17,  1919,  p.  16. 


110  FREEDOM  OF  SPEECH 

cause  he  would  do  nothing  to  injure  the  country  where  he 
was  brought  up  and  educated.  His  naturalization  certificate 
was  revoked  after  thirty-five  years  on  the  presumption  that 
his  recent  conduct  showed  that  he  took  the  oath  of  renuncia- 
tion in  1882  with  a  mental  reservation  as  to  the  country  of 
his  birth.  He  may  therefore  be  deported  as  an  enemy  alien.106 

VII.  State  Espionage  Acts 

Him  that  escapeth  the  sword  of  Hazael  shall  Jehu  slay. — The 
First  Booh  of  Kings. 

One  would  have  supposed  that  the  federal  Espionage  Act 
was  a  sufficient  safeguard  against  opposition  to  the  war, 
but  many  states  were  not  satisfied  with  either  its  terms  or 
its  enforcement,  and  enacted  similar  but  more  drastic  laws 
of  their  own.107  These  were  particularly  common  in  western 
states,  where  feeling  ran  high  against  the  Non-Partisan 
League  or  the  I.W.W.  The  most  important  of  these  stat- 
utes, that  of  Minnesota,  made  it  unlawful  to  say  "  that 
men  should  not  enlist  in  the  military  or  naval  forces  of 
the  United  States  or  the  State  of  Minnesota,"  or  that  resi- 
dents of  that  state  should  not  aid  the  United  States  in  car- 
rying on  war  with  the  public  enemies.108     There  have  been 

106  United  States  v.  Wursterbarth,  249  Fed.  908  (N.  J.,  1918),  Haight, 
J.;  see  also  United  States  v.  Darmer,  249  Fed.  989  (W.  D.  Wash.,  1918), 
Cushman,  J.;  U.  S.  v.  Kramer,  262  Fed.  395  (C.  C.  A.,  5th,  1919) ;  Schur- 
mann  v.  U.  S.,  264  Fed.  917  (C.  C.  A.,  9th,  1920). 

107  These  statutes  and  the  decisions  under  them  are  collected  in 
Appendix  V.  Other  state  cases  arising  out  of  war  utterances  are: 
Breaches  of  the  peace:  People  v.  Nesin,  179  N.  Y.  App.  Div.  869 
(1917);  People  v.  Whitaker  (Cal.),  Nelles,  p.  53;  War-time  Prosecu- 
tions,  p.  27. 

Municipal  Ordinance  regulating  newspapers  invalid:  Star  v.  Brush, 
170  N.  Y.  Supp.  987  (1918);  172  N.  Y.  Supp.  851  (1918);  New  Yorker 
Staats-Zeitung  v.  Nolan,  105  Atl.  72  (N.  J.,  1918).  Conspiracy  to  compel 
newsdealer  to  handle  distasteful  newspaper :  Sultan  v.  Star  Co.,  174  N.  Y. 
Supp.  52  (1919).  Ordinance  prohibiting  German  opera:  Star  Opera  Co. 
v.  Hylan,  109  N.  Y.  Misc.  132  (1919).  Libel  in  war  controversy:  Van 
Lonkhuyzen  v.  Daily  News,  195  Mich.  283,  161  N.  W.  979  (1917),  170 
N.  W.  98  (1918).  Expulsion  of  college  student  for  pacifism:  not  re- 
viewed, Samson  v.  Columbia,  101  N.  Y.  Misc.  146,  167  N.  Y.  Supp.  202 
(1917). 

108  Minn.   Laws,  1917,  c.  463.     This  was   superseded  in   1919  by  a 


THE  WAR  WITH  GERMANY  111 

a  very  large  number  of  prosecutions  and  many  convictions 
under  this  statute,  chiefly  of  members  of  the  Non-Partisan 
League,  culminating  in  the  condemnation  of  its  president. 

Although  these  statutes  have  been  held  in  several  cases  109 
to  punish  crimes  within  the  jurisdiction  of  the  states,  it 
seems  possible  that  the  offenses  named  are,  unless  mere 
breaches  of  the  peace,  crimes  against  the  United  States,  and 
therefore  cognizable  only  in  the  federal  courts.  Of  course, 
the  same  act  may  be  both  a  federal  and  a  state  crime,  for 
instance,  counterfeiting,  which  injures  United  States  money 
and  is  also  a  kind  of  cheating.  Consequently,  it  is  urged  in 
support  of  these  sedition  statutes,  that  a  violation  of  the 
Espionage  Act  is  also  a  breach  of  the  duty  of  citizens  of  a 
state  to  assist  that  state  in  performing  its  duty  to  support 
the  nation  in  war,  and  that  sedition,  although  directly 
aimed  at  the  federal  government,  must  indirectly  affect 
the  security  of  the  state  government.  On  the  other  hand, 
it  has  been  held  that  treason  against  the  United  States  can- 
not be  prosecuted  by  the  states  110  and  interference  with  the 
federal  war  power  is  closely  analogous.  The  argument  that 
there  is  also  interference  with  the  states  is  open  to  question. 
They  have  no  war  powers ;  their  control  over  the  militia  in 
so  far  as  that  was  affected  by  any  of  the  utterances  prose- 
cuted was  taken  out  of  their  hands  during  the  war;  and 
although  the  state  officers  did  render  aid  in  the  raising  of 
troops,  that  does  not  make  it  a  state  function,  any  more 
than  the  assistance  of  a  policeman  in  the  arrest  of  a  deserter 
renders  him  amenable  to  state  law.  The  control  was  entirely 
in  the  hands  of  the  federal  government. 

still  more  drastic  act,  to  take  care  of  future  wars.  Laws,  1919,  c. 
93.     See  cases  in  Appendix  V  and  Bibliography  on  Townley  Trial. 

109  State  v.  Holm,  139  Minn.  267  (1918);  State  v.  Tachin,  106  Atl. 
145,  108  Atl.  318,  two  J  J.  dissenting  (N.  J.,  1919);  State  v.  Gibson,  174 
N.  W.  34  (la.  1919).  But  see  Ex  parte  Meckel,  220  S.  W.  81  (Tex.  1920), 
the  only  case  holding  a  sedition  statute  unconstitutional. 

no  People  v.  Lynch,  11  Johns.  (N.  Y.)  549  (1814);  Ex  parte  Quar- 
rier,  2  W.  Va.  569  (1866).  The  National  Guard,  when  called  into  the 
service  of  the  United  States,  were  discharged  from  the  state  militia, 
U.  S.  Comp.  Stat.  1918,  §  2044a;  S.  T.  Ansell,  "Status  of  State  Militia 
under  the  Hay  Bill,"  30  Harv.  Law  Rev.  712. 


112  FREEDOM  OF  SPEECH 

Even  though  the  crime  be  not  held  exclusively  within  the 
jurisdiction  of  the  United  States,  still  this  seems  like  one 
of  those  cases  where  the  state  government  has  at  the  most 
a  power  concurrent  with  that  of  Congress,  which  must  cease 
to  operate  when  Congress  has  determined  the  proper  laws 
to  apply  to  the  subject-matter.  For  example,  a  state  would 
have  power  to  grant  immunity  from  civil  suits  to  persons 
in  military  service  so  long  as  there  was  no  federal  law  on 
the  subject,  but  when  Congress  passed  the  Soldiers'  and 
Sailors'  Civil  Relief  Act,  a  state  law  giving  a  less  or  a 
greater  degree  of  protection  became  thereby  invalid.111  The 
same  principle  applies  to  regulations  as  to  interference  with 
the  raising  of  armies. 

For  there  can  be  no  doubt  that  state  acts  like  that  in 
Minnesota  conflict  very  seriously  with  the  enforcement  of 
the  federal  statute,  so  as  to  render  the  state  legislation  ex- 
tremely undesirable  even  if  not  unconstitutional.  If  a  man 
deserves  to  be  prosecuted  for  his  anti-war  activities  it  is  fair 
to  presume  that  the  Department  of  Justice  will  have  him 
indicted  under  the  ample  provisions  of  the  Espionage  Act, 
and  it  is  important  that  the  control  of  proceedings  should 
be  in  the  hands  of  the  Department,  without  parallel  prosecu- 
tions by  independent  state  officials.  On  the  other  hand,  if 
Congress  and  the  federal  officials  think  it  wise  to  allow  much 
discussion  of  war  aims  and  economic  aspects,  it  is  very  un- 
fortunate that  their  policy  should  be  hampered  by  bitter 
prosecutions  based  on  an  entirely  different  policy  and  grow- 
ing out  of  local  hysteria  or  directed  against  opinions  which 
are  objectionable  to  influential  political  or  economic  groups 
in  the  state.  Mr.  O'Brian  contrasts  the  federal  policy  of 
restraint  against  members  of  the  Non-Partisan  League  and 
adherence  to  the  fundamental  principle  that  guilt  is  per- 
sonal and  that  no  class  of  individuals  will  be  proscribed 

in  Konkel  v.  State,  168  Wis.  335  (1919),  with  a  very  full  discussion; 
see  State  v.  Darwin,  102  Wash.  402  (1918).  Cf.  Halter  v.  Nebraska,  205 
U.  S.  34  (1907);  Houston  v.  Moore,  5  Wheat.  1  (1820).  The  dissenting 
opinions  in  S.  v.  Tachin,  108  Atl.  318,  make  the  same  point  and  also 
attack  the  N.  J.  statute  as  a  violation  of  freedom  of  speech. 


THE  WAR  WITH  GERMANY  113 

as  a  class,  with  the  sweeping  and  severe  action  of  Min- 
nesota:112 

The  result  of  its  adoption  increased  discontent  and  the  most 
serious  cases  of  alleged  interference  with  civil  liberty  were  re- 
ported to  the  federal  government  from  that  state.  Our  view  was 
that,  while  cases  of  individual  guilt  must  be  prosecuted  with 
severity,  class  movements  cannot  be  controlled  or  molded  by 
indictments.  Arbitrary  repression  or  interference  often  adds  to 
their  dynamic  force.  But  unfortunately  the  constructive  teach- 
ings and  arguments  of  persuasion  necessary  to  deal  with  move- 
ments of  this  character  were  not  at  any  time  in  evidence  in 
these  disturbed  districts  of  the  country. 

If  hostilities  had  continued  for  another  year,  these  local 
statutes  might  have  produced  an  alarming  effect  upon  the 
output  of  the  grain-producing  states  by  breeding  a  sup- 
pressed but  no  less  active  hatred  of  the  war  in  the  Non- 
partisan League,  and  might  also  in  jailing  members  of  the 
I.W.W.,  whom  the  Department  of  Justice  was  leaving  alone, 
have  blocked  the  conciliatory  work  of  Colonel  Disque  in  the 
spruce  forests  and  of  other  federal  agents  in  the  copper 
regions.113 

VIII.  Reflections  During  a  Technical  State  of  War 

I  do  not  speak  of  what  is  past  and  gone;  but  in  case  of  a 
future  war  what  results  will  follow  from  your  decision  indorsing 
the  Attorney  General's  views? — Jeremiah  Black,  arguing  in 
Ex  parte  Milligan,  2  Wall.  78. 

The  Espionage  Act  of  1917,  as  interpreted  by  the  Su- 
preme Court,  suppresses  free  speech  for  all  opponents  of  a 
war,  but  allows  militant  newspapers  and  politicians  to  block, 
by  unbounded  abuse,  the  efforts  of  the  President  to  end  a 
war  by  a  just  settlement.  Congress  reached  the  same  result 
by  the  1918  Act,  making  it  criminal  to  "  oppose  the  cause 
of  the  United  States  "  in  any  war. 

112  O'Brian,  296. 

liaO'Brian,  299;  Report  to  the  President  of  the  President's  Media- 
tion Commission.  For  a  very  harsh  case  of  a  ten-year  sentence  for  the 
victim  of  a  flag-kissing  mob,  Ex  parte  Starr,  263  Fed.  146  (1920). 


114  FREEDOM  OF  SPEECH 

The  Espionage  Act  of  1918  is  not  limited  to  this  war. 
The  pacifists  and  Socialists  were,  I  believe,  wrong  about  that, 
but  they  may  be  right  next  time.  They  might  have  been 
right  a  few  months  ago  had  we  been  drawn  into  war  with 
Mexico  as  carelessly  as  England  was  drawn  into  the  war 
with  Spain  over  Jenkins'  ear.  Balance  military  necessity  in 
such  a  case  against  the  harm  of  suppressing  truth  by  a  ten- 
year  sentence.  The  government  can  argue  better  than  its 
opponents,  if  it  has  any  case  at  all,  and  at  its  back  are 
public  opinion,  the  press,  the  police,  the  army,  to  prevent 
their  words  from  causing  unlawful  acts.  And  while  na- 
tional welfare  doubtless  demands  that  a  just  war  be  pushed 
to  victory,  it  also  demands  that  an  unjust  war  be  stopped. 
The  only  way  to  find  out  whether  a  war  is  unjust  is  to  let 
people  say  so. 

The  1918  clauses  punishing  attacks  on  the  Constitution 
and  our  form  of  government  raise  still  stronger  objections. 
They  have  nothing  to  do  with  war.  They  may  be  used 
during  some  petty  struggle  with  Haiti  to  arrest  and  im- 
prison for  twenty  years  an  excitable  advocate  of  the  repeal 
of  the  Eighteenth  Amendment  or  the  abolition  of  the  Senate. 
If  there  was  one  thing  which  the  First  Amendment  was 
meant  by  our  ancestors  to  protect,  it  was  criticism  of  the 
existing  form  of  government  and  advocacy  of  change,  the 
kind  of  criticism  which  George  Ill's  judges  punished.  Even 
if  the  Act  permits  temperate  discussion,  which  is  doubtful, 
in  view  of  the  words  about  causing  "  contempt  ...  or 
disrepute,"  it  still  abridges  free  speech,  for  the  greater  the 
need  of  change,  the  greater  the  likelihood  that  agitators 
will  lose  their  temper  over  the  present  situation.  It  is  im- 
possible to  speak  respectfully  of  that  portion  of  our  Con- 
stitution and  form  of  government  which  is  represented  by  the 
electoral  college,  and  much  hatred  has  justly  been  directed  to 
the  clause  for  the  return  of  fugitive  slaves.  Other  parts  may 
prove  equally  objectionable  in  the  course  of  years.  Par- 
ticularly dangerous  are  the  1918  clauses  about  defamation  of 
the  army  and  navy.    They  would  surely  be  invoked  by  advo- 


THE  WAR  WITH  GERMANY  115 

cates  of  compulsory  military  service  against  their  opponents, 
if  they  wished  to  take  advantage  of  any  hostilities  to  fasten 
conscription  upon  the  nation  as  a  continuous  policy.  They 
make  any  scathing  criticism  of  military  methods  a  very 
perilous  matter  in  future  wars  even  for  the  most  loyal  and 
eminent  civilians  (no  intent  to  favor  the  enemy  being  re- 
quired by  the  statute),  and  raise  the  army  and  navy  into 
a  privileged  position  beyond  the  range  of  ordinary  out- 
spoken discussion,  such  as  is  enjoyed  by  no  civilians.  This  is 
what  the  French  army  wanted  during  the  Dreyfus  affair, 
and  a  petty  war  will  suffice  to  give  it.  Furthermore,  if  the 
language  used  does  bring  the  army  or  navy  into  contempt, 
it  is  absolutely  immaterial  that  the  charge  made  is  true. 

That  these  predictions  of  what  will  happen  in  a  petty  war 
are  by  no  means  exaggerated  is  proved  by  what  has  been 
done  under  the  Espionage  Act  in  a  time  when  there  is  no 
war  at  all — except  by  a  legal  fiction.  First,  the  Attorney 
General,  a  year  after  the  armistice,  raided  and  closed  the 
office  of  the  Seattle  Union-Record,  because  it  urged  the 
workers  to  kick  the  governing  class  into  the  discard  at  the 
next  election,  and  said  that  the  Centralia  shootings  were  the 
culmination  of  a  long  series  of  illegal  acts  by  ex-service  men, 
pleading  for  law  and  order  by  rich  and  poor  alike.114  Sec- 
ondly, thirteen  months  after  the  armistice,  Mr.  Burleson 
still  kept  the  New  York  Call  from  the  mails,  and  announced 
to  the  Supreme  Court  of  the  District  of  Columbia  that  in 
view  of  the  facts,  his  exercise  of  judgment  was  "  not  subject 
to  be  reviewed,  reversed,  set  aside,  or  controlled  by  a  court 
of  law."  115  Thirdly,  fourteen  months  after  all  fighting  had 
stopped  three  men  were  tried  in  Syracuse  for  distributing 

114  Anna  Louise  Strong,  "  A  Newspaper  Confiscated — and  Returned," 
109  Nation  738  (Dec.  13,  1919).  Indictments  of  the  editors  for  items 
published  during  the  year  after  the  armistice  were  quashed  in  U.  S.  v. 
Strong,  263  Fed.  789;  U.  S.  v.  Listman,  ibid.  798;  U.  S.  v.  Ault,  ibid.  800. 
For  the  other  side,  see  Ole  Hanson,  Americanism  versus  Bolshevism, 
N.  Y.,  1920. 

us  United  States  of  America  ex  rel.  The  Workingmen's  Co-operative 
Publishing  Association  v.  Burleson,  Supreme  Court,  Dist.  Col.,  Oct. 
Term,  1919,  Law  No.  63134.    Answer  of  Respondent. 


116  FREEDOM  OF  SPEECH 

circulars  in  the  autumn  of  1919,  describing  ill-treatment  of 
political  prisoners,  calling  an  amnesty  meeting,  and  request- 
ing that  letters  be  written  to  the  President  and  members  of 
Congress.  The  leaflets  quoted  the  First  Amendment,  Ex 
parte  Milligan,  and  a  speech  by  President  Wilson.  The 
defendants  were  convicted  and  sentenced  to  eighteen  months 
in  prison  for  disloyal  language  about  our  form  of  govern- 
ment and  the  military  forces,  language  designed  to  bring 
them  and  the  Constitution  into  contempt,  inciting  resistance 
to  the  United  States,  and  obstruction  of  recruiting.118 

The  Supreme  Court  has  never  passed  squarely  on  these 
sections  of  the  Espionage  Act  of  1918,  though  some  of  them 
were  involved  in  the  Abrams  case,  and  it  is  to  be  hoped  that 
they  will  be  declared  unconstitutional.  It  would  be  better 
yet  if  they  and  the  whole  of  section  3  were  repealed. 

Whatever  be  decided  as  to  constitutionality,  the  Es- 
pionage Act  prosecutions  break  with  a  great  tradition  in 
English  and  American  law.  Only  once  before  has  the  United 
States  tried  to  punish  political  crimes,  and  the  Sedition  Act 
of  1798  with  its  maximum  of  two  years'  imprisonment 
wrecked  the  Federalist  party.  The  Mexican  War  produced 
the  Biglow  Papers,  and  every  stanza  in  the  opening  poem 
would  have  violated  a  separate  clause  of  the  Espionage  Act 
of  1918,  if  the  slaveholders  had  drafted  such  a  statute.  We 
fought  the  Civil  War  with  the  enemy  at  our  gates  and  pow- 
erful secret  societies  in  our  midst  without  an  Espionage 
Act. 

When  the  disloyal  press  was  curbed  by  Burnside  and 
his  subordinates,  they  received  sharp  telegrams  of  revoca- 
tion from  Lincoln.  The  irritation  produced  by  such  acts 
was  in  his  opinion  "  likely  to  do  more  harm  than  the  publica- 
tion would  do."  117  Undoubtedly  he  permitted  a  very  large 
number  of  arbitrary  arrests  by   Seward   and   Stanton,  or 

««21  New  Republic  302  (Feb.  11,  1920);  "Bringing  the  Constitution 
into  Disrepute,"  21  ibid.  330  (Feb.  18,  1920).  U.  S.  v.  Steene,  263 
Fed.  130. 

11T  J.  F.  Rhodes,  History  of  the  United  States,  III,  553;  IV,  223-253, 
267  note,  467,  473;  VI,  78,  96.    For  Lincoln's  refusal  to  allow  General 


THE  WAR  WITH  GERMANY  117 

under  martial  law  in  the  border  states.  "  Must  I  shoot 
a  simple  soldier  boy  who  deserts,  while  I  must  not  touch  a 
hair  of  a  wily  agitator  who  induces  him  to  desert?"  But 
Lincoln's  policy,  apart  from  all  questions  of  its  legality,  was 
very  different  in  nature  from  most  of  the  Espionage  Act 
prosecutions  and  sentences.  He  was  proceeding  against 
men  who  were  so  far  within  the  test  of  direct  and  danger- 
ous interference  with  the  war  that  they  were  actually 
causing  desertions,  and  even  then  he  acted  to  prevent  and 
not  to  punish.  Vallandigham  was  sent  through  into 
the  Confederate  lines,  and  left  unmolested  on  his  return. 
Lincoln  would  not  have  allowed  an  old  man,  a  Presiden- 
tial opponent  and  the  choice  of  nine  hundred  thousand 
American  citizens,  to  lie  in  prison  for  sincere  and  harmless, 
even  though  misguided,  words,  over  a  year  after  the  last 
gun  was  fired. 

If  the  North  was  a  dictatorship,  says  Rhodes,  the  South 
was  a  socialized  state,  which  was  much  closer  to  the  situation 
of  all  the  countries  engaged  in  the  World  War.  There  the 
newspapers  were  probably  under  closer  control,  but  there 
were  no  prosecutions. 

And  so  in  England.  Bright  and  Cobden  in  the  Crimean 
War,  Morley  and  Lloyd  George  in  the  Boer  War,  were  un- 

Burnside  and  his  subordinates  to  suppress  the  Chicago  Times  and  other 
newspapers  of  Copperhead  tendencies  in  Illinois,  Indiana,  and  Ohio,  see 
also  Official  Record  of  the  Rebellion,  Series  II,  Vol.  V,  723,  741;  Series 
III,  Vol.  Ill,  252.  On  number  of  arrests,  Rhodes,  IV,  230  note;  Lincoln's 
Proclamation  suspending  habeas  corpus  for  "aiders  or  abettors  of  the 
enemy,"  13  Stat,  at  L.  734. 

The  case  of  Ex  parte  Vallandigham,  1  Wall.  (U.  S.)  243  (1863),  is 
sometimes  supposed  to  support  the  unlimited  exercise  of  the  war  power 
to  restrict  speech.  See  Ambrose  Tighe  in  3  Minn.  L.  Rev.  1  (1918). 
The  decision  merely  holds  that  the  writ  of  certiorari  does  not  lie  to  a 
military  tribunal.  Nothing  is  said  as  to  the  existence  of  some  other 
remedy  such  as  habeas  corpus,  or  an  action  for  false  imprisonment. 
Ex  parte  VallandigHam,  28  Fed.  Cas.  874  (1863),  lends  support  to  Mr. 
Tighe.  The  treatment  of  Vallandigham  is  considered  illegal  by  Rhodes, 
op.  cit.,  IV,  245-252,  and  would  seem  so  under  Ex  parte  Milligan.  On 
the  South,  Rhodes,  V,  473,  is  contradicted  by  Edward  A.  Pollard,  Jef- 
ferson Davis,  p.  316.  As  late  as  May  19,  1864,  a  resolution  was  intro- 
duced in  the  Confederate  Congress  to  inquire  if  legislation  was  neces- 
sary to  prevent  press  disclosures  of  military  information.  4  Journ. 
C.  S.  A.  Cong.,  p.  60. 


118  FREEDOM  OF  SPEECH 

touched.  Even  in  this  war,  while  the  terms  of  the  De- 
fense of  the  Realm  Act  are  more  sweeping  than  our  statute, 
the  administration  has  been  less  severe.  Those  who  enforced 
it  have  allowed  a  wide  range  of  discussion  and  imposed  brief 
sentences,  though  they  sat  within  sound  of  the  German  guns. 
And  of  all  the  nations  at  war,  we  alone,  three  thousand 
miles  from  the  conflict,  still  refuse  a  general  amnesty  to 
political  prisoners.118 

Undoubtedly  some  utterances  had  to  be  suppressed.  We 
have  passed  through  a  period  of  danger,  and  have  reason- 
ably supposed  the  danger  to  be  greater  than  it  actually  was, 
but  the  prosecutions  in  Great  Britain  during  a  similar  period 
of  peril  in  the  French  Revolution  have  not  since  been  re- 
garded with  pride.  Action  in  proportion  to  the  emergency 
was  justified,  but  we  have  censored  and  punished  speech 
which  was  very  far  from  direct  and  dangerous  interference 
with  the  conduct  of  the  war.  The  chief  responsibility  for 
this  must  rest,  not  upon  Congress  which  was  content  for 
a  long  period  with  the  moderate  language  of  the  Espionage 
Act  of  1917,  but  upon  the  officials  of  the  Department  of 
Justice  and  the  Post-office,  who  turned  that  statute  into  a 
drag-net  for  pacifists,  and  upon  the  judges  who  upheld  and 
approved  this  distortion  of  law.  It  may  be  questioned  too, 
how  much  has  actually  been  gained.  Men  have  been  impris- 
oned, but  their  words  have  not  ceased  to  spread.119  The 
poetry  in  the  Masses  was  excluded  from  the  mails  only  to 
be  given  a  far  wider  circulation  in  two  issues  of  the  Federal 
Reporter,  The  mere  publication  of  Mrs.  Stokes'  statement 
in  the  Kansas  City  Star,  "  I  am  for  the  people  and  the  Gov- 

ii8  This  was  granted  in  Italy  on  November  19,  1918,  before  the 
signing  of  peace  and  in  Germany  before  the  armistice.  The  French 
amnesty  was  October  24,  1919.  Sentences  under  the  British  Defense 
of  the  Realm  Act  have  all  expired,  being  very  short;  the  longest,  three 
years,  was  commuted  to  one  year.  This  note  comprises  only  seditious 
utterances  in  the  war,  not  treasonable  acts  like  the  Bonnet  Rouge  affair 
or  Irish  convictions  since  the  armistice. 

us  Cf.  a  similar  experience  of  the  Emperor  Tiberius:  Tacitus,  Annals, 
IV,  c.  35:  "Punitis  ingeniis,  gliscit  auctoritas."  "A  man  who  preaches 
in  the  stocks  will  always  have  hearers  enough."— Dr.  Johnson. 


THE  WAR  WITH  GERMANY  119 

ernment  is  for  the  profiteers,"  was  considered  so  dangerous 
to  the  morale  of  the  training  camps  that  she  was  sentenced 
to  ten  years  in  prison,  and  yet  it  was  repeated  by  every 
important  newspaper  in  the  country  during  the  trial.  There 
is  an  unconscious  irony  in  all  suppression.  It  lurks  behind 
Judge  Hough's  comparison  of  the  Masses  to  the  Beati- 
tudes,120 and  in  the  words  of  Lord  Justice  Scrutton  during 
this  struggle  against  autocracy :  "  It  had  been  said  that  a 
war  could  not  be  conducted  on  the  principles  of  the  Sermon 
on  the  Mount.  It  might  also  be  said  that  a  war  could 
not  be  carried  on  according  to  the  principles  of  Magna 
Charta."  m 

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

120  See  page  55,  supra. 

"iRonnfeldt  v.  Phillips,  35  T.  L.  R.  46  (1918,  C.  A.). 


CHAPTER  III 

A  CONTEMPORARY  STATE  TRIAL— THE  UNITED 
STATES  VS.  JACOB  ABRAMS  ET  AL. 

In  this  case  sentences  of  twenty  years  imprisonment  have 
been  imposed  for  the  publishing  of  two  leaflets  that  I  believe  the 
defendants  had  as  much  right  to  publish  as  the  Government  has 
to  publish  the  Constitution  of  the  United  States  now  vainly 
invoked  by  them. — Justice  Holmes. 

Shortly  before  eight  o'clock,  on  the  morning  of  August 
23,  1918,1  several  men  and  boys  were  loitering  at  the  corner 
of  Houston  and  Crosby  streets,  in  New  York  City,  perched 
on  sprinkler  hydrants  or  standing  about  in  talk,  while  they 
waited  for  the  day's  work  to  begin  in  the  manufacturing 
building  close  by.  One  or  two  happened  to  look  up  and 
saw  something  being  thrown  from  a  window  above  and  fall- 
ing— the  air  was  full  of  leaflets.  Nothing  of  the  kind  had 
ever  happened  there  before,  and  the  workmen  picked  the 
papers  up  curiously  from  sidewalk  and  gutter.  Some  circu- 
lars in  Yiddish  they  could  not  make  head  or  tail  of,  but 
they  read  together  others  in  English,  which  attacked  the 
recent  despatch  of  troops  to  Russia. 

There  has  been  so  much  misapprehension  about  the  word- 
ing of  these  two  leaflets  that  their  text  ought  to  be  given  in 
full.2     That  in  English  was  as  follows: 

THE 

HYPOCRISY 

OF  THE 

UNITED  STATES 

AND  HER  ALLIES 

"  Our  "  President  Wilson,  with  his  beautiful  phraseology,  has 
hypnotized  the  people  of  America  to  such  an  extent  that  they  do 
not  see  his  hypocrisy. 

iThe  sources  for  this  case  are  in  the  Bibliography. 
2  The  English  pamphlet  is  Government's  Exhibit  No.  1,  Record,  p. 

120 


A  CONTEMPORARY  STATE  TRIAL  121 

Know,  you  people  of  America,  that  a  frank  enemy  is  always 
preferable  to  a  concealed  friend.  When  we  say  the  people  of 
America,  we  do  not  mean  the  few  Kaisers  of  America,  we  mean  the 
"  People  of  America."  You  people  of  America  were  deceived  by 
the  wonderful  speeches  of  the  masked  President  Wilson.  His 
shameful,  cowardly  silence  about  the  intervention  in  Russia  reveals 
the  hypocrisy  of  the  plutocratic  gang  in  Washington  and  vicinity. 

The  President  was  afraid  to  announce  to  the  American  people 
the  intervention  in  Russia.  He  is  too  much  of  a  coward  to 
come  out  openly  and  say :  "  We  capitalistic  nations  cannot  afford 
to  have  a  proletarian  republic  in  Russia."  Instead,  he  uttered 
beautiful  phrases  about  Russia,  which,  as  you  see,  he  did  not 
mean,  and  secretly,  cowardly,  sent  troops  to  crush  the  Russian 
Revolution.  Do  you  see  how  German  militarism  combined  with 
allied  capitalism  to  crush  the  russian  revolution? 

This  is  not  new.  The  tyrants  of  the  world  fight  each  other 
until  they  see  a  common  enemy — working  class — enlightment 
as  soon  as  they  find  a  common  enemy,  they  combine  to  crush  it. 

In  1815  monarchic  nations  combined  under  the  name  of  the 
"Holy  Alliance  "  to  crush  the  French  Revolution.  Now  mili- 
tarism and  capitalism  combined,  though  not  openly,  to  crush  the 
russian  revolution. 

What  have   you  to  say  about  it? 

Will  you  allow  the  Russian  Revolution  to  be  crushed?  You: 
Yes,  we  mean  you  the  people  of  America ! 

The  Russian  Revolution  calls  to  the  workers  op  the 
world  for  help. 

The  Russian  Revolution  cries :  "  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. 

It  is  a  crime,  that  workers  of  America,  workers  of  Germany, 
workers  of  Japan,  etc.,  to  fight  the  Workers'  Republic  of 
Russia. 

Awake!   Awake,   You 

Workers  of  the  World! 

Revolutionists 

P.  S.  It  is  absurd  to  call  us  pro-German.  We  hate  and 
despise  German  militarism  more  than  do  your  hypocritical  ty- 
rants. We  have  more  reasons  for  denouncing  German  militarism 
than  has  the  coward  of  the  White  House. 

245.  Errors  of  punctuation,  etc.,  are  preserved.  The  translation  of  the 
Yiddish  pamphlet  is  Government's  Exhibit  No.  2,  Record,  p.  247.  Both 
measure  12x4%  inches,  one  page,  printed  on  one  side. 


122  FREEDOM  OF  SPEECH 

The  Yiddish  leaflet  has  been  translated.  This  trans- 
lation was  accepted  as  correct  by  the  government  and  the 
defense.  Abrams,  however,  suggested  a  few  changes  during 
his  testimony.  It  would  be  interesting  to  know  how  much 
stronger  the  Yiddish  equivalent  for  "  murder  "  at  the  end 
of  the  fourth  paragraph  is  than  the  word  for  "  kill." 

Workers — Wake  Up. 

The  preparatory  work  for  Russia's  emancipation  is  brought  to 
an  end  by  his  Majesty,  Mr.  Wilson,  and  the  rest  of  the  gang; 
dogs  of  all  colors ! 

America,  together  with  the  Allies,  will  march  to  Russia,  not, 
"  God  Forbid,"  to  interfere  with  the  Russian  affairs,  but  to 
help  the  Czecho-Slovaks  in  their  struggle  against  the  Bolsheviki. 
^Oh,  ugly  hypocrites ;  this  time  they  shall  not  succeed  in  fooling 
the  Russian  emigrants  and  the  friends  of  Russia  in  America.  Too 
visible  is  their  audacious  move. 

Workers,  Russian  emigrants,  you  who  had  the  least  belief  in  the 
honesty  of  our  government  must  now  throw  away  all  confidence, 
must  spit  in  the  face  the  false,  hypocritic,  military  propaganda 
which  has  fooled  you  so  relentlessly,  calling  forth  your  sympathy, 
your  help,  to  the  prosecution  of  the  war.  With  the  money  which 
you  have  loaned  or  are  going  to  loan  them,  they  will  make  bullets 
not  only  for  the  Germans  but  also  for  the  Workers  Soviets  of 
Russia.  Workers  in  the  ammunition  factories,  you  are  producing 
bullets,  bayonets,  cannon,  to  murder  not  only  the  Germans,  but 
also  your  dearest,  best,  who  are  in  Russia  and  are  fighting  for 
freedom. 

You  who  emigrated  from  Russia,  you  who  are  friends  of  Russia, 
will  you  carry  on  your  conscience  in  cold  blood  the  shame  spot 
as  a  helper  to  choke  the  Workers  Soviets.  Will  you  give  your 
consent  to  the  inquisitionary  expedition  to  Russia?  Will  you  be 
calm  spectators  to  the  fleecing  blood  from  the  hearts  of  the  best 
sons  of  Russia? 

America  and  her  Allies  have  betrayed  (the  workers).  Their 
robberish  aims  are  clear  to  all  men.  The  destruction  of  the 
Russian  Revolution,  that  is  the  politics  of  the  march  to  Russia. 

Workers,  our  reply  to  the  barbaric  intervention  has  to  be  a 
general  strike!  An  open  challenge  only  will  let  the  government 
know  that  not  only  the  Russian  Worker  fights  for  freedom,  but 
also  here  in  America  lives  the  spirit  of  revolution. 

Do  not  let  the  government  scare  you  with  their  wild  punishment 


A  CONTEMPORARY  STATE  TRIAL  123 

in  prisons,  hanging  and  shooting.  We  must  not  and  will  not 
betray  the  splendid  fighters  of  Russia.     Workers,  up  to  fight. 

Three  hundred  years  had  the  Romanoff  dynasty  taught  us  how 
to  fight.  Let  all  rulers  remember  this,  from  the  smallest  to  the 
biggest  despot,  that  the  hand  of  the  revolution  will  not  shiver 
in  a  fight. 

Woe  unto  those  who  will  be  in  the  way  of  progress.  Let 
solidarity  live!  the  rebels. 

The  Military  Intelligence  Police  were  notified,  and  sent 
two  army  sergeants,  who  climbed  from  floor  to  floor  of  the 
manufacturing  building  asking  questions,  until  at  a  hat  fac- 
tory on  the  fourth  story  they  arrested  Rosansky,  a  young 
Russian,  who  eventually  confessed  that  he  had  thrown  out 
the  circulars.  Three  men  whom  he  had  met  at  an  anarchistic 
meeting  a  fortnight  previously  had  handed  him  a  package 
of  leaflets  the  night  before,  and  asked  him  to  toss  them 
from  some  window  where  people  were  passing.  As  he  had 
a  rendezvous  with  the  same  men  that  night,  the  Military 
Police  with  his  aid  captured  six  other  Russians, — five  men 
and  a  girl.  The  oldest  man,  Abrams,  was  twenty-nine,  the 
youngest,  Lipman,  twenty-one,  the  same  age  as  the  girl, 
Molly  Steimer.  The  sergeants  went  with  some  of  the  pris- 
oners to  their  lodgings,  three  flights  up  a  rear  staircase  on 
East  104th  Street.  It  was  an  apartment  of  six  rooms, — 
a  front  room  with  a  table  and  some  books,  a  cot,  and  a 
bookstand ;  two  bedrooms,  in  one  a  bed,  in  the  other  a  mat- 
tress on  the  floor;  a  dining-room  so-called  which  had  a 
catercornered  closet  containing  a  lot  of  books  and  papers 
and  in  the  center  large  boxes  like  packing-boxes,  used  ap- 
parently for  desks,  and  also  some  chairs  and  a  long  couch ; 
a  room  that  could  be  called  a  kitchen  because  it  had  a  sink; 
and  a  rear  room  used  by  Molly  Steimer,  just  a  chair  and 
some  women's  clothes  hanging  on  the  door.  Such  was  the 
headquarters  of  the  great  conspiracy. 

Shortly  after  midnight,  Thomas  J.  Tunney,  the  Police 
Inspector  who  had  questioned  Rosansky  in  the  morning,  and 
author  of  Throttled,  a  book  on  bomb-plotters,  examined  the 


124  FREEDOM  OF  SPEECH 

prisoners  in  the  presence  of  several  army  sergeants,  and  ob- 
tained statements  which  were  taken  down  stenographically. 
The  prisoners  refused  to  tell  where  the  pamphlets  were 
printed,  but  some  of  the  sergeants,  after  finding  a  bill  for 
a  printing  press  and  materials  in  Abrams'  papers,  learned 
from  the  seller  that  they  had  been  sold  to  Abrams  about 
July  15,  partly* on  a  chattel  mortgage,  and  had  been  de- 
livered at  the  basement  of  1582  Madison  Avenue.  The 
Military  Police  entered  the  basement  with  a  search  warrant 
and  discovered  a  motor  driven  press  and  a  small  hand  press, 
bundles  of  blank  paper  of  the  same  size  as  the  English  and 
Yiddish  pamphlets,  and  English  and  Hebrew  type  of  the 
style  used  in  them.  The  side  door  of  the  basement  had  been 
broken  in,  plates  and  type  were  thrown  on  the  chairs,  torn 
pieces  of  both  pamphlets  had  been  set  on  fire  in  a  pail  and 
partly  burned.  Misprinted  pamphlets  and  corrected  proof 
lay  crumpled  upon  the  floor.  Further  investigation  showed 
that  Abrams  had  rented  the  basement  from  the  janitress 
in  mid-July  for  eight  dollars  a  month,  and  that  she  had 
seen  him  and  Lachowsky,  another  prisoner,  working  there 
together. 

The  prisoners,  one  of  whom,  Schwartz,  died  before  trial, 
were  indicted  for  conspiracy  to  violate  four  clauses  of  the 
Espionage  Act  of  1918.3  The  case  promised  to  be  deci- 
sive for  two  reasons.  It  was  the  only  important  prosecu- 
tion for  the  new  crimes  created  by  the  Espionage  Act  of 
1918,  although  one  such  crime  had  been  incidentally  involved 
in  the  Debs  trial.  Consequently,  the  construction  and  con- 
stitutionality of  this  Sedition  Act  of  1918  would  very  prob- 
ably be  called  in  question.  In  the  second  place,  the  defend- 
ants were  not  prosecuted  for  pacifist  or  pro-German  utter- 
ances, as  in  the  general  run  of  Espionage  Act  cases,  but  for 
agitation  against  the  government's  Russian  policy.  The 
Department  of  Justice  had  prevented  several  other  prosecu- 

s  The  conspiracy  section  of  the  Espionage  Act  is  Act  of  June  15, 
1917,  c.  30,  Title  I,  §4;  U.  S.  Comp.  Stat.,  1918,  §  102126%  §3  and  the 
cases  thereunder  are  in  Appendix  III.    See  page  44,  supra. 


A  CONTEMPORARY  STATE  TRIAL  125 

tions  of  so-called  Bolshevists  for  opposition  to  that  policy, 
since  no  war  had  been  declared  against  Russia.  For 
example,  no  trial  was  ever  held  upon  an  indictment  con- 
temporaneous with  that  against  the  Abrams  group  which 
was  presented  in  New  York  against  Abraham  Shiplacoff  for 
a  speech  at  a  Socialist  meeting,  in  which  he  compared  the 
attitude  of  the  Russian  toward  the  American  troops  to  the 
sentiments  of  our  revolutionary  patriots  toward  those  "  hired 
murderers,"  the  Hessians.  The  appeal  of  the  Abrams 
group  to  munition  workers  for  a  general  strike  was,  how- 
ever, regarded  as  more  serious,  and  since  the  prosecution 
had  got  under  way  before  the  Department  of  Justice  learned 
of  it,  it  was  allowed  to  proceed.4 

I.  The  District  Court 

The  trial  of  Abrams  and  his  associates,  except  Schwartz, 
began  on  October  10,  1918,  in  the  United  States  Court 
House  in  New  York  City  before  Judge  Clayton  of  the  North- 
ern and  Middle  Districts  of  Alabama.  Henry  De  Lamar 
Clayton  was  then  sixty-one  years  of  age.  Belonging  to  a 
distinguished  Alabama  family  he  had  graduated  from  the 
State  University  and  practised  law  in  Montgomery.  For 
eighteen  years  he  represented  Alabama  in  Congress,  serving 
eventually  as  Chairman  of  the  Judiciary  Committee  of  the 
House  and  giving  his  name  to  the  well-known  Clayton  Act. 
In  1914  he  was  appointed  to  the  United  States  bench.  This 
was  his  first  prominent  Espionage  Act  case. 

There  were  in  the  Southern  District  of  New  York  three 
judges  with  extensive  experience  in  the  difficulties  of  war 
legislation.  Judge  Learned  Hand  had  heard  the  equity  suit 
of  the  Masses  to  obtain  admission  to  the  mails,  and  the 
demurrer  of  Scott  Nearing.  Judge  Julius  M.  Mayer  had 
sat  on  the  Circuit  Court  of  Appeals  which  reversed  Judge 
Hand's   decision   in   the   Masses   case,   and  had   also   tried 

*  Testimony  of  Alfred  Bettman,  Hearings  before  the  Committee 
on  Rules,  126.— N.  Y.  Times,  Sept.  24,  1918. 


126  FREEDOM  OF  SPEECH 

Goldman  and  Phillips  for  opposing  the  draft.  Judge 
Augustus  N.  Hand  had  presided  at  the  trial  of  Max  East- 
man. If  two  corporations  were  litigating  the  validity  of  an 
important  patent,  they  would  be  surprised  to  have  the 
matter  heard  by  a  judge  who  had  little  experience  in  patent 
cases,  especially  if  three  judges  trained  in  similar  contests 
were  available.  In  the  Abrams  trail,  six  persons  risked  the 
best  part  of  their  lives  upon  the  decision  of  the  perplexing 
problems  of  freedom  of  speech.  The  position  of  the  defend- 
ants could  hardly  be  understood  without  some  acquaintance 
with  the  immigrant  population  of  a  great  city,  some  knowl- 
edge of  the  ardent  thirst  of  the  East  Side  Jew  for  the 
discussion  of  international  affairs.  Yet  because  the  New 
York  dockets  were  crowded  the  Abrams  case  was  assigned  to 
a  judge  who  had  tried  no  important  Espionage  Act  case,  who 
was  called  in  from  a  remote  district  where  people  were  of 
one  mind  about  the  war,  where  the  working  class  is  more  con- 
spicuous for  a  submissive  respect  for  law  and  order  than  for 
the  criticism  of  high  officials,  where  Russians  are  scarce  and 
Bolshevists  unknown. 

The  government  was  represented  by  Francis  G.  Caf- 
fey,  United  States  Attorney,  with  John  M.  Ryan  and  S.  L. 
Miller,  Assistant  United  States  Attorneys,  of  counsel. 
Harry  Weinberger  of  New  York  appeared  for  the  defend- 
ants. The  jury  was  duly  empaneled  and  sworn  on  Monday, 
October  14,  and  the  trial  ended  on  Wednesday,  October  23. 

The  overt  acts  were  proved  without  contradiction.  Soon 
after  United  States  troops  were  sent  to  Vladivostok,  the 
group  had  begun  meeting  in  the  bare  "  third  floor-back  " 
on  East  104th  Street,  where  most  of  them  lived,  and  de- 
cided to  protest  against  the  attack  on  the  Russian  Revolu- 
tions, with  which  as  anarchists  or  Socialists  they  strongly 
sympathized.  Schwartz,  the  dead  prisoner,  had  written 
the  Yiddish  circular,  and  Lipman  the  English.  Abrams, 
the  oldest,  bought  the  press.  After  printing  five  thousand 
copies  of  each  circular  he  stopped  for  lack  of  funds.  La- 
chowsky    and    Molly    Steimer    had    distributed    about    nine 


A  CONTEMPORARY  STATE  TRIAL  127 

thousand  pamphlets,  throwing  them  in  the  streets  where 
there  were  the  most  working-people  or  passing  them  around 
at  radical  meetings.  Rosansky's  aid  had  been  secured  just 
before  the  arrests.  There  was  no  evidence  that  one  person 
was  led  to  stop  any  kind  of  war  work,  or  even  that  the 
pamphlets  reached  a  single  munition  worker. 

The  defense,  besides  contending  that  the  Espionage  Act 
was  unconstitutional,  maintained  that  it  was  not  violated, 
and  in  particular  that  the  criminal  intent  required  by  the 
express  terms  of  the  statute  did  not  exist.  Each  count  of 
the  indictment 5  covered  a  conspiracy  to  violate  one  clause 
of  the  Act,  as  follows,  according  to  the  language  of  the 
statute.  Certain  phrases  in  the  indictment  which  are  not 
in  the  Act  are  enclosed  in  brackets. 

^* 

Whoever,  when  the  United  States  is  at  war,  .  .  .  shall 
willfully  utter,,  print,  write,  or  publish 

(Count  1)  any  disloyal,  .  .  .  scurrilous,  or  abusive  language 
about  the  form  of  government  of  the  United  States,  .  .  . 

(Count  2)  or  any  language  intended  to  bring  the  form  of 
government  of  the  United  States  .  .  .  into  contempt,  scorn, 
contumely,  or  disrepute,  .  .  . 

(Count  3)  or  .  .  .  any  language  intended  to  incite,  provoke, 
or  encourage  resistance  to  the  United  States  [in  said  war  with 
the  German  Imperial  Government],  .  .  . 

(Count  4)  or  shall  willfully  by  utterance,  writing,  printing, 
publication,  ...  urge,  incite,  or  advocate  any  curtailment  of 
production  in  this  country  of  any  thing  or  things,  product  or 
products  [to  wit,  ordnance  and  ammunition]  necessary  or  essential 
to  the  prosecution  of  the  war  in  which  the  United  States  may  be 
engaged,  [to  wit,  said  war  with  the  Imperial  German  Govern- 
ment], with  intent  by  such  curtailment  to  cripple  or  hinder  the 
United  States  in  the  prosecution  of  the  war,  .  .  . 

shall  be  punished  by  a  fine  of  not  more  than  $10,000  or  im- 
prisonment for  not  more  than  twenty  years  or  both. 

As  to  the  first  crime  charged,  the  publication  of  "  dis- 
loyal, .  .  .  scurrilous,  or  abusive  language  "  about  our  form 
of  government,  the  Espionage  Act  by  its  terms  punishes  the 

s  The  indictment  is  in  Record,  2-19. 


128  FREEDOM  OF  SPEECH 

act  of  publication,  without  any  mention  of  intent.  Although 
some  district  judges  have  considered  that  there  must  be  an 
evil  or  wicked  intention,6  it  has  been  contended  with  much 
force  and  on  high  authority 7  that  the  utterance  of  the 
words  is  in  itself  criminal  regardless  of  the  state  of  mind. 
On  this  view,  all  that  is  necessary  is  intention  to  publish. 
There  need  be  no  intention  to  be  abusive  or  disloyal  about 
the  form  of  government.  If  so,  the  Espionage  Act  is  in 
this  respect  much  more  rigorous  than  the  Sedition  Act  of 
1798,  which  created  the  crime  of  "  publishing  any  false, 
scandalous  and  malicious  writing  against  the  government," 
but  required  intent  to  defame  it  or  excite  against  it  the 
hatred  of  the  people-  or  stir  up  sedition.  Also  the  penalty 
was  only  two  years'  imprisonment,  and  truth  was  a  defense 
under  that  Act,  whereas  now  a  statement  in  real  or  technical 
war  time  of  the  soundest  truths  about  our  form  of  govern- 
ment is  punishable  by  twenty  years  in  prison  if  only  those 
truths  are  sufficiently  damaging  to  be  considered  abusive 
or  disloyal. 

However  this  may  be,  intention  to  injure  is  certainly 
material  on  the  other  three  counts.  Furthermore,  the  first 
and  second  counts  may  be  dismissed  at  this  point  from 
further  discussion.  First,  these  clauses  of  the  Espionage 
Act  of  1918  punishing  attacks  on  the  Constitution  and  our 
form  of  government  seem  clearly  unconstitutional,  as  stated 
in  the  preceding  chapter.  Also,  even  if  they  are  constitu- 
tional, there  was  no  attack  in  the  pamphlets  on  our  form 
of  government,  but  only  upon  those  who  were  administer- 
ing that  government.  Surely  the  phrase  "  capitalistic  na- 
tion "  does  not  constitute  defamation  of  our  political  struc- 
ture, which  is  compatible  with  other  types  of  economic  or- 
ganization, such  as  national  ownership  of  all  industries. 
Although  the  heavy  fines  imposed  on  the  defendants  under 

e  United  States  v.  Buessel,  Bull.  131;  United  States  v.  Martin,  Bull. 
157;  United  States  v.  Equi,  Bull.  172. 

*33  Harv.  L.  Rev.  442,  443,  citing  Learned  Hand,  J.,  in  United 
States  v.  Curran,  Bull.  140. 


A  CONTEMPORARY  STATE  TRIAL  129 

these  two  counts  called  for  some  decision  on  their  con- 
stitutionality or  construction,  the  Supreme  Court  refused 
to  make  it,  and  Justice  Clarke  contented  himself  with  sug- 
gesting that  the  distinction  between  abusing  our  form  of 
government  and  abusing  the  President  and  Congress,  the 
agencies  through  which  it  must  function  in  time  of  war, 
might  be  only  "  technical."  8  If  so,  these  sections  of  the 
Espionage  Act  must  have  been  more  frequently  violated  in 
Wall  Street  than  in  Harlem. 

The  controversy  about  this  case  must  be  limited  to  the 
third  and  fourth  counts  of  the  indictment.  Aside  from  ques- 
tions of  constitutionality,  the  government  had  to  establish 
the  specific  criminal  intent  required  by  the  indictment  and 
the  Espionage  Act.  (1)  It  had  to  prove  intention  to  pub- 
lish the  pamphlets,  because  of  the  word  "  willfully  "  and 
on  general  principles  of  the  criminal  law,  which  ordinarily 
requires  intention  to  do  the  prohibited  act.  This  the  gov- 
ernment undoubtedly  did.  (2)  Under  the  fourth  count 
it  had  to  prove  intention  to  produce  curtailment  of  muni- 
tions, because  the  words  "  urge,  incite,  advocate "  create 
an  offense  analogous  to  criminal  solicitation,  which  involves 
a  specific  intent  to  bring  about  the  overt  act.  There  are 
some  sentences  in  the  Yiddish  circular  which  show  such  an 
intention,  although  it  is  open  to  question  whether  an  inci- 
dental portion  of  a  general  protest  which  is  not  shown  to 
have  come  dangerously  near  success  really  constitutes  crim- 
inal solicitation  or  amounts  to  advocating.  (3)  At  all 
events,  the  main  task  of  the  government  was  to  establish 
under  both  counts  an  additional  intention  to  interfere  with 
the  war  with  Germany,  and  the  question  whether  it  proved 
anything  more  than  an  intention  to  obstruct  operations  in 
Russia  is  the  vital  issue  of  fact  in  the  case. 

Since  we  had  not  declared  war  upon  Russia,  protests 
against  our  action  there  could  not  be  criminal  unless  they 
were  also  in  opposition  to  the  war  with  Germany.  There 
are  two  conceivable  theories  of  guilt,  which  might  connect  the 

a  Abrams  v.  United  States,  250  U.  S.  616,  623. 


130  FREEDOM  OF  SPEECH 

circulars  with  the  war.  First,  that  the  despatch  of  troops  to 
Siberia  was  "  a  strategic  operation  against  the  Germans  on 
the  eastern  battle  front,"  so  that  any  interference  with  that 
expedition  hindered  the  whole  war.  The  second  theory  is, 
that  the  circulars  intended  to  cause  armed  revolts  and  strikes 
and  thus  diminish  the  supply  of  troops  and  munitions  avail- 
able against  Germany  on  the  regular  battle  front. 

Clearly  the  second  theory  is  the  only  legitimate  basis  for 
conviction.  That  opposition  intended  to  hinder  the  armed 
occupation  of  neutral  territory  and  asserting  it  to  be  illegal 
should  be  per  se  criminal  is  so  clearly  a  travesty  on  the 
defense  of  Belgium  and  a  violation  of  the  right  of  freedom 
of  speech  that  this  view  has  been  unanimously  rejected  by 
the  United  States  Supreme  Court  in  the  Abrams  case,  by 
the  government's  brief,9  and  by  writers  10  who  support  the 
decision.  They  have  all  adopted  the  second  theory  of  guilt 
and  have  taken  it  for  granted  that  the  jury  followed  the 
same  course.  They  assume  that  the  convictions  represent 
a  finding  of  fact  by  the  jury  that  the  defendants  intended 
to  interfere  with  operations  against  Germany  itself  and  to 
embarrass  or  defeat  the  military  plans  of  our  government 
in  Europe.  Practically  the  whole  of  the  discussion  of  the 
case  has  been  confined  to  the  question  whether  such  a  finding 
that  they  encouraged  strikes  and  revolts  justifies  convic- 
tion. Nevertheless,  I  believe  that  an  examination  of  the 
record  makes  it  highly  probable  that  these  defendants  were 
convicted  on  just  the  other  theory  for  trying  to  hinder  the 
Russian  expedition. 

As  a  state  trial,  this  case  cannot  be  understood  without 
reference  to  the  atmosphere  in  which  the  defendants  wrote 
the  circulars  and  the  jury  reached  their  verdict.  I  have  no 
desire  to  venture  into  the  Serbonian  bog  of  the  Russian  Revo- 
lution, but  a  few  undisputed  facts  must  be  recalled.11     On 

»  Page  35  ff . 

io  Mr.  Wigmore  is  a  possible  exception  and  may  regard  all  Bol- 
shevism as  within  the  Espionage  Act. 

ii  The  documents  are  in  7  N.  Y.  Times  Current  History  of  the  War, 
VII    (part    2)    273;    VIII    (part    1)    49;    VIII    (part  2)    465,    470; 


A  CONTEMPORARY  STATE  TRIAL  131 

January  8,  1918,  two  months  after  the  establishment  of 
the  Soviet  Government,  President  Wilson  declared  as  the 
sixth  of  his  Fourteen  Points,  that  Russia  must  have  "  an 
unhampered  and  unembarrassed  opportunity  for  the  inde- 
pendent determination  of  her  own  political  development," 
and  that  the  treatment  accorded  her  by  her  sister  nations 
during  the  months  to  come  would  be  "  the  acid  test  of  their 
good-will."  On  March  11  he  telegraphed  the  Pan-Soviet 
Congress,  "  May  I  not  take  advantage  of  the  meeting  of  the 
Congress  of  Soviets  to  express  the  sincere  sympathy  "  felt 
for  the  disastrous  outcome  of  the  Brest-Litovsk  negotia- 
tions, and  again  promised  that  Russia  should  be  secured 
"  complete  sovereignty  and  independence  in  her  own  affairs." 
Four  months  later  a  small  body  of  American  marines  joined 
in  the  occupation  of  Murmansk,  and  shortly  afterwards 
American  troops  were  sent  to  Vladivostok.  On  August  3, 
an  official  statement  from  Washington  announced  that  mili- 
tary intervention  in  Russia  would  only  add  to  the  confusion 
there  and  dissipate  our  forces  on  the  western  front.  Con- 
sequently, we  would  not  interfere  with  the  political  sov- 
ereignty of  Russia  or  intervene  in  her  local  affairs,  but  would 
merely  send  a  few  thousand  men  to  Vladivostok  in  co-opera- 
tion with  Japan,  who  had  given  a  similar  assurance.  The 
only  present  object  for  which  the  American  troops  would  be 
employed  would  be  to  help  the  Czechoslovaks  against  the 
armed  German  and  Austrian  prisoners  who  were  attacking 
them,  to  guard  military  stores,  and  render  acceptable  aid 
to  the  Russians  in  the  organization  of  their  own  self-defense ; 
but  we  could  not  restrict  the  actions  or  interfere  with  the 
independent  judgment  of  our  associates. 

A  few  days  later  Abrams  and  his  friends  wrote  and  printed 
the  leaflet  headed,  "  The  Hypocrisy  of  the  United  States  and 
her  Allies." 

IX  (part  I)  87.  They  are  reprinted  in  Russian- American  Relations, 
ed.  Cumming  and  Pettit,  N.  Y.,  1920.  See  Charles  Cheney  Hyde,  "  The 
Recognition  of  the  Czechoslovaks  as  Belligerents,"  13  Am.  J.  Int.  L.  93 
(1919). 


132  FREEDOM  OF  SPEECH 

The  Soviet  government  failed  to  distinguish  between  mili- 
tary intervention  and  the  arrival  of  foreign  troops  on  Rus- 
sian soil.  The  diplomatic  breach  was  complete.  Soon  after- 
wards the  newspapers  were  filled  with  accounts  of  Bolshe- 
vist atrocities.  In  September  the  United  States  recognized 
the  Czechoslovaks  as  a  belligerent  government  warring 
against  Germany  and  Austria,  with  their  capital  in  Wash- 
ington and  their  chief  army  in  Siberia,  so  that  the  seacoast 
of  Bohemia  was  evidently  the  Pacific  Ocean.  On  Septem- 
ber 15  the  United  States  Committee  on  Public  Information 
published  nation-wide  in  the  press  the  documents  12  collected 
by  its  representative,  Mr.  Edgar  Sisson,  which  were  stated 
to  show  that  the  present  heads  of  the  Bolshevist  government 
were  merely  hired  German  agents.  No  one  who  recalls  the 
widespread  popular  identification  of  the  Soviet  Government 
with  Germany  in  the  summer  and  early  autumn  of  1918  can 
doubt  that  an  October  jury  would  inevitably  regard  pro- 
Bolshevist  activities  as  pro-German,  and  consequently  apply 
the  first  or  Russian  theory  of  guilt,  besides  having  a  preju- 
dice against  tne  defendants  as  sympathizers  with  the  Rus- 
sian Revolution,  which  could  only  be  overcome  by  an  expo- 
sition of  the  Russian  situation  from  sources  which  had  as  yet 
found  no  expression  in  the  newspapers. 

Early  on  Friday,  October  18,  the  fifth  day  of  the  actual 
trial,  the  government  rested.  Mr.  Weinberger  opened  the 
case  to  the  jury  on  behalf  of  the  defendants,  and  called 
to  the  witness  stand  Colonel  Raymond  Robins.  Mr.  Robins 
had  not  abandoned  without  a  struggle  the  retirement  in 
which  he  had  lived  since  his  return  from  Russia.  He  had 
tried  to  avoid  service  of  a  subpoena,  and  the  United  States 

12  War  Information  Series,  No.  20  (October,  1918);  the  documents, 
without  the  historical  report,  are  in  Bolshevik  Propaganda,  etc.,  p. 
1125.  The  documents  appeared  in  the  public  press  by  installments, 
beginning  September  15,  1918.  See  the  New  York  Times  of  that  date. 
For  criticism  of  their  genuineness,  see  16  New  Republic  209  (Septem- 
ber 21,  1918),  107  Nation  616  (November  23,  1918),  and  the  anti- 
Bolshevist  book,  E.  H.  Wilcox,  Russia's  Ruin,  New  York,  1919.  They  are 
accepted  as  genuine  by  Etienne  Antonelli,  La  Russie  Bolcheviste,  Paris, 
1919. 


A  CONTEMPORARY  STATE  TRIAL  133 

marshal  was  on  the  point  of  breaking  in  the  door  of  his 
apartment  when  it  opened  and  Mr.  George  W.  Wickersham 
came  out.  As  Mr.  Robins's  personal  counsel  he  agreed  to 
his  testifying,  but  accompanied  him  to  and  from  the  court- 
room and  sat  at  the  counsel  table  during  his  examina- 
tion.13 

After  a  dozen  introductory  questions,  the  United  States 
attorney  objected  to  further  examination,  and  the  witness 
thereafter  was  obliged  to  remain  silent  while  the  defendants' 
counsel  ran  through  a  series  of  thirty  unanswered  questions 
in  order  to  get  them  on  the  record.  This  was  repeated  with 
Albert  Rhys  Williams,  and  it  was  not  considered  worth  while 
to  call  Edgar  Sisson  at  all.  The  admissibility  of  their  evi- 
dence raises  problems  that  go  to  the  heart  of  the  case. 

The  first  theory  of  guilt  raised  the  complex  question 
whether  the  Russian  expedition  was  a  part  of  the  war.  If 
this  is  a  political  question  which  must  be  answered  in  the 
affirmative  on  the  mere  ipse  dixit  of  the  government,  the 
existence  of  a  war  enables  the  government  to  withdraw  the 
most  remote  and  questionable  policies  from  the  scope  of 
ordinary  discussion  simply  by  labeling  them  a  war  matter. 
The  annexation  of  Mexico  to  prevent  its  becoming  a  base 
for  German  operations,  the  use  of  American  troops  to  put 
down  strikes  in  England  or  Sinn  Fein  in  Ireland,  are  no 
more  remotely  connected  with  the  war  with  Germany  than 
the  Russian  affair.  On  the  other  hand,  if  the  relation  of  such 
an  expedition  to  the  war  is  put  in  issue  to  be  decided  by 
the  jury,  the  defense  ought  to  be  able  to  call  witnesses  to 
disprove  it.  On  this  account,  in  the  Abrams  case,  Raymond 
Robins  and  other  eyewitnesses  of  Russian  affairs  were  sum- 
moned to  prove  that  the  Bolshevist  and  Czechoslovak  sit- 
uation was  such  that  our  intervention  was  not  anti-German ; 
but  this  testimony  and  all  questions  of  the  constitutionality 
of  intervention  were  excluded  by  Judge  Clayton  with  the 

"The  summary  of  the  Robins  incident  is  taken  from  Record,  110- 
138;  New  York  Call,  October  19,  1918;  conversation  with  Mr.  Wein- 
berger. 


134  FREEDOM  OF  SPEECH 

remark,  "  The  flowers  that  bloom  in  the  spring,  tra  la, 
have  nothing  to  do  with  the  case."  14 

This  phase  of  the  trial  is  very  important  for  its  demon- 
stration of  the  enormous  difficulties  of  proof  into  which  we 
have  brought  ourselves  in  the  United  States  by  creating 
political  crimes.  Before  the  Espionage  Act  our  criminal 
law  punished  men  almost  entirely  for  acts  which  take  place 
in  the  tangible  world  and  are  proved  by  the  evidence  of  our 
five  senses.  This  Act  punishes  men  for  words  which  cause 
no  injury,  but  have  a  supposedly  bad  tendency  to  harm  the 
state,  and  also  for  intentions  which  are  regarded  as  evil. 
Now,  bad  tendency  and  bad  intention  cannot  be  seen  or 
heard  or  touched  or  tasted  or  smelled.  They  are,  as  we 
have  seen,  a  matter  of  inference  from  the  complex  and  obscure 
background  of  general  conditions.  Consequently,  that  back- 
ground becomes,  whether  we  admit  witnesses  or  not,  an  issue 
in  the  case.  The  rules  of  evidence  for  the  trial  of  overt  crim- 
inal acts  prove  almost  useless.  Common  sense  makes  it 
plain  that  a  knowledge  of  Russian  affairs  was  essential  to  a 
jury  with  the  attitude  of  that  moment,  obliged  to  interpret 
the  repeated  references  to  Russia  in  the  circulars,  and  as 
we  shall  see,  told  often  by  the  judge  that  the  defendants 
were  guilty  if  their  pamphlets  were  issued  for  the  purpose 
of  preventing  the  government  from  carrying  on  its  opera- 
tions in  Russia. 

All  prosecutions  for  words  will  involve  us  in  the  same 
awkward  dilemma  that  was  suggested  in  connection  with  the 
"  false  statements  "  clause  in  the  Pierce  case.  If  we  follow 
the  logical  course  just  indicated  and  allow  the  alleged  pro- 
moter of  sedition  to  bring  in  a  mass  of  evidence  from  Rus- 
sia or  other  dark  and  distant  regions  to  show  that  neither 
he  nor  his  utterances  are  liable  to  cause  even  remote  injury 
to  the  national  welfare,  the  prosecution  is  justly  entitled 
to  call  other  witnesses  to  establish  the  evil  character  of  the 
agitation.  Every  sedition  trial  will  be  a  rag-bag  proceed- 
ing like  the  hearings  about  Bolshevism  before  the  Overman 

14  Record,  pp.  120,  132. 


A  CONTEMPORARY  STATE  TRIAL  135 

Committee  of  the  Senate.  As  Judge  Clayton  pointed  out 
in  the  Abrams  trial,  the  admission  of  Raymond  Robins's  tes- 
timony would  open  up  a  Pandora's  box.  The  district  attor- 
ney would  offer  on  his  side  to  prove  that  Trotsky  had  been 
bought  by  the  German  Government. 

To  use  a  vulgar  expression,  it  would  be  "  swiping  "  them  on 
the  other  hand,  and  we  would  forget  all  about  the  issues  in  this 
case,  and  we  would  find  ourselves  trying  Lenine  and  Trotsky, 
which  is  something  I  do  not  intend  to  do.  I  have  enough  trouble 
trying  these  people  here  in  the  United  States,  and  God  knows 
I  am  not  going  into  Russia  to  try  to  try  anybody  there.15 

On  the  other  hand,  if  for  the  sake  of  speed  and  conven- 
ience we  adopt  the  policy  of  Judge  Clayton  and  exclude 
general  testimony  as  to  bad  tendency,  pinning  the  evidence 
down  to  the  facts  of  publication  and  the  precise  intention  of 
the  defendants,  we  shall  often  do  a  grave  injustice  to  the 
prisoners.  The  jury  and  even  the  judge  may  bring  to  the 
trial  preconceived  views  of  the  bad  tendency  and  evil  pur- 
pose of  utterances  opposed  to  the  existing  economic  and  social 
order  or  to  war  policies  supported  by  the  great  mass  of  the 
population.  If  no  counter-evidence  to  show  that  the  opinions 
of  the  defendants  may  be  reasonable  or  honest  is  admitted 
from  third  persons  like  Raymond  Robins,  these  presupposi- 
tions must  inevitably  remain.  Even  if  a  defendant  is  allowed 
a  wide  scope  in  testifying  in  his  own  behalf,  he  is  often 
the  sort  of  man  whose  arguments  carry  little  weight.  In 
other  words,  in  spite  of  the  judge's  desire  to  exclude  outside 
evidence  on  either  side  as  to  bad  tendency  and  bad  inten- 
tion from  the  case,  such  evidence  in  favor  of  a  bad  tendency 
and  a  bad  intention  is  often  automatically  admitted  the  mo- 
ment that  the  jury  enter  the  box,  and  no  system  of  chal- 
lenges can  avoid  it.  During  a  war  they  have  for  months 
been  supplied  with  evidence  by  the  government  and  the  loyal 
press,  diametrically  opposed  to  the  utterances  for  which  the 
prosecution  is  brought.     Unless  something  is  done  to  tear 

is  Record,  130,  131.    For  Pierce  v.  U.  S.,  see  page  101,  supra. 


136  FREEDOM  OF  SPEECH 

the  tribunal  out  of  the  fabric  of  public  sentiment,  a  convic- 
tion is  almost  certain  to  result  in  prosecutions  for  political 
crimes,  where  the  ordinary  tests  of  the  five  senses  play  no 
part  and  men  are  forced  to  judge  of  the  opinions  and  char- 
acter of  the  prisoners  by, their  own  opinions  and  character 
as  formed  in  the  furnace  of  war.  What  Mr.  Robins  has 
since  said  and  written  makes  it  clear  that  his  evidence  would 
have  been  highly  valuable  to  the  defense. 

Despite  the  practical  inconveniences  of  such  testimony  as 
his  in  political  prosecutions,  it  is  the  method  pursued  in 
countries  where  political  crimes  have  existed  when  unknown 
in  the  United  States.  France,  for  instance,  allows  a  "  free 
defense,"  as  in  the  Affaire  Dreyfus.  The  defendant  is  not 
only  allowed  to  say  anything  in  his  own  favor,  but  may 
bring  forward  any  witnesses  he  pleases,  who  express  them- 
selves fully  and  unhindered.  Strange  as  it  seems  to  us,  the 
results  are  said  to  be  very  satisfactory.16  Consequently,  if 
we  are  going  to  continue  to  prosecute  men  for  the  bad 
political  tendency  of  their  disloyal  or  anarchistic  utter- 
ances, we  may  have  to  adopt  a  similar  wide-open  policy  in 
justice  to  the  defendants. 

Better  far  to  reject  both  horns  of  the  dilemma  and  refuse 
altogether  to  make  tendency  a  test  of  criminality.  If  we 
are  not  willing  to  allow  the  free  defense,  we  ought  to  abolish 
political  crimes  by  the  repeal  of  the  Espionage  Act  and 
all  other  sedition  statutes. 

In  the  absence  of  any  established  technique  for  political 
crimes  in  this  country,  the  exclusion  of  the  Robins  testi- 
mony was  correct,  since  it  did  not  bear  directly  on  the  only 
legitimate  theory  of  guilt,  but  this  only  made  it  all  the  more 
imperative  that  Judge  Clayton  should  repeatedly  during  the 
trial  and  in  his  charge  insist  to  the  jury  that  opposition 

i«  Robert  Ferrari,  "The  Trial  of  Political  Prisoners  Here  and 
Abroad,"  66  Dial  647  (June  28,  1919).  The  same  method  is  pursued  in 
French  murder  cases  where  "  the  honor  of  the  family "  is  a  defense, 
and  perhaps  instances  like  the  Thaw  trial  show  it  is  not  wholly  unknown 
in  this  country.  See  Walter  F.  Angell,  "A  Providence  Lawyer  at  the 
Caillaux  Trial,"  Providence  Daily  Journal,  August  21,  1914. 


A  CONTEMPORARY  STATE  TRIAL  137 

to  our  Russian  policy  was  not  in  itself  a  crime.  He  ought 
to  have  cleared  Russia  and  Bolshevism  out  of  the  case  for 
good  and  all,  and  pounded  home  the  proposition  that  the 
only  issue  under  the  third  and  fourth  counts  (which  alone 
should  have  gone  to  the  jury,  if  anything  went  at  all)  was 
whether  the  defendants  intended  by  inducing  strikes  in  muni- 
tion factories  and  other  forms  of  protest  to  interfere  with 
the  supply  of  munitions  for  use  against  Germany.  No  one 
who  will  put  himself  back  into  the  atmosphere  of  October, 
1918,  can  doubt  that  the  jury  would  naturally  regard  pro- 
Bolshevist  activities  as  pro-German,  and  that  it  was  the  duty 
of  Judge  Clayton  to  warn  them  explicitly  against  the  Rus- 
sian theory  of  guilt,  and  confine  their  attention  to  the  pro- 
German  theory.  There  is  no  trace  of  such  a  warning  in 
the  record.  Instead,  Judge  Clayton  himself  repeatedly  pro- 
claimed the  unsound  theory  of  guilt,  that  if  the  defendants 
intended  to  oppose  the  government's  Russian  policy,  they 
had  ipso  facto  violated  the  law. 

Before  the  defendants  had  put  in  any  material  testimony, 
he  said : 1T 

Now  the  charge  in  this  case  is,  in  its  very  nature,  that  these 
defendants,  by  what  they  have  done,  conspired  to  go  and  incite 
a  revolt;  in  fact,  one  of  the  very  papers  is  signed  '  Revolution- 
ists/ and  it  was  for  the  purpose  of  avoiding — a  purpose  expressed 
in  the  paper  itself — the  purposes  of  the  Government  and  raising 
a  state  of  public  opinion  in  this  country  of  hostility  to  the 
Government  of  the  United  States,  so  as  to  prevent  the  Government 
from  carrying  on  its  operations  and  prevent  the  Government  from 
recognizing  that  faction  of  the  Government  of  Russia,  which  the 
Government  has  recognized,  and  to  force  the  Government  of  the 
United  States  to  recognize  that  faction  of  the  Government  in 
Russia  to  which  these  people  were  friendly. 

Now,  they  cannot  do  that.  No  man  can  do  that,  and  that  is 
the  theory  that  I  have  of  this  case,  and  we  might  as  well  have 
it  out  in  the  beginning. 

The  court  did  tell  the  jury  that  this  statement  was  not 
part  of  the  evidence  and  should  be  disregarded  in  passing  on 

it  Record,  pp.  117,  118. 


138  FREEDOM  OF  SPEECH 

the  issue  of  fact,  but  the  harm  was  done  and  he  took  no 
steps  to  present  any  concrete  alternative  view.  The  second 
and  legitimate  theory  of  guilt  was  never  stated  by  him, 
and  it  is  doubtful  if  he  himself  ever  realized  the  distinction 
or  what  really  was  in  issue.  Instead,  he  continued  to  apply 
the  Russian  theory  in  his  cross-examination  of  Lipman,  for 
it  is  one  of  the  remarkable  features  of  this  case  that  most 
of  the  cross-examination  of  the  prisoners  was  not  by  the 
district  attorney,  but  by  the  court,  who  sometimes  broke 
in  upon  the  direct  examination  before  half  a  dozen  ques- 
tions had  been  asked.18  Lipman  was  testifying  in  response 
to  his  counsel  that  he  had  written  the  English  pamphlet 
because  the  President  after  sending  the  telegram  of  sym- 
pathy to  the  Soviets  had  a  few  weeks  later  despatched  a  mili- 
tary expedition  to  Russia.  Judge  Clayton  took  over  the 
witness : 19 

"  The  President,  you  thought,  and  all  that  he  was  doing  ought 
to  be  stopped  and  broken  up?  "  "  I  thought  when  I  know  he  is 
elected  by  the  people  they  should  protest  against  intervention. 
...  I  did  not  want  to  break  up.  I  called  for  a  protest,  which 
as  I  understand  it,  from  my  knowledge  of  the  Constitution,  the 
people  of  America  had  a  right  to  protest."  .  .  . 

"  Did  you  not  intend  to  incite  or  provoke  or  encourage  resistance 
to  the  Government  of  the  United  States  ?  "  "  Not  to  the  Govern- 
ment— never  did." 

"  Who  was  acting  for  the  Government  if  the  President  was 
not  ?  "  "  I  thought  it  was  the  Congress  and  Senate  that  was 
supposed  to  represent  the  people  of  America." 

"  The  President  is  the  executive  head  .  .  .  You  intended  to 
incite  opposition  to  what  the  President  did  ?  "  "  I  did  not.  I 
intended  to  enlighten  the  people  about  the  subject,  for,  as  I 
stated,  the  papers  were  afraid  to  state  it,  and  I  thought  it  was  the 
right  time." 

"...  The  Government  acts  through  the  President,  and  you 
intended  to  incite  opposition  to  what  he  was  doing?  "  "  I  intended 
to  incite  opposition  to  every  wrong  act  I  understood  to  be  wrong." 

is  See  the  court's  cross-examination  of  Abrams,  Record,  p.  163. 
The  testimony  not  included  in  the  Record  shows  much  more  questioning 
by  the  judge.  See  current  issues  of  the  New  York  Times  and  New 
York  Call;  Stenographer's  Notes. 

is  Record,  pp.  201-203. 


A  CONTEMPORARY  STATE  TRIAL  139 

"  You  had  the  specific  intention  to  make  public  opinion  and 
arouse  public  opinion  against  intervention  in  Russia?  "     "  Yes." 

When  the  judge  also  kept  saying  that  the  defendants' 
opinion  of  the  legality  of  the  President's  action  could  not 
justify  them  in  breaking  the  law,20  he  made  their  anti- 
interventionist  propaganda  seem  a  crime  in  itself, 
and  there  was  no  need  for  the  jury  to  consider 
whether  they  had  any  intention  to  prevent  the  shipment  of 
munitions  to  the  western  front.  There  is  nothing  in  the 
charge  about  such  an  intention,  nothing  to  exclude  Russian 
operations  from  the  scope  of  the  war.  Therefore,  it  is  very 
probable  that  the  defendants  were  convicted  on  an  erroneous 
theory  of  guilt,  simply  because  they  protested  against  the 
despatch  of  armed  forces  to  Russia. 

However,  it  is  maintained  that  the  defendants  did  intend 
to  hinder  the  fighting  against  Germany  and  so  were  properly 
convicted  on  the  second  theory  of  guilt.  There  are  three 
classes  of  evidence  in  the  case  bearing  on  their  intention. 

First,  the  two  pamphlets  speak  for  themselves.  Both 
plainly  protest  against  our  Russian  policy  and  not  against 
the  war.  The  English  circular  emphatically  repudiates  the 
charge  of  pro-Germanism.  It  is  nearly  all  expository,  but 
throws  in  a  few  general  exhortations  which  have  been  tossed 
about  in  every  Socialistic  hall  and  street-meeting  for  seventy 
years  since  the  Communist  manifesto  in  1848  until  Justice 
Clarke  discovered  in  1918  that  it  was  a  crime  in  war  time 
to  say,  "  Workers  of  the  World !  Awake !  Rise !  Put  down 
your  enemy  and  mine.    .    .    .    Capitalism !  " 

"  This,"  he  declares,  "  is  clearly  an  appeal  to  the  *  work- 
ers '  of  this  country  to  arise  and  put  down  by  force  the 
Government  of  the  United  States."  21 

If  this  be  so,  practically  every  Socialistic  book  or  pam- 
phlet violates  the  Espionage  Act,  and  the  belief  of  American 
Socialists  that  the  Act  was  directed  against  their  political 

20  Record,  pp.  115-121,  130-138,  167,  172,  173.    See  also  Stenographer's 
Notes  of  Testimony,  passim. 
21250  U.  S.  @  620  (1919). 


140  FREEDOM  OF  SPEECH 

existence  as  a  party  under  the  pretext  of  war  finds  ample 
justification.  Military  imagery  ought  not  to  be  taken  liter- 
ally in  radical  propaganda,  any  more  than  in  church  hymns. 
Nothing  could  show  better  than  this  sentence  of  Justice 
Clarke's  how  peace-time  statutes  which  are  limited  in  terms 
to  the  advocacy  of  "  force  and  violence  "  may  be  interpreted 
judicially  to  punish  obnoxious  radical  opinions  which  call 
for  working-class  action  without  a  single  word  to  indicate 
that  force  is  to  be  employed. 

The  Yiddish  circular  is  more  specific  and  calls  for  a  gen- 
eral strike,  which  can  no  more  be  kept  out  of  a  radical 
pamphlet  than  King  Charles's  head  could  be  barred  from 
Mr.  Dick's  Memorial.  We  ought  to  hesitate  a  long  while 
before  we  decide  that  Congress  made  such  shop-worn  ex- 
uberance criminal.  Very  likely,  as  Justice  Clarke  says, 
"  This  is  not  an  attempt  to  bring  about  a  change  of  admin- 
istration by  candid  discussion,"  22 — but  how  much  political 
discussion  is  candid?  If  nothing  but  candid  discussion  is 
protected  by  the  First  Amendment,  its  value  for  safeguard- 
ing popular  review  of  official  acts  is  nil.  And  even  if  words 
like  "  fight "  and  "  revolution "  indicate  violence,  though 
often  used  in  a  peaceable  sense,  the  advocacy  of  strikes  and 
violence  is  not  a  crime  under  this  indictment  unless  intended 
to  resist  and  hinder  the  war  with  Germany. 

The  second  group  of  evidence  consists  of  two  manuscripts 
which  were  seized  at  the  time  of  the  arrests  without  a  search- 
warrant.23  One,  a  yellow  sheet  of  paper  in  handwriting, 
taken  from  Lipman,  contains  a  passage  about  keeping  the 
allied  armies  busy  at  home  in  order  to  save  the  Russian 
Revolution.24     The  other,  some  typewritten  sheets  found  in 

22  Ibid.  622.  Bagehot  points  out  the  danger  of  such  a  test:  "The 
effect  of  all  legislative  interference  in  controversies  has  ever  been  to 
make  an  approximation  to  candor  compulsory  on  one  side  but  to  en- 
courage on  the  other  side  violence,  calumny,  and  bigotry." — Works, 
Longmans'  ed.,  X,  127. 

23  A  contest  could  have  been  made  on  this  point.     See  Chapter  VI. 
2*  Government's  Exhibit  11,  Record,  pp.  250,  251.     See  also  Record, 

pp.  45,  103;  also  78,  where  Lipman,  under  examination  by  the  military 
intelligence  police,  testified  it  meant  soldiers  were  to  be  kept  busy  pre- 
venting and  stopping  protest  meetings. 


A  CONTEMPORARY  STATE  TRIAL  141 

a  closet  in  Abrams'  rooms  on  a  pile  of  books  and  papers, 
urges  at  its  close  a  similar  policy,  so  that  there  will  be  no 
armies  to  spare  for  Russia,  and  adds  that  if  arms  are  used 
against  the  Russian  people,  "  so  will  we  use  arms,  and  they 
shall  never  see  the  ruin  of  the  Russian  Revolution."  25  Very 
little  attention  was  given  to  these  manuscripts  in  either 
brief  on  appeal,  but  Justice  Clarke  says,  after  quoting  the 
passages  just  mentioned: 

These  excerpts  sufficiently  show,  that  while  the  immediate  oc- 
casion for  this  particular  outbreak  of  lawlessness,  on  the  part 
of  the  defendant  alien  anarchists,  may  have  been  resentment 
caused  by  our  government  sending  troops  into  Russia  as  a  stra- 
tegic operation  against  the  Germans  on  the  eastern  battle  front, 
yet  the  plain  purpose  of  their  propaganda  was  to  excite,  at  the 
supreme  crisis  of  the  war,  disaffection,  sedition,  riots,  and,  as 
they  hoped,  revolution,  in  this  country  for  the  purpose  of  embar- 
rassing and  if  possible  defeating  the  military  plans  of  the  Gov- 
ernment in  Europe.26 

These  excerpts  form  a  small  part  of  two  long  discussions 
wholly  concerned  with  the  wrong  committed  against  Russia 
by  both  Germany  and  ourselves.  The  clear  and  only  pur- 
pose is  to  stop  Russian  intervention.  Much  more  important, 
these  passages  do  not  occur  in  the  pamphlets  for  which  the 
defendants  were  indicted.  They  are  in  manuscripts  which 
were  never  printed.  There  is  not  the  slightest  testimony 
that  any  one  intended  to  print  them,  or  indeed  that  the 
author,  Lipman,  ever  showed  them  to  any  one.  What  one 
man  jots  down  and  refrains  from  printing  is  very  weak 
proof  of  what  several  other  men  intended  when  they  printed 
something  else.  Finally,  a  comparison  of  the  second  or 
typewritten  manuscript  with  the  English  pamphlet  shows 
that  it  is  only  a  first  draft,  and  the  omission  in  revision  of  all 
the  passages  on  which  Justice  Clarke  relies  furnishes  decisive 

25  Government's  Exhibit  13,  Record,  pp.  252-255.  See  also  Record, 
pp.  55,  104.  The  significant  passages  from  both  manuscripts  are  in 
250  U.  S.  @  622  (1919).  Mr.  Wigmore  actually  quotes  these  pas- 
sages as  forming  part  of  the  Yiddish  pamphlet.    14  III.  L.  Rev.  544. 

26  250  U.  S.  @  623  (1919). 


142  FREEDOM  OF  SPEECH 

evidence  that  such  language  did  not  express  the  actual  inten- 
tion of  the  defendants.  All  talk  about  keeping  soldiers 
busy  and  using  arms  was  thrown  out,  and  the  postscript 
denouncing  German  militarism  was  added.  In  other  words, 
the  one  portion  of  the  draft  which  might  conceivably  be 
regarded  as  favorable  to  Germany  was  deliberately  dropped 
before  printing,  and  a  paragraph  was  substituted  hostile  to 
Germany  and  repudiating  pro-Germanism. 

Thirdly,  we  have  the  testimony  of  the  defendants  on  the 
vital  issue,  whether  they  intended  to  defend  the  Russian 
Revolution  by  the  methods  of  impulsive  youth  or  intended 
to  hinder  us  in  our  war  against  German  militarism.  All 
were  born  in  Russia  and  had  remained  citizens  of  that  coun- 
try during  their  few  years  in  the  United  States.  All  were 
anarchists  except  Lipman,  and  he  was  a  Socialist.  Nothing 
in  the  case  rebuts  the  natural  inference  that  such  persons 
were  devoted  to  Russian  radicalism  and  bitterly  hostile  to 
Imperial  Germany. 

Abrams,  under  cross-examination  by  the  district  attorney, 
said  that  he  had  offered  his  services  to  the  President  to  go 
to  Russia  and  fight  Germany,  but  permission  had  been  re- 
fused.27 Under  cross-examination  by  the  court,  he  denied 
that  he  intended  to  obstruct  and  hinder  the  government  of 
the  United  States.  His  object  was  to  help  Russia.  He  did 
not  believe  in  governments  and  was  a  revolutionist,  rebelling 
against  the  conditions  of  life  from  twelve  years  of  age,  but 
that  was  only  his  philosophy.  It  had  nothing  to  do  with 
the  pamphlets,  the  purpose  of  which  was  to  protest  against 
intervention.28  On  direct  examination  he  testified  that  this 
was  his  sole  purpose;  that  every  Russian  revolutionist  was 
in  favor  of  America's  crushing  German  militarism;  that  he 
would  go  to  Russia  to  fight  it  any  time  he  had  a  chance; 
that  he  would  help  send  propaganda  from  Russia  to  Ger- 
many to  start  a  revolution  there,  as  he  had  done  on  the 
border  of  Austria  and  was  sent  to  Siberia  for  it.  As 
to  the  appeal  for  strikes,  he  called  upon  the  workers  here 

27  Record,  pp.  197.  28  Record,  pp.  163,  164,  196. 


A  CONTEMPORARY  STATE  TRIAL  143 

not  to  produce  bayonets  to  be  used  against  the  workers  in 
Russia. 

"  I  say  it  is  absurd  I  should  be  called  a  pro-German,  because 
in  my  heart  I  feel  it  is  about  time  the  black  spot  of  Europe  should 
be  wiped  out." 

"You  are  opposed  to  German  militarism  in  every  form?'* 
"  Absolutely." 

"  You  would  overthrow  it  and  help  overthrow  it  if  you 
could  ?  "     "  First  chance."  29 

The  other  defendants  testified  to  the  same  effect,  even 
Molly  Steimer,  the  most  inflexible,  who  says  that  if  she  ever 
had  a  doubt  whether  people  ought  to  be  governed  by  one 
another  it  has  vanished  since  she  came  in  contact  with  those 
who  rule,  and  now  refuses  to  apply  for  a  pardon  because 
she  ought  not  to  be  released  so  long  as  thousands  of  other 
political  prisoners  are  languishing  in  American  jails.  She 
stated  her  intention  thus :  "  The  war  between  the  United 
States  and  Germany  does  not  concern  me,  because  I  wish  to 
see  militarism  throughout  the  entire  world  crushed  by  the 
workers.  ...  I  thought,  and  I  do  think  it  now,  that 
the  workers  of  the  United  States  who  are  working  in  muni- 
tion factories  ought  to  stop  producing  munitions  which  are 
used  for  the  killing  of  Russians.  I  care  nothing  about  inter- 
fering with  the  war  with  Germany,  because  it  does  not  matter 
to  me." 

There  is  not  a  word  in  the  whole  Record  to  show  that  any 
prisoner  was  opposed  to  the  war  with  Germany  or  had  any 
intention  except  an  absorbing  desire  to  protest  against  in- 
tervention in  Russia.30 

It  is  hard  to  see  how  the  jury  could  have  convicted  on 
this  evidence  if  they  had  been  instructed  that  a  specific  in- 
tent to  hinder  the  war  with  Germany  was  necessary,  but 
the  charge  contains  nothing  on  this  point  except  a  mere 
repetition  of  the  words  of  the  statute.     There  is  no  com- 

29  Record,  pp.  182,  183;  and  see  also  168,  180,  190. 
soLipman,  page  138,  supra,  Record,  pp.  77,  200,  203,206;  Lachowsky, 
Record,  pp.  223;  Steimer,  Record,  pp.  82,  216,  221,  222. 


144  FREEDOM  OF  SPEECH 

ment  on  those  words,  no  attempt  to  distinguish  between  a 
general  intention  to  publish  and  the  required  specific  intent. 
Instead,  the  judge  charged,  "  People  who  have  circulars  to 
distribute,  and  they  intend  no  wrong,  go  up  and  down  the 
streets  circulating  them."  31  During  the  trial,  although  the 
defendants'  counsel  reminded  him  that  Russian  meetings  in 
New  York  had  been  broken  up,  Judge  Clayton  said  he  would 
leave  it  to  the  jury  whether  throwing  pamphlets  out  of 
windows  squared  with  good,  honest  intention,  and  whether 
being  anarchists  and  wanting  to  break  up  all  government 
squared  with  honesty  and  sincerity  of  purpose.  Soon  after- 
ward he  stated: 

If  it  were  a  case  where  the  defendant  was  indicted  for 
homicide,  and  he  was  charged  with  having  taken  a  pistol  and  put 
it  to  the  head  of  another  man  and  fired  the  pistol  and  killed  the 
man,  you  might  say  that  he  did  not  intend  to  do  that. 

But  I  would  have  very  little  respect  for  a  jury  that  would 
come  in  with  a  verdict  that  he  didn't  have  any  intent.32 

Plainly  these  rulings  of  Judge  Clayton  ignore  absolutely 
the  specific  intent  to  oppose  or  hinder  the  war  with  Ger- 
many, as  demanded  by  the  statute,  and  authorize  the  jury 
to  convict  the  defendants  for  intention  to  publish  the  pam- 
phlets and  a  generally  bad  mind. 

The  verdict  against  Abrams,  Lipman,  Lachowsky,  Rosan- 
sky,  and  Molly  Steimer  was  guilty  on  all  four  counts.  The 
sixth  prisoner,  Prober,  was  acquitted,  for  insufficient  evi- 
dence of  connection  with  the  leaflets.  The  district  attorney's 
office,  which  thought  he  had  distributed  leaflets  at  radical 
meetings,  cites  his  acquittal  as  evidence  of  the  fairness  of  the 
jury. 

There  is  little  of  the  heroic  about  these  defendants  and 
much  that  is  repellent.  Their  beliefs  were,  as  Justice  Holmes 
called  them,  "  the  creed  of  ignorance  and  immaturity." 
Abrams  was  a  sufficiently  prominent  radical  to  preside  at  a 
meeting  in  New  York  where  Trotsky  spoke.  He  and  Lip- 
man,  who  were  subject  to  the  draft  as  citizens  of  a  nation 

3i  Record,  pp.  237,  238.  32  Record,  pp.  159-161. 


A  CONTEMPORARY  STATE  TRIAL  145 

still  technically  associated  with  ours  in  the  war  although  our 
troops  were  fighting  the  compatriots  of  these  men,  have  been 
indicted  on  strong  evidence  for  stealing  and  forging  draft 
cards.  Two  defendants,  while  out  on  bail  after  conviction, 
tried  to  escape  as  stowaways  from  New  Orleans  to  Yucatan. 
Molly  Steimer  used  her  temporary  freedom  to  distribute 
anarchistic  leaflets  in  the  New  York  streets,  and  was  sent  to 
Blackwell's  Island,  where  she  was  regarded  as  incorrigible. 
Yet  all  this,  bad  as  it  is,  in  no  way  justifies  their  conviction 
under  the  Espionage  Act.  It  is  a  fundamental  principle  of 
our  law  that  men  must  not  be  punished  in  one  case  for  other 
crimes,  especially  if  not  yet  proved.  If  these  prisoners  are 
guilty  of  other  offenses,  they  can  be  prosecuted  for  them. 
Such  guilt  and  all  their  undesirable  qualities  cannot  take 
the  place  of  the  essential  and  absent  intention  to  hinder  the 
war  with  Germany,  and  do  not  lessen  the  bad  effects  of  this 
case  as  a  precedent  for  the  suppression  of  public  protests 
against  governmental  action  on  the  ground  of  its  illegality. 
Two  features  of  the  trial  demand  a'passing  notice.  The 
method  by  which  confessions  were  obtained  from  the  defend- 
ants after  arrest  was  not  raised  on  appeal,  since  the  overt 
acts  were  proved  in  other  ways,  but  their  testimony,  if  it  can 
be  believed,  throws  a  significant  light  on  the  question,  im- 
portant to  criminologists,  of  the  treatment  which  political 
prisoners  may  expect  in  this  country,  especially  if  they  be 
obscure  aliens.  The  deportation  raids  prove  that  abuses  are 
possible,  but  such  a  conclusion  cannot  be  reached  in  the 
Abrams  case  without  a  detailed  investigation  of  the  conflict- 
ing evidence.  The  army  sergeants  deny  threats  and  force.88 
The  assistant  district  attorney,  who  showed  much  considera- 
tion toward  the  prisoners,  noticed  no  traces  of  violence  on  the 
morning  after  the  arrest,  and  is  convinced  that  none  was 
used.  On  the  other  hand,  the  charges  of  brutality  seem  dis- 
quietingly  specific  and  sincere.34     The  defendants  and  their 

33  Record,  pp.  70,  75,  85.    Stenographer's  Notes,  742  ff.,  752  ff. 

34  Stenographer's  Notes,  471  ff.,  587,  613,  660  ff.,  709  ff.,  716  ff.,  722; 
and  the  pamphlet,  Sentenced  to  Twenty  Years  Prison,  passim. 


146  FREEDOM  OF  SPEECH 

counsel  also  insisted,  though  the  influenza  epidemic  and  the 
long  interval  since  the  arrest  render  it  improbable,  that 
Schwartz's  fatal  illness  was  caused  by  the  violence  of  one 
soldier,  whom  Judge  Clayton  relieved  from  the  necessity  of 
telling  whether  or  not  he  was  called  by  his  associates,  "  The 
Tiger."  The  court  observed,  "  There  is  no  evidence  as  to 
who  killed  Schwartz  any  more  than  there  was  any  evidence 
as  to  who  killed  cock  robin."  S5 

Legal  historians  have  always  taken  interest  in  the  criminal 
judge  who  jests  with  the  lives  of  men.36 

"  You  keep  talking  about  producers/'  said  Judge  Clayton  to 
Abrams.  "  Now  may  I  ask  why  you  don't  go  out  and  do  some 
producing?  There  is  plenty  of  untilled  land  needing  attention 
in  this  country." 

.  .  .  The  witness  said  that  he  was  an  anarchist  and  added 
that  Christ  was  an  anarchist. 

"  Our  Lord  is  not  on  trial  here.     You  are.   .    .    . "  3T 

At  another  point  the  witness  began  some  remarks  about 
John  D.  Rockefeller. 

M  Now/'  said  Judge  Clayton,  "  suppose  we  eliminate  Mr. 
Rockefeller.  He  is  not  on  trial.  However,  I  will  say  that  it  is 
quite  true  that  Mr.  Rockefeller  is  a  man  of  considerable  wealth 
and  he  has  done  a  great  deal  of  good.  He  has  eliminated  the 
hook-worm,  which  was  the  curse  of  childhood  in  large  sections  of 
our  country;  he  has  established  and  maintained  a  great  research 
hospital,  and  in  other  ways  used  his  wealth  to  better  the  condition 
of  his  fellows.    We  will  now  proceed  with  the  case." 

"  We  will  now,"  said  Mr.  Weinberger,  "  ask  the  witness  about 
his  other  writings.     The  Holy  Alliance " 

"  Cut  out  the  Holy  Alliance.     That  is  not  in  the  issue  ..." 

35  Stenographer's  notes,  665. 

»«  The  judge's  words  are  taken  verbatim  from  the  New  York  Times, 
October  22,  1918,  which  was  so  far  from  being  prejudiced  against  him 
that  on  October  28  it  said  editorially,  "Judge  Henry  D.  Clayton  de- 
serves the  thanks  of  the  city  and  of  the  country  for  the  way  in  which 
he  conducted  the  trial,"  and  praised  his  "  half-humorous  "  methods. 

37  Braxfield  replied  to  a  similar  comparison,  "  Muckle  he  made  o' 
that;  he  was  hanget."  See  the  account  of  how  he  tried  Muir  for  sedi- 
tion in  R.  L.  Stevenson,  Some  Portraits  by  Raeburn,  and  Philip  A. 
Brown,  The  French  Revolution  in  English  History,  London,  1918,  95-99. 


A  CONTEMPORARY  STATE  TRIAL  147 

"  When  our  forefathers  of  the  American  Revolution "  the 

witness  began,  but  that  was  as  far  as  he  got. 

"  Your  what?  "  asked  Judge  Clayton. 

"  My  forefathers,"  replied  the  defendant. 

"  Do  you  mean  to  refer  to  the  fathers  of  this  nation  as  your 
forefathers  ?  Well,  I  guess  we  can  leave  that  out,  too,  for  Wash- 
ington and  the  others  are  not  on  trial  here." 

Abrams  explained  he  Called  them  that  because,  "  I  have  respect 
for  them.  We  all  are  a  big  human  family,  and  I  say  '  our 
forefathers/  .  .  .  Those  that  stand  for  the  people,  I  call  them 
father."  38 

The  day  after  conviction  the  prisoners  were  called  before 
Judge  Clayton  for  sentence.     The  court  said :  39 

"  I  am  not  going  to  permit  anybody  to  start  anything  to-day. 
The  only  matter  before  this  court  is  the  sentencing  of  these  per- 
sons. There  will  be  no  propaganda  started  in  this  court,  the 
purpose  of  which  is  to  give  aid  and  comfort  to  soap-box  orators  and 
to  such  as  these  miserable  defendants  who  stand  convicted  before 
the  bar  of  justice." 

When  Lipman,  the  socialist,  stepped  forward  to  address  the 
court  and  started  to  harangue  about  democracy,  "  You  don'* 
know  anything  about  democracy,"  said  Judge  Clayton,  "  and  the 
only  thing  you  understand  is  the  hellishness  of  anarchy."  .  .  . 

"  These  defendants  took  the  stand.  They  talked  about 
capitalists  and  producers,  and  I  tried  to  figure  out  what  a 
capitalist  and  what  a  producer  is  as  contemplated  by  them.  After 
listening  carefully  to  all  they  had  to  say,  I  came  to  the  conclusion 
that  a  capitalist  is  a  man  with  a  decent  suit  of  clothes,  a  minimum 
of  $1.25  in  his  pocket,  and  a  good  character. 

"  And  when  I  tried  to  find  out  what  the  prisoners  had  pro- 
duced, I  was  unable  to  find  out  anything  at  all.  So  far  as  I  can 
learn,  not  one  of  them  ever  produced  so  much  as  a  single  potato.40 
The  only  thing  they  know  how  to  raise  is  hell,  and  to  direct  it 
against  the  government  of  the  United  States.  .  .  . 

"  But  we  are  not  going  to  help  carry  out  the  plans  mapped 
out  by  the  Imperial  German  Government,  and  which  are  being 
carried  out  by  Lenine  and  Trotsky.  I  have  heard  of  the  reported 
fate  of  the  poor  little  daughters  of  the  Czar,  but  I  won't  talk 

38  Abrams'  reply  is  in  Record,  p.  194. 
s*New  York  Times,  October  26,  1918. 

40  Abrams  and  Lachowsky  bound  books,  Lipman  produced  furs, 
Rosansky  produced  hats,  Molly  Steimer  produced  shirtwaists. 


148  FREEDOM  OF  SPEECH 

about  that  now.     I  might  get  mad.     I  will  now  sentence  the 
prisoners." 

Rosansky  was  given  three  years  in  prison,  Molly  Steimer 
fifteen  years  and  $500  fine,  Lipman,  Lachowsky,  and  Abrams 
twenty  years  (the  maximum),  and  $1,000  on  each  count. 
If  they  had  actually  conspired  to  tie  up  every  munition  plant 
in  the  country  and  succeeded  the  punishment  could  not  have 
been  more.41 

"  I  did  not  expect  anything  better,"  said  Lipman. 
"  And   may    I    add,"    replied   the   judge,   *  that   you   do   not 
deserve  anything  better."  42 

II.    The  Supreme  Court 

Seven  judges  of  the  Supreme  Court  were  for  affirmance 
of  these  convictions,  Justice  Clarke  delivering  the  majority 
opinion.  Justice  Holmes  read  a  dissenting  opinion,  in  which 
Justice  Brandeis  concurred.  The  Supreme  Court  had  only 
a  limited  power  to  correct  any  errors  that  may  have  oc- 
curred at  the  trial.  It  could  not  revise  the  sentences.43  It 
could  not  set  aside  the  verdict  because  its  judges  would  have 
found  differently  on  the  facts  themselves,  but  only  if  there 
was  so  little  evidence  of  the  required  guilty  intent  that  a 
reasonable  jury  could  not  have  convicted.  It  would  be  very 
unlikely  to  grant  a  new  trial  for  misdirection  and  failure  to 
place  properly  before  the  jury  the  vital  issue  of  specific  in- 
tent to  hinder  the  war,  since  no  objection  on  this  ground  is 

4i  It  would  not  be  treason  for  lack  of  overt  acts.  See  Chapter  VI. 
Therefore,  they  would  be  punishable  only  under  the  Espionage  Act. 
The  general  statute  on  conspiracy  to  destroy  by  force  the  government  of 
the  United  States  imposes  only  six  years.  Crim,  Code,  §  6,  U.  S.  Comp. 
Stat.,  1918,  §  10170.  Conspiracies  to  limit  the  production  of  necessaries 
are  punishable  under  the  Lever  Act  by  two  years.  Act  of  August  10, 
1917,  c.  53,  §  9,  40  Stat,  at  L.  279,  U.  S.  Comp.  Stat.,  §  3115%  i. 

42  New  York  Times,  supra.  Record,  p.  243,  says,  "  I  So  not  think 
you  deserve  anything  less.     Now,  the  next  one." 

43  That  excessive  sentences  may  possibly  constitute  "  cruel  and  un- 
usual punishment "  under  the  Eighth  Amendment,  see  Weems  v.  United 
States,  217  U.  S.  349  (1910),  per  McKenna,  J.,  White  and  Holmes,  J  J., 
dissenting. 


A  CONTEMPORARY  STATE  TRIAL  149 

noted  in  the  bill  of  exceptions,44  although  as  I  have  tried  to 
show,  the  trial  judge  did  nothing  to  enlighten  the  jury  on  the 
issues  of  specific  intent  and  did  much  to  becloud  that  diffi- 
cult question,  so  that  they  very  probably  reached  a  verdict 
on  entirely  inadequate  grounds, — the  existence  of  intention  to 
publish  and  to  oppose  Russian  intervention.  Only  two  real 
questions  were  before  the  court:  the  existence  of  the  requi- 
site evidence  of  specific  intent  under  the  third  and  fourth 
counts,  the  other  two  being  disregarded,  and  whether  the,,7 
Espionage  Act  could  constitutionally  be  interpreted  to  apply  ? 
to  this  case. 

The  required  specific  intent  to  hinder  the  war  with  Ger- 
many is  worked  out  by  Justice  Clarke  in  this  way :  "  It  will 
not  do  to  say  .  .  .  that  the  only  intent  of  these  defendants 
was  to  prevent  injury  to  the  Russian  cause."  They  intended 
a  general  strike  of  munition  workers,  i.e.,  a  curtailment  of 
production.  This  plan  necessarily  involved,  before  it  could 
be  realized,  the  paralysis  and  defeat  of  the  war  pro- 
gram of  the  United  States.  Therefore,  the  defendants  in- 
tended such  an  interference  with  the  war,  since  "  men  must 
be  held  to  have  intended,  and  to  be  accountable  for,  the  ef- 
fects which  their  acts  were  likely  to  produce."  45 

The  "  unfortunate  maxim "  propounded  by  the  Justice 
is  a  pure  fiction.46  Obviously  our  acts  result  in  many  prob- 
able consequences  which  we  do  not  intend.  If  he  means  that 
the  defendants  were  liable  for  such  consequences  even  if  they 
did  not  in  fact  intend  them,  he  states  a  principle  of  law 
which  is  applicable  to  some  crimes,  but  not  to  those  in  which 
the  law  requires  a  specific  intent,  as  in  the  case  at  bar.     In 

44  The  Supreme  Court  has  granted  a  new  trial  for  unexcepted  mis- 
direction imperiling  liberty.  Wiborg  v.  U.  S.,  163  U.  S.  632,  659 
(1896).  Accord,  Skuy  v.  U.  S.,  261  Fed.  316  (C.  C.  A.  8th,  1919).  See 
August  v.  United  States,  257  Fed.  388  (C.  C.  A.  8th,  1919),  which  holds 
that  Act  of  February  26,  1919,  c.  48,  amending  Judicial  Code,  §  269, 
now  authorizes  an  appellate  court  to  look  to  the  entire  record  and  render 
judgment  without  regard  to  the  technicality  of  want  of  exceptions.  It 
is  doubtful,  however,  if  this  statute  does  more  than  prevent  reversals 
for  non-prejudicial  errors. 

45  250  U.  S.  @  621. 

46  Jeremiah  Smith,  "  Surviving  Fictions,"  27  Yale  L.  J.  147, 156  (1917). 


150  FREEDOM  OF  SPEECH 

those  crimes  the  defendant  must  actually  have  the  defined 
state  of  mind.47  Thus  a  man  who  broke  into  a  barn  at 
night  and  cut  the  sinews  of  a  horse's  leg  to  prevent  his 
winning  a  race  is  not  guilty  of  burglary  with  intent  to  kill 
a  horse,  even  though  in  consequence  of  the  injury  the  horse 
died.48  It  is  needless  to  multiply  examples.  Even  reck- 
lessness does  not  take  the  place  of  the  state  of  mind  de- 
manded by  the  statute.49  On  the  other  hand,  if  he  means 
that  the  jury  may  permissibly  infer  as  a  matter  of  fact 
from  the  doing  of  an  act  that  the  actor  intends  its  ordinary 
consequences,  this  is  true  enough,50  but  such  an  inference 
is  worthless  if  there  is  overwhelming  express  evidence  that 
the  defendant  had  an  entirely  different  intention.  That  is 
the  situation  in  the  Abrams  case,  where  the  pamphlets  and 
the  defendants'  testimony  show  that  they  intended  to  help 
Russia. 

The  majority  opinion  must  rest  on  the  first  sentence  quoted 
from  Justice  Clarke,  that  aiding  Russia  was  not  the  only 
intent  of  these  defendants.  It  is  argued  that  they  had  two 
intents:  (1)  to  help  Russia,  (2)  to  hinder  the  war  by  cur- 
tailment of  production  in  order  to  accomplish  that  object; 
that  it  is  immaterial  which  intent  was  principal  and  which 
subordinate,  so  long  as  both  existed.51  Thus  if  I  throw  a 
brick  at  a  man  behind  a  plate-glass  window,  my  principal 
desire  may  be  to  hit  him,  but  if  that  necessarily  involves 
breaking  the  window  and  I  know  this  fact,  I  have  a  secondary 
intention  to  break  it  and  am  guilty  of  intentional  destruction 
of  property,  even  though  I  would  much  rather  not  have 
broken  the  glass.52  When  a  man  was  indicted  for  assault  on 
another  with  intent  to  disfigure  him  by  biting  off  his  ear,  it 

47  May,  Criminal  Law,  3  ed.,  §34;  1  Bishop,  New  Criminal  Law, 
8  ed.,  §335;  Roberts  v.  People,  19  Mich.  401,  415  (1870);  Ogletree  v. 
State,  28  Ala.  693,  701   (1856). 

«Dobbs'  Case,  2  East  P.  C.  513  (1770). 

«  United  States  v.  Moore,  2  Lowell  (U.  S.)  232  (1873). 

so  Jeremiah  Smith,  op.  cit.;  People  v.  Scott,  6  Mich.  287,  296  (1859). 

si  1  Bishop,  New  Criminal  Law,  8  ed.,  §339;  Rex  v.  Gillow,  1  Moody 
C.  C.  85  (1825). 

52  Cf.  Rex  v.  Pembliton,  12  Cox  C.  C.  607  (1874).  A  shooting 
analogy  is  given  in  33  Harv.  L.  Rev.  444  note. 


A  CONTEMPORARY  STATE  TRIAL  151 

was  useless  for  him  to  argue  that  he  only  intended  to  injure 
but  not  to  disfigure,  since  the  disfigurement  was  a  neces- 
sary and  obviously  a  known  consequence  of  the  intended 
act.53 

There  are  several  answers  to  this  argument  that  one  who 
intends  a  curtailment  of  munitions  for  any  purpose  must 
know  that  fewer  munitions  will  hinder  the  war  and  therefore 
must  ipso  facto  intend  to  hinder  the  war.  First,  the  analogy 
of  the  throwing  and  biting  cases  just  stated  is  too  simple  to 
have  any  application  to  the  Abrams  case.  There  is  no  such 
obvious  and  mechanical  chain  of  cause  and  effect  in  complex 
social  conditions,  and  the  obscure  factors  involved  are  en- 
tirely beyond  the  capacity  of  a  jury  to  decide.  The  argu- 
ment supposes  (1)  that  the  hindrance  of  the  war  is  inevi- 
table, (.2)  that  this  inevitable  consequence  must  have  been 
in  the  defendants'  minds.  Both  steps  are  very  questionable, 
and  the  opinion  of  a  jury  on  either  step  should  have  no 
weight  with  an  appellate  court.  Of  the  first  Justice  Holmes 
says,  "  An  intent  to  prevent  interference  with  the  Revolution 
in  Russia  might  have  been  satisfied  without  any  hindrance  to 
carrying  on  the  war  in  which  we  were  engaged."  54  Thus 
a  very  short  strike  that  stopped  intervention  would  have 
caused  a  very  small  loss  in  munitions  for  shipment  to  France, 
which  would  have  been  enormously  offset  by  the  release  of 
troops  and  equipment  previously  diverted  to  Russia,  and  a 
different  Russian  policy  might  have  created  greater  liberal 
enthusiasm  in  this  country  and  elsewhere  for  the  President's 
war  aims.  The  second  step  ignores  the  belief  of  the  defend- 
ants that  a  friendly  Soviet  Government  would  render  valuable 
aid  in  attacking  Imperial  Germany  by  war,  or  at  least  by 
propaganda,  whose  effectiveness  was  proved  within  a  fort- 
night after  the  conviction  of  Abrams  and  his  friends. 

Secondly,  if  every  curtailment  of  munitions,  whatever  its 
purpose,  is  necessarily  criminal  under  this  Act,  because  of 
its  alleged  obvious  and  inevitable  effect  on  the  war,  why  does 

53  State  v.  Clark,  69  Iowa  196  (1886). 
5*250  U.  S.  @  628  (1919). 


152  FREEDOM  OF  SPEECH 

the  Espionage  Act  take  pains  to  limit  the  crime  to  "  cur- 
tailment .  .  .  with  intent  .  .  .  to  cripple  or  hinder  the 
United  States  in  the  prosecution  of  the  war  "f  55  This 
clause  is  superfluous  and  meaningless,  if  every  advocacy  of 
curtailment  involves  such  an  intent.  This  clause  about 
intent  must  add  something  to  the  rest  of  the  definition  of  this 
crime.  "  Intent  to  hinder  the  war  "  clearly  means  more  than 
the  artificial  lawyer-made  intention  to  obstruct  the  war  con- 
jured up  from  any  threat  of  a  strike.  The  word  "  intent " 
in  a  very  severe  criminal  statute  and  especially  a  statute 
limiting  popular  discussion  must  mean  what  any  layman  who 
wished  to  urge  a  strike  in  war  time  lawfully  would  assume 
it  to  mean,  that  interference  with  the  war  must  not  be  the 
object  of  his  exhortation,  the  purpose  at  which  he  aims. 
Such  a  man  would  be  entrapped  if  "  intent "  means  an  inci- 
dental, undesired,  and  at  the  most  a  vaguely  considered  con- 
sequence of  his  utterances.66  Strikes  are  not  ordinarily 
illegal,  and  it  would  be  startling  if  Congress  intended  to 
prohibit  all  incitement  to  them  in  war.  Naturally  the 
statute  confined  itself  to  strikes  and  similar  measures  that 
were  specifically  planned  to  interfere  with  the  war. 

This  is  not,  as  has  been  charged,  a  confusion  of  intent  and 
motive.57  It  is  absurd  to  say  that  "  interference  with  the 
war  was  palpably  the  direct  and  desired  effect  which  these 
appeals  were  intended  to  produce  "  and  aid  to  Russia  only 
a   motive.      Justice   Clarke   expressly   recognizes    that    the 

65  It  is  significant  that  Justice  Clarke  omits  this  clause  in  quoting 
the  indictment,  and  possibly  he  overlooked  it  altogether  and  assumed 
that  intent  to  advocate  curtailment  of  war  essentials  was  the  only  intent 
specified  in  the  Act. 

G*Ibid.,  Holmes,  J.:  "When  words  are  used  exactly  a  deed  is  not 
done  with  intent  to  produce  a  consequence  unless  that  consequence  is 
the  aim  of  the  deed — unless  the  aim  to  produce  it  is  the  proximate 
motive  of  the  specific  act  ..."  The  Sabotage  Act  punishes  defective 
manufacture  of  war  essentials  only  if  there  is  intent  to  interfere  with 
the  war  or  reason  to  believe  that  the  act  will  interfere  with  it.  Act  of 
April  20,  1918. 

57  "Justice  Holmes'  Dissent,"  1  Review  636  (December  6,  1919). 
This  article  also  censures  Justice  Holmes  for  not  quoting  the  passage 
about  keeping  the  armies  at  home.  I  hope  I  have  shown  reasons  why 
it  should  never  have  been  quoted  by  any  judge. 


A  CONTEMPORARY  STATE  TRIAL  153 

"  primary  intent "  was  to  help  Russia.58  The  defendants 
intended  to  produce  certain  tangible  results,  notably  pro- 
test meetings,  which  in  turn  were  intended  to  produce 
another  tangible  result,  the  end  of  intervention.  Their  mo- 
tive was  love  for  Russia.  Possibly  they  also  intended  as 
part  of  their  machinery  of  protest  to  produce  a  general 
strike,  if  intent  can  exist  without  any  expectation  of  success. 
Interference  with  the  war  was  at  the  most  an  incidental 
consequence  of  the  strikes,  entirely  subordinate  to  the  longed 
for  consequence  of  all  this  agitation,  withdrawal  from  Rus- 
sia. It  is  wholly  unsound  to  label  the  conjectural  war  conse- 
quence intent  and  the  absorbing  Russian  consequence  motive. 
Finally,  this  argument  of  inevitable  hindrance  proves  too 
much.  If  these  defendants  were  guilty  under  the  fourth 
count,  so  was  every  other  person  who  advocated  curtailment 
in  the  production  of  war  essentials,  no  matter  what  his 
purpose.  The  machinists  in  Bridgeport  who  struck  in 
defiance  of  the  arbitration  of  the  National  War  Labor  Board 
violated  the  Espionage  Act,  although  they  intended  to 
obtain  higher  wages.  The  Smith  and  Wesson  Company 
violated  it  in  refusing  to  continue  to  manufacture  pistols 
under  another  arbitration,  although  they  intended  to  retain 
an  open  shop.59  The  coal  miners  last  autumn  violated  that 
Act  in  calling  a  strike.  The  government  should  have 
threatened  all  these  people  with  the  twenty-year  penalty  of 
the  Espionage  Act  instead  of  acting  under  its  general  war 
statutes  or  imposing  the  milder  rigors  of  the  Lever  Act  and 
an  injunction.60 

58  250  U.  S.  @  621. 

59  See  these  two  cases  in  Report  of  the  Activities  of  the  War  Depart- 
ment in  the  Field  of  Industrial  Relations  During  the  War  (Washington, 
1919),  32-35. 

eo  I  have  not  troubled  to  apply  similar  reasoning  to  the  third  count 
of  the  indictment,  because  for  reasons  already  stated  I  do  not  consider 
the  pamphlets  contained  any  advocacy  of  resistance  to  the  United 
States.  Consequently,  that  count  should  be  disregarded  like  the  first 
two.  Holmes,  J.,  says :  "  Resistance  to  the  United  States  means  some 
forcible  act  of  opposition  to  some  proceeding  of  the  United  States  in 
pursuance  of  the  war.  .  .  .  There  is  no  hinf 'at  resistance  to  the  United 
States  as  I  construe  the  phrase."    250  U.  S.  @  629  (1919). 


154  FREEDOM  OF  SPEECH 

In  other  words,  the  Supreme  Court  was  construing  not 
only  a  criminal  statute  which  must  be  applied  in  a  fashion 
which  the  laymen  who  are  menaced  by  it  will  readily  under- 
stand, but  a  statute  limiting  discussion  and  hence  to  be 
interpreted  in  the  light  of  the  First  Amendment.  It  ought 
not  to  be  assumed  that  Congress  meant  to  make  all  dis- 
cussion of  any  governmental  measure  criminal  in  war  time 
simply  because  of  an  incidental  interference  with  the  war. 
The  danger  of  the  majority  view  is  that  it  allows  the  gov- 
ernment, once  there  is  a  war,  to  embark  on  the  most 
dubious  enterprises,  and  gag  all  but  very  discreet  protests 
against  these  non-war  activities.  To  give  extreme  concrete 
examples:  Irish  munition  workers  could  not  have  been  urged 
to  strike  had  our  government  been  sending  arms  to  Dublin 
Castle,  because  this  would  have  lessened  munitions  for  France, 
since  a  machinist  could  not  be  sure  that  any  particular  shell 
or  gun  was  going  to  Ireland.  Incitement  to  armed  resistance 
to  an  executive  edict  nationalizing  women  would  be  opposi- 
tion that  might  paralyze  the  war,  and  therefore  easily  sup- 
pressed under  this  Act. 

The  majority  opinion  dismisses  this  matter  of  constitu- 
tionality in  two  sentences,  citing  decisions  on  the  Espionage 
Act  of  1917  to  establish  the  validity  of  the  far  more  objec- 
tionable provisions  of  the  Act  of  1918.61  Furthermore,  the 
court  did  not  have  to  declare  the  clauses  involved  in  the  third 
and  fourth  counts  void.  Indeed,  it  cannot  reasonably  be 
doubted  that  they  are  constitutional  when  construed  in  ac- 
cordance with  the  First  Amendment.  It  is  the  same  situa- 
tion that  Judge  Hand  pointed  out  in  Masses  v.  Patten : 62 
it  is  not  a  question  of  judicial  refusal  to  enforce  legislation, 
but  of  giving  it  a  construction  which  will  not  limit  discussion 
beyond  the  express  terms  of  the  Act.  The  words  of  the 
statute  requiring  a  specific  intent  were  presumably  not 
meant  by  Congress  to  bear  a  meaning  which  would  curb 
political  agitation  on  matters  unrelated  to  the  war.     The 

ei  250  U.  S.  @  619. 

62  244  Fed.  536,  538  (1917).  See  p.  48,  supra. 


A  CONTEMPORARY  STATE  TRIAL  155 

statute  uses  the  ordinary  language  of  criminal  solicitation 
and  attempt,  and  does  not  expressly  demand  the  punishment 
of  words  in  the  absence  of  immediate  danger  or  a  deter- 
mined purpose  in  itself  dangerous  to  cause  actual  obstruc- 
tion of  the  war.  Therefore,  it  was  erroneous  for  the  court 
to  construe  it  so  as  to  make  the  remote  bad  tendency  and 
possible  incidental  consequences  of  these  pamphlets  a  valid 
basis  for  conviction.  And  even  if  all  advocacy  of  curtailment 
of  munitions  be  considered  dangerous,  the  intent  clause  limits 
the  crime  and  should  not  have  been  ignored.  While  the  deci- 
sion of  the  majority  has  done  a  lasting  injustice  to  the 
defendants,  its  effect  on  the  legal  conception  of  freedom  of 
speech  should  be  temporary  in  view  of  its  meager  discussion 
of  the  subject  and  the  enduring  qualities  of  the  reasoning  of 
Justice  Holmes. 

Although  a  dissenting  opinion,  it  must  carry  great  weight 
as  an  interpretation  of  the  First  Amendment,  because  it  is 
only  an  elaboration  of  the  principle  of  "  clear  and  present 
danger  "  laid  down  by  him  with  the  backing  of  a  unanimous 
court  in  Schenck  v.  United  States.  Since  that  case  is  re- 
affirmed by  Justice  Clarke  this  principle  still  remains  law, 
greatly  strengthened  since  the  Abrams  case  by  Justice 
Holmes's  magnificent  exposition  of  the  philosophic  basis  of 
this  article  of  our  Constitution : 

Persecution  for  the  expression  of  opinions  seems  to  me  perfectly 
logical.  If  you  have  no  doubt  of  your  premises  or  your  power 
and  want  a  certain  result  with  all  your  heart  you  naturally  express 
your  wishes  in  law  and  sweep  away  all  opposition.  To  allow 
opposition  by  speech  seems  to  indicate  that  you  think  the  speech 
impotent,  as  when  a  man  says  that  he  has  squared  the  circle,  or 
that  you  do  not  care  whole-heartedly  for  the  result,  or  that  you 
doubt  either  your  power  or  your  premises.  But  when  men  have 
realized  that  time  has  upset  many  fighting  faiths,  they  may  come 
to  believe  even  more  than  they  believe  the  very  foundations  of 
their  own  conduct  that  the  ultimate  good  desired  is  better  reached 
by  free  trade  in  ideas — that  the  best  test  of  truth  is  the  power 
of  the  thought  to  get  itself  accepted  in  the  competition  of  the 
market,  and  that  truth  is  the  only  ground  upon  which  their  wishes 
safely  can  be  carried  out.     That  at  any  rate  is  the  theory  of  our 


156  FREEDOM  OF  SPEECH 

Constitution.  It  is  an  experiment,  as  all, life  is  an  experiment. 
Every  year  if  not  every  day  we  have  to  wager  our  salvation  upon 
some  prophecy  based  upon  imperfect  knowledge.  While  that  ex- 
periment is  part  of  our  system  I  think  that  we  should  be  eter- 
nally vigilant  against  attempts  to  check  the  expression  of  opin- 
ions that  we  loathe  and  believe  to  be  fraught  with  death,  unless 
they  so  imminently  threaten  immediate  interference  with  the  law- 
ful and  pressing  purposes  of  the  law  that  an  immediate  check  is 
required  to  save  the  country.  .  .  .  Only  the  emergency  that  makes 
it  immediately  dangerous  to  leave  the  correction  of  evil  counsels 
to  time  warrants  making  any  exception  to  the  sweeping  command. 
"  Congress  shall  make  no  law  abridging  the  freedom  of  speech." 
Of  course  I  am  speaking  only  of  expressions  of  opinion  and 
exhortations,  which  were  all  that  were  uttered  here,  but  I  regret 
that  I  cannot  put  into  more  impressive  words  my  belief  that  in 
their  conviction  upon  this  indictment  the  defendants  were  deprived 
of  their  rights  under  the  Constitution  of  the  United  States. 

The  preceding  chapters  have  been  written  in  support  of 
this  danger-test  as  marking  the  true  limit  of  governmental 
interference  with  speech  and  writing  under  our  constitutions, 
but  an  able  and  thoughtful  criticism  of  Justice  Holmes' 
dissent 63  makes  it  imperative  to  say  something  more  on  the 
subject.  In  the  first  place,  the  First  Amendment  is  very 
much  more  than  "  an  expression  of  political  faith.'*  It  was 
demanded  by  several  states  as  a  condition  of  their  ratifica- 
tion of  the  Federal  Constitution,  and  is  as  definitely  a  pro- 
hibition upon  Congress  as  any  other  article  in  the  Bill  of 
Rights.  The  policy  behind  it  is  the  attainment  and  spread 
of  truth,  not  merely  as  an  abstraction,  but  as  the  basis  of 
political  and  social  progress.  *  Freedom  of  speech  and  of 
the  press  "  is  to  be  unabridged  because  it  is  the  only  means 
of  testing  out  the  truth.  The  Constitution  does  not  pare 
down  this  freedom  to  political  affairs  only  or  to  the  opinions 
which  are  held  by  a  majority  of  the  people  in  opposition  to 
the  government.  A  freedom  which  does  not  extend  to  a 
minority,  however  small,  and  which  affords  them  no  protec- 
tion when  the  majority  are  on  the  side  of  the  government 

63  "The  Espionage  Act  and  the  Limits  of  Legal  Toleration,"  33 
Harv.  L.  Rev.  442  (January,  1920),  by  Day  Kimball. 


A  CONTEMPORARY  STATE  TRIAL  157 

would  be  a  very  partial  affair,  enabling  the  majority  to  dig 
themselves  in  for  an  indefinite  future.  The  narrow  view  that 
the  amendment  does  not  protect  a  few  of  the  people  against 
the  force  of  public  opinion  throws  us  back  to  the  English 
trials  during  the  French  Revolution,  and  the  Sedition  Law 
of  1798,  for  which  the  United  States  through  many  years 
showed  its  repentance  by  pardoning  all  prisoners  and  repay- 
ing to  them  the  fines  imposed.  These  were  none  the  less  in- 
jurious to  the  cause  of  truth  because  they  had  the  sanction  of 
the  majority. 

Undoubtedly,  although  we  are  not  infallible,  we  must 
assume  certain  opinions  to  be  true  for  purposes  of  action; 
but  this  does  not  make  it  right  or  desirable  to  assume  that 
they  are  true  for  the  purpose  of  crushing  those  who  hold 
a  contrary  doctrine. 

There  is  the  greatest  difference  between  presuming  an  opin- 
ion to  be  true,  because,  with  every  opportunity  for  contesting 
it,  it  has  not  been  refuted,  and  assuming  its  truth  for  the  purpose 
of  not  permitting  its  refutation.64 

The  vote  of  the  majority  of  the  electorate  or  the  legisla- 
ture is  the  best  way  to  decide  what  beliefs  shall  be  translated 
into  immediate  action,  and  the  government  must  resist  if  its 
opponents  begin  to  carry  on  the  conflict  of  opinions  by 
breaking  heads  instead  of  counting  them.  But  it  is  equally 
inadvisable  for  the  government  to  seek  to  end  a  contest  of 
ideas  by  imprisoning  or  exiling  its  intellectual  adversaries. 
Force  seems  like  force  to  its  victim,  whether  or  not  it  has  the 
sanction  of  law.  No  one  will  question  that  the  government 
must  resist  a  revolt,  however  Utopian  in  purposes,  but  the 
inference  that  logically  it  must  also  condemn  all  utterances 
"  aimed  at  such  subversion  or  tending  solely  thither  "  ignores 
the  difference  of  degree  emphasized  by  the  First  Amendment. 
It  is  the  unfailing  argument  of  persecutors.  The  opinions 
to  which  they  object  are  always  conceived  to  aim  at  revolu- 

«*  Mill,  Liberty,  c.  II. 


158  FREEDOM  OF  SPEECH 

tion,  violence,  and  nothing  else,  although  such  utterances 
are  usually  in  large  part  the  exposition  of  political  and  eco- 
nomic views.  The  advocates  of  parliamentary  reform  in 
England  were  condemned  on  just  such  reasoning.  To  throw 
overboard  the  danger-test,  and  permit  "  the  suppression, 
whenever  reasonably  necessary,  of  utterances  whose  aims 
render  them  a  menace  to  the  existence  of  the  state,"  in- 
evitably substitutes  jail  for  argument,  since  the  determina- 
tion of  the  vague  test  of  "  menace  "  depends  on  the  tribunal's 
abhorrence  of  the  defendant's  views.  It  is  no  answer  that 
this  tribunal  (outside  of  the  crushing  powers  of  the  post- 
office  and  of  the  immigration  officials  in  deportation  cases) 
is  a  jury.  A  fitness  to  apply  a  common-sense  standard  to 
alleged  criminal  acts  bears  no  resemblance  to  a  capacity  to 
appraise  the  bad  political  and  social  tendency  of  unfamiliar 
economic  doctrines  during  panic.  The  Abrams  case  shows 
the  capacity  of  a  judge  to  decide  such  a  question.  The  only 
tribunal  which  can  pass  properly  on  the  menace  of  ideas 
is  time. 

We  must  fight  for  some  of  our  beliefs,  but  there  are  many 
ways  of  fighting.  The  state  must  meet  violence  with  vio- 
lence, since  there  is  no  other  method,  but  against  opinions, 
agitation,  bombastic  threats,  it  has  another  weapon, — lan- 
guage. Words  as  such  should  be  fought  with  their  own 
kind,  and  force  called  in  against  them  only  to  head  off 
violence  when  that  is  sure  to  follow  the  utterances  before 
there  is  a  chance  for  counter-argument.  To  justify  the 
suppression  of  the  Abrams  agitation  because  the  government 
could  not  trust  truth  to  win  out  against  "  the  monstrous 
and  debauching  power  of  the  organized  lie  "  overlooks  the 
possibility  that  in  the  absence  of  free  discussion  organized 
lies  may  have  bred  unchecked  among  those  who  upheld  the 
course  of  the  government  in  Russia. 

The  lesson  of  United  States  v.  Abrams  is  that  Congress 
alone  can  effectively  safeguard  minority  opinion  in  times  of 
excitement.  Once  a  sedition  statute  is  on  the  books,  bad 
tendency  becomes  the  test  of  criminality.     Trial  judges  will 


A  CONTEMPORARY  STATE  TRIAL  159 

be  found  to  adopt  a  free  construction  of  the  act  so  as  to 
reach  objectionable  doctrines,  and  the  Supreme  Court  will 
probably  be  unable  to  afford  relief. 

Most  of  the  discussion  of  the  Abrams  case  has  turned  on 
the  question  whether  the  decision  of  the  United  States 
Supreme  Court  affirming  these  convictions  was  right  or 
wrong.  It  seems  to  me  much  more  important  to  con- 
sider the  case  as  a  whole,  and  ask  how  the  trial  and  its 
outcome  accord  with  a  just  administration  of  the  criminal 
law. 

The  systematic  arrest  of  civilians  by  soldiers  on  the  streets 
of  New  York  City  was  unprecedented,  the  seizure  of  papers 
was  illegal,  and  the  charges  of  brutality  at  Police  Head- 
quarters are  very  sinister.  The  trial  judge  ignored  the  fun- 
damental issues  of  fact,  took  charge  of  the  cross-examination 
of  the  prisoners,  and  allowed  the  jury  to  convict  them 
for  their  Russian  sympathies  and  their  anarchistic  views. 
The  maximum  sentence  available  against  a  formidable  pro- 
German  plot  was  meted  out  by  him  to  the  silly  futile  cir- 
culars of  five  obscure  and  isolated  young  aliens,  misguided  by 
their  loyalty  to  their  endangered  country  and  ideals,  who 
hatched  their  wild  scheme  in  a  garret,  and  carried  it  out  in 
a  cellar.  "  The  most  nominal  punishment "  was  all  that 
could  possibly  be  inflicted,  in  Justice  Holmes's  opinion,65 
unless  Judge  Clayton  was  putting  them  in  prison,  not  for 
their  conduct,  but  for  their  creed.  Yet  they  are  condemned 
for  their  harmless  folly  to  spend  the  best  years  of  their  lives 
in  American  jails.  The  injustice66  is  none  the  less 
because  our  highest  court  felt  powerless  to  wipe  it  out.  The 
responsibility  is  simply  shifted  to  the  pardoning  authorities, 
who  except  for  the  release  of  the  unlucky  dupe  Rosansky  have 
as  yet  done  nothing  to  remedy  the  injustice,  and  to  Congress 
which  can  change  or  abolish  the  Espionage  Act  of  1918,  so 
that  in  future  wars  such  a  trial  and  such  sentences  for  the 

65  250  U.  S.  @  629  (1919). 

ee  See  Morley's  indignation  at  the  "  thundering  sentences "  for  sedi- 
tion in  India.     2  Recollections    269. 


160  FREEDOM  OF,  SPEECH 

intemperate  criticism  of  questionable  official  action  67  shall 
never  again  occur  in  these  United  States. 

67  0n  armed  intervention  without  Congressional  authority,  see  the 
state  papers  of  Seward  and  Fish  in  J.  B.  Moore,  Digest  of  Interna- 
tional Law,  VI,  23  ff.,  and  Moorfield  Storey,  "A  Plea  for  Honesty," 
7  Yale  Rev.  260  (1918):  "If  any  nation  were  to  do  any  of  these  things 
to  the  United  States,  we  should  not  doubt  that  it  was  making  war 
on  us." 


CHAPTER  IV 

LEGISLATION  AGAINST  SEDITION  AND  ANARCHY 

If  there  be  any  among  us  who  wish  to  dissolve  this  union,  or 
to  change  its  republican  form,  let  them  stand  undisturbed,  as 
monuments  of  the  safety  with  which  error  of  opinion  may  be 
tolerated  where  reason  is  left  free  to  combat  it.  I  know  indeed 
that  some  honest  men  have  feared  that  a  republican  government 
cannot  be  strong ;  that  this  government  is  not  strong  enough.  But 
would  the  honest  patriot,  in  the  full  tide  of  successful  experiment, 
abandon  a  government  which  has  so  far  kept  us  free  and  firm  on 
the  theoretic  and  visionary  fear  that  this  government,  the  world's 
best  hope,  may,  by  possibility,  want  energy  to  preserve  itself? 
I  trust  not.  I  believe  this,  on  the  contrary,  the  strongest  govern- 
ment on  earth. — Jefferson's  First  Inaugural. 

Long  before  the  armistice  it  became  clear  that  the  problem 
of  freedom  of  speech  would  not  end  with  the  war,  but  would 
be  raised  for  us  in  a  different  aspect  and  with  added  diffi- 
culties by  the  unaccustomed  prevalence  and  outspoken  ex- 
pression of  radical  ideas.  Despite  my  own  adherence  to  tra- 
ditional political  and  economic  views,  I  believe  that  this 
phenomenon  was  bound  to  result  from  the  war.  The  routine 
of  the  day's  work  ordinarily  holds  in  check  the  eternal 
antagonism  of  the  "  have-nots  "  to  the  "  haves,"  but  habits 
of  mechanical  obedience  and  adjustment  to  the  prevailing 
scheme  of  life  were  suddenly  destroyed  for  many  by  the  rapid 
shift  to  new  scenes  and  occupations  and  a  novel  conviction 
of  the  power  of  unskilled  labor.  The  immense  amount  of 
thought  and  discussion  caused  by  the  war  during  the  three 
years  preceding  our  entry  has  been  often  remarked.  Such 
an  overhauling  directed  popular  attention  to  the  part  played 
by  economic  factors  in  the  origin  and  conduct  of  the  war. 
Many  extreme  radicals  claimed  therefrom  fresh  proof  of  the 
economic  interpretation  of  history  and  the  class  struggle. 
The  official  emphasis  on  democracy  against  autocracy  in- 

161 


162  FREEDOM  OF  SPEECH 

evitably  stimulated  discussion  of  those  two  concepts  and 
their  application  to  industrial  and  other  non-political  fields. 
Labor  programs  in  England  and  France  crossed  the 
ocean.  Then  came  one  of  the  earthquakes  of  history,  from 
whose  remote  influence  it  was  as  impossible  for  us  to  escape 
as  from  the  French  Revolution  which  produced  the  Alien  and 
Sedition  Laws  of  1798.  Jefferson's  First  Inaugural  states 
the  controversy  of  to-day. 

During  the  throes  and  convulsions  of  the  antient  world,  dur^ 
the  agonisd  spasms  of  infuriatd  man,  seeking  through  blood  & 
slaughter  his  long  lost  liberty,  it  was  not  wonderful  that  the 
agitation  of  the  billows  should  reach  even  this  distant  &  peaceful 
shore :  that  y8  shd  be  more  felt  &  f  eard  by  some,  &  less  by  others, 
&  shd  divide  opinions  as  to  measures  of  safety. 

Much  of  this  radicalism  had  identified  itself  with  the  oppo- 
sition to  the  war,  and  thereby  been  involved  in  prosecutions 
under  the  Espionage  Act  and  the  state  laws.  A  few  mem- 
bers of  the  Non-Partisan  League  were  tried  in  the  federal 
courts,  and  its  leaders  and  several  of  the  rank  and  file  were 
convicted  in  Minnesota.  Much  use  was  made  against  Debs, 
Berger,  and  Mrs.  O'Hare  of  the  St.  Louis  Socialist  platform, 
with  its  declaration  for  "  continuous,  active,  and  public 
opposition  to  the  war,  through  demonstrations,  mass  peti- 
tions, and  all  other  means  within  our  power."  The  Indus- 
trial Workers  of  the  World  had  taken  advantage  of  the 
nation's  hour  of  need  to  withhold  assistance  which  they  felt 
under  no  obligation  to  give.  Their  position  was  stated  to 
Carleton  Parker  in  plain  language  by  one  of  their  chiefs. 

You  ask  me  why  the  I.W.W.  is  not  patriotic  to  the  United 
States.  If  you  were  a  bum  without  a  blanket;  if  you  had  left 
your  wife  and  kids  when  you  went  West  for  a  job,  and  had 
never  located  them  since;  if  your  job  never  kept  you  long  enough 
in  a  place  to  qualify  you  to  vote;  if  you  slept  in  a  lousy,  sour 
bunk-house,  and  ate  food  just  as  rotten  as  they  could  give  you 
and  get  by  with  it;  if  deputy  sheriffs  shot  your  cooking  cans 
full  of  holes  and  spilled  your  grub  on  the  ground ;  if  your  wages 
were  lowered  on   you  when  the  bosses   thought  they  had  you 


LEGISLATION  AGAINST  SEDITION  163 

down;  if  there  was  one  law  for  Ford,  Suhr,  and  Mooney,  and 
another  for  Harry  Thaw;  if  every  person  who  represented  law 
and  order  and  the  nation  beat  you  up,  railroaded  you  to  jail, 
and  the  good  Christian  people  cheered  and  told  them  to  go  to 
it,  how  in  hell  do  you  expect  a  man  to  be  patriotic?  This  war 
is  a  business  man's  war  and  we  don't  see  why  we  should  go  out 
and  get  shot  in  order  to  save  the  lovely  state  of  affairs  that  we 
now  enjoy. 

Parker,  Colonel  Disque,  and  the  President's  Mediation  Com- 
mission had  striven  with  much  success  to  bring  these  irre- 
concilables  into  the  great  stream  of  national  effort.  Others 
thought  coercion  a  better  method  to  end  the  dangerous 
menace  of  sabotage  and  the  recurrent  strike.  W.  D.  Hay- 
wood and  one  hundred  more  members  of  the  I.W.W.  were 
convicted  and  imprisoned  under  long  sentences  for  threats 
and  designs  of  tangible  obstruction  to  war  work. 

This  union  of  hostility  to  the  war  with  strange  economic 
and  political  doctrines  set  its  mark  on  the  later  war  legisla- 
tion. The  amended  Espionage  Act  of  1918  included  the 
clauses  about  defamation  of  our  form  of  government  and  cur- 
tailment of  production  which  played  such  a  prominent  part 
in  the  Abrams  case.  A  federal  Sabotage  Act  was  enacted. 
States  punished  the  advocacy  of  syndicalism  and  sabotage  in 
their  war  statutes  or  more  often  by  separate  acts.  Much 
of  this  legislation  extended  automatically  to  peace-time 
utterances,  and  when  it  did  not,  it  was  easy  and  natural 
to  adapt  it  for  that  purpose  by  the  omission  of  a  few  mili- 
tary phrases.  In  the  legislative  sessions  which  followed  the 
armistice,  emergency  laws  against  anarchy  and  criminal 
syndicalism  were  adopted  by  state  after  state  with  a  coin- 
cidence of  time  and  phraseology  which  proved  either  a  uni- 
form danger  throughout  the  country  or  the  operation  of 
M.  Tarde's  Laws  of  Imitation. 

This  coercive  legislation  was  held  by  its  supporters  to 
have  unanswerable  justification  in  the  succeeding  outrages 
of  1919.  A  large  number  of  bombs  addressed  to  federal  offi- 
cials and  judges  were  seized  in  the  mails,  and  the  houses  of 


164  FREEDOM  OF  SPEECH 

Attorney  General  Palmer  and  several  other  individuals 
prominent  in  sedition  prosecutions  and  legislation  were 
wrecked  by  explosions,  one  of  which  caused  loss  of  life. 
There  was  much  street  fighting  at  May  Day  Parades  in 
Boston  and  Cleveland,  and  a  clash  of  very  obscure  origin 
between  the  I.W.W.  and  the  American  Legion  in  Centralia, 
Washington,  resulted  in  the  death  of  five  ex-service  men, 
four  shot  and  one  lynched.  Meanwhile,  the  Department  of 
Justice  and  a  special  Senate  Committee  to  investigate  Bol- 
shevism accumulated  a  mass  of  evidence  on  the  large  number 
of  revolutionary  periodicals  and  publications  in  the  United 
States. 

The  presence  in  our  midst  of  new  forces  that  make  for 
disorder  and  violence  renders  it  desirable  to  review  the  re- 
sources of  our  law  for  dealing  with  insurrection,  bombs,  and 
assassination,  and  to  examine  calmly  recent  and  pending 
legislation  to  prevent  the  promotion  of  anarchy.  The  dis- 
ruption of  our  social  and  economic  fabric  by  revolution,  or 
even  the  continual  recurrence  of  local  outrages,  would  be  so 
disastrous  that  they  ought  to  be  prevented  in  the  wisest  and 
most  effective  manner.  Many  persons  take  it  for  granted 
that  any  statute  which  is  directed  against  those  evils  must 
be  beneficial.  That  does  not  necessarily  follow.  If  an  emer- 
gency really  exists,  it  behooves  us  all  to  keep  cool,  and  con- 
sider with  great  care  any  new  laws,  and  particularly  the 
bills  lately  introduced  in  Congress,  to  see  whether  they  are 
actually  needed  to  combat  the  danger,  whether  they  will 
really  meet  it,  and  whether  in  the  haste  and  excitement  of 
the  moment  our  legislators  may  not  be  going  much  too  far. 

This  country  has  been  able  without  any  anarchy  acts  to 
cope  with  several  insurrections  like  Shay's  Rebellion  and  the 
Dorr  War,  a  considerable  amount  of  anarchy,  and  a  great 
many  turbulent  strikes.  May  it  not  be  that  a  wise  and  vig- 
orous enforcement  of  the  ordinary  criminal  law  will  meet 
most,  if  not  all,  of  the  present  danger? 


LEGISLATION  AGAINST  SEDITION  165 

I.  The  Normal  Law  Against  Violence  and  Revolution 

As  far  as  state  prosecutions  are  concerned,  there  has  been 
very  little  need  of  specific  legislation  against  anarchy  and 
criminal  syndicalism.  Actual  violence  against  government, 
life,  and  property  is  punishable  everywhere.  Those  who 
plan  or  counsel  such  violence  are  liable  even  if  they  do  not 
actively  participate.  When  several  policemen  were  killed  by 
a  bomb  at  the  Haymarket  in  Chicago  in  1886,  Spies  and 
other  anarchists  were  convicted  and  executed  though  it  was 
clear  that  some  one  else  threw  the  bomb.  Nor  is  it  necessary 
that  any  criminal  act  shall  take  place.  An  unsuccessful 
attempt  at  a  serious  crime  or  a  definite  solicitation  of 
another  to  commit  it  is  punishable  under  the  general  criminal 
law.  Chief  Justice  Morton  of  Massachusetts  said  in  1883, 
while  upholding  the  sentence  of  one  Flagg  for  urging  another 
without  success  to  burn  down  a  barn :  "  It  is  an  indictable 
offense  at  common  law  to  counsel  and  solicit  another  to 
commit  a  felony  or  other  aggravated  offense,  although  the 
solicitation  is  of  no  effect,  and  the  crime  counseled  is  not 
in  fact  committed."  Consequently  the  normal  law  of  the 
states  and  the  District  of  Columbia,  apart  from  any  legis- 
lation against  anarchy,  enables  the  police  and  the  courts  to 
deal  vigorously  with  actual  or  threatened  insurrection,  explo- 
sions, or  assassination.1  The  persons  of  the  President  and 
other  federal  officials  are  protected  by  these  laws  in  the 
District  and  the  various  states.  Thus  the  assassin  of 
President  McKinley  was  convicted  in  New  York.  If  it  is 
felt  to  be  safer  that  crimes  against  such  men  should  also  be 
subject  to  prosecution  in  the  federal  courts,  it  may  be  that 
Congress  has  power  so  to  provide,  since  any  injury  to  them 
would  seriously  impede  the  operation  of  the  national  gov- 

i  For  purposes  of  illustration  I  have  added  in  Appendix  IV  refer- 
erences  to  the  normal  law  of  four  jurisdictions  which  have  lately  been 
alarmed  over  anarchy.  If  the  law  of  any  other  state  is  incomplete,  a 
definite  provision  as  to  criminal  attempt  or  solicitation  will  meet  the 
need  far  more  wisely  than  the  enactment  of  a  vague  and  sweeping  act 
against  anarchy. 


166  FREEDOM  OF  SPEECH 

eminent,  although  this  is  a  question  which  requires  subse- 
quent consideration.  If  such  a  statute  can  be  constitu- 
tionally enacted,  it  should  punish  not  only  actual  injuries 
to  officials,  but  also  unsuccessful  attempts  and  incitement  of 
others  to  commit  such  injuries,  for  such  abortive  conduct 
would  not  be  criminal  in  the  United  States  courts  unless 
expressly  made  so.2 

No  Congressional  legislation  is  needed  to  make  criminal 
any  scheme  to  overthrow  the  United  States  Government  by 
bombs  or  any  other  means.  A  glance  at  the  first  eight  sec- 
tions of  the  Federal  Criminal  Code  suffices  to  prove  this.3 
Levying  war  against  the  United  States  is  treason  punishable 
with  death,  and  recruiting  or  enlisting  for  armed  hostility 
against  the  United  States  is  a  serious  crime.  Conduct  short 
of  insurrection  is  penalized  in  section  6.  "  If  two  or  more 
persons  .  .  .  conspire  to  overthrow,  put  down,  or  to 
destroy  by  force  the  Government  of  the  United  States,  or  to 
levy  war  against  them,  or  to  oppose  by  force  the  authority 
thereof,  or  by  force  to  prevent,  hinder,  or  delay  the  execu- 
tion of  any  law  of  the  United  States,"  they  are  each  liable 
to  six  years  in  prison  or  $5,000  fine  or  both.  It  is  of  course 
well  settled  that  conspiracy  does  not  have  to  succeed  to  be 
punishable.  All  that  is  required  is  a  common  design  to 
commit  a  crime,  and  some  overt  act  in  pursuance  of  the 
design.  The  act  may  be  entirely  innocent  in  itself,  and  may 
consist  in  speech  or  publication.  If  any  further  protection 
against  threatened  revolution  is  needed,  it  is  furnished  by 
section  37  of  the  Criminal  Code,  which  punishes  with  severity 
conspiracy  "  to  commit  any  offense  against  the  United 
States."  * 

2  Section  332  of  the  U.  S.  Criminal  Code  punishes  one  who  "aids, 
abets,  counsels,  commands,  induces  or  procures  "  a  crime ;  but  this  sec- 
tion has  only  been  applied  to  men  who  have  aided  in  a  crime  which  has 
actually  been  committed.  It  probably  can  not  be  used  against  unsuc- 
cessful incitement.  U.  S.  v.  Rogers,  226  Fed.  512,  so  holds,  though 
there  is  a  suggestion  that  the  crime  need  not  be  committed  in  Billingsley 
v.  U.  S.,  249  Fed.  331.     Section  4  raises  the  same  question. 

3U.  S.  Comp.  Stat.,  1918,  §§  10165-10172. 

*I6id.,  §10201. 


LEGISLATION  AGAINST  SEDITION  167 

Section  6  of  the  Criminal  Code  was  enacted  during  the 
Civil  War  and  was  thought  adequate  to  meet  the  real  dan- 
gers of  the  Reconstruction  Period  in  the  South.  However, 
Attorney  General  Palmer,  in  asking  Congress  for  a  new  sedi- 
tion law,  alleges  two  defects  in  this  section,  which  in  his 
opinion  destroy  its  usefulness  in  dealing  with  the  present 
radical  situation.5  First,  the  section  is  limited  to  con- 
spiracies and  does  not  reach  the  isolated  individual  who 
threatens  to  overthrow  the  government.  It  may  be  a  breach 
of  the  peace  under  state  law  but  it  is  not  now  a  federal 
crime  if  one  man,  all  by  himself,  goes  and  hires  a  hall  and 
tells  his  audience  to  start  a  revolution.  This  solitary  talker 
was  frequently  held  up  at  recent  Congressional  hearings  as 
an  example  of  existing  danger  to  the  country,  until  Mr. 
Alfred  Bettman  answered  out  of  his  long  experience  with 
sedition  prosecutions  during  war  service  in  the  Department 
of  Justice : 6 

This  man  does  it  all  by  himself.  Nobody  encourages  him. 
No  organization  supports  or  inspires  him.  He  thinks  up  a 
rebellion  all  by  himself.  He  hires  a  hall  all  by  himself.  No- 
body helps  him  pay  for  it.  He  makes  his  speech  all  by  himself. 
Nobody  introduces  him.  He  makes  his  speech.  And  nothing 
happens.  That  is  your  case.  Nothing  happens.  Well,  nothing 
happens. 

Mr.  Palmer's  second  objection  grows  out  of  a  test  case,  in 
which  Judge  Hazel  dismissed  a  prosecution  under  section  6 
against  three  members  of  the  El  Ariete  Society,  a  Buffalo 
anarchistic  organization,  for  the  circulation  of  a  Spanish 
manifesto.  The  Attorney  General  states  that  this  manifesto 
"  clearly  constitutes  an  appeal  to  the  proletariat  to  arise 
and  destroy  the  government  of  the  United  States  by  force 
and  substitute  Bolshevism  or  anarchy  in  place  thereof " ; 
and  consequently  that  the  failure  of  the  prosecution  shows 
that  new  legislation  is  necessary  to  meet  such  publications. 

s  Investigation  Activities  of  the  Department  of  Justice,  6. 
6  21  New  Republic  314  (February  11,  1920). 


168  FREEDOM  OF  SPEECH 

The  case  cited  does  not  justify  any  such  conclusion.7  (1) 
The  defendants  were  not  proved  to  have  any  substantia] 
connection  with  the  manifesto,  so  that  the  judge  could  not 
do  anything  but  discharge  them  even  if  its  language  violated 
every  section  of  the  Criminal  Code.  (2)  Judge  Hazel  ex- 
pressly found  that  the  manifesto  does  not  advocate  the  over- 
throw of  the  government  by  force.  Undoubtedly  it  abuses 
the  form  of  our  government  and  its  officials,  advocates  the 
organization  of  Soviets,  anarchy,  and  the  destruction  of  the 
institutions  of  society,  "  but  there  is  nothing  contained  in  it 
that  advocates  the  destruction  of  society  by  the  use  of  vio- 
lence, and  it  is  open  to  the  construction  that  it  was  designed 
to  be  sent  out  for  the  purpose  of  bringing  about  a  change  in 
the  government  by  propaganda — by  written  documents. " 

A  circular  which  is  part  of  any  actual  plot  to  overthrow 
the  government  by  unlawful  acts  would  be  punishable  under 
section  6.  This  is  plainly  shown,  not  only  by  Judge  Hazel's 
reasoning,  but  also  by  another  decision  affirming  a  convic- 
tion under  this  section  for  a  conspiracy  to  circulate  pam- 
phlets advocating  resistance  to  the  execution  by  conscription 
of  the  war  resolution  of  Congress.8  On  the  other  hand,  a 
statute  applying  to  the  Ariete  manifesto  would  necessarily 
make  it  criminal  to  express  economic  views  and  aims  dif- 
ferent from  those  which  now  prevail.  Whether  such  legis- 
lation is  desirable  will  soon  be  discussed,  but  clearly  it  is 
not  needed  to  meet  any  present  danger  of  revolution.  If 
there  is  any  real  revolutionary  plot  to-day  by  Bolshevists, 
anarchists,  or  any  one  else,  they  can  be  tried,  convicted,  and 
sentenced  to  six  years  in  prison  under  section  6  of  the 
Criminal  Code,  and  if  this  is  not  time  enough  a  simple 
amendment  of  this  section  can  make  it  longer. 

One  other  feature  of  the  existing  federal  law  deserves 
attention.     The  chief  danger  from  anarchists  arises  through 

i  The  opinion  of  Judge  Hazel  in  this  case  (U.  S.  v.  Aso)  should  be 
read  in  full  on  pp.  15-22,  Investigation  Activities  of  the  Department 
of  Justice. 

swells  v.  U.  S.,  257  Fed.  605  (C.  C.  A.,  1919).  See  Chapter  II, 
note  4. 


LEGISLATION  AGAINST  SEDITION  169 

the  use  of  explosives,  and  if  these  are  kept  under  federal 
control  the  country  will  be  reasonably  safe  from  bombs  and 
dynamite.  On  October  6,  1917,  Congress  passed  an  elabo- 
rate statute  making  it  unlawful,  when  the  United  States  is 
at  war,  to  manufacture,  distribute,  store,  use,  or  possess 
explosives,  fuses,  detonators,  etc.,  except  under  specified  reg- 
ulations which  include  a  requirement  for  a  government  li- 
cense given  only  after  full  information.  This  law  was  used 
during  the  war  to  impose  sentences  of  eighteen  months  on 
bomb  plotters  who  were  shipping  explosives  without  a  li- 
cense.9 The  statute  is  automatically  suspended  during  peace, 
but  Congress  would  do  well  to  continue  it,  and  could,  it 
seems,  accomplish  this  constitutionally  under  its  powers  to 
regulate  interstate  and  foreign  commerce  and  to  conserve 
material  needed  for  army  and  navy  use.  Under  this  statute 
it  would  be  practically  impossible  for  unauthorized  persons 
to  secure  enough  explosives  to  cause  extensive  damage. 

With  these  suggested  amendments  to  the  federal  statutes 
to  protct  the  lives  and  persons  of  United  States  officials  and 
regulate  the  use  of  explosives  in  peace,  the  normal  law  will 
be  entirely  adequate  to  guard  us  against  dangerous  anarchy. 
Violence,  direct  and  dangerous  provocation  to  violence,  and 
conspiracies  to  bring  about  violence  will  be  severely  punished, 
and  the  instruments  of  outrage  will  be  removed. 

II.  The  Normal  Criminal  Law  of  Words 

I  have  dwelt  at  such  length  upon  the  ordinary  law  in 
order  to  make  it  clear  that  the  so-called  anarchy  acts, 
insofar  as  they  are  not  unnecessary  duplication  of  that  law, 
go  far  beyond  it  and  impose  an  entirely  different  test  of 
criminality.  To  restate  the  matter  in  accordance  with  the 
reasoning  in  the  first  chapter,  the  normal  criminal  law  is 
interested  in  preventing  crimes  and  certain  non-criminal 
interferences  with  governmental  functions  like  refusals  to 
enlist  or  to   subscribe  to  bonds.     It  is  directed  primarily 

»U.  S.  Comp.  Stat.,  1918,  §§3115%  a,  ff.;  Inspector  Thomas  J. 
Tunney,  in  Bolshevik  Propaganda,  28. 


170  FREEDOM  OF  SPEECH 

against  actual  injuries.  Such  injuries  are  usually  committed 
by  acts,  but  the  law  also  punishes  a  few  classes  of  words 
like  obscenity,  profanity,  and  gross  libels  upon  individuals, 
because  the  very  utterance  of  such  words  is  considered  to 
inflict  a  present  injury  upon  listeners,  readers,  or  those  de- 
famed, or  else  to  render  highly  probable  an  immediate  breach 
of  the  peace.  This  is  a  very  different  matter  from  punishing 
words  because  they  express  ideas  which  are  thought  to  cause 
a  future  danger  to  the  State. 

Undoubtedly,  the  existence  of  these  verbal  peace-time 
crimes  subjects  the  argument  of  my  first  chapter  to  an  acid 
test.  They  are  too  well-recognized  to  question  their  consti- 
tutionality, but  I  believe  that  if  they  are  properly  limited 
they  fall  outside  the  protection  of  the  free  speech  clauses  as  I 
have  defined  them.  My  reason  is  not  that  they  existed  at 
common  law  before  the  constitutions,  for  a  similar  argument 
would  apply  to  the  crime  of  sedition,  which  was  abolished  by 
the  First  Amendment.  The  existence  of  a  verbal  crime  at 
common  law  shows  the  presence  of  a  social  interest  which 
must  be  weighed  in  the  balance,  but  the  free  speech  guar- 
anties, as  I  have  argued  at  length,  enact  a  countervailing 
social  interest  in  the  attainment  and  dissemination  of  truth, 
which  was  insufficiently  recognized  by  the  common  law. 
Nor  do  I  base  my  conclusion  on  the  historical  fact  that  the 
framers  of  the  constitutions  wanted  to  safeguard  political 
discussion,  because  their  own  statements  of  freedom  of 
speech  in  the  address  to  the  people  of  Quebec,  the  Virginia 
Toleration  Statute,  and  the  opening  clause  of  the  First 
Amendment  itself,  prove  that  they  also  wanted  to  safeguard 
scientific  and  religious  freedom,  both  of  which  would  be 
greatly  restricted  by  a  sweeping  application  of  the  common 
law  of  obscenity  and  blasphemy.  The  true  explanation  is, 
that  profanity  and  indecent  talk  and  pictures,  which  do  not 
form  an  essential  part  of  any  exposition  of  ideas,  have  a 
very  slight  social  value  as  a  step  toward  truth,  which  is 
clearly  outweighed  by  the  social  interests  in  order,  morality, 
the  training  of  the  young,  and  the  peace  of  mind  of  those 


LEGISLATION  AGAINST  SEDITION  171 

who  hear  and  see.  Words  of  this  type  offer  little  oppor- 
tunity for  the  usual  process  of  counter-argument.  The 
harm  is  done  as  soon  as  they  are  communicated,  or  is  liable 
to  follow  almost  immediately  in  the  form  of  retaliatory  vio- 
lence. The  only  sound  explanation  of  the  punishment  of 
obscenity  and  profanity  is  that  the  words  are  criminal,  not 
because  of  the  ideas  they  communicate,  but  like  acts  because 
of  their  immediate  consequences  to  the  five  senses.  The  man 
who  swears  in  a  street  car  is  as  much  of  a  nuisance  as  the 
man  who  smokes  there.  Insults  are  punished  like  a  threat- 
ening gesture,  since  they  are  liable  to  provoke  a  fight. 
Adulterated  candy  is  no  more  poisonous  to  children  than 
some  books.  Grossly  unpatriotic  language  may  be  punished 
for  the  same  reasons.  The  man  who  talks  scurriously  about 
the  flag  commits  a  crime,  not  because  the  implications  of  his 
ideas  tend  to  weaken  the  Federal  Government,  but  because  the 
effect  resembles  that  of  an  injurious  act  such  as  trampling 
on  the  flag,  which  would  be  a  public  nuisance  and  a  breach 
of  the  peace.  This  is  a  state  but  not  a  federal  crime,  for 
the  United  States  has  no  criminal  jurisdiction  over  offenses 
against  order  and  good  manners,  although  Congress  may 
possibly  have  power  to  regulate  the  use  of  the  national  em- 
blem.    It  is  altogether  different  from  sedition. 

The  absurd  and  unjust  holdings  in  some  of  these  prosecu- 
tions for  the  use  of  indecent  or  otherwise  objectionable  lan- 
guage furnish  a  sharp  warning  against  any  creation  of  new 
verbal  crimes.  Thus,  the  test  of  obscenity  is  very  vague,  and 
many  decisions  have  utterly  failed  to  distinguish  nasty  talk 
or  the  sale  of  unsuitable  books  to  the  young  from  the  serious 
discussion  of  topics  of  great  social  significance.  The  white 
slave  traffic  was  first  exposed  by  W.  T.  Stead  in  a  magazine 
article,  "  The  Maiden  Tribute."  The  English  law  did  abso- 
lutely nothing  to  the  profiteers  in  vice,  but  put  Stead  in 
prison  for  a  year  for  writing  about  an  indecent  subject.10 

10  For  a  division  among  judges  whether  a  book  was  indecent,  see 
People  v.  Eastman,  188  N.  Y.  478  (1907).  The  Bibliography  contains 
references  on  this  class  of  crime. 


172  FREEDOM  OF  SPEECH 

When  the  law  supplies  no  definite  standard  of  criminality, 
a  judge  in  deciding  what  is  indecent  or  profane  may  con- 
sciously disregard  the  sound  test  of  present  injury,  and  pro- 
ceeding upon  an  entirely  different  theory  may  condemn  the 
defendant  because  his  words  express  ideas  which  are  thought 
liable  to  cause  bad  future  consequences.  Thus  musical 
comedies  enjoy  almost  unbridled  license,  while  a  problem 
play  is  often  forbidden  because  opposed  to  our  views  of 
marriage.  In  the  same  way,  the  law  of  blasphemy  has  been 
used  against  Shelley's  Queen  Mab,  and  the  decorous  promul- 
gation of  pantheistic  ideas,  on  the  ground  that  to  attack 
religion  is  to  loosen  the  bonds  of  society  and  endanger 
the  state.11  This  is  simply  a  roundabout  modern  method 
to  make  heterodoxy  in  sex  matters  and  even  in  religion  a 
crime.  A  Washington  decision  punishing  a  man  for  a  news- 
paper article  tending  to  defame  George  Washington  is  a 
serious  restriction  on  historical  writing.12  Furthermore, 
the  breach  of  the  peace  theory  is  peculiarly  liable  to  abuse. 
It  makes  a  man  a  criminal  simply  because  his  neighbors  have 
no  self-control  and  cannot  refrain  from  violence.  The 
reductio  ad  ab&urdwm  of  this  theory  was  the  imprisonment 
of  Joseph  Palmer,  one  of  Bronson  Alcott's  fellow-settlers  at 
"  Fruitlands,"  not  because  he  was  a  communist,  but  because 
he  persisted  in  wearing  such  a  long  beard  that  people  kept 
mobbing  him,  until  law  and  order  were  maintained  by  shut- 
ting him  up.13  A  man  does  not  become  a  criminal  because 
some  one  else  assaults  him  unless  his  own  conduct  is  in  itself 
illegal  or  may  be  reasonably  considered  a  direct  provoca- 
tion to  violence.14  Thus  all  these  crimes  of  injurious  words 
must  be  kept  within  very  narrow  limits  if  they  are  not  to 
give  excessive  opportunities  for  outlawing  heterodox  ideas. 

"Austin  W.  Scott,  "The  Legality  of  Atheism,"  31  Harv.  L.  Rev. 
289  (1917). 

12  People  v.  Haffer,  94  Wash.  136  (1916),  under  statute.  Even  such 
a  conservative  as  Dr.  Johnson  opposed  liability  for  defamation  of  the 
dead. 

13  Clara  E.  Sears,  Bronson  Alcott's  Fruitlands,  c.  IV. 

i*  See  the  subsequent  discussion  of  the  right  of  assembly. 


LEGISLATION  AGAINST  SEDITION  173 

Besides  these  special  classes  of  words  which  cause  present 
injury,  the  normal  law  punishes  speech  which  falls  short 
of  injury  as  an  attempt  or  solicitation,  but  the  first  chapter 
has  shown  that  this  is  only  when  the  words  come  somewhere 
near  success  and  render  the  commission  of  actual  crime  or 
other  tangible  obstruction  of  state  activities  probable  unless 
the  state  steps  in  at  once  and  penalizes  the  conduct  before 
it  ripens  into  injury.  The  law  of  attempts  and  solicitation 
is  directed  not  against  the  words  but  against  acts,  and  the 
words  are  punished  only  because  that  is  the  necessary  way 
to  avoid  harmful  acts.  When  A  urges  B  to  kill  C  and  tells 
him  how  he  can  do  it,  this  has  nothing  to  do  with  the  attain- 
ment and  dissemination  of  truth,  and  besides  there  is 
genuine  danger  that  the  murder  will  take  place  long  before 
discussion  will  prove  it  to  be  a  mistaken  scheme. 

The  two  conspiracy  cases  mentioned  in  connection  with 
the  federal  Criminal  Code  bring  out  neatly  the  boundary  of 
the  normal  criminal  law.  The  anti-draft  pamphlets  fell 
within  its  range  because  of  the  danger  created  by  their  lan- 
guage and  the  surrounding  circumstances,  and  although 
unlike  solicitations  to  murder  they  served  a  social  interest  in 
criticising  the  policies  of  the  war,  this  was  outweighed  by 
the  pressing  peril  to  the  social  interest  in  the  enforcement 
of  war  legislation.  On  the  other  hand,  the  Ariete  manifesto 
was  simply  intemperate  discussion  of  fundamental  economic 
and  political  questions,  and  even  if  it  had  a  remote  tendency 
to  injure  the  country  by  causing  a  revolution  some  day  there 
was  obviously  plenty  of  time  to  present  the  other  side  before 
the  revolution  arrived. 


III.  The  Difference  Between  the  Normal  Law  and  the 
New  Legislation 

We  have  seen  and  heard  of  revolutions  in  other  States.  Were 
they  owing  to  the  freedom  of  popular  opinions  ?  Were  they  owing 
to  the  facility  of  popular  meetings?     No,  sir,  they  were  owing 


174  FREEDOM  OF  SPEECH 

to  the  reverse  of  these;  and  therefore,  I  say,  if  we  wish  to  avoid 
the  danger  of  such  revolutions,  we  should  put  ourselves  in  a  state 
as  different  from  them  as  possible. — Charles  James  Fox,  1795. 

The  existing  law  protects  us  from  dangerous  anarchy,  but 
the  anarchy  acts  reach  out  to  the  futile  soap-box  orator 
who  advocates  violence  and  in  most  cases  to  the  Ariete 
manifesto  which  does  not.  These  statutes  are  not  directed 
against  those  who  commit  or  actually  plan  violence,  but 
against  those  who  express  or  even  hold  opinions  which  are 
distasteful  to  the  substantial  majority  of  citizens.  Some 
of  them  are  so  sweeping  as  to  suppress  agitation  which  is 
neither  dangerous  nor  anarchistic.  The  people  may  be  led 
to  accept  such  statutes  because  they  fear  anarchy,  but  they 
will  soon  find  that  all  sorts  of  radical  and  even  liberal  views 
have  thereby  become  crimes.  These  acts  have  been  drafted 
by  men  who  are  so  anxious  to  avoid  any  disturbance  of  law 
and  order  that  they  have  punished  by  long  prison  terms  and 
heavy  fines  not  only  provocation  to  the  use  of  force,  but  also 
the  promulgation  of  any  ideas  which  might  possibly  if 
accepted  cause  some  one  to  use  force. 

In  the  past  the  American  law  has  shown  little  sensitive- 
ness to  revolutionary  utterances  in  time  of  peace,  and  has 
wisely  treated  most  fulminations  against  the  social  fabric  like 
a  pot-shot  at  a  man  ten  miles  away.  However,  as  Judge 
Hand  pointed  out,15  all  vigorous  criticism  of  the  form  of 
government  or  the  economic  system  or  particular  laws  may 
by  arousing  passion  or  engendering  conviction  of  the  iniquity 
of  existing  conditions  lead  indirectly  to  violence.  Even  an 
ardent  oration  urging  the  repeal  of  a  statute  may  lead 
hearers  to  disobey  it.  We  are  always  tempted  to  apprehend 
such  results  from  opinions  to  which  we  are  opposed.  It  is 
easy  to  believe  that  doctrines  very  different  from  our  own 
are  so  objectionable  that  they  could  only  come  into  opera- 
tion through  force,  so  that  their  advocates  must  necessarily 
favor  criminal  acts.  The  difference  between  the  expression 
of  radical  views  and  direct  provocation  to  revolution  is  only 

15  See  p.  50,  supra. 


LEGISLATION  AGAINST  SEDITION  175 

a  difference  of  degree,  but  it  is  a  difference  which  the  normal 
criminal  law  regards  as  all-important. 

There  are  always  men  who  want  the  law  to  go  much 
farther  and  nip  opinions  in  the  bud  before  they  become  dan- 
gerous because  they  may  eventually  be  dangerous.  Thus,  when 
Colley  Cibber  produced  his  adaptation  of  "  Richard  III," 
the  Master  of  the  Revels  expunged  the  whole  first  act,  fear- 
ing that  the  distresses  of  Henry  VI  would  put  weak  people 
too  much  in  mind  of  James  II,  also  exiled  in  France.16  Such 
an  attitude  is  particularly  common  in  a  period  of  unrest  like 
the  present,  especially  during  a  foreign  revolution  or  after 
assassinations,  when  coercion  and  violence  follow  each  other 
in  a  vicious  circle.  We  have  seen  how  George  Ill's  judges 
transported  men  who  wanted  to  abolish  rotten  boroughs  and 
the  limited  franchise,  because  if  the  people  of  Great  Britain 
possessed  the  same  privileges  as  the  French  they  might 
destroy  the  Constitution  and  imitate  the  Reign  of  Terror. 
Restoration  France,  after  the  assassination  of  the  Due  de 
Berri,  passed  a  law  to  suppress  any  journal  "  if  the  spirit 
resulting  from  a  succession  of  articles  would  be  of  a  nature 
to  cause  injury  to  the  public  peace  and  the  stability  of  con- 
stitutional institutions."  It  was  only  with  the  disappear- 
ance of  these  proces  de  tendance  that  the  press  once  more 
became  free,  and  under  the  Republic  one  can  urge  a  change 
in  the  form  of  government  to  monarchy  or  empire  with 
impunity.17 

Abolition  of  slavery  could  never  be  mentioned  in  the  ante- 
bellum South  because  it  might  cause  a  negro  uprising.  A 
similar  sensitiveness  to  possible  bad  results  led  to  the  pro- 
hibition of  "  Mrs.  Warren's  Profession  "  and  "  September 
Morn."    Since  almost  any  opinion  has  some  dangerous  tend- 

16  3  Johnson's  Lives  of  the  Poets  (ed.  G.  B.  Hill),  292  note. 

"A.  Esmein,  tiUments  de  Droit  Constitutionnel,  6  ed.,  1145,  1149; 
Ernst  Freund  in  19  New  Republic  14  (May  3,  1919).  In  the  same  way 
the  New  York  post-office  objected  to  the  general  tenor  and  animus  of 
the  Masses  as  seditious  without  specifying  any  particular  portion  as 
objectionable,  although  the  periodical  offered  to  excerpt  any  matter  so 
pointed  out.    Masses  Pub.  Co.  v.  Patten,  244  Fed.  535,  536,  543  (1917). 


176  FREEDOM  OF  SPEECH 

encies,  it  is  obvious  that  its  suppression  on  that  account  puts 
an  end  to  thorough  discussion.  Writings  which  do  not  actu- 
ally urge  illegal  acts  should  never  be  made  criminal  except 
perhaps  in  great  emergencies  like  war  or  revolt  when  the  mere 
statement  of  the  author's  view  creates  a  clear  and  present 
danger  of  injurious  acts.  In  time  of  peace  the  limitation  of 
the  punishment  of  speech  to  direct  provocation  to  crime  is 
the  essential  element  of  the  freedom  of  the  press. 

The  normal  criminal  law  is  willing  to  run  risks  for  the 
sake  of  open  discussion,  believing  that  truth  will  prevail 
over  falsehood  if  both  are  given  a  fair  field,  and  that  argu- 
ment and  counter-argument  are  the  best  method  which  man 
has  devised  for  ascertaining  the  right  course  of  action  for 
individuals  or  a  nation.  It  holds  that  error  is  its  own  cure 
in  the  end,  and  the  worse  the  error,  the  sooner  it  will  be 
rejected.  Attorney  General  Gregory  has  defended  the  Es- 
pionage Act  on  the  ground  that  propaganda  is  especially 
dangerous  in  a  country  governed  by  public  opinion.18  I 
believe  this  to  be  wholly  wrong.  Free  discussion  will  expose 
the  lies  and  fallacies  of  propaganda,  while  in  a  country 
where  opinion  is  suppressed  propaganda  finds  subterranean 
channels  where  it  cannot  be  attacked  by  its  opponents. 

Russia  under  the  Czar  took  no  risks.  It  was  afraid  to 
wait  for  a  clear  and  present  danger  of  violence.  It  put  the 
ax  to  the  root  of  the  tree.  Five  powerful  methods  were 
developed  to  reach  anarchy  and  revolution  in  their  earliest 
stages.  The  government  censored  and  suppressed  books  and 
periodicals ;  it  raided  houses  and  seized  men  and  their  papers 
without  process;  it  prosecuted  them  for  their  expression  of 
opinions  and  for  their  membership  in  radical  societies;  it 
deported  them  to  Siberia  or  abroad;  it  devised  ingenious 
methods  of  weeding  them  out  of  the  Duma. 

These  are  not  American  methods.  During  the  whole  of 
the  nineteenth  century,  not  one  of  them  was  used  against 
radicals  in  the  United  States.  It  is  the  American  habit  to 
take  a  chance  on  queer  and  objectionable  opinions.  Roger 
Williams  did  it  when  he  discarded  religious  qualifications  for 

is  Report  of  the  Attorney  General,  1918,  21. 


LEGISLATION  AGAINST  SEDITION  177 

office  and  citizenship,  which  even  England  was  afraid  to 
abandon  wholly  for  another  two  hundred  and  fifty  years. 
It  is  easy  for  us  to  forget  now  what  a  tremendous  risk  the 
founder  of  Rhode  Island  was  thought  to  run  and  did  run 
in  those  days  of  wild  beliefs.  The  "  livelie  experiment  "  of 
religious  freedom  described  in  the  Charter,  which  it  was 
much  on  his  heart  to  hold  forth,  was  a  very  lively  experi- 
ment indeed  in  its  early  years.  And  in  the  past  the  same 
courage  has  marked  our  policy  toward  radicalism.  Anarchy 
and  communism  are  nothing  new  in  this  country, — we  have 
had  them  in  all  varieties,  foreign  and  domestic,  since  the 
days  of  Brook  Farm  until  we  lived  safely  through  thirty- 
four  years  of  Emma  Goldman.  The  normal  law,  which  re- 
frains from  punishing  words  for  their  bad  political  tend- 
ency, has  carried  us  through  far  worse  crises  than  the 
present.  In  the  midst  of  the  great  railroad  strikes  of  1877, 
when  unemployment  was  larger  than  ever  before  or  since,  a 
big  communist  meeting  was  permitted  in  New  York.  The 
Seventh  Regiment  was  kept  in  a  conspicuous  readiness  to 
put  down  any  actual  disorder,  but  there  was  no  interference 
with  anything  that  was  said.  The  speakers  indulged  in  the 
wildest  kind  of  talk,  but  it  fell  flat  on  the  meeting  just  be- 
cause there  was  no  chance  for  a  row.19  Arthur  Woods  used 
the  same  wise  policy  when  he  became  police  commissioner  of 
New  York  City  during  the  hard  times  of  the  summer  of 
1914.  Under  his  predecessor  the  police  had  been  breaking 
up  anarchistic  meetings  in  Union  Square  every  Saturday 
afternoon  and  the  feeling  was  excited,  defiant,  and  bitter. 
Threats  were  not  disguised  that  since  the  police  had  "  acted 
like  agents  of  the  capitalists,"  the  crowds  would  come  next 
time  prepared  to  answer  clubs  and  revolvers  with  bombs. 
Mr.  Woods  took  office,  and  told  the  police  to  interfere  in 
any  actual  disturbance,  but  not  otherwise.  Next  Saturday, 
a  large  force  of  police  was  held  within  available  distance, 
and  a  hundred  plain-clothes  men  were  scattered  singly 
through  the  meeting,  on  the  watch  for  signs  of  violence  so 
that  they  could  nip  any  attempt  in  the  bud,  but  beyond 
19  J.  F.  Rhodes,  History  of  the  United  States,  VIII,  41. 


178  FREEDOM  OF  SPEECH 

that  they  were  only  to  try  to  maintain  an  atmosphere  of 
quiet  and  calm  and  radiate  good  nature.     Mr.  Woods  says : 

The  change  of  method  was  almost  unbelievably  successful. 
There  was  no  disorder;  the  crowd  was  very  large  but  very  well 
behaved,  and  at  the  end  of  the  meeting  when  everything  was  over 
and  many  had  gone  home,  three  cheers  were  proposed  and  given 
for  the  police.20 

This  courage,  this  tolerance,  this  friendly  co-operation 
between  government  and  people,  with  its  visible  creation  of 
loyalty,  this  is  the  true  Americanism.  And  the  issue  before 
us  to-day  is  whether  in  a  period  of  prosperity  and  tremen- 
dous demand  for  labor  we  shall  throw  overboard  the  Ameri- 
can laws  and  the  American  methods  which  carried  us  safely 
through  the  turbulent  early  years  of  our  history,  through 
Reconstruction,  through  panics  and  Populism  with  its  wide- 
spread agitation  among  the  native-born  population,  and 
shall  now  shaking  and  shivering  in  every  wind  of  doctrine 
that  blows  from  Bolshevist  Russia  imitate  even  in  part  any 
of  the  five  methods  with  which  Czarist  Russia  fought  radi- 
calism up  to  the  day  of  her  stupendous  ruin. 

To  this  issue  in  its  various  aspects  I  shall  devote  the 
remainder  of  my  book. 

The  interpretation  of  freedom  of  speech  which  I  have  en- 
deavored to  establish  in  the  opening  chapter  applies  in 
peace  as  in  war.  The  various  interests,  individual  and  social, 
must  once  more  be  balanced  against  one  another  with  full 
regard  to  the  social  interests  in  progress  and  the  attainment 
and  dissemination  of  truth.  The  resultant  boundary-line 
of  permissible  speech  is  drawn  back  of  the  point  where  overt 
acts  of  injury  to  the  state  occur  but  not  far  from  that  point. 
The  test  laid  down  by  the  United  States  Supreme  Court 
in  the  Schenck  case  still  holds  good: 

The  question  in  every  case  is  whether  the  words  used  are  used 
in  such  circumstances  and  are  of  such  a  nature  as  to  create  a 
clear  and  present  danger  that  they  will  bring  about  the   sub- 

20  Arthur  Woods,  Policeman  and  Public,  73-78.  Equally  typical  of 
American  methods  is  his  account  of  the  meeting  in  Bowling  Green  Park. 


LEGISLATION  AGAINST  SEDITION  179 

stantive  evils  that  Congress  (or  the  state  legislature)  has  a  right 
to  prevent. 


The  power  of  the  government  to  restrict  discussion  is 
undoubtedly  less  in  time  of  peace  than  in  time  of  war  be- 
cause war  opens  dangers  that  do  not  exist  at  other  times. 
The  strength  of  the  state  in  war  time  is  chiefly  occupied  in 
fighting  the  enemy.  In  a  great  war  the  chances  of  success 
are  uncertain,  and  a  slight  set-back  due  to  hostile  opinion 
at  home  may  cause  defeat.  It  is  hard  enough  for  the  gov- 
ernment to  resist  the  human  desire  not  to  enlist  and  not  to 
fight,  without  outside  incitement  from  adverse  views  of  the 
war.  Thus,  there  are  very  plausible  reasons  for  limiting 
the  social  interest  for  which  I  earnestly  contend,  the  need 
of  continuous  contact  with  the  facts  and  with  sound  con- 
clusions. In  peace,  however,  the  social  interest  mainly 
affected  by  discussion  is  not  the  sorely-beset  endeavor  to 
save  the  country  from  a  powerful  enemy,  but  the  interest 
in  order.  With  this  interest  the  mass  of  the  population 
earnestly  sympathizes.  It  is  protected  by  an  enormous  body 
of  otherwise  unoccupied  police  and  soldiers,  who  are  now 
available  to  check  any  actual  violence.  This  interest  in 
order  is  not  opposed  by  troops  and  guns  from  abroad  but 
only  by  words,  which  it  can  afford  to  tolerate,  confident  in 
the  support  of  public  opinion.  In  war  an  evil  and  wholly 
unfounded  opposition  at  home  may  upset  the  state.  In 
peace,  those  who  love  disorder  for  its  own  sake  are  so  few 
that  a  revolution  is  improbable  unless  there  are  very  strong 
reasons  for  discontent.  If  the  agitation  is  without  merit 
the  state  can  afford  to  ignore  it.  If  it  has  merit  the  state 
cannot  afford  to  suppress  it  without  a  hearing.  Conse- 
quently, in  peace  governmental  interference  should  be  de- 
layed as  in  the  New  York  meeting  of  1877  until  the  last  pos- 
sible moment  before  violence  occurs. 

Sometimes  in  peace  other  social  interests  besides  order 
come  into  play  and  strengthen  the  case  for  restriction. 
Thus,  the  interest  in  morals  is  concerned  with  moving-picture 


180  FREEDOM  OF  SPEECH 

plays  and  books  for  the  young.  Street  meetings  may  inter- 
fere with  the  public  traffic  besides  causing  a  greater  proba- 
bility of  violence  than  do  books.  Once  more,  it  is  a  ques- 
tion of  balancing  the  interests,  and  it  may  be  worth  while 
to  arrange  for  meetings  in  less-used  side  streets  in  the  noon- 
hour  or  in  specified  public  parks,  even  at  some  sacrifice  of 
traffic.  After  all,  a  democracy  may  wisely  refuse  to  regard 
the  streets  only  as  a  place  where  people  exercise  and  go  out 
to  make  money.  Parades  and  soap-box  orators  and  big 
meetings  make  them  an  open-air  school,  which  prepares  di- 
rectly for  citizenship. 

The  anarchy  acts  are  the  first  break  with  the  American 
tradition.  Most  of  them  are  not  willing  to  run  any  risks 
as  to  opinions  generally  considered  objectionable,  but  make 
opinions  in  themselves  and  for  their  own  sake  a  crime, 
although  there  is  no  direct  and  dangerous  interference  with 
order  and  only  a  remote  possibility  that  violence  will  ensue. 
The  first  chapter  has  shown  the  evils  of  bad  political  tend- 
ency as  a  test  of  criminality.  These  statutes  in  large  part 
revive  that  test,  and  are  not  directed  against  bad  acts,  but 
are  designed  to  protect  the  minds  of  grown  men  and  women 
from  bad  talk  and  bad  thoughts. 

IV.  Radical  Meetings  and  the  Red  Flag 

There  are  several  types  of  anarchy  acts.21  The  simplest 
is  the  red  flag  law,  recently  adopted  by  twenty-five  states. 
The  New  York  statute  22  makes  it  a  misdemeanor  to  display 
the  banner  "  in  any  public  assembly  or  parade  as  a  symbol 
or  emblem  of  any  organization  or  association,  or  in  further- 
ance of  any  political,  social,  or  economic  principle,  doctrine 
or  propaganda."  Other  states  go  much  further  and  forbid 
the  display  of  the  red  flag  anywhere.  Some  shrewdly  guard 
against  the  wearing  of  red  neckties  or  buttons  or  the  evasive 

21  All  the  state  legislation  mentioned  in  this  chapter  is  listed  in  Ap- 
pendix V. 

22  N.  Y.  Laws,  1919,  c.  409. 


LEGISLATION  AGAINST  SEDITION  181 

adoption  of  a  green  flag 23  by  punishing  the  use  of  any 
emblem  of  any  hue  if  it  is  "  distinctive  of  bolshevism, 
anarchism,  or  radical  socialism  " ; 2*  or  is  "  suggestive  of  any 
organized  or  unorganized  group  of  persons  who  by  their 
rules,  creeds,  purposes,  practices,  or  efforts,  espouse  any 
theory  or  principle  antagonistic  to  or  subversive  of  the  con- 
stitution or  its  mandates  " ; 25  or  if  it  is  employed  with  some 
other  revolutionary  intent.  In  West  Virginia  imprisonment 
for  a  year  (five  years  for  the  second  offense)  may  be  imposed 
for  the  possession  of  any  red  or  black  flag,  or  the  display 
of  "  any  emblem  of  any  nature  whatever  indicating  sym- 
pathy or  support  of  ideals,  institutions,  or  forms  of  govern- 
ment, hostile,  inimical,  or  antagonistic  to  the  form  or  spirit 
of  the  constitution,  laws,  ideals,  and  institutions  of  this 
state  or  of  the  United  States."  26  It  is  plain  to  any  lawyer 
that  when  a  vague  and  very  wide  range  of  commonplace 
and  harmless  conduct  is  made  criminal  merely  on  the  basis 
of  a  bad  intention,  a  man  is  condemned  for  his  thoughts 
and  nothing  else.  He  may  never  have  expressed  those 
thoughts  until  they  were  brought  out  under  cross-examina- 
tion in  a  sedition  trial.  He  is  convicted  simply  by  the  jury's 
guess  at  the  inside  of  his  head.  Men  should  be  punished  for 
what  they  do  and  not  for  what  they  think. 

The  way  in  which  the  red  flag  causes  disorder  is  explained 
by  Inspector  Thomas  J.  Tunney,  who  played  such  a 
prominent  part  in  the  Abrams  case  and  certainly  cannot  be 
considered  unduly  favorable  to  radicals : 27 

Senator  OVERMAN.  What  effect  does  that  red  flag  have 
on  a  crowd? 

Mr.  TUNNEY.  It  has  the  effect  of  creating  a  feeling  on  the 
part  of  Americans  that  they  would  like  to  assassinate  everybody 
carrying  the  red  flag;  or  at  least,  a  large  number  of  them  feel 
that  way. 

23  Testimony  of  Inspector  Tunney  and  Raymond  Robins,  in  BoU 
thevik  Propaganda,  11,  838. 

24  Kans.,  Laws,  1919,  c.  184. 

25  Wash.,  Laws,  1919,  c.  181. 

26  W.  Va.,  Laws,  1919,  c.  24. 

27  Bolshevik  Propaganda,  10,  11. 


182  FREEDOM  OF  SPEECH 

Senator  OVERMAN.  What  effect  does  it  have  on  the  people 
who  are  in  sympathy  with  carrying  the  red  flag? 

Mr.  TUNNEY.  It  simply  enthuses  them,  and  they  indulge  in 
cheering  and  waving  it  in  the  air. 

The  Roxbury  Riot  of  last  May  28  is  a  practical  demonstra- 
tion of  his  statements  and  also  illustrates  some  interesting 
points  in  the  law  of  assembly.  An  unprejudiced  account  in 
the  Boston  Herald  relates  that  the  trouble  was  caused  by 
the  appearance  of  a  red  flag  carried  at  the  head  of  a  large 
group  of  members  of  the  Lettish  Workmen's  Association, 
who  were  marching  from  one  meeting  to  another  in  a  dif- 
ferent hall.  If  this  was  a  parade,  it  was  illegal,  for  they 
had  no  permit,  but  no  red  flag  law  was  in  force.  The  ac- 
count continues :  "  Everywhere  in  Roxbury  small  groups  of 
men  and  boys  were  to  be  seen  strolling  along  the  streets 
armed  with  clubs  and  pieces  of  iron  bar  and  pipe.  It  was 
difficult  for  the  police  to  cope  with  every  group  for  as  fast 
as  one  would  be  dispersed  another  would  gather.  Nearly 
everybody  with  a  facial  indication  of  being  a  Lett  or  a  Rus- 
sian was  attacked.  It  was  useless  for  them  to  offer  excuses 
for  none  were  listened  to.  .  .  .  As  soon  as  it  became  gen- 
erally known  that  the  presence  of  a  red  flag  was  the  cause 
of  all  the  trouble  soldiers  and  sailors  began  taking  a  hand. 
Each  group  carried  at  least  one  sailor  or  soldier  and  they 
inflicted  severe  punishment  on  the  men  in  the  parade  or 
those  discovered  hiding  in  stores   and  houses   afterwards." 

Either  just  before  the  attack  on  the  marchers  began  or 
soon  afterwards,  it  is  hard  to  tell  which  from  the  tumul- 
tuous testimony,  the  police  demanded  a  permit  and  ordered 
the  parade  to  disperse.  They  replied  with  cat-calls,  and  in 
the  three-cornered  disturbance  that  followed  between  radi- 
cals, patriots,  and  police,  two  policemen  were  injured.  A 
large  number  of  marchers  received  sentences  of  six  to 
eighteen  months  in  the  Municipal  Court  for  participating 

28  Boston  Herald,  May  2,  1919;  trials  in  ibid.,  May  6,  8,  14;  letter 
of  adverse  comment,  ibid.,  May  16.  Convictions  upheld,  Comm.  v.  Frish- 
man,  126  N.  E.  (Mass.)  838   (1920). 


LEGISLATION  AGAINST  SEDITION  183 

in  a  riot  or  assaulting  the  police,  and  several  of  them  have 
since  been  convicted  by  juries,  but  so  far  as  I  can  ascertain 
none  of  their  assailants  was  even  tried. 

These  cases  raise  several  questions  of  general  interest  as 
to  the  legality  of  radical  meetings.29  The  radicals  took  the 
position  that  no  permit  was  necessary  to  enable  men  to  walk 
from  one  place  to  another,  but  only  for  an  organized 
parade.  Of  course,  the  social  interest  in  traffic  already 
mentioned  gives  the  city  power  to  forbid  unlicensed  proces- 
sions, but  there  is  some  question  whether  this  particular 
body  of  people  was  not  itself  a  part  of  traffic,  without  need 
for  a  permit.  For  example,  is  a  license  required  for  col- 
legians to  march  from  the  stadium  to  the  yard  after  a  foot- 
ball victory  with  a  red  flag  at  their  head?  These  are  ques- 
tions of  fact  for  the  jury.  However,  even  if  this  gathering 
of  Roxbury  radicals  had  not  been  held  illegal  by  the  Massa- 
chusetts Supreme  Court  for  want  of  a  permit,  it  may  well 
be  that  the  order  to  disperse  was  valid  on  other  grounds. 
Three  such  grounds  have  been  suggested. 

(1)  Since  any  gathering  of  radicals  is  likely  to  be  at- 
tacked, the  easiest  way  to  preserve  the  peace  is  to  forbid 
and  break  up  such  gatherings.  Therefore,  it  may  be  con- 
tended that  a  meeting  which  is  not  otherwise  illegal  may 
become  so  solely  because  it  will  excite  violent  and  unlawful 
opposition.  This  is  the  doctrine  of  the  long-beard  case 
over  again.  Let  us  see  how  it  works  out  with  respect  to 
meetings.  The  Salvation  Army  holds  a  service  in  a  public 
place,  knowing  that  a  mock-organization  called  the  Skeleton 
Army  intends  to  molest  it.  The  Skeleton  Army  appears, 
and  begins  to  throw  stones.  The  members  of  the  Salvation 
Army  are  arrested  by  the  police  for  holding  an  unlawful 
assembly.  Obviously  they  must  be  released.  Their  guilt 
cannot  be   determined   by   the   intolerance   of   wrong-doers. 

29  See  Dicey,  Law  of  the  Constitution,  c.  VII,  "  The  Right  of  Public 
Meeting,"  also  mv  Bibliography.  The  Salvation  Army  case  is  Beatty  v. 
Gillbanks,  9  Q.  B.  D.  308  (1882).  German  opera  riots,  Star  Opera  v. 
Hylan,  109  N.  Y.  Misc.  132  (1919).  Opposed  to  my  view  of  red  flag 
riots,  P.  v.  Burman,  154  Mich.  150  (1908). 


184  FREEDOM  OF  SPEECH 

Apart  from  the  question  of  permits,  and  special  regulation 
by  ordinances  and  statutes,  the  police  cannot  treat  a  meet- 
ing as  unlawful  simply  because  it  may  probably  or  natu- 
rally lead  others  to  attack  it.  And  if  a  permit  is  refused 
on  that  ground  alone,  a  small  number  of  intolerant  men  by 
passing  the  word  around  that  they  intend  to  start  a  riot 
can  prevent  any  kind  of  meeting,  not  only  of  radicals  who 
want  a  revolution,  but  of  socialists,  of  moderates  like  the 
Committee  of  '48,  of  negroes,  of  novel  religious  sects,  of 
free-masons  in  an  anti-masonic  community.  Indeed,  on  any 
such  theory  a  gathering  which  expressed  the  sentiment  of 
a  majority  of  law-abiding  citizens  would  become  illegal  be- 
cause a  small  gang  of  hoodlums  threatened  to  invade  the 
hall.  The  proper  remedy  for  these  emergencies  is  police  pro- 
tection, to  which  men  are  entitled  in  public  places,  whether 
they  are  there  singly  or  in  groups. 

(2)  There  is,  however,  a  well-recognized  exception  to 
this  principle.  If  the  meeting  is  going  to  cause  trouble,  not 
just  because  of  the  unpopularity  of  its  views  but  because  it 
expresses  them  in  offensive  ways,  it  may  be  unlawful  per  se. 
This  is  an  analogy  to  the  verbal  crimes  already  discussed. 
For  example,  the  "  Pillars  of  Fire  "  were  not  allowed  by  the 
Mayor  of  Plainfield,  New  Jersey,  to  hold  street  meetings 
for  abusing  Roman  Catholics.  They  must  hire  a  hall  where 
no  one  would  be  forced  to  listen  to  them.  It  is  sometimes 
supposed  that  a  parade  displaying  the  red  flag  is  illegal  at 
common  law  for  the  same  reason  that  it  would  be  if  it  car- 
ried an  abusive  caricature  of  the  Pope,  but  the  situations 
are  not  truly  parallel.  The  red  flag  is  not  offensive  in 
itself.  Nobody  minds  it  at  an  auction  sale  or  a  railroad 
crossing.  The  onslaught  is  not  on  an  object  but  on  the 
unpopular  ideas  of  those  who  carry  it,  because  most  of  us 
consider  that  such  ideas  have  a  tendency  to  produce  injury 
in  the  future.  This  only  brings  us  back  to  the  first  point, 
that  a  meeting  is  not  illegal  just  for  unpopularity.  Bad 
tendency  must  not  be  a  test  of  criminality.  Thus,  the  Rox- 
bury  marchers  were  not  violating  the  law  because  of  the  red 


LEGISLATION  AGAINST  SEDITION  185 

flag.  On  the  other  hand,  their  loud  cries  of,  "  To  Hell  with 
the  Police !  Hurrah  Bolsheviki !  To  Hell  with  the  American 
flag ! "  were  so  provocative  of  disorder  as  to  render  the 
parade  unlawful  even  if  a  permit  had  been  issued. 

(3)  Finally,  after  the  order  to  disperse  was  given  the 
gathering  was  undoubtedly  illegal.  That  order  was  valid 
under  a  second  exception  to  the  general  principle  that  un- 
popular meetings  are  not  illegal  meetings.  Where  a  meet- 
ing which  is  originally  lawful  and  inoffensive  has  in  spite  of 
this  produced  a  disturbance,  so  that  the  only  way 
to  restore  the  peace  is  to  put  an  end  to  the  meeting, 
then  there  is  a  clear  and  present  danger  which  justifies  the 
suppression  of  ideas  on  this  occasion.  By  the  time  the 
police  arrived  in  the  Roxbury  affair,  it  was  evident  that  the 
parade  could  not  continue  without  a  riot.  Consequently, 
those  who  resisted  or  refused  to  obey  the  order  thereby  broke 
the  law. 

One  more  lesson  of  general  application  may  be  drawn 
from  this  incident,  the  danger  that  men  of  peculiar  views 
who  are  charged  with  definite  tangible  crimes  may  be  con- 
demned in  reality  not  for  what  they  do  but  for  what  they 
think.  Three  clear  offenses  were  possibly  committed  by  the 
defendants,  parading  without  a  permit,  assaulting  police- 
men, and  remaining  in  the  parade  after  the  order  to  dis- 
perse. Every  one  of  these  issues  is  a  pure  question  of  fact, 
on  which  the  opinions  of  the  defendants  had  not  the  slightest 
bearing.  Yet  the  Municipal  Court  Judge,  instead  of  limit- 
ing the  examination  of  the  prisoners  to  the  question,  "  Did 
you  do  this  on  May  1  ?  "  himself  inquired  at  length  whether 
they  believed  in  God,  approved  of  Soviets,  or  agreed  with 
what  the  American  flag  stands  for.  In  the  same  way,  when 
the  cases  came  before  a  jury  in  the  autumn,  the  district 
attorney  gave  the  impression  that  he  was  trying  the  pris- 
oners, not  for  what  they  did  in  May,  but  for  what  they 
thought  in  October.  And  in  the  Municipal  Court,  the  red 
flag,  although  it  violated  no  statute,  was  clearly  treated  as 
an  offense.     The  judge  said:  "The  red  flag  means  revolu- 


186  FREEDOM  OF  SPEECH 

tion,  nothing  else,  and  the  day  for  the  red  flag  is  past  in 
America.  It  means  bloodshed;  it  cannot  be  interpreted 
otherwise.  .  .  .  Waving  a  red  flag  is  a  breach  of  the 
peace." 

The  policy  behind  even  the  mildest  form  of  the  red  flag 
legislation  resembles  the  rule  of  the  British  Government  that 
the  Uganda  tribes  must  not  wear  war-paint  except  on  the 
chief's  birthday.  If  Americans  cannot  be  trusted  any  more 
than  African  natives  to  avoid  the  psychological  effects  of 
color,  well  and  good.  So  far,  the  exact  meaning  of  the  red 
flag  seems  rather  obscure.  Some  say  it  stands  for  bloody 
revolution,30  and  others,  the  brotherhood  of  workingmen 
throughout  the  world.31  It  might  be  desirable  to  find  out 
which  is  right  before  we  forbid  it.  There  is  no  doubt  that 
its  display  on  May  Day,  1919,  was  accompanied  by  much 
lawlessness — chiefly  on  the  part  of  the  supporters  of  law  and 
order.  Until  the  opponents  of  force  can  restrain  themselves 
from  mobbing  any  parade  which  carries  a  red  flag,  it  may  be 
wise  to  prohibit  its  use.  We  ought  to  remember,  however, 
that  if  it  is  made  a  forbidden  symbol  its  emotional  appeal 
when  displayed  in  secret  is  immeasurably  heightened.  The 
resentment  caused  by  such  laws,  which  assert  any  sugges- 
tion of  revolutionary  action  to  be  a  heinous  offense,  will  not 
be  lessened  by  the  recent  respect  paid  by  mayors,  governors, 
and  legislators  to  an  acknowledged  banner  of  revolution,  the 
green,  white,  and  yellow  of  Ireland.  Once  we  admit  that 
violence  may  be  a  justifiable  mode  of  political  action  in 
another  country  which  has  the  ballot  and  representative 
government,  we  cannot  consistently  make  men  outlaws 
merely  for  holding  a  similar  theory  in  this  country,  however 
much  we  disagree  with  them.     Massachusetts  once  had  a 

so  Besides  quotation  above,  see  Rugg,  C.  J.,  in  Comm.  v.  Karvonen, 
219  Mass.  30  (1914). 

3i  This  is  the  explanation  of  all  radicals  whom  I  have  questioned. 
See  testimony  of  William  Sidis  in  Boston  Herald,  May  14,  1919.  This 
is  confirmed  by  the  expert  and  conservative  opinion  of  Professor  Samuel 
N.  Harper,  Bolshevik  Propaganda,  101 :  "  I  think  it  is  little  more  than 
a  tradition  .  .  .  representing  this  mental  protest  .  .  .  against  what 
they  consider  the  injustices  of  the  present  organization  of  society." 


LEGISLATION  AGAINST  SEDITION  187 

law  prohibiting  a  red  or  black  flag.  This  was  declared  con- 
stitutional,32 and  then  repealed  because  it  made  the  Harvard 
crimson  illegal.  It  is  to  be  hoped  that  other  portions  of  this 
land  of  the  brave  will  also  be  willing  to  face  valiantly  a  piece 
of  cloth.  There  is  much  merit  in  the  North  Dakotan  remark 
that  the  only  animal  that  is  afraid  of  a  red  flag  has  a  fence 
around  him. 

The  man  who  insists  on  waving  the  red  flag  on  all  occa- 
sions has  just  as  little  common  sense.  Those  who  want  to 
remake  society  on  a  basis  of  fellowship  and  mutual  agree- 
ment may  fairly  be  asked  to  begin  by  yielding  something  to 
the  wishes  of  their  neighbors.  It  is  an  undoubted  fact  that 
most  people  do  dislike  seeing  the  red  flag  in  a  parade  or 
over  a  building,  but  if  the  Stars  and  Stripes  are  beside  it 
nearly  all  their  objection  vanishes.  A  decent  respect  for 
the  opinions  of  mankind  ought  to  lead  the  radical  to  do  this 
much  for  the  happiness  of  others.  Even  if  he  is  so  thor- 
oughly a  man  without  a  country  that  he  has  no  attachment 
for  the  government  which  guards  his  home  and  educates  his 
children,  at  least  like  a  foreign  vessel  in  our  ports  he  might 
out  of  courtesy  raise  our  banner  beside  his  own.  I  do  not 
believe  that  a  man  should  be  arrested  for  carrying  a  solitary 
red  flag  in  the  street  any  more  than  for  wearing  a  sweater 
at  a  dance,  but  ordinary  politeness  ought  to  keep  him  from 
doing  either.  Surely,  it  is  worth  while  for  the  radical  to 
take  the  conciliatory  step  I  suggest,  and  thus  produce  a 
friendlier  atmosphere  in  the  mass  of  the  population,  which 
may  gain  converts  for  his  views  and  will  certainly  induce 
many  thoughtful  men  to  co-operate  with  him  in  the  more 
moderate  of  his  schemes  for  a  better  world. 

V.  Criminal  Anarchy  and  Criminal  Syndicalism 

A  much  more  important  group  of  statutes  takes  its  origin 
from  the  New  York  Anarchy  Act  of  1902,  which  was  enacted 
soon    after    the    assassination     of    President     McKinley.33 

32  Comm.  v.  Karvonen,  supra. 

33  N.  Y.  Penal  Law,  1918,  §§  160-166. 


188  FREEDOM  OF  SPEECH 

Criminal  anarchy  is  there  defined  as  "  the  doctrine  that 
organized  government  should  be  overthrown  by  force  or  vio- 
lence, or  by  assassination  .  .  .,  or  by  any  unlawful 
means."  It  is  a  felony  to  advocate  this  doctrine  by  speech 
or  writing,  and  to  join  any  society  or  any  meeting  for  teach- 
ing or  advocating  it.  The  act  can  be  rigorously  enforced, 
because  the  owner  or  person  in  charge  of  any  room  or 
building  who  knowingly  permits  a  meeting  therein  is  severely 
punished,  and  the  editor  or  proprietor  of  a  periodical  or 
publisher  of  a  book  which  contains  anarchistic  matter  is 
liable  unless  it  was  printed  without  his  knowledge  and 
authority  and  disavowed  immediately.  This  statute  lay  idle 
for  nearly  twenty  years,34  but  there  have  been  several  prose- 
cutions in  the  last  few  months.  Especially  significant  is 
the  sentence  of  Benjamin  Gitlow,  a  former  Socialist  mem- 
ber of  the  New  York  Assembly,  to  an  imprisonment  of  five 
to  ten  years,  under  a  ruling  of  Justice  Weeks  that  the 
advocacy  of  a  general  strike  without  any  direct  reference 
to  force,  violence,  or  unlawful  means  is  criminal  anarchy, 
because  it  is  camouflaged  revolution.35  The  Washington 
statute  of  1909  is  very  similar,  but  also  makes  it  criminal 
to  circulate  any  document  having  a  tendency  to  encourage 
the  commission  of  any  breach  of  the  peace  or  disrespect  for 
law  or  any  court.  The  ridiculous  possibilities  of  such  legis- 
lation are  proved  by  the  conviction  of  one  Fox  for  encourag- 
ing disrespect  for  law  by  an  article,  "  The  Nude  and  the 
Prudes,"  declaring  bathing  suits  superfluous.  Justice  Holmes 
found  nothing  unconstitutional  in  the  prosecution,  but 
caustically  remarked,  "  Of  course,  we  have  nothing  to 
do  with  the  wisdom  of  the  defendant,  the  prosecution, 
or  the  act." S6  The  first  danger  to  be  avoided  in  legis- 
lation  against   anarchy  is  the  imposition  of  heavy  penal- 

34 The  only  case  is  a  slander  suit,  in  which  "anarchist"  was  held  a 
charge  of  crime.    Von  Gerichten  v.  Seitz,  94  App.  Div.  130  (1904). 

35  Boston  Transcript,  February  17,  1920.    House  Judiciary  Hearings, 
155. 

36  Wash.   Laws,    1909,   c.    249,   §312;    State   v.   Fox,   71    Wash.    185 
(1912);  Fox  v.  Washington,  236  U.  S.  273  (1915). 


LEGISLATION  AGAINST  SEDITION  189 

ties  for  slight  offenses.  Such  penalties  create  that  very 
hatred  of  our  system  of  laws  which  it  is  our  object  to 
avoid. 

Another  pre-war  statute,  in  New  Jersey,  punishing  the 
advocacy  of  unlawful  destruction  of  property  or  injury  to 
persons,  is  much  more  restricted  in  its  scope,  and  has  been 
construed  to  enact  the  common  law  of  criminal  solicitation 
with  an  increased  penalty.  It  was  used  to  punish  labor 
leaders  in  Paterson  who  urged  clubbing  strike-breakers  out 
of  the  silk  mills  and  using  chemicals  and  other  devices  to 
make  the  product  unmerchantable.37  The  recent  Massa- 
chusetts anti-anarchy  act  of  1919  is  very  similar ;  it  specifi- 
cally penalizes  the  advocacy  of  killing,  destruction  of  prop- 
erty, or  violent  revolution.38  This  Massachusetts  act  was 
reduced  to  its  present  form  by  repeated  protests  from  lib- 
erals. Instead  of  legislating  against  anarchy  and  other 
radical  doctrines  as  opinions,  the  Massachusetts  and  New 
Jersey  statutes  prohibit  incitement  to  definite  serious  crim- 
inal acts.  Such  codifications  of  the  common  law  serve  the 
desirable  purpose  of  letting  speakers  and  writers  know  what 
they  must  not  do.  If  these  statutes  are  construed  strictly 
like  other  penal  statutes  and  applied  with  common  sense 
and  a  realization,  as  Justice  Hughes  puts  it,  that  "  Hyde 
Park  meetings  and  soap-box  oratory  constitute  the  most 
efficient  safety-valve  against  resort  by  the  discontented  to 
physical  force,"  39  then  they  will  enable  New  Jersey  and 
Massachusetts  to  deal  vigorously  with  any  real  danger  of 
lawlessness  without  at  the  same  time  turning  revolutionary 
opinions  into  crimes.     Any  state  which  considers  legislation 

37  N.  J.  Laws,  1908,  c.  278;  the  cases  construing  it  are  given  in 
Appendix  V.  The  possibilities  of  the  misapplication  of  even  such  a 
narrow  statute  are  shown  by  State  v.  Scott,  reversing  a  conviction  for 
an  intemperate  newspaper  attack  on  the  brutality  of  the  Paterson 
police;  and  by  the  dissenting  opinion  in  State  v.  Quinlan  because  the 
defendant  was  prejudiced  by  the  elaborate  inquiry  at  the  trial  into  the 
doctrines  of  the  I.W.W.  For  the  comment  of  an  I.W.W.  on  these 
cases,  see  the  quotation  from  E.  G.  Flynn  in  Herbert  E.  Cory's  The 
Intellectuals  and  the  Wage  Workers,  N.  Y.,  1919,  p.  208. 

38  Mass.  Laws,  1919,  c.  191. 

so  Brief  for  N.  Y.  Socialist  Assemblymen,  p.  41  (see  Chapter  VI). 


190  FREEDOM  OF  SPEECH 

of  this  type  necessary  ought  to  turn  tp  these  two  statutes  as 
model  anti-anarchy  acts. 

Most  of  the  legislation  since  1917  has,  however,  been  far 
more  extensive.  About  one-third  of  the  states  have  applied 
the  New  York  statutory  scheme  to  the  new  crime  of  criminal 
syndicalism,  "  the  doctrine  which  advocates  crime,  physical 
violence,  arson,  destruction  of  property,  sabotage,  or  other 
unlawful  acts  or  methods  as  a  means  of  accomplishing  or 
effecting  industrial  or  political  ends,  or  .  .  .  industrial 
or  political  revolution,  or  for  profit."  The  advocacy  of 
any  unlawful  act  for  such  ends  and  the  circulation  of  any 
book  affirmatively  suggesting  criminal  syndicalism  or  any 
unlawful  act  for  such  ends  are  among  the  offenses  punish- 
able by  imprisonment  from  one  to  ten  years.  These  acts 
are  almost  uniform  in  phraseology,  Idaho  having  apparently 
supplied  the  original  model.  Some  states  depart  from  type 
into  much  vaguer  phraseology.  Thus,  Arizona  in  an  act 
which  Governor  Hunt  allowed  to  become  law  without  being 
willing  to  put  his  name  to  it  makes  it  criminal  to  advocate 
the  violation  of  "  the  constitutional  or  statutory  rights  of 
another  as  a  means  of  accomplishing  industrial  or  political 
ends."  40  Montana  punishes  in  peace  all  the  non-military 
crimes  mentioned  in  the  federal  Espionage  Act  of  1918  as 
well  as  "  any  language  calculated  to  incite  or  inflame  resist- 
ance to  any  duly  constituted  state  authority."  41  West  Vir- 
ginia makes  criminal  any  teachings  in  sympathy  with  or 
favor  of  "  ideals  hostile  to  those  now  or  henceforth  existing 
under  the  constitution  and  laws  of  this  state."  42 

These  are  but  brief  extracts  from  the  legislation  which 
has  been  enacted  or  invoked  in  almost  every  state  during  the 
last  few  years.43  In  addition,  Mayor  Hylan  of  New  York 
wanted  an  ordinance  to  punish  owners  of  buildings  permitting 
an  assemblage  advocating  "  policies   tending  to   incite   the 

40  Ariz.  Laws,  1918,  sp.,  c.  18. 

4i  Mont.  Laws,  1919,  c.  77.  42  See  note  26. 

43  For  harsh  applications  of  these  statutes,  see  Clare  Shipman,  "  The 
Conviction  of  Anita  Whitney,"  110  Nation  365  (March  20,  1920),  Cali- 
fornia; "The  Most  Brainiest  Man,"  ibid.  510  (April  17),  Connecticut. 


LEGISLATION  AGAINST  SEDITION  191 

minds  of  people  to  a  proposition  likely  to  breed  a  disregard 
for  law,"  and  a  Boston  ordinance  to  forbid  the  display  of 
anything  that  was  sacrilegious  or  tended  to  promote  im- 
morality was  also  unsuccessful,  but  the  Mayor  of  Toledo 
is  said  to  have  prohibited  any  meeting  anywhere  in  the  city 
"  where  it  is  suspected  a  man  of  radical  tendencies  will 
speak." 

These  statutes  and  regulations  are,  for  the  most  part, 
different  from  the  normal  criminal  law  in  three  ways:  (1) 
they  label  opinions  as  objectionable  and  punish  them  for 
their  own  sake  because  of  supposedly  bad  tendencies  with- 
out any  consideration  of  the  probability  of  criminal  acts; 
(2)  they  impose  severe  penalties  for  the  advocacy  of  small 
offenses  as  much  as  for  serious  crimes;  (3)  they  establish 
a  practical  censorship  of  the  press  ex  post  facto.  These 
statutes  are  no  dead-letter.  In  particular,  the  Illinois  law 
has  been  enforced  by  wholesale  arrests  in  Chicago.  Fur- 
thermore, the  governors  of  other  states  are  already  granting 
the  extradition  of  accused  persons  to  Illinois.  Under  this 
policy,  a  state  with  a  drastic  sedition  law  like  Montana  will 
be  able  to  hunt  a  man  down  in  the  most  liberal  part  of  the 
nation,  and  there  will  be  practically  no  chance  for  a  review 
by  the  United  States  Supreme  Court.  The  United  States 
has  always  refused  to  allow  the  extradition  of  persons 
charged  by  other  countries  with  political  crimes,  even  if  the 
charge  (as  often  happened  with  Russians)  involved  the 
advocacy  of  violence  and  revolution.44  Since  state  governors 
under  the  Constitution  cannot  be  compelled  to  permit  ex- 
tradition,45 it  is  to  be  hoped  that  in  future  they  will  follow 
the  wise  policy  of  the  national  government. 

The  state  anarchy  acts  are  constitutional  under  the  test 
laid   down   by   the   United    States    Supreme    Court   in    the 

44  See  the  state  papers  in  4  Moore's  Digest  of  International  Law 
332  ff.  The  possible  exception  of  anarchists  who  actually  cause  explo- 
sions (ibid.  354)  may  be  disregarded,  since  we  are  dealing  at  most  with 
unsuccessful  incitement  to  anarchy,  and  in  general  with  the  expression 
of  revolutionary  views  and  membership  in  revolutionary  organizations, 
which  would  clearlv  be  political  crimes  and  unextraditable. 

45  Kentucky  v.  Dennison,  24  How.  (U.  S.)  66  (I860). 


192  FREEDOM  OF  SPEECH 

Schenck  case,  insofar  as  they  are  employee!  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.46  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  ques- 
tions of  constitutionality,  it  is  dubious  policy  to  make  mem- 
bership 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  indus- 
trial disputes,*7  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  inter- 
ne 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). 

*7  Henry  B.  Higgins,  "A  New  Province  for  Law  and  Order,"  29 
Harv.  L.  Rev.  13,  32,  ibid.  189,  summarizes  the  Australian  experience. 


LEGISLATION  AGAINST  SEDITION  193 

ests  are  on  the  side  of  the  employers,  I  believe  it  to  be  a 
grave  error  for  the  state  to  intervene  against  the  work- 
ingmen  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  inves- 
tigated the  I.W.W.  on  behalf  of  the  government  during 
the  war  found  that  the  causes  for  its  existence  were  deep- 
rooted  economic  factors,48  and  not  any  wide-spread  desire 
for  political  changes  or  violence  for  its  own  sake.  Until 
those  factors  are  dealt  with  directly,  the  use  of  the  tremen- 
dous 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."  49  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.50 

When  the  anarchy  acts  go  still  farther  and  punish  dis- 
cussions of  the  general  strike,  or  condemn  words  and  sym- 
bols, 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  un- 
constitutional. The  free  speech  clauses,  as  I  said  at  the 
outset  of  this  book,  are  a  declaration  of  American  policy 

48  The  Bibliography  lists  material  on  the  I.W.W. 

49  109  Nation  843  (January  3,  1920). 

bo  John  Graham  Brooks,  Labor's  Challenge  to  the  Social  Order,  c.  XX; 
Roger  Baldwin,  conversations;  from  a  different  angle,  Ole  Hanson, 
Americanism  versus  Bolshevisim,  c.  XII. 


194  FREEDOM  OF  SPEECH 

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  tradi- 
tions, 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.51  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  as- 
sume that  the  documents  in  which  they  set  forth  that  state- 
si  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. 


LEGISLATION  AGAINST  SEDITION  195 

ment  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. 

The  main  documents  in  the  case  are  furnished  by  the  most 
distinguished  supporter  of  sedition  legislation,  Mr.  A. 
Mitchell  Palmer.  In  an  official  Report,52  he  has  asked  Con- 
gress 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  prosecut- 
ing attorneys  in  New  York  City,  and  a  multitude  of  others 
throughout  the  land.  Thus,  we  can  meet  "  the  present  in- 
tolerable 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  indi- 
viduals "  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  doc- 
trines ";  (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  criti- 
cising the  policies  of  any  government  before  distribution  of 
any  sort  expires  with  the  war,  and  the  lapse  of  this  censor- 
ship 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." 

52  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. 


196  FREEDOM  OF  SPEECH 

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.  Legisla- 
tion 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  con- 
ceivably lead  to  future  assaults  and  revolutions. 

In  a  circular  letter  sent  to  the  editors  of  leading  maga- 
zines,53 Mr.  Palmer  shows  even  more  plainly  that  he  is  seek- 
ing 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." 

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  move- 
ment 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 

53  Reprinted  in  110  Nation  190  (February  14,  1920).  See  also  Palmer 
Deportations  Testimony,  for  emphasis  on  the  atheism  of  prominent  radi- 
cals as  an  argument  for  their  deportation. 


LEGISLATION  AGAINST  SEDITION  197 

with  the  real  menace  of  evil- thinking  which  is  the  foundation 
of  the  Red  movement. 

That  a  Quaker  should  employ  prison  and  exile  to  counter- 
act 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  argu- 
ments  by  violence,  even  if  that  violence  is  employed  by  gov- 
ernment officials  under  the  guise  of  law,  is  contrary  to  sound 
political  policy  and  to  the  constitutional  guaranties  of  free- 
dom of  speech. 

Besides  the  draft  Sedition  Act  recommended  by  the  At- 
torney General,  which  goes  so  far  as  to  punish  writings 
which  "  tend  to  indicate  sedition,"  Congress  has  under  con- 
sideration about  seventy  similar  bills,  of  which  three  have 
attracted  public  notice.54  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-commit- 
tee 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  censor- 
ship, 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  shoot- 
ing of  soldiers  at  Centralia,  "  numerous  other  instances  of 
outrage  aimed  at  the  existence  of  our  institutions,"  and  the 

54  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. 


198  FREEDOM  OF  SPEECH 

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.55 

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  objec- 
tionable features  of  the  four  bills  mentioned  will  be  elimi- 
nated. 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  M  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  Post- 
master General  to  exclude  such  material  from  the  mails,  for 

55  Amendment  offered  to  S.  3317,  December  4,  1919. 


LEGISLATION  AGAINST  SEDITION  199 

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  news- 
paper 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  objec- 
tionable, 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  censor- 
ship 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,  affirma- 
tive power  to  punish,  the  treason  clause,  and  the  free  speech 
clause.56 

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 

ee  For  a  full  discussion  with  citation  of  cases,  see  H.  W.  Bikle,  "  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. 


200  FREEDOM  OF  SPEECH 

power  and  criminal  jurisdiction.  The  United  States  Govern- 
ment, 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  contro- 
versy 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."  Conse- 
quently, no  express  provision  is  required  to  enable  the  gov- 
ernment 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  deci- 
sions 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  hin- 
dered 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  Es- 
pionage 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 


LEGISLATION  AGAINST  SEDITION  201 

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  tend- 
ency 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  com- 
fort. No  person  shall  be  convicted  of  treason  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on  con- 
fession 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  ques- 
tion 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  assem- 
blage 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.  Ill,  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.57  This  practice  became  so  noto- 
rious 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? 
**  2  Stephen,  History  of  the  Criminal  Law,  c.  23  on  High  Treason. 


202  FREEDOM  OF  SPEECH 

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.58  Is  such  a  statute  an  unconstitu- 
tional evasion  of  the  treason  clause? 

Again,  if  the  Biglow  Papers  were  not  "  aid  and  com- 
fort 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  con- 
structive treasons  under  the  English  law  could  be  made  crimi- 
nal without  even  the  security  of  two  witnesses  or  the  pro- 
visions 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 

58  TJ.  S.  Comp.  Stat.,  §  10200  a,  Act  of  February  14,  1917,  c.  64.  See 
32  Harv.  L.  Rev.  724. 


LEGISLATION  AGAINST  SEDITION  203 

though  that  is  analogous  to  treason  in  England.  Counter- 
feiting money  was  treason  there  and  is  expressly  punishable 
under  the  Constitution. 

This  argument  seems  to  me  more  satisfactory  when  ap- 
plied 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  po- 
litical change,  or  whereby  an  appeal  is  made  to  racial  preju- 
dice 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  presenta- 
tions of  the  wrongs  of  the  negro.59  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 

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


204  FREEDOM  OF  SPEECH 

Committee  seizes  an  unanswered  letter  to  the  Rand  School 
suggesting  the  spread  of  socialism  among  the  negroes  (with- 
out a  word  about  violence)  and  presents  it  as  a  menacing 
scheme  adopted  by  the  School  "  for  the  spreading  of  Bol- 
shevist propaganda  among  negroes  in  the  South,"  so  that 
the  New  York  Times  runs  front-page  head-lines :  "  Moves 
to  Close  the  Rand  School — District  Attorney  Takes  Steps 
Toward  Revoking  Radical  Institution's  Charter — Planned 
Negro  Uprising."  60 

The  Sedition  Act  of  1798  was  also  a  violation  of  the  First 
Amendment,  especially  as  it  included  criticism  of  the  Presi- 
dent and  Congress,  which  was  very  remotely  injurious  to  the 
United  States.61 

If,  however,  we  consider  a  federal  bill  such  as  I  have 
suggested,  which,  like  the  Massachusetts  and  New  Jersey 
An ti- Anarchy  Acts,  eliminates  all  clauses  obviously  punish- 
ing bad  tendency  and  penalizes  only  the  advocacy  of  force 
and  violence,  much  more  difficult  questions  of  constitution- 
ality 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.62 

go  New  York  Times,  June  28,  1919;  see  also  July  9. 
ei  See  page  29,  supra.     Bikl6  admits  it  was  probably  invalid  for  the 
reason  stated  above. 

62  For  opposing  views  on  the  question  whether  praise  of  a  criminal 


LEGISLATION  AGAINST  SEDITION         205 

The  time  elapsed  is  perhaps  an  element.  A  distinction  might 
be  drawn  between  praise  of  the  assassin  of  McKinley,  and 
"  Caesar  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,63  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. 

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  ques- 
tion 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  assassina- 
tion,64 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  execu- 

can  be  considered  incitement  to  crime,  see  Masses  Pub.  Co.  v.  Patten,  244 
Fed.  535;  245  Fed.  102. 

63  Mill,  Liberty,  note  at  opening  of  c.  II. 

e*  Reg.  v.  Most,  7  Q.  B.  D.  244  (1881);  P.  v.  Most,  171  N.  Y.  423 
(1902). 


206  FREEDOM  OF  SPEECH 

tions  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.65 
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. 

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  enforce- 
ment 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 :  66 

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 

65  p.  v.  Most,  128  N.  Y.  108  (1891) ;  see  Freund  on  the  Police  Power, 
§477. 

ee  Op.  cit.,  §§476,  478. 


LEGISLATION  AGAINST  SEDITION  207 

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  govern- 
ment 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  constitu- 
tional rights. 

Nevertheless,  the  Abrams  and  Schaefer  decisions  in  the 
Supreme  Court  should  deter  any  one  from  predicting  uncon- 
stitutionality under  the  First  Amendment  for  the  Threats 
against  the  President  Act,  or  the  Sterling  Bill,  or  the  hypo- 
thetical 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  con- 
sider 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  mean- 
ing that  shall  please  the  ruling  powers. — Walter  Bagehot. 

"  No  man,"  says  Attorney  General  Palmer,  "  can  go  fur- 
ther 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  neces- 


208  FREEDOM  OF  SPEECH 

sary  implication  of  the  use  of  physical  force  or  violence.67 
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  attain- 
ment of  truth  and  progress  is  served  by  threats  to  kill  offi- 
cials, 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. 

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  de- 
sirable 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  de- 

67  Testimony  before  House  Judiciary  Committee,  New  York  Times, 
February  5,  1920.    House  Judiciary  Hearings,  21. 


LEGISLATION  AGAINST  SEDITION  209 

sirability  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  Ori- 
ental power.  And  talk  about  violence  is  far  more  com- 
mon. Tobacco  will  not  follow  alcohol  into  oblivion  with- 
out 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  rebel- 
lion. The  founders  of  the  United  States  urged  the  destruc- 
tion 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  Commis- 
sioner by  enforcing  that  law,  and  for  the  same  reason  both 
houses  of  the  Massachusetts  legislature  requested  the  Gov- 
ernor to  remove  him  from  a  probate  judgeship,  and  he  was 
removed.  Theodore  Parker,  George  L.  Stearns,  Thomas 
Wentworth  Higginson,  and  Frank  B.  Sanborn  contributed 


210  FREEDOM  OF  SPEECH 

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  whi2e  the  Fugitive  Slave  Law  was  en- 
forced. 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  advo- 
cates 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,  how- 
ever 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 


LEGISLATION  AGAINST  SEDITION         211 

break  down  in  administration  for  sheer  vagueness,  and 
sooner  or  later  officials  will  swing  toward  the  view  of  Lord 
Holt  in  1704 :68 

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  animos- 
ities 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. 

England  in  the  eighteenth  century  and  Russia  in  the  nine- 
teenth 69  applied  this  test  of  bad  tendency.  The  United 
States  has  hitherto  preferred  to  follow  the  principle  of 
Madison : 70 

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. 

Consequently,  the  President's  Message  is  attempting  the 
impossible  when  it  supports  Mr.  Palmer's  sedition  bill  on  this 
high  ground:71  "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  "  pas- 
sion and  malevolence  "  is  just  as  bad.  Far  wiser  is  the  state- 
ment of  the  former  Democratic  President,  just  quoted,  far 

esTuchin's  Case,  Holt  424  (1704). 

6»  See  the  summary  of  Russian  law  in  Freund,  op.  cit .,  §  471  note. 
to  Report  on  the  Virginia  Resolutions,  4  Elliot's  Deb.   (2  ed.),  598. 
Marshall  told  Talleyrand  the  same  truth,  Beveridge,  II,  329. 
7i  New  York  Times,  December  3,  1919. 


212  FREEDOM  OF  SPEECH 

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. 

Most  acts  of  violence  urged  as  a  reason  for  sedition  legis- 
lation, the  Gimbel  bombs,  the  May  explosions,  the  Centralia 
shooting,  followed  immediately  on  some  act  of  suppression, 
— the  Debs  decision,  the  Roxbury  Riot  sentences,  the  Massa- 
chusetts 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  alto- 
gether 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  extri- 
cate Ireland  and  India.72 

Contrast  the  American  policy  of  punishing  acts  and  let- 
ting 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  im- 
mediate danger  of  revolution,  the  Attorney  General  should 

72  See  especially  the  fine  letter  on  the  Phoenix  Park  murders,  in  his 
Recollections,  I,  178. 


LEGISLATION  AGAINST  SEDITION  213 

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  accom- 
plish 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  dif- 
ficult 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  propa- 
ganda for  the  overthrow  of  the  government  before  their 
readers,  but  the  reader  understands  what  is  meant.73  The 
question  is  whether  he  or  any  one  else  can  draft  a  statute 
which  makes  it  possible  for  fallible  human  beings  to  distin- 
guish 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  malev- 
olence," but  posterity  has  condemned  them  for  interfering 
with  the  "  advocacy  of  orderly  political  change." 

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 

73  Investigation  Activities  of  the  Dept.  of  Justice,  11. 


214  FREEDOM  OF  SPEECH 

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  fed- 
eral act  is  expressly  intended  to  prevent  the  remote  possi- 
bility 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  inten- 
tion 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  dif- 
ficulties 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,74  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.75  The  threat  need  not  be  communicated  to 
the  President,  and  if  in  a  letter  it  need  not  be  seen  by  any  one 

74  U.  S.  Comp.  Stat.,  1918,  §10381;  Magon  v.  U.  S.,  248  Fed.  201 
(C.  C.  A.,  1918). 

75  U.  S.  Comp.  Stat.,  1918,  §  10200  a;  see  32  Harv.  L.  Rev.  724. 


LEGISLATION  AGAINST  SEDITION  215 

except  officials,  so  that  the  element  of  dangerous  circum- 
stances is  eliminated.  Already  it  has  proved  very  hard  to 
decide  what  words  constitute  a  threat,  and  some  of  the  prac- 
tical effects  of  the  statute  should  discourage  imitation.  A 
Syracuse  woman  of  German  descent,  exasperated  by  her  fel- 
low employees  who  continually  picked  on  her  and  called  her 
the  Kaiser,  finally  burst  out  that  she  would  poison  the  Presi- 
dent 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."  76  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?  77 

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. 


78  A  Memorandum  concerning  Political  Prisoners  within  the  Juris- 
diction of  the  Dept.  of  Justice  in  1919,  22,  (in  Harv.  Law  School 
Library) . 

"  u.  S.  v.  Clark,  Bull.  Dept.  Just,  No.  101;  affd.,  250  Fed.  449 
(C.   C.   A.,    1918). 


216  FREEDOM  OF  SPEECH 

If  he  is  right,  the  traditional  language  of  socialism  be- 
comes 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,     v 

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  de- 
fendant 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."  78  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. 

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  crim- 
inality.   Furthermore,  we  must  not  forget  that  we  can  never 

78  244  Fed.  @  540;  246  Fed.  @  38. 


LEGISLATION  AGAINST  SEDITION  217 

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  Sedi- 
tion Law  is  open  to  exactly  the  objections  which  Jefferson 
stated  in  the  Virginia  Toleration  Act,79  that  when  the  ex- 
pression 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. 

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  judg- 
ment. 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  in- 
evitably 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  reputa- 
tion. 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 
79  Page  31,  supra. 


218  FREEDOM  OF  SPEECH 

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  vio- 
lence. Thus,  a  Winnipeg  strike  leader  has  just  been  prose- 
cuted 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."  80  Intention,  that  is,  presumed  intention,  becomes 
the  essence  of  the  crime,  and  the  thing  actually  done  imma- 
terial. Once  more,  the  prisoner  is  convicted,  not  for  what 
he  does  but  for  what  he  thinks. 

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  sup- 
pression so  forcibly  presented  by  Justice  Brandeis  in  a 
recent  Espionage  Act  case : 81 

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  publica- 
tions 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 

so  "Quoting   Isaiah   in   Winnipeg,"   A.   V.   Thomas,    109   Nation  850 
(January  3,  1920).    The  case  was  afterwards  dropped.     110  ibid.  292. 
siSchaefer  v.  TJ.  S.,  251  U.  S.  466,  493  (1920),  dissenting  opinion. 


LEGISLATION  AGAINST  SEDITION  219 

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. 

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  care- 
fully, and  he  is  only  too  apt  in  a  heated  argument  to  let  him- 
self 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.82  Reformers  who  get 
excited  are  pretty  sure  to  take  the  position  that  force  is 
justifiable  if  peaceful  methods  fail  to  gain  what  they  con- 
sider 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  "  Bol- 
shevists n  shut  up  till  the  jails  are  so  crowded  that  their  feet 

82  See  the  thoughtful  statement  by  Judge  Cooley  in  his  Constitu- 
tional Limitations  (7  ed.)  613,  of  the  great  danger  of  a  rule  aganist 
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  argu- 
ments against  the  same  rule  at  the  close  of  c.  2  of  his  Liberty. 


220  FREEDOM  OF  SPEECH 

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. 

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  advo- 
cating 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 


LEGISLATION  AGAINST  SEDITION         221 

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  Expur- 
gatorius.  The  law  will  prevent  a  loyal  citizen  from  obtain- 
ing 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  Revo- 
lution 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  Cam- 
bridge. 

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 


222     .  FREEDOM  OF  SPEECH 

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  ex- 
haustive article  in  the  New  York  Times  83  translating  an- 
archistic passages  from  the  foreign  language  press.  It 
warned  the  American  people  of  the  thought  which  we  ought 
to  seek  to  counteract  by  education,  Americanization,  con- 
structive propaganda,  and  the  cure  of  grievances.  Such  an 
article  would  be  criminal  under  most  of  the  proposed  legis- 
lation. The  Attorney  General's  Report  to  the  Senate  could 
not  be  distributed  because  of  its  extracts  from  the  revolu- 
tionary 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  pos- 
sible for  the  government  under  cover  of  such  a  practice  to 
withhold  from  the  people  knowledge  of  punishment  for  legiti- 
mate 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. 

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 

«3  June  8,  1919. 


LEGISLATION  AGAINST  SEDITION  223 

the  Communist  Manifesto  of  1848 :  "  The  Communists  dis- 
dain to  conceal  their  views  and  aims.  They  openly  declare 
that  their  ends  can  be  attained  only  by  the  forcible  over- 
throw 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  etre  heureux, 

Nom  de  Dieu! 
Pends  ton  proprietaire.84 

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  advo- 
cacy of  revolution  by  force  and  violence  to  write :  "  I  hold 
a  little  rebellion  now  and  then  is  a  good  thing,  and  as  neces- 
sary in  the  political  world  as  storms  in  the  physical." 85 
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."  8C 
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  elo- 
quent 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  exist- 
ing government,  they  can  exercise  their  constitutional  right  of 
amending  it,  or  their  revolutionary  right  to  dismember  or  over- 
throw it. 

84  Russell,  op.  cit,  17,  53. 

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

se  Works  of  John  Adams,  ed.  C.  F.  Adams,  VI,  130. 


224  FREEDOM  OF  SPEECH 

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  tur- 
bulent 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  as- 
sured those  who  thought  our  traditional  freedom  of  speech 
in  peril,  that  suppression  would  disappear  when  the  fight- 
ing stopped,  and  remarked  with  Lincoln  that  a  man  could 
not  contract  so  strong  an  appetite  for  emetics  during  tem- 
porary illness  as  to  persist  in  feeding  upon  them  during 
the  remainder  of  his  healthful  life.87  The  war  is  over,  act- 
ually 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  ex- 
pression 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  doc- 
trines is  not  an  emetic  at  all,  but  a  drug.     A  nation  can- 

87  Letter  to  Erastus  Corning  and  others  (June  12,  1863),  Works  of 
Lincoln,  ed.  Nieolay  and  Hay,  VIII,  309. 


LEGISLATION  AGAINST  SEDITION  225 

not  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  sugar- 
less 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. 

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  con- 
viction 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  with- 
out 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:88  "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 

ss  Bull.  Dept.  Just.,  No.   106,  p.  18. 


226  FREEDOM  OF  SPEECH 

longer  unless  we  mean  to  suppress  it  altogether.  By  do- 
ing that  we  shall  not  end  it,  but  only  drive  it  underground. 

A  Sedition  Law  is  not  the  proper  way  to  deal  with  an- 
archy. Outside  of  a  few  intellectuals,  anarchy  is  the  crea- 
tion 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:89 

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. 

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  infor- 
mation, and  then  take  constructive  steps  to  end  that  dis- 
content 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  crum- 

8»  Letter  to  the  Harvard  Liberal  Club,  reprinted  in  21  New  Republic 
250,  and  Boston  Herald,  January  13,  1920. 


LEGISLATION  AGAINST  SEDITION  227 

pled  mud-guard  on  an  automobile  will  observe  that  he  never 
pounds  the  protuberant  spot.  To  do  so  would  either  be  in- 
effective 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  una- 
nimity among  our  population  on  political  and  economic  mat- 
ters. 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  Jeffer- 
son. 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  dis- 
trust 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  en- 
forcement will  let  loose  a  horde  of  spies  and  informers,  offi- 
cial 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:  90 

We  talk  much — and  think  a  great  deal  too  much — of  the  wis- 
dom 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. 

so  Lord  John  Russell,  quoted  in  G.  W.  E.  Russell,  Prime  Ministers, 
N.  Y.,  1919,  21. 


228  FREEDOM  OF  SPEECH 

There  should  be  no  legislation  against  sedition  and  an- 
archy. 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,  includ- 
ing that  most  characteristic  of  all,  which  stands  at  the  head 
of  the  Bill  of  Rights,  freedom  of  thought. 


CHAPTER  V 
THE  DEPORTATIONS 

That  imprisonment  should  continue  an  hour  longer  than  it 
ought  by  law,  or  that  there  should  be  constraint  of  limb  or  voice 
that  the  law  does  not  allow,  is  ever  a  consideration  that  should 
call  off  courts  of  justice  from  the  ordinary  deliberations  on 
matters  of  property,  however  great,  until  this  question  be  de- 
termined and  this  great  wrong,  if  it  be  one,  be  redressed. — 
William  M.  Evarts,  Argument  in  the  Lemmon  Slave  Case. 

As  long  as  Congress  refuses  to  follow  the  disastrous  prece- 
dent of  1798  and  enact  a  peace-time  Sedition  Law,  the 
government  cannot  do  much  to  suppress  "  evil-thinking " 
among  citizens  of  the  United  States.  It  is  not  entirely 
powerless,  for  violent  anarchistic  books  and  periodicals  can 
be  excluded  from  the  mails,  and  the  Espionage  Act  will 
remain  in  force  as  long  as  we  are  at  war  with  Germany;  in 
other  words,  for  an  indefinite  future.  As  we  have  seen,  Mr. 
Burleson  has  not  scrupled  to  use  it  in  his  effort  to  wreck 
the  New  York  Call,  and  Mr.  Palmer,  while  professing  to 
limit  the  Act  to  "  acts  and  utterances  which  tended  to 
weaken  the  waging  of  actual  hostilities,"  *  prosecuted  and 
convicted  Socialists  for  requesting  an  amnesty  for  political 
prisoners  months  after  the  armistice,  and  closed  up  the 
Seattle  Union-Record  a  year  after  the  last  shot  was  fired. 
The  outcry  which  these  high-handed  acts  have  drawn  from 
even  the  conservative  press  has  deterred  the  Attorney  Gen- 
eral from  much  independent  action,  though  his  agents  are 
frequently  reported  as  co-operating  with  state  officials  in 
raids  under  local  anarchy  acts  on  radical  headquarters. 

In  the  absence  of  a  new  Sedition  Law  against  radical 
citizens,  the  government  has  seized  upon  the  new  Alien  Law 
and  used  it  with  relentless  vigor.    The  first  conspicuous  event 

i  Investigation  Activities  of  the  Department  of  Justice,  6. 

229 


230  FREEDOM  OF  SPEECH 

was  the  sailing  of  the  transport  "  Buford "  on  December 
21,  1919,  with  two  hundred  and  forty-nine  Russians.  This 
was  followed  in  January  by  a  carefully  prepared  round- 
up in  all  parts  of  the  country  in  which  over  four  thousand 
persons  were  arrested  under  deportation  charges. 

While  the  right  of  the  Federal  Government  to  punish  sedi- 
tion is  open  to  serious  doubt,  there  can  be  no  question  of 
its  affirmative  power  to  exclude  aliens  from  this  country  or 
to  deport  them  even  though  they  are  admitted.  Although 
no  clause  in  the  Constitution  expressly  gives  this  power,  it 
has  been  held  by  the  United  States  Supreme  Court  in  the 
Chinese  Exclusion  Cases  to  be  an  incident  of  the  sovereignty 
and  right  of  self-preservation  necessarily  conferred  by  the 
Constitution  upon  the  government  it  created.2 

I.  The  Statute  as  to  Deportable  Radicals 

Various  classes  of  aliens  besides  the  Chinese  have  long 
been  subject  to  exclusion  and  expulsion  for  such  obvious 
objections  as  conviction  of  crime,  insanity,  pauperism,  etc., 
but  it  was  not  until  1903  that  the  possession  or  expression 
of  opinions  was  first  made  a  disqualification.  In  consequence 
of  the  death  of  President  McKinley,  Congress  refused  entry 
to  the  United  States  to  anarchists,  persons  advocating  the 
forcible  overthrow  of  our  government  or  all  government,  or 
the  assassination  of  public  officials,  as  well  as  persons  dis- 
believing in  or  opposed  to  all  organized  government  or  be- 
longing to  organizations  teaching  such  disbelief  or  opposi- 
tion.3 Other  types  of  extreme  radicals  were  added  by  sub- 
sequent legislation.4  The  present  statute,  enacted  toward 
the  close  of  the  war,  specifies  the  following  proscribed 
classes : 5 

2  Nishimura  Ekiu  v.  U.  S.,  142  U.  S.  651,  659  (1892) ;  see  other  cases  in 
1  Willoughby  on  the  Constitution,  251  ff. 

3  Act,  March  3,  1903,  c.  1012,  §§  2,  38. 

*  Act,  February  20,  1907,  c.  1134,  §§  2,  38;  Act,  February  5,  1917,  c.  29, 
in  U.  S.  Comp.  Stat.,  1918,  §§  42891/4  b  and  jj. 

5  Act  of  October  16,  1918,  c.  186;  U.  S.  Comp.  Stat.,  1919  Supp., 
§  4289*4  b.     This  has  been  amended  since  the  events  narrated  in  this 


THE  DEPORTATIONS  231 

Aliens  who  are  anarchists;  aliens  who  believe  in  or  advocate 
the  overthrow  by  force  or  violence  of  the  Government  of  the 
United  States  or  of  all  forms  of  law;  aliens  who  disbelieve  in  or 
are  opposed  to  all  organized  government;  aliens  who  advocate  or 
teach  the  assassination  of  public  officials;  aliens  who  advocate 
or  teach  the  unlawful  destruction  of  property;  aliens  who  are 
members  of  or  affiliated  with  any  organization  that  entertains  a 
belief  in,  teaches,  or  advocates  the  overthrow  by  force  or  violence 
of  the  Government  of  the  United  States  or  of  all  forms  of  law, 
or  that  entertains  or  teaches  disbelief  in  or  opposition  to  all  organ- 
ized government,  or  that  advocates  the  duty,  necessity,  or  pro- 
priety of  the  unlawful  assaulting  or  killing  of  any  officer  or 
officers,  either  of  specific  individuals  or  of  officers  generally,  of 
the  Government  of  the  United  States  or  of  any  other  organized 
government,  because  of  his  or  their  official  character,  or  that 
advocates  or  teaches  the  unlawful  destruction  of  property. 

Such  aliens  are  not  only  refused  admission  and  put  out 
if  they  succeed  in  getting  in,  but  if  they  acquire  these  views 
or  join  these  associations  after  their  entry  into  this  coun- 
try, they  are  to  be  deported  without  any  time  limit,  no  mat- 
ter how  long  before  1918  they  came  to  the  United  States. 

Like  the  federal  "  force  and  violence "  bills  discussed  in 
the  preceding  chapter,  this  statute  at  first  sight  seems  to 
apply  to  really  bad  men,  and  to  effect  nothing  but  desirable 
results.  Once  again,  however,  we  ought  to  defer  judgment 
until  we  have  examined  the  actual  operation  of  the  statute. 
The  life  of  a  law  is  not  in  its  words,  but  in  its  enforcement. 
In  this  case  we  do  not  have  to  rely  on  inference  and  argu- 
ment with  respect  to  the  future,  for  the  deportation  laws 
have  been  in  existence  long  enough  to  provide  us  with  abun- 
dant data  from  past  experience,  upon  which  we  may  base 
our  decision  as  to  the  wisdom  and  justice  of  this  national 
course  of  action. 

chapter  to  include  aliens  convicted  under  the  Espionage  Act  and  other 
war  statutes  (Act,  May  10,  1920,  No.  197),  or  advocating  sabotage,  or 
injury  to  property,  or  assaults  on  officials  for  any  reason;  giving  or 
lending  money  is  proof  of  advocacy  or  membership  (Act,  June  5,  1920, 
No.  262).  On  the  last  statute,  see  John  Lord  O'Brian,  "The  Menace  of 
Administrative  Law,"  address  to  Maryland  Bar  Association,  June  25, 
1920. 


232  FREEDOM  OF  SPEECH 

II.  The  Administrative  Machinery  for  Deporting  Radicals 

"  I'll  be  judge.     I'll  be  jury/' 

Said  cunning  old  Fury ; 

"  I'll  try  the  whole  cause, 

And  condemn  you  to  death." — Alice  in  Wonderland. 

The  most  important  question  with  any  legislation  which 
affects  human  happiness  is,  what  kind  of  men  administer 
its  provisions?  Are  they  an  impartial  judge  and  jury,  a 
government  official,  a  secret  council,  a  star  chamber?  The 
answer  to  this  question  in  our  problem  is  the  following  sen- 
tence : 6 

In  every  case  where  any  person  is  ordered  deported  from  the 
United  States  under  the  provisions  of  this  Act,  or  by  any  law  or 
treaty,  the  decision  of  the  Secretary  of  Labor  shall  be  final. 

No  judge  or  jury  passes  on  the  important  question  whether 
an  alien  who  has  lived  here  for  many  years  actually  holds 
or  has  expressed  any  of  the  objectionable  views  specified 
as  grounds  for  deportation.  No  judge  or  jury  decides 
whether  he  belongs  to  an  objectionable  organization  or 
whether  it  really  is  objectionable.  All  these  vital  issues  of 
fact  are  determined  by  the  Secretary  of  Labor,  or  more 
often  by  his  subordinates,  the  immigration  officials.  And 
there  is  for  all  practical  purposes  no  appeal  from  those  offi- 
cials to  any  court,  not  even  to  the  Supreme  Court  of  the 
United  States.  The  law  takes  the  position  that  deporta- 
tion is  not  a  criminal  proceeding  and  involves  no  punish- 
ment. It  is  simply  an  exercise  of  the  right  of  every  sov- 
ereign state  to  determine  who  shall  reside  within  its  borders. 
Therefore,  the  foreigner  who  is  expelled  without  a  hearing 
in  court,  no  matter  how  long  he  has  lived  in  the  United 
States,  no  matter  if  he  must  leave  a  house  and  other  cher- 
ished possessions  behind  him,  is  not  deprived  of  life,  liberty, 
or  property  without  due  process  of  law. 

eU.  S.  Comp.  Stat,  1918,  §  4289*4  jj.    Italics  mine. 


THE  DEPORTATIONS  233 

Such  wide  powers  have  not  been  acquired  by  the  execu- 
tive branch  of  our  government  all  at  once  or  without  a 
struggle.7  The  doctrine  that  administrative  decisions  on 
questions  of  fact  may  be  made  conclusive  without  any  ju- 
dicial review  originated  in  our  law  in  controversies  growing 
out  of  the  distribution  of  public  property.  When  the  gov- 
ernment is  giving  away  money  which  it  has  acquired  under 
a  treaty  or  is  making  free  grants  of  public  land,  it  may  justly 
annex  whatever  conditions  it  pleases  to  its  gifts  and  dele- 
gate to  anybody  it  selects  the  power  to  say  how  and  where 
those  gifts  shall  go.  The  recipients  of  its  generosity  can- 
not complain  if  they  must  dispense  with  judicial  proceed- 
ings and  abide  by  the  decision  of  some  administrative  body 
like  the  Land  Department.  If  they  are  denied  relief  by 
such  ofjicials,  they  lose  nothing  which  they  had  before. 

Similar  powers  were  soon  accorded  from  obvious  necessity 
to  tax  officials.  The  collection  of  the  public  revenues  would 
become  impossible  if  every  dispute  of  fact  over  the  value 
of  an  imported  scarf  or  the  size  of  an  income  could  be  car- 
ried by  the  disgruntled  taxpayer  into  the  courts.  The  com- 
plexity of  the  business  and  the  requirement  of  speed  make 
it  very  desirable  that  administrative  officers  should  execute 
any  valid  tax  law  without  interruption  so  long  as  no  issue 
of  law  is  involved ;  on  the  other  hand,  their  decisions  do  not 
affect  the  liberty  of  the  citizen  or  interfere  with  the  normal 
activities  of  his  life. 

When  the  doctrine  was  extended  to  exclusion  from  the 
mails,  its  effect  became  much  more  serious.  The  business 
man  who  wishes  to  communicate  with  prospective  buyers  and 
sources  of  supply  is  not  a  recipient  of  public  bounty  like 
the  occupant  of  free  land.  While  he  does  make  use  of  gov- 
ernmental machinery,  he  pays  for  what  he  gets,  and  in  sub- 

7  The  leading  cases  are  in  2  Willoughby  on  the  Constitution,  c.  LXIV. 
A  very  valuable  article  by  the  Assistant  Secretary  of  Labor,  Louis  F. 
Post,  is  "  Administrative  Decisions  in  Connection  with  Immigration," 
10  Pol.  Sci.  Rev.  251  (1916).  This  supports  my  conclusions.  The  same 
volume  contains  several  other  articles  on  administrative  decisions.  See 
the  Bibliography  for  further  references  on  the  Post-office. 


234  FREEDOM  OF  SPEECH 

stance  the  transaction  is  like  buying  municipal  water  or 
riding  on  a  national  railway.  The  opportunity  to  obtain 
essential  services  is  a  condition  of  earning  a  livelihood  and 
very  possibly  of  life  itself.  If  a  city  cuts  off  a  man's  water, 
he  cannot  dig  a  well;  if  he  is  kept  off  the  trains,  he  cannot 
walk;  and  in  the  same  way  the  factory  or  newspaper  which 
is  excluded  from  the  mails  is  denied  any  other  practicable 
means  of  systematic  intercourse.  The  decision  virtually 
ruins  its  business.  All  questions  of  constitutionality  aside, 
Congress  ought  to  consider  the  advisability  of  continuing 
to  place  such  a  destructive  power  in  the  Postmaster  Gen- 
eral instead  of  in  an  impartial  tribunal  which  would  not  be 
both  judge  and  prosecuting  attorney.  Questions  of  the 
weight  and  contents  of  letters  are  administrative  like  tariff 
valuations,  but  the  tax  department  does  not  furnish  an  anal- 
ogy for  exclusion  orders  in  the  post-office  for  fraud  and 
other  reasons,  because  such  controversies  are  comparatively 
few  and  similar  in  nature  to  those  which  courts  are  accus- 
tomed to  settle,  besides  being  far-reaching  in  their  conse- 
quences to  the  community  as  well  as  to  the  prohibited  period- 
ical. The  cases  I  have  already  discussed  of  exclusion  from 
the  mails  for  alleged  indecency  or  disloyalty  show  the  possi- 
bilities of  danger  when  the  attainment  and  dissemination  of 
truth  are  regulated  by  the  arbitrary  will  of  one  man. 

All  these  considerations  apply  a  fortiori  to  deportation, 
and  especially  deportation  for  opinions.  Exclusion  of  a 
newly  arrived  alien  by  administrative  fiat  is  not  a  serious 
hardship,  for  he  simply  returns  to  his  old  life  and  takes 
up  the  threads  where  he  recently  dropped  them,  but  expul- 
sion after  long  residence  is  another  affair.  The  matter  at 
stake  here  is  not  a  gift  from  the  government,  or  the  pay- 
ment of  a  tax  which  leaves  substantial  property  untouched, 
or  even  the  existence  of  a  business.  Liberty  itself,  long- 
established  associations,  the  home,  are  at  the  mercy  of  a 
bureaucracy.  Although  technically  Justice  Gray  was  right 
in  saying  that  it  is  not  a  punishment  to  deport  an  alien  who 
has  been  domiciled  here  many  years,  but  only  a  method  of 


THE  DEPORTATIONS  235 

removing  him  to  his  own  country  because  he  has  not  com- 
plied with  the  conditions  for  residence  imposed  by  our  gov- 
ernment,8 nevertheless,  practically  it  is  nothing  but  a  pun- 
ishment, which,  as  Justice  Field  pointed  out,  is  "  beyond  all 
reason  in  its  severity." 

As  to  its  cruelty  nothing  can  exceed  a  forcible  deportation  from 
a  country  of  one's  residence,  and  the  breaking  up  of  all  the 
relations  of  friendship,  family,  and  business  there  contracted. 
The  laborer  may  be  seized  at  a  distance  from  his  home,  his 
family,  and  his  business  and  taken  before  the  judge  [now  the 
immigration  inspector]  for  his  condemnation,  without  permission 
to  visit  his  home,  see  his  family,  or  complete  any  unfinished  busi- 
ness.9 

This  power  to  tear  a  man  up  by  the  roots  is  now  con- 
ferred upon  officials  of  the  government,  the  same  officials 
who  prefer  charges  against  him,  and  is  extended  from  such 
definite  facts  as  the  race  and  birth  of  a  Chinaman  to  such 
vague  facts  as  the  opinions  and  political  affiliations  of  a 
European.  Whatever  the  constitutional  powers  of  the  gov- 
ernment, it  ought  not  to  deprive  a  man  of  liberty  and  hap- 
piness without  being  sure  after  a  thorough  and  impartial 
investigation,  such  as  a  judge  and  jury  in  open  court  would 
afford,  that  the  alien  actually  falls  within  a  proscribed  class. 
It  is  popular  to  defend  the  present  arbitrary  methods  on 
the  ground  that  he  is  only  an  alien;  if  he  wants  to  acquire 
a  home  here,  why  does  he  not  become  naturalized?  He  can- 
not be  naturalized  for  five  years,  and  even  after  that  time 
his  omission  ought  not  to  make  him  an  outlaw.  He  should 
not  be  dragooned  into  citizenship,  and  incidentally  citizens 
acquired  through  pressure  are  not  always  desirable.  A  for- 
eigner often  has  honest  and  even  praiseworthy  motives  for 
retaining  his  old  loyalties.  He  may  desire  to  return  to  his 
birthplace  in  his  old  age  after  he  has  saved  a  competence 
by  building  roads  and  railways  for  us,  or  as  in  the  case  of 
most  Russians  in  our  midst  before  1917,  he  may  be  waiting 

s  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  698,  730  (1892). 
» Dissenting  opinion  in  same  case,  759. 


236  FREEDOM  OF  SPEECH 

here  with  the  hope  that  a  tyranny  at  home  will  be  over- 
thrown. Surely,  we  do  not  reproach  Americans  who  spend 
their  lives  in  England  or  France  without  renouncing  their 
allegiance.  Why  should  we  regard  similar  conduct  by  for- 
eigners in  this  country  as  worse  than  crime,  for  even  crim- 
inals would  not  receive  such  harsh  and  summary  treatment? 
We  have  no  business  to  act  and  talk  as  if  we  owed  abso- 
lutely nothing  to  our  unnaturalized  immigrants.  Most  of 
them  were  brought  in  at  the  earnest  desire  of  the  very  per- 
sons and  corporations  that  are  now  loudly  calling  for  more 
deportations.  For  years  these  foreigners  have  done  our 
dirty  work,  and  we  might  at  least  give  them  a  jury  trial 
before  we  throw  them  out  neck  and  heels.  Have  we  no  con- 
fidence in  our  own  institution?  Every  alien  must  expect  to 
be  expelled,  if  he  furnishes  legal  cause,  just  as  he  must  ex- 
pect to  be  punished  for  an  offense,  but  in  each  case  we  should 
be  proud  as  citizens  of  a  free  land  to  furnish  him  the  best 
legal  machinery  we  can  devise  to  ascertain  whether  or  not 
the  ground  for  governmental  action  really  exists. 

Let  us  now  look  more  closely  at  the  method  which  we 
actually  employ  to  determine  the  political  and  economic 
views  of  an  alien.  Is  it  equivalent  to  a  jury  trial?  Even 
that,  I  have  tried  to  show,  is  a  hazardous  means  for  the 
investigation  of  another  man's  words  and  opinions,  and  often 
liable  to  err,  but  it  is  the  best  practicable  means  if  we  are 
going  to  inquire  into  those  facts  at  all.  What  are  the 
chances  of  error  in  the  present  deportation  tribunals? 

This  can  be  best  determined  from  a  consideration  of  the 
actual  practice  as  described  by  Judge  Holt  of  the  United 
States  District  Court  for  Southern  New  York : 10 

There  are  a  number  of  officers  called  inspectors  of  immigra- 
tion, connected  with  the  office  of  the  commissioner.  Complaint 
that  an  alien  is  in  this  country  in  violation  of  law  is  usually  made 
by  one  of  these  inspectors.  The  information  upon  which  he 
bases   the    charge    may    have    been    obtained    by    himself    upon 

loBosny  v.  Williams,  185  Fed.  598  (1911);  see  also  Immigration 
Rules  of  May  1,  1917,  Rule  22. 


THE  DEPORTATIONS  237 

investigation,  or  may  have  been  furnished  to  him  by  others. 
Frequently  such  information  is  furnished  by  the  city  police, 
or  by  enemies  of  the  person  charged,  acting  through  malice  or 
revenge.  Affidavits  are  obtained  and  are  sent  by  the  inspector  to 
the  Secretary  at  Washington,  who,  if  he  thinks  a  proper  case  is 
made  out,' issues  a  warrant  for  the  arrest  of  the  persons  charged. 
This  warrant  is  usually  intrusted  for  execution  to  the  inspector 
who  has  made  the  charge,  and  he  subsequently  usually  takes  en- 
tire charge  of  the  case.  After  the  aliens  have  been  taken  to 
Ellis  Island,  they  are  held  in  seclusion  and  not  permitted  to 
consult  counsel  until  they  are  first  examined  by  the  inspector, 
under  oath,  and  their  answers  taken  by  a  stenographer.  After 
this  preliminary  inquisition  has  proceeded  as  far  as  the  inspec- 
tor wishes,  the  aliens  are  then  informed  that  they  are  entitled 
to  have  counsel,  and  to  give  any  evidence  they  wish  in  respect 
to  the  charge.  Thereafter  a  further  hearing  is  had  before  the 
inspector,  at  which  further  evidence  may  be  given  by  him,  and 
the  aliens  may  appear  by  counsel  and  offer  evidence  in  their  own 
behalf.  The  inspector  thereupon  reports  whether  in  his  opinion 
guilt  has  been  established,  and  the  evidence  taken  and  the  in- 
spector's finding  are  sent  to  the  Secretary  of  Commerce  and 
Labor  at  Washington,  who  thereupon  makes  an  order  either 
for  the  deportation  or  the  release  of  the  aliens.  It  is,  of  course, 
obvious  that  such  a  method  of  procedure  disregards  almost  every 
fundamental  principle  established  in  England  and  this  country  for 
the  protection  of  persons  charged  with  an  offense.  The  person 
arrested  does  not  necessarily  know  who  instigated  the  prosecution. 
He  is  held  in  seclusion,  and  is  not  permitted  to  consult  counsel 
until  he  has  been  privately  examined  under  oath.  The  whole 
proceeding  is  usually  substantially  in  the  control  of  one  of  the 
inspectors,  who  acts  in  it  as  informer,  arresting  officer,  inquisitor, 
and  judge.  The  Secretary  who  issues  the  order  of  arrest  and 
the  order  of  deportation  is  an  administrative  officer  who  sits 
hundreds  of  miles  away,  and  never  sees  or  hears  the  person  pro- 
ceeded against  or  the  witnesses. 

The  proceedings  are  in  secret.  The  public  is  excluded, 
so  is  the  press,  so  are  the  alien's  wife  and  children.  His  in- 
ability to  speak  English  and  the  inspector's  frequent  in- 
ability to  speak  anything  else  make  the  record  unsatisfac- 
tory, but  the  Secretary  of  Labor  sees  nothing  else.  Further- 
more, this  record  is  often  made  by  the  inspector  himself, 
and  he  may  stop  it  whenever  he  wishes,  after  a  good  case  is 


238  FREEDOM  OF  SPEECH 

made  out.  Like  a  policeman,  like  a  district  attorney,  it  is 
his  business  to  get  results.  Unless  the  alien  is  represented 
by  counsel  there  is  some  chance  that  matter  in  defense  will  not 
get  on  the  record.11  While  he  has  a  right  to  ask  for  counsel 
at  such  stage  in  the  proceedings  as  the  inspector  shall  deem 
proper,  being  defenseless  until  then,  he  is  not,  like  a  crim- 
inal, entitled  to  receive  counsel  at  the  expense  of  the  govern- 
ment. Furthermore,  the  alien  who  does  not  speak  English 
and  is  shut  up  on  an  island,  often  ignorant  and  out  of  funds, 
does  not  readily  obtain  a  lawyer  on  his  own  initiative.  Thus 
he  may  be  rigorously  cross-examined  in  the  absence  of  coun- 
sel, not  only  on  what  he  did  and  said,  but  on  what  he  thinks. 
The  proceedings  are  rarely  reported  in  the  newspapers,  not 
being  open,  so  that  public  opinion  cannot  easily  be  focussed 
on  an  unjust  case.  Once  the  alien  is  deported,  all  mistakes 
and  wrongs  are  covered  by  the  intervening  ocean. 

"  If  this,"  said  Justice  Brewer,12  "  be  not  a  star  chamber 
proceeding  of  the  most  stringent  sort,  what  more  is  neces- 
sary to  make  it  one?  " 

The  alien  has  two  slight  possibilities  of  relief  from  a  wrong 
decision  of  the  inspector.  The  review  by  the  Secretary  of 
Labor  has  already  been  shown  by  Judge  Holt  to  be  inade- 
quate, because  the  Secretary  never  sees  the  alien  or  the  wit- 
nesses, but  only  the  record,  which  was  made  up  by  the  very 
person  whose  finding  is  attacked.  Moreover,  the  Secretary 
of  Labor  determines  and  enforces  the  policy  of  the  govern- 
ment in  respect  to  deportations.  Congress  should  refuse 
in  so  serious  a  matter  to  make  a  man  final  judge  in  his  own 
cause.  Secondly,  the  alien  may  in  rare  instances  obtain  a 
write  of  habeas  corpus,  which  will  bring  his  case  before  a 
United  States  judge.  This  remedy  is  very  limited,  for  the 
conclusions  and  orders  of  the  immigration  officials  can  be 
attacked  by  judicial  proceedings  only  if  it  is  shown  "  that 
the  proceedings  were  manifestly  unfair,  that  the  action  of 

11  Low  Wah  Suey  v.  Backus,  225  U.  S.  460  (1912),  holds  valid  the  rule 
denying  counsel  until  after  the  preliminary  hearing. 

12  U.  S.  v.  Ju  Toy,  198  U.  S.  253,  268  (1905). 


THE  DEPORTATIONS  239 

the  executive  officers  was  such  as  to  prevent  a  fair  investi- 
gation, or  that  there  was  a  manifest  abuse  of  the  discre- 
tion committed  to  them  by  the  statute ;  "  13  or  if  there  was 
an  error  of  law,  for  instance,  in  construing  the  statutory 
definition  of  some  deportable  class.  In  the  absence  of  fraud, 
a  finding  of  fact  will  be  reversed  only  when  there  is  a  com- 
plete absence  of  evidence  to  justify  it.  So  long  as  there  is 
any  evidence  at  all  in  its  support,  no  matter  how  overwhelm- 
ingly this  is  outweighed  by  the  testimony  on  behalf  of  the 
alien,  a  court  cannot  interfere. 

The  risks  of  grave  injustice  under  this  system  are  shown 
by  a  recent  case.14  A  Canadian  woman  in  northern  New 
York,  who  had  always  earned  her  own  living  and  owned 
several  hundred  dollars,  part  of  it  in  local  real  estate,  be- 
side having  well-to-do  relatives,  was  ordered  to  be  deported 
as  a  person  "  likely  to  become  a  public  charge."  The  evi- 
dence showed  that  the  alien  had  excited  the  jealousy  of  a 
married  woman  by  receiving  from  her  husband  lessons  in 
bicycle  riding  evenings,  and  it  was  suggested  that  the  wife 
might  sue  this  woman  for  alienation  of  his  affections,  and 
might  in  this  suit  take  all  her  property  and  leave  her  with- 
out means  of  support.  Also  the  woman  might  be  prosecuted 
on  a  criminal  charge,  and  eventually  imprisoned  at  public 
expense.  On  these  facts  the  immigration  inspector  arrested 
her  and  ordered  her  deportation,  and  his  decision  was  affirmed 
by  the  Secretary  of  Labor.  Obviously  the  whole  case  was 
framed  up  by  a  personal  enemy,  as  many  cases  against 
radicals  may  have  been  framed  up  during  this  past  winter. 
In  this  instance  the  alien  was  released  by  the  court,  because 
there  was  not  a  single  fact  to  support  the  finding,  but  if 
there  had  been  a  scintilla  of  evidence  the  judge  could  have 
done  nothing.  Injustice  of  this  kind  may  easily  occur  with- 
out any  corruption  on  the  part  of  the  inspector  if  he  is 
zealous   in   enforcing   the   deportation  law   and   anxious   to 

is  LoW  Wah  Suey  v.  Backus,  supra,  468;  Gegiow  v.  Uhl,  239  U.  S.  3. 
i*Ex  parte  Mitchell,  256  Fed.  229   (1919).     See  Post,  Deportations 
Testimony,  80,  247,  for  other  framed-up  cases. 


240  FREEDOM  OF  SPEECH 

gratify  the  eagerness  of  his  superior  officers  and  satisfy 
the  incessant  demand  of  influential  newspapers  and  organi- 
zations 1B  for  a  high  record  of  expulsions. 

"  In  the  administration  of  preventive  justice/'  wrote  James 
Madison,  "  the  following  principles  have  been  held  sacred :  that 
some  probable  ground  of  suspicion  be  exhibited  before  some 
judicial  authority,  that  it  be  supported  by  oath  or  affirmation; 
that  the  party  may  avoid  being  thrown  into  confinement,  by  find- 
ing pledges  or  sureties  for  his  legal  conduct  sufficient  in  the  judg- 
ment of  some  judicial  authority,  that  he  may  have  the  benefit  of 
a  writ  of  habeas  corpus,  and  thus  obtain  his  release  if  wrongfully 
confined;  and  that  he  may  at  any  time  be  discharged  from  his 
recognizance,  or  his  confinement,  and  restored  to  his  former 
liberty  and  rights,  on  the  order  of  the  proper  judicial  authority." 

All  these  principles  he  declared  to  be  violated  by  the  Alien 
Act  of  1798.16  They  are  violated  even  more  by  the  Alien 
Act  of  1918.  The  hated  statute  of  1798  was  a  temporary 
measure  called  forth  by  impending  war,  and  provided  that 
the  foreigner  should  first  be  served  with  a  notice  and  given 
time  to  depart  voluntarily.  Only  if  he  failed  to  do  so  was 
he  arrested.  Of  this  statute  Madison  said,  "  If  a  banish- 
ment of  this  sort  be  not  a  punishment,  and  among  the  sever- 
est of  punishments,  it  will  be  difficult  to  imagine  a  doom  to 
which  the  name  can  be  applied."  The  Act  of  1918  is  a 
permanent  measure,  and  provides  for  immediate  arrest,  con- 
finement, and  expulsion,  without  notice,  or  opportunity  to 
close  up  one's  affairs  and  embark  freely.  Even  if  such  pro- 
cedure has  been  declared  constitutional,  it  is  nevertheless 
dangerous  that  it  can  be  inflicted  with  practically  no  judicial 
safeguards,  "  on  mere  suspicion,  by  the  single  will  of  an 
executive  magistrate,  on  persons  convicted  of  no  prison 
offense  against  the  laws  of  the  land." 

is  See,  for  instance,  the  constant  complaints  that  deportations  are 
few,  in  the  weekly  letter  issued  by  the  President  of  the  National 
Founders'  Association,  who  has  suggested  that  the  entire  administration 
of  the  law  be  transferred  from  the  Secretary  of  Labor  to  the  Attorney- 
General.  Such  a  transfer  would  probably  involve  sweeping  changes  in 
personnel  among  immigration  inspectors. 

is  Act  of  June  25,  1798,  c.  63;  Madison's  Report  on  the  Virginia 
Resolutions,  4  Ell.  Deb.  (2  ed.)  581,  582. 


THE  DEPORTATIONS  241 


III.  The  Raids  of  January,  1920 

You  may  take  my  word  for  it,  my  dear  Viceroy,  that  if  we 
do  not  use  this  harsh  weapon  with  the  utmost  care  and  scruple — 
always,  where  the  material  is  dubious,  giving  the  suspected  man 
the  benefit  of  the  doubt — you  may  depend  upon  it,  I  say,  that 
both  you  and  I  will  be  called  to  severe  account,  even  by  the  people 
who  are  now  applauding  us  (quite  rightly)  for  vigor. — Morley, 
to  Lord  Minto,  on  deportation  from  India. 

Such  is  the  machinery  which  Attorney  General  Palmer 
has  set  in  motion  to  bring  thousands  of  radicals  within  the 
provisions  of  the  Alien  Act  of  1918.  Powerful  as  this  ma- 
chinery is,  it  is  subjected  by  the  law  to  three  limitations 
in  the  interest  of  liberty.  (1)  The  Act  provides  that  arrest 
must  be  on  a  warrant  signed  by  the  Secretary  of  Labor, 
and  the  issue  of  the  warrant  is  carefully  regulated  by  the 
Immigration  Rules.17  (2)  A  house  or  a  meeting-hall  can- 
not be  searched,  and  papers  or  other  property  cannot  be 
seized,  even  with  a  search-warrant,  for  there  is  no  law  which 
authorizes  the  issue  of  a  search-warrant  in  deportation  pro- 
ceedings.18    (3)     The  alien  must  be  given  a  fair  admistra- 

17  Immigration  Rules,  1917,  Rule  22,  Subd.  3.  "  Application  for 
warrant  of  arrest.  The  application  must  state  facts  showing  prima 
facie  that  the  alien  comes  within  one  or  more  of  the  classes  subject  to 
deportation  after  entry,  and  .  .  .  should  be  accompanied  by  some  sub- 
stantial supporting  evidence.  ...  If  based  upon  statements  of  per- 
sons not  sworn  officers  of  the  Government  .  .  .  the  application  should 
be  accompanied  by  the  affidavit  of  the  person.  .  .  .  Telegraph  appli- 
cation may  be  resorted  to  only  in  case  of  necessity,  or  when  some  sub- 
stantial interest  of  the  Government  would  be  subserved  thereby,  and 
must  state  (a)  that  the  usual  written  application  is  being  forwarded  by 
mail,  and  (b)  the  substance  of  the  facts  and  proof  therein  con- 
tained. .    .    ." 

i»The  subject  of  unreasonable  searches  and  seizures  will  be  discussed 
in  the  next  chapter.  There  are  some  statements  that  the  Fourth 
Amendment  does  not  apply  to  deportation  proceedings,  Fong  Yue  Ting 
v.  U.  S.,  149  U.  S.  698,  730  (1893);  Re  Chin  Wah,  182  Fed.  256  (1910), 
but  the  contrary  has  been  held  in  a  much  cited  case,  U.  S.  v.  Wong 
Quong  Wong,  94  Fed.  832  (1899).  See  also  Moy  Wing  Sun  v.  Prentis, 
234  Fed.  24  (C.  C.  A.  1916).  In  Weeks  v.  U.  S.,  232  U.  S.  392  (1914), 
Day,  J.,  said  of  the  Fourth  Amendment:  "This  protection  reaches  all 
alike,  whether  accused  of  crime  or  not";  and  in  Ex  parte  Jackson,  96 
U.  S.  727  (1877),  it  was  applied  to  administrative  opening  of  the  mails. 
It  is   inconceivable   that   the   Amendment  has  no  application  to   non- 


242  FREEDOM  OF  SPEECH 

tive  trial,  in  accordance  with  the  Rules.  (4)  The  deporta- 
tion laws  apply  only  to  aliens. 

It  is  also  some  mitigation  of  the  drastic  features  of  this 
machinery  that  it  has  been  entrusted  by  Congress,  not  to  the 
Department  of  Justice  which  is  engaged  in  the  prosecution  of 
crime,  but  to  that  Department  which  was  created  u  to  foster, 
promote,  and  develop  the  welfare  of  the  wage  earners  of 
the  United  States,"  and  is  daily  concerned  with  aiding  mil- 
lions of  human  beings,  many  of  them  poor,  comparatively 
helpless,  and  unacquainted  with  our  language  and  institu- 
tions. The  Department  of  Justice  may  furnish  legal  advice 
or  lend  its  agents  for  use  under  the  control  of  the  Department 
of  Labor,  but  it  has  no  more  legal  right  or  power  to  deal 
with  the  expulsion  of  aliens  than  has  the  Department  of  the 
Interior. 

The  raids  of  January,  1920,  have  been  fully  described  in 
the  opinion  of  Judge  George  W.  Anderson  in  the  Colyer 
case.  This  book  will  therefore  only  discuss  briefly  the  ex- 
tent to  which  the  four  principles  of  personal  liberty  just 
stated  have  been  observed  and  the  relative  shares  which  the 
Departments  of  Justice  and  Labor  have  taken  in  these  raids. 
My  discussion  is  not  based  upon  the  evidence  of  aliens  or 
journalists,  however  credible,  but  upon  the  statements  of 

criminal  proceedings  though  of  course  the  test  of  what  is  reasonable  is 
different.  In  re  Pacific  Ry.  Com'n,  32  Fed.  241,  251  (1887);  I.  C.  C.  v. 
Brimson,  154  U.  S.  447,  478  (1894). 

Moreover,  searches  and  seizures  without  search-warrant  violate  the 
"due  process"  clause  of  the  Fifth  Amendment,  except  a  few  special 
cases  like  searching  the  'person  onl^  of  a  man  arrested  for  a  crime.  A 
warrant  of  arrest  does  not  authorize  search.  And  the  Secretary  of 
Labor  has  no  power  to  issue  search-warrants  in  immigration  proceed- 
ings under  any  Act  of  Congress.  Only  a  warrant  issued  by  a  court 
(under  U.  S.  Comp.  Stat.,  1918,  §  1239;  Stern  v.  Remick,  164  Fed.  781) 
can  make  legal  searches  and  seizures  of  the  property  of  an  alien  not 
charged  with  crime,  and  no  statute  authorizes  immigration  officials 
to  obtain  a  judicial  search-warrant  in  the  absence  of  judicial  pro- 
ceedings. No  lawful  search  can  be  made  in  immigration  proceedings 
with  or  without  a  search-warrant.  Therefore,  it  seems  probable  that 
all  the  evidence  seized  in  the  recent  raids  cannot  be  used  by  the  gov- 
ernment, Silverthorne  Lumber  Co.  v.  U.  S.,  40  Sup.  Ct.  182  (1920); 
and  that  actions  for  damages  can  be  brought.  Illegal  searches  and 
seizures  were  a  ground  for  the  release  of  an  T.W.W.  in  Ex  parte 
Jackson,  263  Fed.  110  (1920),  and  of  Communists  in  the  Colyer  case. 


THE  DEPORTATIONS  243 

sworn  officials  of  the  United  States,  and  so  far  as  possible 
upon  the  testimony  of  Attorney  General  Palmer.19 

"  Appreciating,"  he  says,  "  that  the  criminal  laws  of  the 
United  States  were  not  adequate  to  properly  handle  the  radi- 
cal situation,  the  Department  of  Justice  held  several  confer- 
ences with  the  officials  of  the  Department  of  Labor  and  came 
to  an  agreeable  arrangement  for  the  carrying  out  of  the  *  de- 
portation statute.' "  Whether  the  Secretary  of  Labor, 
William  B.  Wilson,  and  the  Assistant  Secretary,  Louis  F. 
Post,  were  informed  of  the  "  plans  laid  by  the  Department  of 
Justice  for  the  apprehension  of  members  of  the  Communist 
Party  and  the  Communist  Labor  Party,"  he  does  not  state. 
The  officials  with  whom  he  was  in  close  co-operation  were  the 
third  ranking  officer,  Mr.  J.  W.  Abercrombie,  a  member  of 
Mr.  Palmer's  Department  detailed  to  serve  as  solicitor  to  the 
Department  of  Labor  and  vested  with  the  powers  of  Acting 
Secretary  when  his  superiors  were  absent  or  otherwise  oc- 
cupied, and  Mr.  A.  Caminetti,  the  Commissioner  General  of 
Immigration,  whose  relations  with  Mr.  Post  have  long  been 
strained.  Mr.  Abercrombie  signed  3,000  warrants  for  the 
arrest  of  persons  alleged  by  affidavits  of  Mr.  Palmer's  agents 
to  be  members  of  the  two  Communist  parties.  Mr.  Caminetti 
instructed  the  immigration  officials  that  the  aliens  covered  by 
the  warrants  would  be  arrested  simultaneously  by  the  De- 
partment of  Justice  and  "  held  on  local  charges  "  until  the 
officials  had  served  the  warrants  that  night  or  the  following 
day.  The  agents  would  assist  in  serving  warrants,  perfecting 
detention  arrangements,  and  providing  evidence,  but  they 
could  not  legally  conduct  the  deportation  hearings,  since  this 
duty  was  delegated  by  statute  to  the  immigration  inspectors. 

The  character  of  the  raids  is  best  shown  by  the  Instruc- 
tions issued  by  Mr.  Palmer's  Bureau  of  Investigation  to  his 

19  Palmer  Deportations  Testimony;  Post  Deportations  Testimony; 
testimony  and  instructions  of  government  officials  in  Report  upon  the 
Illegal  Practices  of  the  United  States  Department  of  Justice,  by  12 
lawyers,  Natl.  Popular  Govt.  League,  Wash.,  May,  1920;  opinion  of 
Judge  G.  W.  Anderson  in  Colyer  and  Katzeff  v.  Skeffington,  265  Fed.  17 
(cited  hereafter  as  Colyer  opinion).  The  only  sentence  based  on  an 
unofficial  source  is  that  on  Detroit  conditions. 


244  FREEDOM  OF  SPEECH 

Secret  Service  men  throughout  the  country.  Those  in  New 
England  are  reproduced  in  Judge  Anderson's  opinion.  A 
slightly  different  form  is  reprinted  on  the  front  page  of  the 
New  York  Times,  January  3,  1920 : 

INSTRUCTIONS 

Our  activities  will  be  directed  against  the  radical  organiza- 
tions, known  as  the  Communist  Party  of  America  and  the  Com- 
munist Labor  Party  of  America,  also  known  as  Communists. 

The  strike  will  be  imade  promptly  and  simultaneously  at 
8 :30  p.m.  in  all  districts.  The  meeting  places  of  the  Communists 
in  your  territory,  and  the  names  and  addresses  of  the  officers  and 
heads  that  you  are  to  arrest,  are  on  the  attached  lists. 

You  will  also  arrest  all  active  members  where  found. 

Particular  efforts  should  be  made  to  apprehend  all  the  officers, 
irrespective  of  where  they  may  be,  and  with  respect  to  such 
officers,  their  residence  should  be  searched  and  in  every  instance 
all  literature,  membership  cards,  records  and  correspondence  are 
to  be  taken. 

When  a  citizen  is  arrested  as  a  communist,  he  must  be 
present  with  the  officers  searching  his  home  at  the  time  of  the 
search. 

Meeting  rooms  should  be  thoroughly  searched. 

Locate  and  obtain  the  charter.  All  records,  if  not  found  in  the 
meeting  rooms,  will  probably  be  found  in  the  home  of  the  record- 
ing secretary  or  financial  secretary,  but  in  every  instance,  if 
possible,  records  should  be  found  and  taken. 

All  literature,  books,  papers,  pictures  on  the  walls  of  the 
meeting  places,  should  be  gathered  together  and  tagged  with  tags 
which  will  be  supplied  you,  with  the  name  and  address  of  the 
person  by  whom  obtained  and  where   obtained. 

In  searching  meeting  places,  a  thorough  search  should  be 
made  and  the  walls  sounded. 

It  is  an  order  of  the  Government  that  violence  to  those  ap- 
prehended should  be  scrupulously  avoided. 

Immediately  upon  the  apprehension  of  the  alien,  or  citizen, 
search  him  thoroughly.  If  found  in  groups  in  a  meeting  room, 
they  should  be  lined  up  against  the  wall  and  searched.  Particular 
efforts  should  be  made  to  obtain  membership  cards  on  the  persons 
who  are  taken. 

Make  an  absolute  search  of  the  individual.  No  valuables, 
such  as  jewelry  and  monies,  to  be  taken  away  from  those  arrested. 

After  a  search  has  been  made   of  the  person  arrested   you 


THE  DEPORTATIONS  245 

will  take  all  the  evidence  you  have  obtained  from  his  person 
and  place  it  in  an  envelope,  which  will  be  furnished  you,  plac- 
ing the  name,  address,  contents  of  the  envelope,  by  whom  taken 
and  where  on  the  outside  of  the  envelope  and  deliver  to  me  with 
the  alien. 

Everybody  will  remain  on  duty  until  relieved,  without  excep- 
tion. 

Flashlights,  string,  tags  and  envelopes  should  be  carried, 
as  per  instructions. 

In  searching  rooms  of  an  alien  pay  particular  attention  to 
everything  in  the  room  and  make  a  thorough  search  thereof. 

You  are  also  warned  to  take  notice  "  that  no  violence  is 
to  be  used." 

You  will  communicate  with  me  by  telephone  from  your  several 
districts,  the  number  of  the  telephone  herewith  given. 

Attached  you  will  find  a  list  of  those  to  be  apprehended  in 
your  district  and  you  will  also  apprehend  all  those  found  arrested 
with  these  names  at  the  time  of  the  arrest,  whom  you  find  to  be 
active  members  of  the  Communist  party. 

You  are  also  instructed  to  use  reasonable  care  and  good 
judgment. 

It  is  too  early  to  write  an  account  of  the  methods  in 
which  Mr.  Palmer's  agents  carried  out  his  Instructions,  but 
I  give  the  following  authenticated  facts. 

First,  aliens  and  citizens  found  in  a  Communist  hall  on 
the  night  of  raids,  whether  they  were  members  of  the  organi- 
zation or  not,  were  seized  without  any  warrant  whatever.  In 
New  England  alone  a  hundred  such  persons  were  imprisoned 
for  several  days  while  the  officials  telegraphed  for  warrants  to 
cover  them,  and  hundreds  more  were  not  released  for  many 
hours.  The  Attorney  General  testifies  on  the  nation-wide 
situation : 

Where  the  aliens  were  assembled  at  their  meeting  places  and  an 
actual  meeting  of  the  Communist  Party  was  in  progress  the 
agents  of  the  Department  of  Justice  did  take  into  custody  all 
aliens  attending  that  meeting.  It  is  quite  likely  that  warrants  had 
not  been  obtained  for  all  such  persons,  but  it  is  sufficient,  it 
seems  to  me,  that  when  an  alien  is  apprehended  in  the  commission 
of  the  unlawful  act  that  the  action  of  the  government  officer 
taking  him  into  custody  is  warranted.     Certainly  it  could  be 


246  FREEDOM  OF  SPEECH 

claimed  that  if  the  government  officers  had  visited  a  meeting  place 
and  had  permitted  aliens  found  there  for  whom  warrants  had  not 
been  previously  obtained  to  depart,  that  they  had  been  derelict 
in  their  duty. 

The  Attorney  General  also  states  that  when  persons  ap- 
plied at  the  Hartford  jail  to  see  their  friends  who  had  been 
arrested  at  a  Communist  meeting,  the  visitors  were  properly 
arrested  and  locked  up  in  the  j  ail ;  for  their  coming  to  inquire 
was  prtTna  facie  evidence  of  affiliation  with  the  Communist 
Party.20 

Mr.  Palmer's  contention  is  that  his  agents  faced  the  same 
situation  as  a  policeman  who  witnesses  a  robbery.  If  he  goes 
to  the  station  house  for  a  warrant  the  offender  will  vanish. 
His  agents  "  did  the  safe  thing "  in  arresting  every  alien 
apparently  a  Communist.  This  analogy  is  clearly  unsound. 
For  many  crimes  a  warrant  is  necessary  to  arrest,  and  a 
deportable  alien  is  not  a  criminal  at  all.  Neither  he  nor  a 
citizen  can  be  deprived  of  his  liberty  upon  considerations  of 
expediency  which  are  not  the  law  of  the  land.  Congress 
makes  that  law,  and  has  explicitly  required  that  the  alien 
shall  be  taken  into  custody  "  upon  the  warrant  of  the  Secre- 
tary of  Labor." 

Secondly,  the  prisoners'  property  was  overhauled  and 
seized  without  search-warrants.  The  Chief  of  the  Bureau 
of  Investigation  did  direct  his  subordinates  to  apply  to 
the  local  authorities  for  warrants  "  if  you  find  it  is  absolutely 
necessary " ;  and  the  Attorney  General  states,  "  In  every 
instance  where  practicable  search-warrants  were  procured 
from  either  city  authorities  or  the  United  States  com- 
missioner." He  points  to  no  law  authorizing  such  warrants 
for  papers,  and  none  existed  except  possibly  in  states  where 
Communists  fall  within  anti-anarchy  acts.  Of  course,  war- 
rants for  the  seizure  of  concealed  weapons  give  no  right  to 
seize  papers.  No  proof  has  been  given  by  the  government  in 
the  Colyer  case  or  elsewhere  that  search-warrants  were  ob- 

20  Palmer  Deportations  Testimony,  69,  76,  115. 


THE  DEPORTATIONS  247 

tained  in  these  raids.  Mr.  Palmer  also  says,  "  In  no  instance 
can  it  be  shown  that  any  person  or  place  was  searched  over 
the  objection  of  the  individual."  Naturally  an  ignorant  alien 
confronted  by  a  posse  of  detectives  at  night  would  hesitate 
to  object  to  anything.  Moreover,  Mr.  Palmer's  statement 
that  consent  was  a  prerequisite  to  search  is  contradicted 
by  the  peremptory  language  of  the  Instructions  and  the 
testimony  of  his  agents.  Except  in  the  case  of  educated 
English-speaking  aliens  like  the  Colyers,  there  is  no  evi- 
dence that  the  agents  paused  before  ransacking  halls  and 
houses  for  documentary  evidence  connected  with  Com- 
munism. 

The  justification  urged  is  that  this  valuable  evidence  of 
membership  would  have  been  destroyed  if  not  seized.  Of 
course,  no  government  has  ever  made  an  illegal  search  unless 
it  expected  to  find  something  useful.  If  searches  in  depor- 
tation proceedings,  with  or  without  warrant,  are  necessary, 
they  must  be  authorized  by  Congress  and  not  by  the  Attorney 
General. 

Thirdly,  the  hearings  by  the  immigration  inspectors  were 
often  unfair.  This  was  in  large  measure  due,  not  to  the 
fault  of  the  inspectors,  but  to  the  unprecedented  pressure 
of  work  and  the  absence  of  adequate  protection  for  the  rights 
of  the  alien.  For  nearly  a  year  before  the  raids  aliens  had 
been  entitled  to  counsel  throughout  the  deportation  hear- 
ings. The  old  procedure  described  in  this  chapter,  which 
deprived  them  of  counsel  during  the  important  preliminary 
hearings,  while  not  unconstitutional,  was  considered  so  harsh 
by  Secretary  Wilson  that  he  abolished  it.  On  December 
29,  1919,  just  four  days  before  the  raids  and  during  the 
Secretary's  illness,  the  old  harsh  rule  was  revived.  The 
Attorney  General  does  not  deny  that  this  change  was  made 
through  the  efforts  of  the  Department  of  Justice,  and  defends 
it  on  the  ground  that  the  examination  of  an  alien,  when 
under  the  advice  of  counsel,  "  got  us  nowhere."  The  fact 
remains  that  the  Secretary  of  Labor  had  thought  counsel 
desirable,  and  it  was  for  him  and  not  the  Attorney  General 


248  FREEDOM  OF  SPEECH 

to  fix  the  Immigration  Rules.  As  soon  as  Mr.  Wilson  and 
Mr.  Abercrombie  (who  had  inadvertently  approved  the 
change  without  appreciating  its  effect)  realized  what  was 
happening,  they  restored  the  right  to  counsel,  but  this  was 
not  until  January  27,  after  most  of  the  examinations  were 
completed.  Meanwhile,  until  the  hearings  were  practically 
closed,  the  inspectors  heard  the  evidence  without  the  help  of 
counsel  for  the  defense,  and  on  the  other  hand,  for  the 
first  time  in  the  experience  of  immigration  officials  (at  least 
in  New  England),  an  agent  of  the  Department  of  Justice  was 
present  through  every  hearing.  The  alien  stood  alone  before 
an  administrative  official,  confronted  by  a  member  of  the 
force  of  detectives  who  had  sworn  out  the  warrant  against 
him  and  accomplished  his  arrest.  Thus  the  government  after 
issuing  warrants  for  the  arrest  of  3,000  persons  suddenly 
repealed  a  rule  so  as  to  affect  those  specific  persons  and  de- 
prive them  of  rights  which  were  guaranteed  to  them,  not 
indeed  by  the  Constitution,  but  by  the  existing  law  of  the 
land. 

The  value  of  the  evidence  obtained  in  this  way  was  also 
materially  affected  by  the  treatment  which  the  aliens  under- 
went before  and  during  their  trials.  The  police  dragged 
many  men  out  of  their  homes  in  the  dead  of  night.  The 
aliens,  none  of  them  under  any  criminal  charge  and  many  of 
them  held  without  warrants,  were  taken  on  trains  and 
through  the  streets  in  handcuffs  and  chains.21  The  prisoners 
were  herded  in  vastly  overcrowded  quarters  without  sufficient 
clothing  and  food.  For  instance,  the  Mayor  of  Detroit 
described  as  "  intolerable  in  a  civilized  city  "  conditions  in 
the  police  "  bull  pen,"  a  room  24  by  30  feet,  where  over  a 
hundred  men  were  kept  for  a  week.  Bail  was  often  fixed  at 
very  high  amounts;  for  instance,  $10,000,  although  $500 
is  the  normal  sum  specified  in  the  Immigration  Rules.  The 
men  arrested  were  separated  for  days  from  their  wives  and 
children,  who  were  left  without  support  by  the  government. 

2i  Palmer  Deportations  Testimony,  115.  On  Detroit,  Barkley,  infra, 
note  27.    On  Boston,  Colyer  opinion. 


THE  DEPORTATIONS  249 

Instead,  they  were,  Mr.  Palmer  assures  us,22  "  looked  after 
by  the  most  prominent  charitable  organization  of  their  own 
creed  in  their  locality.  It  is  no  part  of  the  Attorney  Gen- 
eral's duty  to  look  after  the  families  of  the  violators  of  our 
laws."  The  Supreme  Court  has  declared  repeatedly  that 
aliens  held  for  expulsion  are  not  criminals.23  This  apology 
recalls  the  British  General  Dyer,  the  hero  of  Amritsar, 
who  found  shooting  into  a  crowd  a  still  more  satisfactory 
way  to  get  rid  of  sedition,  and  remarked  that  picking  up 
the  wounded  was  no  affair  of  his — that  was  the  business 
of  the  hospitals. 

The  men  deported  on  the  "  Buford  "  were  torn  from  their 
families,  who  still  remain  in  America. 

The  public  approval  of  these  raids  rests  on  a  belief  that 
all  the  thousands  of  men  arrested  were  dangerous  foreigners 
who  advocated  violence.  Yet  the  daily  press  shows  the 
eventual  release  for  want  of  evidence  of  over  a  third  of  those 
seized.  And  a  cursory  glance  at  Mr.  Palmer's  Instructions 
shows  that  the  character  of  an  individual  had  absolutely 
nothing  whatever  to  do  with  his  arrest.  The  most  harm- 
less person  was  to  be  seized  if  suspected  of  membership  in 
the  specified  political  parties.  And  although  there  was  no 
law  authorizing  the  arrest  of  citizens,  these  instructions 
direct  that  all  Communists  shall  be  seized,  expressly  includ- 
ing citizens.  Elsewhere  it  is  ordered  that  if  citizens  are 
arrested  "  through  error,"  they  shall  be  referred  to  the  local 
authorities.  Thus  United  States  officials  would  arrest  Ameri- 
can citizens  for  prosecution  under  the  harsh  state  anti- 
anarchy  acts. 

That  the  President  of  the  United  States  can  have  au- 
thorized these  measures  seems  impossible.  It  is  astonishing 
that  the  Attorney  General  and  the  Acting  Secretary  of  Labor 
should  have  carried  through  the  greatest  executive  restriction 
of  personal  liberty  in  the  history  of  this  country  during  the 
President's  illness.     Even  so  the  British  Cabinet  took  ad- 

22  See  his  circular  letter  in  110  Nation  190  (February  14,  1920). 
™E.g.,  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  730  (1893). 


250  FREEDOM  OF  SPEECH 

vantage  of  the  illness  of  their  head,  Lord  Chatham,  to  make 
one  of  the  worst  onslaughts  on  freedom  in  modern  England, 
the  expulsion  of  Wilkes  from  the  House  of  Commons  in 
1768.  Macaulay's  Second  Essay  on  Chatham  gives  the 
facts. 

His  colleagues  for  a  time  continued  to  entertain  the  expectation 
that  his  health  would  soon  be  restored,  and  that  he  would  emerge 
from  his  retirement.  But  month  followed  month,  and  still  he 
remained  in  mysterious  seclusion.  .  .  .  They  at  length  ceased 
to  hope  or  to  fear  anything  from  him;  and,  though  he  was  still 
nominally  Prime  Minister,  took  without  scruple  steps  which  they 
knew  to  be  diametrically  opposed  to  all  his  opinions  and  feelings. 

The  sequel  to  the  raids  made  it  plain  that  hardly  a 
single  alien  then  arrested  by  the  Department  of  Justice  would 
be  deported.  In  the  absence  of  the  President,  a  sharp  con- 
flict between  Mr.  Palmer  and  the  Department  of  Labor  soon 
developed.  Secretary  Wilson  released  all  the  aliens  impris- 
oned as  members  of  the  Communist  Labor  Party,  holding  that 
organization  not  to  be  within  the  deportation  statute.  Many 
of  those  arrested  as  members  of  the  Communist  Party  were 
released  by  Assistant  Secretary  Post  because  their  member- 
ship was  not  proved,  and  Judge  Anderson  in  the  Colyer  case 
decided  after  an  exhaustive  survey  of  the  New  England  raids 
that  (1)  many  of  the  aliens  who  were  ordered  deported  must 
be  discharged  for  want  of  a  fair  trial;  (2)  even  those  who 
had  a  fair  trial  must  be  discharged  because  the  Communist 
Party  does  not  advocate  "  force  and  violence."  If  his  de- 
cision is  affirmed  by  the  Supreme  Court,  nobody  can  be  de- 
ported merely  because  of  membership  in  either  party.  Con- 
sequently every  alien  seized  in  the  raids  must  be  released 
except  the  few  who  personally  advocated  the  overthrow  of 
the  government  by  violence. 

Meanwhile,  when  Mr.  Abercrombie  went  away,  Mr.  Post 
had  taken  charge  of  deportation  matters.  He  soon  became 
convinced  that  many  of  the  recommendations  of  the  immigra- 
tion inspectors  and  Mr.   Caminetti  for  the  deportation  of 


THE  DEPORTATIONS  251 

aliens  were  not  in  accordance  with  the  evidence  obtained  at 
the  hearings,  and  therefore  canceled  the  warrants  of  arrest 
in  these  cases.  This  action  aroused  the  indignation  of  Mr. 
Palmer  and  several  members  of  the  Immigration  Committee 
of  the  House  of  Representatives.  A  House  Resolution  look- 
ing toward  impeachment  was  referred  to  the  Rules  Committee, 
which  heard  the  testimony  of  both  Mr.  Post  and  Mr.  Palmer, 
but  took  no  action  before  Congress  adjourned. 

Mr.  Post  pointed  out  that  the  power  to  determine  whether 
an  alien  should  be  deported  was  vested  by  law  in  the  Secretary 
of  Labor  and  his  deputies,  and  not  in  the  Commissioner  Gen- 
eral of  Immigration.  The  belief  that  the  aliens  discharged 
were  dangerous  revolutionists  was  derived  from  Mr. 
Caminetti's  summaries,  which  were  merely  advisory,  and 
not  from  the  actual  records  of  the  hearings,  which  were 
often  very  different.  It  was  Mr.  Post's  duty  to  decide  each 
case  upon  the  evidence  and  he  had  done  so.  When  there  was 
doubt  as  to  the  alien's  guilt,  the  humanity  of  the  situation 
might  properly  enter  into  his  decision.  Although  deportation 
proceedings  are  not  criminal  in  nature,  he  had  drawn  from 
the  criminal  law  those  principles  which  recognize  the  rights 
of  the  individual  and  especially  his  right  to  a  fair  decision 
whether  or  not  he  is  guilty.  The  issue  is,  not  whether  those 
aliens  who  violate  the  law  shall  be  deported,  for  he  is  de- 
porting them,  but  whether  those  who  have  not  violated  the  law 
shall  be  deported. 

Mr.  Palmer's  position  is  this.  While  he  has  not  "  the 
slightest  fear  that  any  revolutionary  movement  can  succeed 
in  this  country,  even  to  the  extent  of  seriously  menacing  our 
institutions,"  there  was  in  1919  a  great  deal  of  revolutionary 
agitation  which  led  to  several  attacks  on  federal  officials  and 
other  violence,  and  might  easily  have  led  to  more.  The  best 
way  to  keep  order  was  to  attack  the  spreaders  of  agitation 
by  means  of  the  deportation  statute.  The  raids  caused  a 
marked  cessation  of  revolutionary  activities,  and  the  two 
organizations  affected  were  completely  broken  by  the  De- 
partment of  Justice.     Now  this  same  agitation  has  taken  a 


252  FREEDOM  OF  SPEECH 

new  lease  of  life  because  of  the  decisions  of  Secretary  Wilson 
and  Mr.  Post,  which  in  Mr.  Palmer's  opinion  are  "  neither 
based  upon  fact  nor  upon  law." 

Upon  this  position,  which  I  have  tried  to  state  with 
absolute  fairness,  three  comments  may  be  made.  First,  it 
raises  the  fundamental  issue  discussed  in  the  preceding  chap- 
ter, how  far  violent  acts  can  wisely  be  prevented  by  the  sup- 
pression of  violent  talk.  Secondly,  the  particular  method  of 
suppression  used  by  the  Attorney  General  was  placed  by  law 
under  the  control  of  another  Department,  but  the  facts  of 
the  raids  leave  no  doubt  that  the  deportation  machinery  dur- 
ing the  arrests  and  the  hearings  was  very  substantially 
directed  and  operated  by  the  Department  of  Justice.  If 
the  Department  of  Labor  has  not  properly  administered  the 
law,  the  duty  to  "  care  that  the  laws  be  faithfully  executed  " 
is  vested,  not  in  the  Attorney  General,  but  in  the  President. 
Finally,  although  it  is  undoubtedly  true  that  the  laws  re- 
quiring warrants  for  arrest,  forbidding  searches,  and  allowing 
counsel  make  deportation  more  difficult,  even  in  the  case  of 
dangerous  revolutionists,  every  rule  in  the  interest  of  personal 
liberty  necessarily  diminishes  the  efficiency  of  government. 
Mr.  Palmer  adopted  the  attitude  of  the  men  he  denounced. 
Because  the  law  hindered  the  result  he  wished  to  accomplish 
and  thought  desirable,  he  disregarded  the  law. 

IV.    The  Arrest  of  American  Citizens  for  Deportation 

The  American  people  ought  to  be  startled  out  of  their 
complacent  acquiescence  in  these  raids  by  the  confinement 
of  hundreds  of  their  fellow-citizens  in  jails,  without  the 
slightest  charge  of  crime  or  possibility  of  such  charge  under 
any  law  of  the  United  States.  The  government  actually 
contends  that  it  has  the  right  to  issue  so-called  alien  war- 
rants, which  state  no  evidence  or  facts  whatever  beyond  a 
perfunctory  repetition  of  clauses  of  the  Deportation  Act, 
and  yet  are  the  only  substitute  for  an  indictment  in  these 
proceedings,  against  any  individuals,  whether  aliens  or  nat- 


THE  DEPORTATIONS  253 

uralized  citizens  or  native-born  citizens,  arresting  them  when- 
ever and  wherever  found,  and  holding  them  in  custody  until 
the  question  of  citizenship  is  decided  by  the  immigration  au- 
thorities. It  contends  that  a  court  has  no  jurisdiction  to 
release  an  American  citizen  who  has  never  been  out  of  his 
native  country  from  Deer  Island  or  Ellis  Island,  or  any 
other  deportation  jail,  until  the  immigration  official  and 
the  Secretary  of  Labor  on  appeal  have  denied  his  citizen- 
ship. Experience  in  the  Chinese  cases  shows  that  these  pro- 
ceedings frequently  last  for  many  months.  "  It  follows 
that  on  the  theory  now  urged  the  right  of  native-born  citi- 
zens to  liberty,  perhaps  for  months,  lies  at  the  mercy  of 
the  immigration  authorities,"  and  that  even  after  the  order  of 
deportation  is  finally  issued  against  the  citizen,  he  cannot 
obtain  the  right  from  a  court  to  remain  in  this  country 
unless  the  proceedings  were  manifestly  unfair  or  otherwise 
illegal.24 

The  case  of  Peter  Frank,  an  American  citizen  of  Swamp- 
scott,  Massachusetts,  is  typical.  The  warrant  of  arrest, 
which  he  never  saw,  began,  "  Whereas  from  evidence  sub- 
mitted to  me,  it  appears  that  the  alien,  Peter  Frank,  who 
landed  at  an  unknown  port  on  or  about  the  1st  day  of  Jan- 
uary, 1919,"  and  went  on  to  charge  membership  in  the 
stereotyped  words  of  the  statute  in  six  kinds  of  violent  or- 
ganizations, without  naming  a  single  one  or  describing  it 
concretely.  All  the  Boston  warrants  were  in  just  this  form. 
It  was  impossible  for  him  to  tell  from  it  with  what  he  was 
really  charged.  Moreover,  no  address  or  other  identifica- 
tion of  Frank  was  given,  so  that  there  was  nothing  to  show 
that  another  man  of  the  same  name  in  another  city  was  not 
intended.  In  his  petition  for  habeas  corpus,  which  was  ver- 
ified by  the  evidence,  Frank  states  that  he  was  born  in  Ohio 
and  was  always  a  citizen;  that  four  days  previously  immi- 
gration officers  broke  into  his  house  at  one  o'clock  in  the 
morning,  arrested  him,  searched  his  house  and  carried  off 

24  Peter  Frank  v.  Henry  J.  Skeffington,  Commissioner,  unreported 
opinion  of  G.  W.  Anderson,  J.,   (D.  Mass.,  January  27,  1920). 


254  FREEDOM  OF  SPEECH 

papers,  confined  him  in  the  Lynn  police  station  and  on 
Deer  Island,  refused  to  allow  friends  or  counsel  to  visit  him, 
and  ejected  from  the  immigration  office  the  man  who  started 
judicial  proceedings  in  his  behalf.  Nevertheless,  Commis- 
sioner Skeffington  still  contended  that  Frank  was  an  alien, 
and  that  the  burden  of  proof  was  on  him  to  establish  citizen- 
ship. The  only  evidence  which  was  offered  to  justify  his 
confinement  was  a  questionnaire,  on  which  Frank  had  an- 
swered that  he  was  born  in  Cincinnati  and  was  not  a  mem- 
ber of  either  the  Communist  or  Socialist  party  or  any  other 
organization,  but  the  Shoe  Workers'  Union.  At  the  end  of 
this  paper  the  government  had  stencilled,  "  I,  the  under- 
signed, not  a  citizen  of  the  United  States,  on  oath  depose, 
etc.,"  and  Frank  had  hastily  signed  without  crossing  out 
the  "  not."  On  this  flimsy  fact  the  immigration  officials 
kept  him  five  days  in  jail  until  against  their  will  he  was  dis- 
charged by  Judge  George  W.  Anderson. 

The  Departments  of  Justice  and  Labor  were  baffled  in 
this  case,  where  there  was  absolutely  no  evidence  that  the 
prisoner  was  an  alien,  but  they  have  not  abandoned  their 
main  contention  that  the  Secretary  of  Labor  has  absolute 
power,  where  citizenship  turns  upon  a  disputed  fact  like 
marriage,  parentage,  or  place  of  birth,  to  confine  a  man  who 
really  is  a  citizen  for  months  and  then  order  him  deported 
on  a  finding  that  he  is  not  a  citizen.  And  they  are  right 
that  Congress  has  actually  conferred  this  power,  and  that 
it  makes  no  difference  under  the  statute  if  the  Secretary 
of  Labor  makes  a  mistake  and  classifies  a  man  as  an  alien 
who  is  actually  a  citizen,  for  "  the  decision  of  the  Secre- 
tary of  Labor  shall  be  final."  The  citizen  is  forbidden  by 
Congress  to  appeal  to  the  courts  to  correct  the  mistake  of 
fact  and  prevent  his  banishment  into  places  beyond  the  seas. 
It  is,  of  course,  possible  that  such  a  construction  of  this 
sentence  would  be  held  by  the  Supreme  Court  to  conflict 
with  the  "  due  process  "  clause  of  the  Constitution.  It 
would  seem  that  since  the  Constitution  forbids  an  adminis- 
trative official  to  deport  any  one  but  an  alien  without  judicial 


THE  DEPORTATIONS  255 

proceedings,  the  Secretary  is  simply  hauling  himself  up  by 
his  bootstraps  when  he  decides  that  a  citizen  is  within  his 
jurisdiction  and  deportable.  Nevertheless,  the  Supreme 
Court  has  already  allowed  him  to  make  almost  the  same 
sort  of  decision  under  similar  statutory  language  in  United 
States  v.  Ju  Toy.25  That  case  permitted  the  Secretary  to 
deport  a  Mongolian  on  a  finding  of  fact  that  he  was  born 
in  China,  regardless  of  the  decision  of  a  court  on  habeas 
corpus  that  he  was  a  native-born  American  citizen  return- 
ing from  a  trip  to  China.  On  citizenship  as  on  other  ques- 
tions, the  Secretary  can  be  reversed  only  if  there  is  error 
of  law  or  an  absolute  lack  of  evidence,  or  if  the  person  to 
be  deported  does  not  receive  a  fair  hearing.26  It  may  be 
that  the  Ju  Toy  case  will  be  limited  not  to  apply  to  deporta- 
tion after  entry,  but  this  cannot  be  predicted  with  any  con- 
fidence. Enough  has  been  said  to  indicate  the  possibility, 
under  the  present  statutory  and  administrative  machinery 
of  deportation,  of  prolonged  vexations  for  American  citi- 
zens and  even  permanent  exile. 

It  is  all  very  well  to  say  that  only  Communist  citizens 
run  this  risk  anyway,  and  that  they  and  Chinese  citizens 
have  "  no  rights  that  a  white  man  is  bound  to  respect." 
The  Frank  case  shows  that  the  government  officials  were 
ready  enough  to  confine  a  citizen  who  is  not  a  Communist, 
and  he  was  only  one  out  of  many  in  the  recent  raids.27  More- 
over, there  is  nothing  in  the  Deportation  Act  of  1918  to 
limit  the  Secretary  to  Communists.  As  I  shall  show  shortly, 
he  may  begin  to  break  up  other  organizations  by  wholesale 
deportation  of  their  members,  both  aliens  and  citizens  whose 
citizenship  is  officially  denied.  Some  native-born  members 
of  the  American  Federation  of  Labor  may  find  a  future  Sec- 

25  198  U.  S.  253  (1905). 

™E.g.,  Chin  Yow  v.  U.  S.,  208  U.  S.  8  (1908).  The  Ju  Toy  case  was 
held  not  to  apply  to  deportations,  Moy  Suey  v.  U.  S.,  147  Fed.  697 
(C.  C.  A.,  1906);  U.  S.  v.  Low  Hong,  261  Fed.  73  (C.  C.  A.,  1919). 

27  F.  R.  Barkley,  "Jailing  Radicals  in  Detroit,"  110  Nation  136 
(January  31,  1920);  Palmer  Deportations  Testimony,  109,  111;  Colyer 
opinion. 


256  FREEDOM  OF  SPEECH 

retary  of  Labor  ruling  (1)  that  their  association  advocates 
the  overthrow  of  the  government  by  force  and  violence  and 
(2)  that  they  are  aliens.  So  long  as  there  is  any  evidence, 
however  much  outweighed,  to  support  these  two  findings,  the 
statute  is  plain,  and  allows  them  no  remedy. 

V.    A  Review  of  the  Actual  Cases  of  Radicals  Held 
for  Deportation 

The  public  is  therefore  in  error  in  assuming  that  only 
foreigners  have  been  seized  for  deportation.  It  is  also  wrong 
in  thinking  that  the  aliens  who  have  been  arrested  are  all 
dangerous  characters.  Some  of  those  expelled  to  Europe 
have  undoubtedly  been  turbulent  persons  like  Emma  Gold- 
man, but  not  all  the  persons  who  are  held  to  come  within 
the  Deportation  Act  of  1918  are  of  the  same  sort.  In  order 
to  make  it  plain  just  what  kind  of  men  the  government  wants 
to  deport,  I  shall  review  the  actual  decisions  relating  to 
three  types  of  radical  aliens,  Communists,  Industrial  Work- 
ers of  the  World,  and  anarchists. 

(1)   Communists — Guilt  by  Association  and 
Government  Spies 

The  Communist  Labor  Party  and  the  Communist  Party, 
which  were  the  chief  objective  of  the  recent  raids,  seceded 
from  the  Socialist  Party  in  September,  1919,  taking  with 
them  several  state  Socialist  organizations,  and  a  very  large 
number  of  left-wing  Socialists.28  Mr.  Gordon  Watkins,  of 
the  University  of  Illinois,  reports  the  following  estimates  of 
the  size  of  the  three  parties:  Socialist  Party  after  the  seces- 
sion, 39,000;  Communist  Labor  Party,  10,000  to  30,000; 
Communist  Party,  30,000  to  60,000,  of  whom  25,000  belong 
to  foreign-language  federations  which  are  predominantly 
Russian  in  their  constituency.  The  Secretary  of  Labor  has 
ruled  that  all  the  aliens  in  the  Communist  Party  are  ipso 

28  Gordon  S.  Watkins,  "The  Present  Status  of  Socialism  in  the 
United  States,"  124  Atlantic  Monthly  821  (December,  1919). 


THE  DEPORTATIONS  257 

•facto  liable  to  deportation  under  the  Act  of  1918,  as  mem- 
bers of  or  affiliated  with  an  "  organization  that  entertains 
a  belief  in,  teaches  or  advocates  the  overthrow  by  force  or 
violence  of  the  government  of  the  United  States.29  The 
Attorney  General's  Instructions  evidently  take  the  same  view 
of  the  Communist  Labor  Party.  Consequently,  a  card  from 
either  party  found  on  any  alien  furnished  the  immigration 
officials  with  what  they  called  "  a  perfect  case."  Neverthe- 
less, Secretary  Wilson  took  a  different  view  of  the  Com- 
munist Labor  Party  in  the  Carl  Miller  case,  and  Mr.  Post 
in  the  Truss  case  ruled  that  a  card  was  not  conclusive  proof 
of  membership.  Judge  Anderson  in  the  Colyer  case  went 
still  farther,  and  held  that  the  Communist  Party  was  not  an 
organization  within  the  Act  of  1918. 

These  various  decisions  raise  two  questions:  (a)  When 
does  an  organization  advocate  force  and  violence?  (6) 
if  it  does  so,  can  all  its  members  be  justly  subjected  to 
painful  consequences? 

(a)  The  difficulties  of  the  first  question  have  already 
been  pointed  out  in  the  preceding  chapter,  and  the  Pro- 
gram of  the  Communist  Party  affords  a  practical  illustra- 
tion thereof.  Although  this  Program,  which  is  reprinted 
in  the  American  Labor  Year-Book  for  1919-20,30  plainly 
intends  that  the  proletariat  shall  "  conquer  and  destroy  the 
bourgeois  parliamentary  state  "  and  substitute  a  very  dif- 
ferent political  and  economic  system,  there  is  not  a  word 
which  expressly  says  that  the  conquest  is  to  be  by  force  and 
violence.  Mr.  Wilson,  admitting  that  such  a  violent  pur- 
pose is  essential  to  bring  the  organization  within  the  scope 
of  the  Act,  finds  it  inferentially  in  various  passages,  which 
I  give  below  with  the  omission  of  two  that  parallel  the  first. 
In    the    first    place    he    relies    on    such    statements    as, 

29  In  re  Engelbert  Preis,  January  24,  1920,  House  Judiciary  Hearings, 
17.  All  the  important  administrative  decisions  are  reprinted  in  House 
Immigration  Hearings. 

30  Edited  by  Alexander  Trachtenberg,  published  by  Rand  School  of 
Social  Science,  N.  Y.,  pp.  416-419.  Also  in  House  Judiciary  Hearings, 
78-80,  which  contains  many  other  important  documents  relating  to  the 
two  Communist  parties. 


258  FREEDOM  OF  SPEECH 

"  Participation  in  parliamentary  campaigns,  which  in  the 
general  struggle  of  the  proletariat  is  of  secondary  impor- 
tance, is  for  the  purpose  of  revolutionary  propaganda  only." 
The  context,  which  he  does  not  quote,  qualifies  the  meaning 
of  "  revolutionary  " : 

Parliamentary  representatives  of  the  Communist  Party  shall 
not  introduce  or  support  reform  measures.  Parliaments  and 
political  democracy  shall  be  utilized  to  assist  in  organizing  the 
working  class  against  capitalism  and  the  state.  Parliamentary 
representatives  shall  consistently  expose  the  oppressive  class 
character  of  the  capitalist  state,  using  the  legislative  forum  to 
interpret  and  emphasize  the  class  struggle ;  they  shall  make  clear 
how  parliamentarism  and  parliamentary  democracy  deceive  the 
workers;  and  they  shall  analyze  the  capitalist  legislative  pro- 
posals and  reform  palliatives  as  evasions  of  the  issue  and  as  of 
no  fundamental  significance  to  the  working  class. 

The  vital  issue  is  plainly  to  determine  what  is  the  primary 
method  which  is  meant  to  supersede  political  processes.  Is 
it  violence  or  is  there  some  other  alternative?  The  Pro- 
gram gives  the  answer,  "  The  Communist  Party  shall  make 
the  great  industrial  struggle  of  the  working  class  its  major 
campaigns."  Yet  the  Secretary  decides  that  this  primary 
method  is  violence,  on  the  basis  of  the  following  extracts 
from  the  Party  Manifesto: 

The  conquest  of  the  power  of  the  state  is  accomplished  by  the 
mass  power  of  the  proletariat.  Political  mass  strikes  are  a  vital 
factor  in  developing  this  mass  power,  preparing  the  working  class 
for  the  conquest  of  capitalism.  The  power  of  the  proletariat 
lies  fundamentally  in  its  control  of  the  industrial  process.  The 
mobilizing  of  this  control  against  capitalism  means  the  initial 
form  of  the  revolutionary  mass  action  that  will  conquer  the  power 
of  the  state. 

Mass  action  is  industrial  in  its  origin  but  it  acquires  political 
character  as  it  develops  fuller  forms.  Mass  action,  in  the  form 
of  general  political  strikes  and  demonstrations,  unites  the  energy 
and  forces  of  the  proletariat,  brings  proletarian  mass  pressure 
upon  the  bourgeois  state.  The  more  general  and  conscious  mass 
action  becomes,  the  more  it  antagonizes  the  bourgeois  state,  the 
more  it  becomes  political  mass  action.     Mass  action  is  responsive 


THE  DEPORTATIONS  259 

to  life  itself,  the  form  of  aggressive  proletarian  struggle  under 
imperialism.  Out  of  this  struggle  develops  revolutionary  mass 
action,  the  means  for  the  proletarian  conquest  of  power." 

And  then,  making  this  violent  purpose  still  more  clear  in  his 
eyes,  he  gives  this  passage  from  the  Manifesto  of  the  Com- 
munist International,  which  the  Communist  Party  is  said  to 
accept  as  a  part  of  its  policy : 

The  revolutionary  era  compels  the  proletariat  to  make  use  of 
the  means  of  battle  which  will  concentrate  its  entire  energies, 
namely,  mass  action,  with  its  logical  resultant,  direct  conflict 
with  the  governmental  machinery  in  open  combat.  All  -other 
methods,  such  as  revolutionary  use  of  bourgeois  parliamentarism, 
will  be  of  only  secondary  significance. 

From  these  quotations  and  numerous  other  statements 
which  he  does  not  quote  ( and  certainly  nothing  in  the  organic 
documents  is  more  favorable  to  his  view  than  the  extracts  re- 
printed by  me)  : 

"  It  is  apparent,"  he  says,  "  that  the  Communist  party  is  not 
merely  a  political  party  seeking  the  control  of  affairs  of  state, 
but  a  revolutionary  party  seeking  to  conquer  and  destroy  the 
state  in  open  combat.  And  the  only  conclusion  is  that  the  Com- 
munist Party  of  America  is  an  organization  that  believes  in, 
teaches,  and  advocates  the  overthrow  by  force  or  violence  of  the 
government  of  the  United  States." 

The  last  sentence  is  a  complete  non  sequitur.  The  pas- 
sages he  quotes  and  the  whole  Program  show  that  the  combat 
is  to  be  through  the  proletarian  control  over  industry, 
which  is  to  be  used  not  merely  to  secure  economic  advantages 
but  to  put  the  government  in  such  an  uncomfortable  posi- 
tion that  it  will  give  way  to  a  new  kind  of  government.  He 
lays  too  much  emphasis  on  the  exact  wording  of  the  Inter- 
national Manifesto,  for  although  applicants  for  membership 
in  the  Communist  Party  declare  their  adherence  to  the  prin- 
ciples and  tactics  of  the  Communist  International,  they  are 
not  required  to  read  its  manifesto  and  so  cannot  be  sup- 


260  FREEDOM  OF  SPEECH 

posed  to  approve  every  word.  And  even  if  they  do,  "  direct 
conflict  with  the  governmental  machinery  in  open  combat " 
means  lawlessness  but  not  necessarily  violent  lawlessness.  A 
continuation  of  the  recent  coal  strike  after  the  injunction 
would  have  been  just  such  a  conflict  without  any  violence 
at  all.  The  jargon  of  Socialism  has  always  been  full  of 
such  militant  phraseology,  which  does  not  imply  anything 
more  than  political  and  economic  effort.  "  Revolutionary 
class  struggle,"  "  mass  power,"  u  mass  action,"  mean  big 
strikes  for  political  ends.  Such  strikes  like  any  strike  might 
lead  to  violence,  but  Secretary  Wilson  as  a  former  labor 
leader  can  hardly  hold  that  advocacy  of  a  strike  is  per  se 
advocacy  of  force  and  violence.  Objectionable  as  the  pur- 
poses of  the  Communist  Party  are  to  all  who  have  faith  in 
our  system  of  representative  government  and  the  possibility 
of  progress  through  public  opinion  and  the  ballot,  those  pur- 
poses are  not  within  the  Deportation  Act  of  1918,  for  they 
are  altogether  compatible  with  the  absence  of  force  and  vio- 
lence. The  general  strike  may  be  more  effective  against  a 
government  than  an  armed  rebellion,  and  Congress  can  if  it 
wants  make  advocacy  of  the  general  strike  a  ground  for 
deportation,  but  it  is  not  such  a  ground  now.  Secretary 
Wilson  is  wrong  in  assuming  that  non-political  methods  of 
overturning  a  government  are  necessarily  criminal  and 
violent  methods.  Francis  Place,  the  tailor,  overturned  the 
government  of  England  in  1832,  and  precipitated  a  revolu- 
tion which  the  vote  of  the  electorate  had  failed  to  accom- 
plish, simply  by  posting  placards  urging  the  people  to  start 
a  run  on  the  banks.  There  is  a  middle  method  of  political 
change  between  the  ballot  and  the  bomb,  namely  economic 
pressure,  and  that,  however  unwise  or  injurious  in  nature, 
is  the  method  of  the  Communist  Party.  It  advocates  the 
overthrow  of  our  government,  but  not  by  force  or 
violence. 

Undoubtedly  there  are  men  in  the  Communist  Party  who 
would  use  force  to  get  rid  of  their  opponents.  Every  party 
has  such  men.     Billy  Sunday  preaches,  "  If  I  had  my  way 


THE  DEPORTATIONS  261 

with  these  ornery  wild-eyed  Socialists  and  I.W.W.'s,  I  would 
stand  them  up  before  a  firing  squad  and  save  space  on  our 
ships."  Guy  Empey  tells  his  hearers  to  get  rid  of  Bolshe- 
viks ;  "  the  necessary  implements  can  be  obtained  at  any 
hardware  store."  The  Republican  Secretary  of  the  State 
of  Massachusetts  would  shoot  Bolshevists  and  traitors 
every  morning,  at  least  in  war  time,  and  the  next  morning 
he  would  have  a  trial  to  see  if  they  were  guilty.  But  such 
men  do  not  turn  their  party  into  a  party  of  force  and  vio- 
lence. 

There  is  no  sure  test  of  what  a  party  does  advocate.  The 
utterances  of  a  leader  may  represent  only  his  personal  view 
and  be  rejected  by  his  associates.  Even  platforms  have 
never  been  taken  very  seriously  in  any  party.  The  law  has 
got  itself  into  a  bad  mess  by  starting  investigations  into  the 
opinions  of  associations,  the  vaguest  kind  of  inquiry  imag- 
inable. And  certainly  the  evidence  adduced  by  Secretary 
Wilson,  even  if  it  can  be  construed  as  an  encouragement  of 
violence,  is  much  more  capable  of  a  peaceful  interpretation. 
Until  he  is  sure  that  the  violent  construction  is  actually  put 
upon  the  words  by  the  members  of  the  party,  he  is  not  justi- 
fied in  adopting  an  interpretation  which  makes  possible  the 
expulsion  from  their  homes  of  thousands  of  workingmen  in 
the  United  States. 

The  Communist  Labor  Party  is  also  outside  the  scope  of 
the  Deportation  Act.  Its  Program  has  the  same  talk  about 
"  the  conquest  of  political  power  by  the  workers,"  "  the  class 
struggle,"  "  action  of  the  masses."  It  favors  "  the  estab- 
lishment of  the  Dictatorship  of  the  Proletariat "  by  making 
"  the  great  industrial  battle  its  major  campaigns,  to  show 
the  value  of  the  strike  as  a  political  weapon."  31  It  is  a 
revolutionary  working-class  party  but  there  is  nothing  in  its 
Platform  or  Program  which  advocates  force  or  violence.  As 
for  the  ruling  of  Assistant  Attorney  General  Garvan  that 

mlbid.,  pp.  414-416.  See  Secretary  Wilson's  opinion  in  favor  of 
Communist  Labor  Party,  Post  Deportations  Testimony,  152.  Contrast 
convictions  of  members  under  anti-anarchy  acts  of  states. 


262  FREEDOM  OF  SPEECH 

the  two  Communist  parties  violate  the  Espionage  Act  be- 
cause they  are  "  pledged  to  fight  any  suggestion  of  military 
action  by  America  against  the  Soviet  Russians," 32  the 
widest  construction  of  that  convenient  statute  has  never 
before  extended  it  to  prohibit  opposition  to  war  before  war 
is  declared. 

(o)  Even  if  Secretary  Wilson  is  right  in  his  ruling  that 
some  of  the  tenets  of  the  Communist  Party  advocate  force 
and  violence,  it  does  not  necessarily  follow  that  all  its  mem- 
bers are  supporters  of  violence.  It  is  true  that  persons  join- 
ing the  Communist  Party  sign  a  statement  of  allegiance  to 
its  platform,  but  this  ought  not  to  be  taken  as  conclusive 
that  they  favor  violence,  especially  as  there  is  no  express 
mention  of  violence  in  that  document  and  the  party  had  not 
then  been  declared  illegal.  The  facts  show  that  many  per- 
sons are  affiliated  with  this  party  for  various  innocent  rea- 
sons. Some  believe  in  peaceful  industrial  action  as  the  only 
cure  for  social  ills,  some  join  because  their  friends  do,  others 
without  being  members  of  the  party  frequent  its  head- 
quarters (and  so  may  be  held  to  be  affiliated)  to  take  lessons 
in  physical  geography  or  because  the  Communist  restaurant 
has  better  meals  at  cheap  prices  than  any  other  place.  In 
Massachusetts,  many  persons  are  members  of  the  Communist 
Party  because  they  belonged  to  the  local  state  Socialist 
organization  when  it  seceded  last  September  and  turned  Com- 
munist, and  their  year's  Socialist  membership  had  not  yet 
expired.  Many  such  men  fall  within  Secretary  Wilson's  rul- 
ing just  as  much  as  the  real  revolutionists,  very  few  of  whom 
seem  to  have  been  caught.  When  hundreds  were  lined  up 
together  after  the  recent  raids,  the  Times  reported,  "  They 
were  a  tame,  unterroristic  looking  crowd,  and  their  appear- 
ance bore  out  the  statements  of  operatives  that  not  a  man 
had  tried  to  put  up  a  fight."  33 

The  idea  that  guilt  is  not  necessarily  personal,  but  can 
result  from  mere  association  is  absolutely  abhorrent  to  every 

32  New  York  Times,  January  4,  1920. 

33  Quoted  in  21  New  Republic  232  (January  21,  1920). 


THE  DEPORTATIONS  263 

American  tradition  or  conception  of  criminal  justice.34 
Therein  it  differs  from  the  law  of  Germany.  In  1878,  after 
two  attempts  had  been  made  upon  the  Emperor's  life,  Bis- 
marck secured  a  law  "  against  the  generally  dangerous 
efforts  of  Social  Democracy,"  a  party  which  then  advocated 
the  doctrine  that  the  existing  capitalistic  society  must  be 
overthrown  by  forcible  revolution.  This  law  made  men 
offenders,  not  for  anything  they  individually  did  or  said,  but 
simply  by  reason  of  their  membership  in  an  association 
which  aimed  at  the  overthrow  of  the  existing  order  of  gov- 
ernment or  society.  The  party  thrived  and  prospered  under 
this  law  as  never  before.  When  it  was  repealed,  the  party 
became  conservative.35  Similar  legislative  measures  were 
adopted  in  England  during  the  hysteria  of  the  French  Revo- 
lution against  associations  which  advocated  universal  man- 
hood suffrage,  although  as  May  says,  the  few  men  who  were 
really  guilty  of  sedition  and  treason  would  have  met  with  no 
sympathy  among  a  loyal  people.  A  statute  was  passed  sup- 
pressing by  name  the  "  Societies  of  United  Englishmen, 
United  Scotchmen,  United  Britons,  United  Irishmen,  and 
The  London  Corresponding  Society  "  and  enacting  that  any 
person  who  thereafter  became  or  continued  a  member  of  any 
such  society  should  be  deemed  guilty  of  an  unlawful  com- 
bination and  confederacy  and  upon  conviction  might  be 
transported  for  seven  years.36  Other  societies  were  broken 
up  by  a  general  statute  punishing  any  one  concerned  in 
taking  oaths  to  engage  in  any  "  seditious  purpose."  This 
statute  was  used  nearly  forty  years  later  to  punish  men  for 
membership  in  a  labor  union.37 

May's  description  of  England  in  1792  applies  to  this  coun- 
try in  1920,  and  should  stand  as  a  warning.38 

34  Alfred  Bettman  in  Hearings  before  the  Committee  on  Rules,  66th 
Cong.,  2d  Sess.,  on  H.  Res.  438,  Wash.,  1920,  pp.  125-128. 

»»  Ernst  Freund,  The  Police  Power,  513  note;  2  Stephen's  History 
of  the  Criminal  Law   395.     Alfred  Bettman,  supra. 

36  39  Geo.  Ill,  c.  79   (1799). 

37  37  Geo.  Ill,  c.  123  (1797);  20  Columbia  L.  Rev.  234  note  (Feb- 
ruary, 1920). 

38  2  May's  Constitutional  History  of  England,  32,  33.  Aliens  are 
specifically  discussed  on  156  ff. 


264  FREEDOM  OF  SPEECH 

In  ordinary  times  the  insignificance  of  these  societies  would 
have  caused  contempt,  rather  than  alarm ;  but  as  clubs  and  dema- 
gogues originally  not  very  formidable  had  obtained  a  terrible 
ascendancy  in  France,  they  aroused  apprehensions  out  of  pro- 
portion to  their  real  danger.  .  .  .  The  Government  gave  too  ready 
a  credence  to  the  reports  of  their  agents ;  and  invested  the  doings 
of  a  small  knot  of  democrats,  chiefly  workingmen,  with  the 
dignity  of  a  widespread  conspiracy  to  overturn  the  constitution. 
Ruling  over  a  free  State,  they  learned  to  treat  the  people  in 
the  spirit  of  tyrants.  Instead  of  relying  upon  the  sober  judgment 
of  the  country,  they  appealed  to  its  fears,  and  in  repressing 
seditious  practices  they  were  prepared  to  sacrifice  liberty  of 
opinion.  Their  policy,  dictated  by  the  circumstances  of  a  time  of 
strange  and  untried  danger,  was  approved  by  the  prevailing 
sentiment  of  their  contemporaries,  but  has  not  been  justified  in 
an  age  of  greater  freedom  by  the  maturer  judgment  of  posterity. 

Ireland  is  another  country  where  the  policy  of  guilt  by 
association  has  been  a  favorite  with  the  government.  In  1825 
the  Catholic  Association,  which  advocated  the  admission  of 
Roman  Catholics  to  full  civil  and  political  rights,  was  sup- 
pressed by  an  Act  of  Parliament  declaring  unlawful  every 
society  acting  for  more  than  fourteen  days  for  the  purpose 
of  procuring  the  redress  of  grievances  in  church  or  state, 
and  making  membership  thereafter  a  misdemeanor  punishable 
by  fine  and  imprisonment  in  the  discretion  of  the  court.  The 
Catholic  Association  was  dissolved,  and  its  former  members 
started  a  new  society  every  fourteen  days  to  do  exactly  the 
same  things.  When  the  statute  expired  after  three  years, 
the  Catholic  Association  immediately  revived.  In  1829  it 
was  suppressed  again  by  name,  but  it  had  accomplished  its 
object  of  securing  Catholic  Emancipation.39  In  1881  the 
English  Cabinet  repeated  this  policy  with  what  Morley,  who 
ought  to  know,  calls  "  about  the  most  egregious  failure  in 
the  whole  history  of  exceptional  law."  Parnell's  Land 
League  was  suppressed  by  proclamation  under  authority  of 
a  Coercion  Act,  and  hundreds  of  suspects,  including  Parnell 
himself,  were  arrested  and  imprisoned,  "  but  the  only  effect 
of  these  measures  was  largely  to  increase  agrarian  crime  in 

39  6  Geo.  IV,  c.  4  (1825) ;  10  Geo.  IV,  c.  1  (1829) ;  2  May,  ibid.,  88-93. 


THE  DEPORTATIONS  265 

Ireland  and  to  strengthen  the  malign  influence  of  the  insti- 
gators to  violence  who  had  to  some  real  extent  been  held  in 
check  by  the  imprisoned  leaders."  40 

It  is  this  policy  of  guilt  by  association  which  our  gov- 
ernment now  proposes  to  imitate.  The  American  policy  has 
always  been  different.  A  man  has  not  been  visited  with  legal 
penalties  because  he  had  bad  companions.  He  has  not  been 
imprisoned  except  for  acts  which  he  himself  did  or  injurious 
words  which  he  himself  uttered,  and  he  has  not  been  expelled 
unless  after  investigation  of  his  individual  qualities  he  was 
found  undesirable.  The  deportation  clauses  against  radical 
organizations  were  practically  a  dead  letter  until  these  raids. 
Even  with  treason,  the  most  dangerous  crime  of  all,  he  is  not 
guilty  just  because  he  associates  with  treasonable  persons. 
Chief  Justice  Marshall  held  in  the  case  of  Aaron  Burr  that 
he  must  himself  commit  overt  acts  of  treason.41  Unless  a 
man  is  a  member  of  a  conspiracy  he  is  not  responsible  for 
the  acts  of  others  unless  they  are  authorized  by  him.  And 
no  one  contends  that  the  two  Communist  parties  are  con- 
spiracies. The  Supreme  Court  has  just  handed  down  a  deci- 
sion squarely  in  point.42  It  held  unanimously  that  the  presi- 
dent and  treasurer  of  the  Philadelphia  Tageblatt  could  not 
lawfully  be  convicted  for  items  in  its  columns  violating  the 
Espionage  Act,  which  were  put  in  by  their  associates  on  the 
newspaper,  since  they  were  in  no  way  responsible  for  the  pub- 
lications complained  of.  The  same  principle  apjplies  to  the 
rank  and  file  of  the  Communist  parties. 

The  deportation  statutes  introduce  the  European  prin- 
ciple that  a  man  is  known  by  the  company  he  keeps  and  that 
guilt  is  not  personal.  This  is  an  unprecedented  and  ob- 
noxious feature  of  the  various  syndicalist  statutes  mentioned 
in  the  last  chapter,  and  it  is  equally  obnoxious  as  a  ground 
for  expulsion,  which,  as  I  have  shown,  is  in  all  its  practical 

4044  Vic,  c.  4  (1881);  3  May,  ibid.,  160;  Morley's  Recollections,  II, 
318. 

4i  Beveridge's  Marshall,  III,  c.  9. 

*2Schaefer  v.  U.  S.,  251  U.  S.  468;  see  p.  94,  supra. 


266  FREEDOM  OF  SPEECH 

effects  equivalent  to  punishment  of  the  severest  kind.  These 
membership  clauses  in  the  deportation  statutes  have  never 
been  construed  by  the  Supreme  Court,  but  even  if  it  be  held 
that  the  power  of  Congress  over  aliens  is  so  extensive  that 
expulsion  for  mere  membership  in  an  association  without 
themselves  expressing  or  even  holding  prohibited  opinions  is 
"  due  process  of  law  "  and  a  permissible  abridgment  of  free- 
dom of  speech,  nevertheless  the  clauses  are  drastic  and  dan- 
gerous. 

It  would  be  like  some  of  the  obnoxious  statutes  just  men- 
tioned for  the  Secretary  of  Labor  to  rule  that  the  Com- 
munist Party  is  an  outlawed  organization,  and  that  all  aliens 
who  thereafter  join  it  or  neglect  to  withdraw  are  liable  to 
deportation.  It  is  even  harsher  to  expel  them  because  they 
were  members  before  the  ruling.  How  many  can  fairly  be 
supposed  to  have  known  until  then  that  that  party  was  within 
the  statute?  Its  violent  character  was  not  so  obvious  that 
they  can  fairly  be  considered  to  have  assumed  the  risk  of 
such  a  severe  penalty.  To  impose  banishment  on  them  with- 
out warning  recalls  Bentham's  complaint  that  the  criminal 
judges  of  his  time  gave  laws  to  the  poor  just  as  a  man  makes 
laws  for  his  dog.  "  When  your  dog  does  anything  you  want 
to  break  him  of,  you  wait  until  he  does  it  and  then  you  beat 
him  for  it.  That  is  the  way  you  make  laws  for  your  dog," 
and  that  is  the  way  we  are  making  laws  for  our  radical 
aliens. 

The  proposition  that  men  who  are  personally  dangerous 
must  be  vigorously  dealt  with  is  in  no  way  affected  by  what 
I  have  said  about  these  membership  clauses  of  the  deporta- 
tion statute.  Those  clauses  give  administrative  officials  the 
right  to  expel  men  who  are  in  themselves  harmless,  and  if 
the  free  speech  and  due  process  clauses  do  not  invalidate 
them,  they  are  none  the  less  unjust.  Burke  said  in  his 
Speech  on  the  Conciliation  of  a  certain  rebellious  people, 
when  his  opponents  wanted  a  bill  "  with  teeth  in  it,"  that  you 
cannot  draw  an  indictment  against  a  whole  nation.  You 
cannot  draw  it  against  a  whole  party  either.     Those  Repub- 


THE  DEPORTATIONS  267 

licans  and  Democrats  who  shout  for  the  deportation  or  im- 
prisonment of  the  entire  Communist  Party  because  of  certain 
clauses  in  its  platform  might  recover  their  sense  of  humor 
long  enough  to  ask  themselves  if  they  ever  endorsed  every 
plank  in  their  respective  party  platforms.  Even  Congress- 
men, party  leaders,  and  Presidents  have  been  known  to  dis- 
regard some  such  principles.  Let  us  deport  men  for  the  in- 
juries they  do  or,  if  we  must,  for  what  they  say,  but  stop 
condemning  them  for  the  grandiose  phrases  of  a  party 
creed. 

People  seem  to  think  high-handed  acts  a  matter  of  indif- 
ference, so  long  as  the  men  who  suffer  are  Communists,  like 
the  Spanish  woman  who  did  not  object  to  watch- 
ing autos-da-fe  because  only  heretics  were  burned.43 
But  if  the  Secretary  of  Labor  has  final  power  to  decide 
whether  any  organization  advocates  force  or  violence,  if 
this  is  an  administrative  question  of  fact  like  an  alien's 
having  tuberculosis,  then  there  is  no  logical  reason  for 
him  to  stop  with  the  Communist  parties.  As  we  shall  see  in 
the  next  chapter,  a  very  energetic  attempt  has  been  made  to 
put  the  Socialist  Party  in  the  same  category.  The  Non- 
partisan League,  the  American  Labor  Party,  the  Committee 
of  48,  have  all  been  called  forcible  revolutionists.  The  West- 
ern Federation  of  Miners  has  been  accused  of  violence.  Nor 
is  the  American  Federation  of  Labor  exempt  from  such 
charges.  The  recent  steel  strike  was  frequently  denounced 
as  revolutionary,  and  there  is  no  doubt  that  the  Bridge  and 
Structural  Iron  Workers  have  blown  up  many  bridges  and 
buildings.44  Suppose  not  only  that  the  law  punishes  indi- 
vidual members  of  these  organizations  who  commit  or  even 
talk  violence,  but  that  a  future  Secretary  of  Labor  shares 
the  opinions  of  those  who  believe  that  the  organizations 
themselves  advocate  force  and  violence.  Deportations  will 
follow  for  the  purpose  of  driving  these  organizations  out  of 
existence. 

43  Ernst  Freund  in  21  New  Republic  266  (January  28,  1920). 

44  Hoxie,  Trade-unionism  in  the  United  States,  passim. 


268  FREEDOM  OF  SPEECH 

And  even  if  the  wording  of  the  present  constitutions  of 
these  various  bodies  makes  such  a  possibility  very  remote, 
some  future  change  of  language  may  easily  bring  any  of 
them  within  the  scope  of  the  statute.  Here  a  very  sinister 
opportunity  is  afforded  to  the  enemies  of  any  radical  organi- 
zation, whether  they  be  the  Federal  Government  or  a  state 
government,  unscrupulous  employers  or  a  detective  agency 
proceeding  on  its  own  initiative,  a  conservative  union  or  a 
rival  political  party.  Spies  can  be  sent  into  the  councils 
of  the  organization  in  question,  for  the  purpose  of  inducing 
the  insertion  of  violent  planks  in  its  constitution.  Once  this 
is  accomplished,  all  alien  members  of  the  organization  are 
presented  with  the  alternatives  of  immediate  resignation  or 
deportation;  to  say  nothing  of  the  fact  that  citizen  mem- 
bers may  face  prosecution  under  a  state  syndicalism  statute 
or  perhaps  under  a  future  federal  sedition  statute  like  sec- 
tion 10  of  the  Graham  Bill.  These  clauses  in  deportation 
and  syndicalist  statutes  making  mere  membership  a  basis 
for  severe  penalties  render  it  so  easy  to  destroy  any  organi- 
zation in  the  way  I  have  suggested  that  the  temptation  may 
not  be  resisted  in  times  of  excitement.  Indeed,  it  is  believed 
by  Judge  Anderson  that  some  of  the  extreme  planks  in  the 
Communist  Party  Platform,  to  which  Secretary  Wilson 
points,  may  possibly  have  been  inserted  in  this  very  manner. 

The  very  existence  of  spies,  whether  or  not  they  would 
thus  influence  statements  of  radical  principles,  is  one  of  the 
worst  evils  of  sedition  legislation,  whether  directed  toward 
prosecution  or  deportation.  Espionage  goes  with  an  Es- 
pionage Act.  Informers  have  been  the  inseparable  accom- 
paniment of  government  action  against  the  expression  of 
opinion  since  the  delators  of  Tiberius.45  The  state  cannot 
reach  such  crimes  without  them.  It  needs  no  great  force  of 
eavesdroppers  to  report  murders  and  robberies.  The  overt 
act  marks  the  offense,  and  if  a  detective  is  required  at  all  it 
is  either  to  chase  the  criminal,  to  ward  off  bomb-plots  and 
assassinations,  or  to  discover  who  is  committing  especially 

45  Merivale,  The  Romans  under  the  Empire,  c.  44. 


THE  DEPORTATIONS  269 

ingenious  thefts.  But  if  political  utterances  are  made 
criminal,  secret  police  are  indispensable  to  discover  that  the 
crime  has  been  committed  at  all.  That  was  why  the  original 
loose  Anti-Anarchy  Bill  introduced  in  the  Massachusetts 
legislature  in  1919  was  accompanied  by  a  bill  to  establish 
a  secret  police.48  The  Attorney  General  was  empowered  to 
"  make  inquiry  into  any  matters  concerning  the  public 
safety,"  and  for  that  purpose  to  employ  "  officers,  agents, 
or  deputies,"  whose  names  were  known  only  to  him  and  the 
governor,  and  to  have  at  his  disposal  a  fund  from  which  dis- 
bursements could  be  made  without  audit.  When  the  Anti- 
Anarchy  Bill  was  made  less  sweeping,  the  Secret  Police  Bill 
became  unnecessary  and  was  dropped. 

We  do  not  need  to  go  out  of  Anglo-Saxon  countries  to 
Russia  for  examples  of  this  system  in  actual  operation.  The 
accounts  of  the  historic  English  sedition  trials  are  full  of 
the  employment  of  spies  at  the  meetings  of  political  societies. 
And  the  spy  often  passes  over  an  almost  imperceptible 
boundary  into  the  agent  provocateur,  who  instigates  the 
utterances  he  reports,  and  then  into  the  fabricator,  who  in- 
vents them.  There  was  plenty  of  this  in  England,  and  the 
same  kind  of  liar,  Captain  Zaneth  of  the  North  West 
Mounted  Police,  has  just  been  exposed  in  Canada  after  con- 
victing one  of  the  Winnipeg  strike  leaders  on  a  charge  of 
seditious  conspiracy.47  This  dirty  business  is  the  price  a 
government  must  pay  for  the  suppression  of  political  crime. 
Are  we  willing  to  pay  that  price? 

"  The  freedom  of  a  country,"  writes  the  historian  already 
quoted,  "  may  be  measured  by  its  immunity  from  this  baleful 
agency." 48  We  have  never  had  it  before  in  the  United 
States,  but  there  is  disquieting  evidence  that  this  inevitable 
machinery  of  sedition-hunters  is  already  at  work.  At  the 
end  of  the  instructions  which  W.  J.  Flynn,  Director  of  the 

"Mass.  Senate  Bill  No.  184  (January,  1919).  This  did  not  become 
law. 

47  J.  A.  Stevenson,  "  A  Set-back  for  Reaction  in  Canada,"  110  Nation 
292  (March  6,  1920). 

«2  May,  ibid.,  150. 


270  FREEDOM  OF  SPEECH 

Bureau  of  Investigation  in  the  Department  of  Justice, 
issued,  on  August  12,  1919,  "  to  all  special  agents  and 
employees,"  ordering  an  investigation  of  the  promotion  of 
sedition  and  revolution,  which  should  be  particularly  directed 
to  aliens  with  a  view  of  obtaining  deportation  cases,  we 
find  this  enigmatic  passage :  49 

Special  agents  will  constantly  keep  in  mind  the  necessity  of 
preserving  the  cover  of  our  confidential  informants,  and  in  no 
case  shall  they  rely  upon  the  testimony  of  such  cover  informants 
during  deportation  proceedings. 

Who  these  "  cover  informants  "  were  is  disclosed  by  the 
New  York  Times  50  in  its  account  of  the  raids  on  the  Com- 
munists four  months  later: 

For  months  Department  of  Justice  men,  dropping  all  other 
work,  had  concentrated  on  the  Reds.  Agents  quietly  infiltrated 
into  the  radical  ranks,  slipped  casually  into  centers  of  agitation, 
and  went  to  work,  sometimes  as  cooks  in  remote  mining  colonies, 
sometimes  as  miners,  again  as  steel  workers,  and,  where  the  op- 
portunity presented  itself,  as  "  agitators  "  of  the  wildest  type. 
Although  careful  not  to  inspire,  suggest,  or  aid  the  advancement 
of  overt  acts  or  propaganda,  several  of  the  agents,  "  under  cover  " 
men,  managed  to  rise  in  the  radical  movement,  and  become,  in 
at  least  one  instance,  the  recognized  leader  of  a  district. 

The  Attorney  General  and  his  subordinates  testify  that  the 
Department  of  Justice  employs  men  who  are  or  have 
recently  been  spies  in  outlawed  organizations.  One  special 
agent,  though  never  an  under-cover  informant  in  the  De- 
partment, was  a  spy  for  the  Lusk  Committee  a  short  time 
before  as  recording  secretary  of  the  Buffalo  Communist 
local.  The  letter  of  instructions  about  the  raids  from  Chief 
Burke  of  the  Bureau  of  Investigation  to  his  Boston  agent, 

4»  Investigation  Activities  of  the  Department  of  Justice,  34. 

so  January  3,  1920.  For  additional  evidence  as  to  the  activities  of 
these  informants,  see  the  testimony  of  Captain  Swinburne  Hale  in 
Hearings  before  the  Committee  on  Rules,  supra,  note  34;  Colyer  opinion; 
Palmer  Deportations  Testimony,  48,  87  ff.,  199;  Report  upon  Illegal 
Practices. 


THE  DEPORTATIONS  271 

December  27,  1919,  whatever  its  precise  meaning,  shows  that 
United  States  employees  were  active  and  influential  members 
of  both  Communist  parties: 

If  possible,  you  should  arrange  with  your  under-cover  in- 
formants to  have  meetings  of  the  Communist  Party  and  the  Com- 
munist Labor  Party  held  on  the  night  set.  .  .  .  This,  of 
course,  would  facilitate  the  making  of  the  arrests. 

It  is  to  be  hoped  that  these  men  have  been  as  "  careful  "  as 
the  Times  reporter  says,  and  that  Mr.  Palmer  is  right  in 
denying  his  employment  of  agents  provocateurs,  but  we 
would  do  well  to  recall  one  more  warning  from  May : 61 

The  relations  between  the  Government  and  its  informers  are 
of  extreme  delicacy.  Not  to  profit  by  timely  information  were 
a  crime;  but  to  retain  in  Government  pay,  and  to  reward  spies 
and  informers,  who  consort  with  conspirators  as  their  sworn  ac- 
complices, and  encourage  while  they  betray  them  in  their  crimes, 
is  a  practice  for  which  no  plea  can  be  offered.  No  Government, 
indeed,  can  be  supposed  to  have  expressly  instructed  its  spies 
to  instigate  the  perpetration  of  crime ;  but  to  be  unsuspected,  every 
spy  must  be  zealous  in  the  cause  which  he  pretends  to  have 
espoused;  and  his  zeal  in  a  criminal  enterprise  is  a  direct  en- 
couragement of  crime.  So  odious  is  the  character  of  a  spy,  that 
his  ignominy  is  shared  by  his  employers,  against  whom  public 
feeling  has  never  failed  to  pronounce  itself,  in  proportion  to  the 
infamy  of  the  agent,  and  the  complicity  of  those  whom  he 
served. 

When  the  litigation  growing  out  of  the  Communist  raids 
is  over,  and  we  can  count  how  many  men  out  of  the  many 
thousands  arrested  are  actually  deported,  and  determine  how 
many  of  those  deported  are  really  bad,  then  only  will  it  be 
possible  to  say  whether  it  was  worth  while  instead  of  de- 
porting the  conspicuously  dangerous  men  to  go  through  all 
this  enormous  expense,  all  this  spying,  arresting,  and  herd- 
ing, to  save  the  country  from  men  who  in  ordinary  peace- 
time conditions  were  advocating  a  revolution  at  some  distant 

51 2  May,  ibid.,  151-2.  See  Graham  Wallas,  Francis  Place,  N.  Y., 
1919,  121. 


272  FREEDOM  OF  SPEECH 

and  indefinite  day  through  legislative  and  other  propaganda 
and  occasional  future  unspecified  and  improbable  general 
strikes. 

(2)  Industrial  Workers  of  the  World 

The  Industrial  Workers  of  the  World  have  been  classified 
differently  from  the  two  Communist  parties.  Both  the  De- 
partment of  Justice  and  the  Secretary  of  Labor  have  taken 
the  position,  contrary  to  some  state  decisions,52  that  the 
organization  does  not  advocate  the  unlawful  destruction  of 
property.  "  Its  constitution  and  by-laws  have  been  adroitly 
drawn  so  as  to  avoid  the  possibility  of  construing  it  as  teach- 
ing either  anarchy  or  sabotage."  Consequently,  mere  mem- 
bership is  not  a  ground  for  deportation.53  It  is  evident  that 
local  immigration  inspectors  do  not  all  agree  with  this  view 
of  the  organization,  for  Secretary  Wilson  has  released  some 
aliens  who  after  being  carried  from  Oregon  to  Ellis  Island, 
declared  they  joined  the  I.W.W.  without  realizing  its  prin- 
ciples.54 The  leaders,  organizers,  and  distributers  of  litera- 
ture, at  any  rate,  are  getting  deported,  and  this  action  has 
been  sustained  by  United  States  courts  in  Washington  and 
Oregon  on  the  ground  that  there  is  some  evidence  to  justify 
the  administrative  order  of  expulsion.55  One  judge  has  can- 
celled the  naturalization  of  an  I.W.W.   organizer,  who  at 

82  State  v.  Moilen,  140  Minn.  122  (1918);  and  the  injunction  men- 
tioned on  p.  193,  supra;  also  State  v.  Lowery,  104  Wash.  520  (1918), 
which  refused  to  admit  in  evidence  the  Report  of  the  President's  Media- 
tion Commission. 

63  Investigation  Activities,  etc.,  33;  letter  of  W.  B.  Wilson  to  John 
E.  Milholland,  110  Nation  327  (March  13,  1920). 

54  New  York  Times,  March  18,  1919.  See  adverse  editorial,  March 
19.  Officials  of  the  Department  of  Justice  are  reported,  ibid.,  February 
11,  as  asserting  that  mere  membership  is  enough,  so  that  "  it  will  be 
impossible  for  that  organization  to  continue  in  existence."  The  Ellis 
Island  I.W.W.'s  would  have  been  discharged  by  a  judge  if  they  had  not 
been  released. — Post  Deportations  Testimony,  207. 

65  Ex  parte  Bernat  and  Dixon,  255  Fed.  429  (1918);  Guiney  v. 
Bonham,  261  Fed.  582  (C.  C.  A.,  1919);  and  see  administrative  deci- 
sions in  "The  Anarchist  Deportations,"  21  New  Republic  96  (Decem- 
ber 21,  1919) ;  and  Charles  Recht,  American  Deportation  and  Exclu- 
sion Laws.    Cf.  U.  S.  ex  rel.  Grau  v.  Uhl,  262  Fed.  532  (1919). 


THE  DEPORTATIONS  273 

the  time  he  became  a  citizen  approved  of  sabotage  and 
indorsed  the  preamble  and  constitution  of  the  organization.56 
The  judge  said  that  since  the  I.W.W.  is  "  opposed  to  all 
forms  of  government,  advocates  lawlessness,  and  constructs 
its  own  morals,  which  are  not  in  accord  with  those  of  well- 
ordered  society,"  but  are  "  adapted  by  design  to  the  de- 
moralization and  degradation  thereof,"  its  adherents  must 
ipso  facto  be  guilty  of  fraud  in  declaring  that  they  are  at- 
tached to  the  principles  of  the  United  States  constitution. 
Therefore,  they  cannot  become  citizens,  and  if  they  do,  the 
right  can  be  taken  away  and  deportation  follows.  The 
Districts  Courts  go  further  than  Secretary  Wilson,  since  they 
denounce  the  organization  itself  and  regard  all  members  of 
the  I.W.W.  who  understand  and  approve  its  tenets  as 
barred  from  citizenship  and  within  the  Deportation  Act, 
whether  or  not  they  have  personally  advocated  violence. 
There  is,  of  course,  no  question  that  many  alien  officers  and 
members  have  preached  sabotage,  and  are  deportable. 

It  is  unnecessary  to  repeat  here  what  was  said  in  the  pre- 
ceding chapter  about  the  wisdom  of  coercion  against  the 
propagandist  activities  of  the  I.W.W.,  as  distinct  from  the 
commission  of  sabotage  and  other  violence,  which  of  course 
must  be  vigorously  punished.  I  will  only  add  that  the  De- 
partment of  Labor  should  be  sure  that  the  organization 
against  which  it  employs  this  great  power  is  fundamentally 
revolutionary  and  not  at  bottom  a  labor  union.  The  use  of 
deportation  to  break  up  unions,  little  as  I  sympathize  with 
them,  seems  to  me  to  be  wholly  wrong.  It  is  said,  for 
instance,  that  when  the  Chinese  workers  in  New  York  chop 
suey  restaurants  organized  a  union  and  struck  on  New 
Year's  Eve,  1918,  the  leaders  were  arrested  for  deporta- 
tion.57   The  facts  of  another  case  are  given  in  the  decision  of 

56  U.  S.  v.  Swelgin,  254  Fed.  884    (1918). 

57  American  Labor  Year-Book,  1919-20,  p.  113.  Ex  parte  Jackson, 
263  Fed.  110  (1920),  Bourquin,  J.  The  whole  decision  should  be  read. 
The  attitude  of  the  government  toward  labor  unions  outside  the  A.  F.  of 
L.  is  shown  by  the  Attorney  General's  statement  about  the  Amalgamated 
Clothing  Workers,  Palmer  Deportations  Testimony,  196,  197. 


274*  FREEDOM  OF  SPEECH 

a  United  States  judge,  who  discharged  the  alien  held  for 
deportation : 

From  August,  1918,  to  February,  1919,  the  Butte  Union  of  the 
Industrial  Workers  of  the  World  was  dissatisfied  with  working 
places,  conditions,  and  wages  in  the  mining  industry,  and  to 
remedy  them  was  discussing  ways  and  means,  including  strike 
if  necessary.  In  consequence,  its  hall  and  orderly  meetings  were 
several  times  raided  and  mobbed  by  employers'  agents,  and  fed- 
eral agents  and  soldiers  duly  officered,  acting  by  federal  authority 
and  without  warrant  or  process.  The  union  members,  men  and 
women,  many  of  them  citizens,  limited  themselves  to  oral  pro- 
tests, though  in  the  circumstances  the  inalienable  right  and  law 
of  self-defense  justified  resistance  to  the  last  dread  extremity. 
There  was  no  disorder  save  that  of  the  raiders.  These,  mainly 
uniformed  and  armed,  overawed,  intimidated,  and  forcibly  entered, 
broke,  and  destroyed  property,  searched  persons,  effects,  and 
papers,  arrested  persons,  seized  papers  and  documents,  cursed, 
insulted,  beat,  dispersed,  and  bayoneted  union  members  by  order 
of  the  commanding  officer.  They  likewise  entered  petitioner's 
adjacent  living  apartment,  insulted  his  wife,  searched  his  person 
and  effects,  and  seized  his  papers  and  documents,  and  in  general, 
in  a  populous  and  orderly  city,  perpetrated  a  reign  of  terror, 
violence,  and  crime  against  citizen  and  alien  alike,  and  whose  only 
offense  seems  to  have  been  peaceable  insistence  upon  and  exercise 
of  a  clear  legal  right. 

This  opens  up  dangerous  possibilities  of  influence  not 
only  by  employers  but  also  by  rival  conservative  unions 
to  secure  the  annihilation  of  radical  labor  organiza- 
tions through  wholesale  arrests  and  expulsions.  I  believe 
that  the  eventual  disappearance  of  the  I.W.W.  is  highly 
desirable,  but  Congress  ought  to  consider  carefully  in  the 
light  of  the  English  experience  with  the  Irish  Land  League 
whether  the  deportation  of  all  intelligent  alien  members  is 
the  best  method  to  obtain  that  result. 

The  government  ought  not  to  be  satisfied  to  base  such  dras- 
tic action  merely  on  an  examination  of  the  literature  of  the 
organization  by  men  who  are  unfamiliar  with  its  economic 
background.  An  alternative  plan  for  dealing  with  the  very 
difficult  problem  of  this  organization  would  be  a  vigorous 


THE  DEPORTATIONS  275 

suppression  and  punishment  by  state  law  of  acts  of  sabotage, 
while  the  Federal  Government  before  arresting  or  deporting 
any  more  members  should  ascertain  the  possibility  of  curing 
the  causes  of  the  revolutionary  character  of  the  I.W.W., 
such  as  the  permanent  presence  of  a  large  body  of  migratory 
labor,  homeless,  wifeless,  jobless.  The  Department  of  Labor 
has  at  hand  for  purposes  of  consultation  men  who  have 
studied  the  I.W.W.  carefully  and  men  who  aroused  the 
enthusiastic  efforts  of  its  members  in  war  industries.58  Such 
a  conference  might  evolve  a  new  and  more  satisfactory 
policy. 

For  example,  deportation  does  not  seem  quite  the  right 
way  to  handle  the  case  of  John  Meehan,59  who  was  arrested 
in  Everett,  Washington,  in  May,  1917,  for  violation  of  a 
local  anti-billboard  law,  and  then  ordered  deported  as  an 
I.W.W.  to  England,  from  which  he  came  twenty-four  years 
ago.  After  eighteen  months  of  incarceration  he  was  landed, 
hatless,  penniless,  and  with  insufficient  clothing,  in  England, 
where  he  has  neither  kith  nor  kin. 

(3)  Anarchists 

Anarchists  have  long  been  subject  to  exclusion  and  expul- 
sion. If  the  term  be  taken  in  the  popular  sense  of  supporters 
of  bomb-throwing  and  assassination  generally,  the  statute  is 
undoubtedly  constitutional,  and  has  been  so  held  by  the 
Supreme  Court 60  in  sustaining  the  exclusion  of  an  English- 
man named  Turner.  The  case  possesses  some  literary 
interest,  for  one  of  his  counsel  was  Edgar  Lee  Masters, 
whose  acid-bitten  portraits  of  life  at  Spoon  River  have  indi- 
cated possibilities  of  improvement  in  American  life. 

It  is  well  known,  however,  that  anarchism  has  no  necessary 
connection  with  violence.  It  really  means  the  belief  which 
opposes  every  kind  of  forcible  government  and  favors  the 

68  See  Bibliography,  on  I.W.W. 

sa  Charles  Recht  (counsel  for  Meehan),  American  Deportation  and 
Exclusion  Laws,  p.  9. 

eo  Turner  v.  Williams,  194  U.  S.  279  (1904). 


276  FREEDOM  OF  SPEECH 

abolition  of  all  coercion  over  the  individual  by  the  com- 
munity.61 Philosophical  anarchists  argue  that  most  govern- 
mental action  is  required  because  of  inequalities  in  property, 
and  point  to  many  activities  of  life  where  these  inequalities 
do  not  operate  and  coercion  has  been  found  unnecessary. 
For  example,  if  a  number  of  friends  are  cruising  on  a  sloop, 
they  require  no  policeman  to  keep  order  or  compel  each  per- 
son to  do  his  allotted  task.  Mutual  agreement  and  the  desire 
to  achieve  praise  and  avoid  blame  from  one's  companions 
furnish  sufficient  incentive  to  right  action.  The  anarchist 
looks  forward  to  the  time  when  life  will  be  such  a  perpetual 
holiday,  and  hopes  to  convert  all  men  to  the  same  faith  in 
human  nature.  While  waiting  and  working  for  the  mil- 
lennium, he  will,  with  rare  exceptions,  think  it  consistent  with 
his  theories  to  render  obedience  to  existing  laws,  until  they 
shall  disappear  forever.  Kropotkin  and  Tolstoi  in  Russia, 
Herbert  Spencer  and  Bertrand  Russell  in  England,  have  at 
least  been  strongly  influenced  by  this  view  that  all  govern- 
ment is  evil.  It  is  obvious  that  such  men  and  many  others 
have  no  desire  to  employ  force  to  end  force,  but  seek  to  attain 
their  ideal  system  gradually  and  peacefully  through  discus- 
sion and  education. 

These  philosophical  anarchists  caused  much  perplexity  in 
the  early  days  in  this  country,  even  to  such  a  strong  cham- 
pion of  soul-liberty  as  Roger  Williams,  who  argued  for  their 
suppression  in  his  celebrated  letter  of  1655  to  the  people  of 
Providence : 62 

There  goes  many  a  ship  to  sea,  with  many  hundred  souls  in 
one  ship,  whose  weal  and  woe  is  common,  and  is  a  true  picture 
of  a  commonwealth  or  a  human  combination  or  society.  It  hath 
fallen  out  sometimes  that  both  Papists  and  Protestants,  Jews  and 
Turks,  may  be  embarked  in  one  ship;  upon  which  supposal  I 
affirm,  that  all  the  liberty  of  conscience  that  ever  I  pleaded  for, 
turns  upon  these  two  hinges — that  none  of  the  Papists,  Protes- 
tants, Jews,  or  Turks,  be  forced  to  come  to  the  ship's  prayers  or 
worship,  nor  compelled   from  their  own  particular  prayers   or 

ei  Bertrand  Russell,  Proposed  Roads   to   Freedom,  32. 

62  Moses  Coit  Tyler,  History  of  American  Literature,  II,  261. 


THE  DEPORTATIONS  277 

worship,  if  they  practise  any.  I  further  add,  that  I  never  denied 
that,  notwithstanding  this  liberty,  the  commander  of  this  ship 
ought  to  command  the  ship's  course,  yea,  and  also  command  that 
justice,  peace,  and  sobriety,  be  kept  and  practised,  both  among 
the  seamen  and  all  the  passengers.  If  any  of  the  seamen  refuse 
to  perform  their  services  or  passengers  to.  pay  their  freight;  if 
any  refuse  to  help,  in  person  or  purse,  toward  the  common  charges 
or  defense;  if  any  refuse  to  obey  the  common  laws  and  orders 
of  the  ship,  concerning  their  common  peace  or  preservation ;  if  any 
shall  mutiny  and  rise  up  against  their  commanders  and  officers; 
if  any  should  preach  or  write  that  there  ought  to  be  no  commanders 
or  officers,  because  all  are  equal  in  Christ,  therefore  no  masters 
nor  officers,  no  laws  nor  orders,  nor  corrections,  nor  punishments ; 
— I  say,  I  never  denied,  but  in  such  cases,  whatever  is  pretended, 
the  commander  or  commanders  may  judge,  resist,  compel,  and 
punish  such  trangressors,  according  to  their  deserts  and  merits. 
This,  if  seriously  and  honestly  minded,  may,  if  it  so  please  the 
Father  of  Lights,  let  in  some  light  to  such  as  willingly  shut 
not  their  eyes. 


However,  when  government  became  stronger  in  this  coun- 
try and  stood  ready  to  punish  any  of  these  men  who  actually 
disobeyed  the  law,  it  was  realized  that  they  presented  no 
danger  merely  because  of  their  thought  and  teachings. 
Many  Quakers  in  the  Colonies  refused  to  participate  in  gov- 
ernment because  of  the  New  Testament  teachings  of  non- 
resistance.  A  similar  philosophy  was  held  by  many  great 
Americans  in  the  1840's  when  as  Emerson  said,  with  a  twinkle 
in  his  eye,  every  reading  man  went  round  with  a  draft  of  a 
new  community  in  his  waistcoat  pocket.  The  famous  set- 
tlements at  Brook  Farm  and  Fruitlands  were  peopled  by 
just  such  persons. 

The  Deportation  Act  of  1918  undoubtedly  applies  to  these 
peaceful  disbelievers  in  organized  government  as  well  as  to 
the  bombers,  and  so  did  all  the  statutes  since  1903,  but  the 
power  of  Congress  to  bar  them  out  has  never  been  upheld 
by  the  Supreme  Court.  In  the  decision  just  mentioned, 
which  involved  only  the  exclusion  of  a  violent  anarchist, 
Chief  Justice  Fuller  said  nothing  at  all  about  expulsion,  but 
suggested  in  passing  that  Congress  could  exclude  even  inno- 


278  FREEDOM  OF  SPEECH 

cent  anarchists  if  it  was  of  the  opinion  "  that  the  tendency  of 
the  general  exploitation  of  such  views  is  so  dangerous  to  the 
public  weal  that  aliens  who  hold  and  advocate  them  would  be 
undesirable  additions  to  our  population."  On  the  other  hand, 
Justice  Brewer,  in  concurring,  expressly  refused  to  deter- 
mine the  right  of  an  alien,  if  only  a  philosophical  anarchist, 
"  one  who  simply  entertains  and  expresses  the  opinion  that 
all  government  is  a  mistake,  and  that  society  would  be  better 
off  without  any."  63 

The  public  does  not  realize  that  it  is  men  of  this  type  as 
well  as  violent  anarchists  whom  the  government  is  now  send- 
ing out  of  the  country  after  long  residence,  during  which 
they  have  necessarily  remained  aliens  since  the  law  forbids 
their  naturalization.  Take,  for  instance,  the  case  of  Frank 
R.  Lopez,  a  Spaniard  of  the  Ferrer  school.  This  man  has 
been  in  the  United  States  seventeen  years,  belongs  to  the 
A.  F.  of  L.,  is  married,  has  a  son  born  in  this  country,  owns 
his  own  home,  and  has  always  been  a  law-abiding  member 
of  society.  Yet  he  has  been  ordered  deported  to  Spain  be- 
cause he  held  and  expounded,  in  speech  and  writing,  views 
which  Judge  Rogers  of  the  Circuit  Court  of  Appeals  in  New 
York  expressly  stated  to  be  only  philosophical  anarchism 
and  in  no  sense  advocacy  of  a  resort  to  force  and  revolution. 
Judge  Rogers  upheld  the  order  of  deportation  because  of 
the  following  testimony  of  Lopez  64  before  the  immigration 
inspector  : 

Q.  Do  you  believe  in  or  advocate  the  overthrow  by  violence  or 
force  of  the  government  of  the  United  States?     A.  No,  sir. 

63  194  U.  S.  294,  296;  italics  mine. 

e*  The  testimony  and  opinion  are  from  Lopez  v.  Howe,  259  Fed.  401 
(C.  C.  A.,  1919).  See  the  opinion  of  Knox,  J.,  below,  quoted  in  260 
Fed.  485.  The  facts  about  the  life  of  Lopez  are  stated  by  his  counsel, 
Charles  Recht,  with  additional  extracts  from  his  testimony,  in  Ameri- 
can Deportation  and  Exclusion  Laws,  Boston,  1919,  p.  9.  The  testi- 
mony is  also  reprinted  in  21  New  Republic  98  (December  24,  1919). 
See  the  letter  in  21  New  Republic  356  (February  18,  1920),  which 
finds  the  case  so  "incredible"  that  it  wrongfully  accuses  the  magazine 
of  withholding  utterances  by  Lopez  of  an  inflammatory  nature.  The 
decision  in  the  Federal  Reporter  expressly  rests  on  philosophical  an- 
archism and  denies  any  advocacy  of  violence. 


THE  DEPORTATIONS  279 

Q.  Any  other  government,  Spanish,  or  Italian,  or  Mexican? 
A.  No,  sir;  our  ideals  are  founded  on  education. 

Q.  What  are  your  ideals?    A.  Free  thinking. 

Q.  Don't  you  believe  in  the  power  of  authority?  A.  What  do 
you  mean? 

Q.  Organized  government.  Don't  you  think,  if  the  President 
gives  an  order  when  Congress  empowers  him,  that  it  should  be 
obeyed?     A.  Yes;  the  orders  should  be  obeyed. 

Q.  Do  you  believe  in  the  propriety  of  assassination  of  public 
officials  of  the  United  States  or  any  other  government?  A.  No, 
sir;  not  only  of  officials,  but  of  nobody.  Everybody  has  a  right 
to  live. 

Q.  Do  you  believe  in  anarchy?  A.  What  do  you  mean  by 
anarchy  ? 

Q.  Well,  it  would  be  anarchy  to  fight  against  the  laws  of  the 
United  States,  tear  down  buildings,  blow  them  up.  A.  Anything 
else?  I  believe  in  anarchy,  but  it  is  not  the  way  you  explain  it, 
or  the  way  newspapers  say  anarchy  is.  Anarchy,  the  way  news- 
papers explain  it,  assassinating  women  and  children,  dropping 
bombs,  or  anything  like  that,  I  don't  believe  in  that.  But  I  be- 
lieve in  teaching,  educating,  and  telling  the  people  to  better  their 
conditions.  If  you  mean  that,  I  am  proud  of  being  an  anarchist. 
I  am  against  killing  and  against  destruction.  We  are  to  con- 
struct. 

Q.  How  are  you  going  to  proceed  to  do  this?  A.  We  are  not 
going  to  force  our  ideals  on  anybody's  mind.  We  have  con- 
ferences, we  have  lectures.  The  doors  are  open,  and  everybody 
is  welcome. 

Q.  You  try  to  get  people  through  advertising  means  ?  A.  Yes, 
for  educational  purposes. 

Q.  For  the  educational  purposes  of  teaching  them  anarchy? 
A.  To  teach  them  anarchy  the  way  we  understand  it,  but  not  the 
way  you  understand  it;  the  way  many  writers  understand  it. 

Q.  What  writers?  A.  Tolstoi,  Marx,  Ferrer,  Zola,  Kropotkin, 
and  many  others. 

Q.  If  you  are  ordered  deported,  do  you  want  to  be  separated 
from  your  wife  and  boy,  or  would  you  desire  to  have  them  go 
with  you  to  Spain  ?  A.  It's  up  to  the  government ;  I  think  it  is  an 
injustice;  I  have  done  nothing  wrong;  I  call  it  an  injustice;  if 
a  man  is  going  to  be  punished  for  his  thoughts  and  ideas,  it  is 
an  injustice. 

Unless  the  Supreme  Court  declares  this  construction  of 
the  statute  unconstitutional,  Lopez  will  be  deported  to  Spain. 


280  FREEDOM  OF  SPEECH 

The  expulsion  of  other  men  with  just  the  same  views  has 
been  sustained.65  Judge  Rogers  emphasizes  the  point  that 
Lopez  had  never  become  naturalized,  overlooking  the  fact 
that  if  he  had  become  a  citizen  our  courts  would  take  his 
naturalization  papers  away  from  him  on  the  ground  that 
they  were  obtained  by  fraud,66  although  it  seems  just  as  con- 
sistent for  a  man  who  believes  that  all  government  should 
eventually  be  abolished  to  swear  allegiance  honestly  to  the 
government  of  the  United  States  as  it  is  for  a  man  to  render 
obedience  to  a  statute  which  he  thinks  ought  to  be  repealed. 
Certainly  the  conduct  and  testimony  of  Lopez  show  that  he 
would  have  made  as  good  a  citizen  as  most  native-born 
Americans.  Judge  Rogers  also  says  that  Lopez  is  deported, 
not  because  he  entertained  these  thoughts  and  ideas,  but  be- 
cause he  sought  to  instil  them  into  the  minds  of  others. 
However  this  may  be  in  his  case,  the  statute  expressly 
authorizes  men  to  be  thrown  out  of  this  country  after  long 
residence  for  ideas  which  they  have  never  expressed  to  a 
single  person  until  they  were  subjected  to  an  inquisition  by 
the  immigration  inspector.  Such  a  law  suppresses  not  only 
freedom  of  speech  but  freedom  of  thought.  The  following 
entry  added  by  the  Inspector  to  the  testimony  of  Louis 
Gyori,  who  has  been  ordered  deported  because  he  expects  a 
revolution  which  will  compel  every  one  to  work  but  will  only 
come  at  some  uncertain  time  when  the  majority  want  it,  is 
very  significant : 67 

Very  careful  and  steady  questioning  was  necessary  to  bring  out 
the  alien's  beliefs,  political  and  industrial. 

VI.    The  Deportations  and  the  Bill  of  Rights 

Having  thus  shown  that  the  deportation  statute  has  been 
put  into  force  against  men  who  are  in  no  way  advocates 

9*Ex  parte  Pettine,  259  Fed.  733  (1919);  see  also  21  New  Repub- 
lic 98. 

««U.  S.  v.  Stuppiello,  260  Fed.  48?  (1919). 

a? "The  Anarchist  Deportations,"  21  New  Republic  98  (December 
24,  1919). 


THE  DEPORTATIONS  281 

of  violence,  I  will  now  return  to  the  general  question  of  the 
power  of  Congress  to  make  laws  excluding  or  expelling  men 
from  this  country  because  of  mere  membership  in  societies 
which  it  considers  objectionable  or  because  of  the  holding 
or  expression  of  peaceful  ideas  which  it  regards  as  having 
a  bad  political  tendency.  The  constitutionality  of  such 
statutes  is  defended  on  two  grounds. 

First,  it  is  said  that  the  power  of  Congress  to  decide  what 
aliens  shall  be  admitted  or  shall  remain  in  this  country  is 
unrestricted  by  the  Constitution.  One  judge  calls  this  power 
"  well-nigh  plenary  in  its  absolutism." 68  Chief  Justice 
Fuller  suggests  that  if  Congress  can  shut  out  all  aliens,  it 
can  therefore  shut  out  any  group  of  aliens  it  pleases.  Such 
a  contention  seems  to  me  unsound.  One  might  as  well  argue 
that  because  a  Republican  Congress  can  refuse  to  naturalize 
all  aliens,  therefore  it  can  refuse  to  naturalize  only  those  who 
express  the  intention  of  casting  a  Democratic  vote  at  the 
next  election.  The  First  and  Fifth  Amendments  in  the  Bill 
of  Rights  limit  all  the  powers  of  Congress,  including  the 
power  over  the  exclusion  and  expulsion  of  aliens. 

Aliens  are  "  persons  "  within  the  Fifth  Amendment,  whom 
Congress  cannot  deprive  of  liberty  and  property  except  "  by 
due  process  of  law,"  that  is,  by  methods  which  are  appropriate 
to  the  emergency.  It  cannot  turn  the  aliens  whom  it  wishes 
to  deport  loose  in  an  open  boat  on  the  Atlantic,  or  carry 
them  across  the  border  into  Mexico  and  leave  them  wander- 
ing the  desert.  No  one  would  consider  this  a  reasonable 
way  of  returning  them  to  their  own  country.  Moreover,  the 
method  of  classifying  aliens  for  deportation  is  as  important 
as  the  manner  of  expulsion.  If  Congress  has  unlimited 
power  to  remove  alien  members  of  any  group  it  chooses,  all 
Roman  Catholics,  all  Jews,  all  Russians,  any  class  that 
happens  to  be  unpopular  at  the  moment,  can  be  ousted  no 
matter  how  long  they  have  been  in  the  United  States.  It 
has  been  repeatedly  decided  by  the  Supreme  Court  that  the 
mere  existence  of  a  legislative  power  such  as  taxation,  does 

es  Ex  parte  Pettine,  supra. 


282  FREEDOM  OF  SPEECH 

not  (under  the  "  due  process  "  clause)  involve  the  right  to 
exercise  that  power  in  a  discriminatory  manner  against  a 
group  such  as  all  red-headed  men,  who  are  selected  arbi- 
trarily without  reasonable  relation  to  the  facts  and  the  needs 
of  society.89  The  discretion  of  Congress  to  determine  the 
basis  of  classification  must  be  very  wide,  but  it  is  not  un- 
bounded. In  particular,  classification  of  the  objects  of  any 
recognized  Congressional  power  must  not  be  used  solely  for 
the  purpose  of  accomplishing  a  result  prohibited  by  the 
First  Amendment.  Congress  can  tax  all  incomes,  but  an 
income  tax  of  50  per  cent  on  Socialist  college  professors 
alone  would  be  a  convenient  but  unconstitutional  way  to 
suppress  freedom  of  speech.  Furthermore,  it  seems  probable 
that  the  "  due  process  "  clause  renders  the  power  of  Con- 
gress over  the  expulsion  of  aliens  much  narrower  than  the 
power  to  refuse  them  admission,  because  the  deprivation  of 
liberty  and  property  is  so  much  greater  after  an  alien  has 
once  been  admitted  and  become  settled  in  this  country. 
Many  more  individual  interests  claim  protection.  Congress 
could  undoubtedly  refuse  admission  to  aliens  with  diseased 
eyes  and  could  probably  expel  such  aliens  after  several  years' 
residence ;  possibly  it  could  exclude  aliens  with  blue  eyes ;  but 
a  law  ordering  all  aliens  with  blue  eyes  to  leave  the  country 
no  matter  how  long  they  had  been  here  would  be  clearly  a 
violation  of  the  Fifth  Amendment. 

The  power  over  aliens  must  also  be  subject  to  the  First 
Amendment,  for  that  declares  that  "  Congress  shall  make  no 
law  abridging  the  freedom  of  speech  or  of  the  press,"  and 
a  deportation  statute  is  a  "  law."  Nevertheless,  that 
Amendment  does  not  mean  to  deny  the  government  the 
power  of  self-preservation.  Some  opinions  may  be  so  dan- 
gerous to  the  nation  that  men  holding  them  may  be  kept  out 
or  even  expelled.  In  other  words,  we  must  determine  the 
limits  of  freedom  of  speech  in  relation  to  deportation  ac- 
cording to  the  principles  laid  down  in  the  first  chapter. 

«9  Gulf,  etc.,  Ry.  v.  Ellis,  165  U.  S.  150,  165  (1897);  Connolly  v. 
Union  Sewer  Pipe  Co.,  184  U.  S.  540,  560  (1902). 


THE  DEPORTATIONS  283 

In  this  connection,  I  must  consider  the  second  argument 
in  favor  of  the  validity  of  these  clauses  against  radicals  in 
the  Deportation  Act.  It  is  urged  by  Chief  Justice  Fuller 
in  the  Turner  case  70  that  the  statute  has  nothing  to  do 
with  freedom  of  speech. 

It  is,  of  course,  true  that  if  an  alien  is  not  permitted  to  enter  this 
country,  or,  having  entered  contrary  to  law,  is  expelled,  he  is  in 
fact  cut  off  from  worshiping  or  speaking  or  publishing  or 
petitioning  in  the  country,  but  that  is  merely  because  of  his  exclu- 
sion therefrom.  He  does  not  become  one  of  the  people  to  whom 
these  things  are  secured  by  our  Constitution  by  an  attempt  to 
enter  forbidden  by  law. 

This  argument  seems  to  me  very  questionable  because  it 
regards  freedom  of  speech  as  purely  the  individual  interest 
of  the  alien.  We  have  seen  in  the  first  chapter  that  it  is 
also  a  social  interest  of  the  community  as  a  whole.  Al- 
though the  alien  who  is  barred  out  may  not  be  entitled  to 
any  claim  under  our  Bill  of  Rights,  persons  already  here 
are  seriously  affected  if  they  are  denied  the  privilege  of 
listening  to,  and  associating  with  a  foreign  thinker.  Fur- 
thermore, the  progress  of  the  country  as  a  whole  may  be 
gravely  retarded.  Truth  is  truth,  whether  it  comes  from  a 
citizen  or  an  alien,  and  the  refusal  to  admit  a  wise  foreigner, 
especially  if  there  is  a  postal  censorship  on  books,  may 
simply  result  in  our  remaining  ignorant.  Massachusetts  in 
the  middle  of  the  eighteenth  century  would  have  been  un- 
willing to  allow  Bishop  Berkeley  to  settle  in  her  midst,  but 
if  Rhode  Island  had  also  refused  to  admit  him,  it  would  have 
impoverished  American  thought.  Refusal  to  admit  Bernard 
Shaw  or  Bertrand  Russell  in  1920  would  operate  in  the 
same  way.  Roman  Catholic  citizens  of  the  United  States 
would  surely  be  aggrieved  by  a  law  barring  all  future  immi- 
grants of  that  faith.  Therefore,  freedom  of  speech  is  neces- 
sarily affected  by  the  exclusion  of  aliens  for  their  opinions, 
and  such  exclusion  is  unconstitutional  unless  the  social  inter- 

70  See  note  60. 


284  FREEDOM  OF  SPEECH 

est  in  the  attainment  of  truth  is  outweighed  in  the  balance 
by  the  other  interests  involved.  The  First  Amendment  does 
not  read,  "  No  citizen  shall  be  deprived  of  freedom  of  speech." 
It  prohibits  all  laws  "  abridging  the  freedom  of  speech  or  of 
the  press." 

What  has  been  said  applies  still  more  forcibly  to  the 
expulsion  of  long-established  aliens  for  their  views  and  utter- 
ances. This  has  always  been  a  favorite  method  of  dealing 
with  the  heterodox.  Almost  all  the  wholesale  deportations 
of  history,  just  like  Mr.  Palmer's  January  raid,  have  been 
an  effort  to  overcome  "  evil  thinking."  Spain  expelled  the 
Moors ;  England  in  the  reign  of  Edward  III  banished  fifteen 
thousand  Jews;  and  Louis  XIV  in  1685  drove  out  the 
Huguenots  from  France.  In  1891  President  Harrison 
called  the  attention  of  Congress  to  the  action  of  Russia, 
a  friendly  nation,  in  banishing  thousands  of  Jews.71  Al- 
though there  are  many  precedents  in  history  for  the  whole- 
sale expulsion  of  Communists,  they  are  not  precedents  which 
we  should  be  proud  to  follow. 

Therefore,  the  deportations  may  infringe  the  national 
policy  expressed  by  the  First  Amendment,  even  if  they 
do  not  transcend  the  extreme  limits  of  constitutional  power. 
It  seems  to  me  more  profitable  to  leave  the  question  of  con- 
stitutionality to  future  judicial  discussion,  and  simply  out- 
line the  conflicting  factors  which  determine  the  wisdom  of 
the  deportation  of  radical  aliens  to-day. 

In  favor  of  deportation  are,  first,  the  desire  of  society 
for  order,  which  was  considered  in  the  last  chapter,  and 
besides  this,  the  interest  of  the  nation  in  keeping  its  popu- 
lation free  from  elements  which  are  considered  undesirable 
additions  to  our  present  and  future  stock.  The  same  social 
need  found  expression  in  the  Chinese  Exclusion  Acts.  It 
is  this  second  factor  which  makes  the  power  of  Congress 
over  aliens  so  wide.     The  war  power  should,  I  have  endeav- 

7i  Moore's  Digest  of  International  Law,  VI,  358;  this  has  refer- 
ence to  Russian  subjects.  On  American  Jews  expelled  from  Russia, 
see  ibid..  IV,  111  ff. 


THE  DEPORTATIONS  285 

ored  to  show,  be  used  against  utterances  only  to  ward 
off  dangerous  acts,  but  this  power  over  immigration  is 
primarily  directed  to  dangerous  persons.  It  is  concerned 
less  with  what  men  do  than  with  what  they  are — whether 
they  are  diseased,  crippled,  of  psychopathic  inferiority,  lia- 
ble to  become  a  public  charge.  The  danger-test  of  the 
Schenck  case  still  holds  good,  but  in  a  new  form.  Congress 
may  wisely  act  now,  although  there  is  "  no  clear  and  present 
danger  "  of  violence,  for  "  the  substantive  evil  which  Con- 
gress has  the  right  to  prevent  "  is  in  this  problem  the  pres- 
ence of  persons  who  are  so  undesirable  that  they  ought  to 
be  denied  or  deprived  of  an  American  domicile. 

Undoubtedly,  men  may  be  undesirable  and  dangerous  per- 
sons because  of  their  ideas  as  well  as  physical  and  mental 
derangements.  On  the  other  hand,  the  need  of  society  for 
truth  and  progress  must  come  into  play,  and  in  determin- 
ing who  are  undesirable  we  must  be  ever  on  our  guard 
against  applying  the  test  of  conjectural  and  remote  tend- 
encies. It  is  not  at  all  the  same  provable  question  of  fact 
as  heart  trouble  or  insanity.72  For  instance,  much  of  the 
reasoning  in  the  philosophical  anarchist  cases,  which  stig- 
matize the  doctrine  as  "  inimical  to  civilization,"  is  purely 
speculative,  and  smacks  of  the  eighteenth  century  sedition 
trials.  And  the  organization  clauses,  in  expelling  men  who 
are  not  undesirable  themselves  just  because  they  have  un- 
desirable associates,  carries  the  logic  of  national  integrity 
one  step  beyond  the  standard  of  individual  suitability  for 
residence  in  America. 

The  record  of  philosophical  anarchists  shows  that  they  are 
no  more  prone  to  disorder  than  any  religious  sect,  and  what- 
ever we  may  think  of  their  ultimate  faith,  they  may  be  of 
great  benefit  in  society,  both  for  their  constructive  schemes 
of  voluntary  organization  and  for  their  pointed  criticisms 
of  the  evils  of  existing  governments.     Let  me  offset  the  rea- 

72  See  American  School  of  Magnetic  Healing  v.  McAnnulty,  187  U.  S. 
94  (1902),  and  the  quotation  from  Justice  Brandeis  in  the  Pierce  case, 
p.  105,  supra. 


286  FREEDOM  OF  SPEECH 

soning  of  Roger  Williams  with  another  ship-parable  (ships 
being  rather  appropriate  in  this  chapter)  : 73 

"A  sailor  related  to  me,"  writes  Benjamin  Constant, 
u  that  he  was  once  on  board  a  vessel  with  a  passenger  who 
had  frequently  made  the  same  voyage.  This  passenger 
pointed  out  to  the  captain  a  rock  hidden  beneath  the  waves, 
but  the  captain  would  not  listen  to  him.  On  his  insisting 
upon  it,  the  captain  had  him  thrown  into  the  sea.  This 
energetic  measure  put  an  end  to  all  remonstrances,  and 
nothing  could  be  more  touching  than  the  unanimity  that 
reigned  on  board,  until,  suddenly,  the  vessel  touched  the 
reef,  and  was  wrecked.  They  had  drowned  the  giver  of  the 
warning,  but  the  reef  remained." 

Another  reason  against  wholesale  deportation  for  ideas 
is  that  we  have  a  national  reputation  to  live  up  to,  which 
we  should  hesitate  to  sacrifice.  We  have  drawn  millions  of 
workers  to  our  soil,  not  merely  by  the  material  magnet  of 
high  wages,  but  by  the  great  hope  of  freedom  from  all  the 
tyranny  of  European  empires.  After  priding  ourselves  for 
a  century  on  being  an  asylum  for  the  oppressed  of  all  na- 
tions, we  ought  not  suddenly  to  jump  to  the  position  that 
we  are  only  an  asylum  for  men  who  are  no  more  radical  than 
ourselves.  Suppose  monarchical  England  had  taken  such  a 
position  toward  the  Republican  Mazzini  or  the  anarchist 
Kropotkin.  Sweden,  next  door  to  Bolshevik  Russia,  allows 
and  even  encourages  by  law  extensive  freedom  of  speech. 
Switzerland,  with  her  small  population,  has  harbored  even 
bomb-throwers  and  Nicolai  Lenine  with  perfect  safety.  But 
the  United  States  with  one  hundred  million  inhabitants,  four 
thousand  miles  away  from  the  scenes  of  revolution,  is  urged 
to  be  afraid  of  a  few  thousand  men  like  Lopez  and  the  advo- 
cates of  "  mass  action."  We  shall  soon  be  in  the  shame- 
ful position  of  seeing  political  offenders  from  this  country 
demanding  asylum  in  the  very  lands  from  which  men  once 
fled  to  be  free  to  think  and  talk  on  our  shores. 

The  international   consequences   of  the  deportations   are 

73  Letters  on  England,  Louis  Blanc,  London,  1866,  I,  438. 


THE  DEPORTATIONS  287 

very  serious.  Not  only  are  we  erecting  a  Chinese  wall  to 
keep  out  ideas,  but  we  are  helping  to  increase  the  very  un- 
rest in  Europe  that  we  fear.  Every  one  of  sense,  no  matter 
what  his  opinion  of  the  present  government  of  Russia,  be- 
lieves that  the  restoration  of  order  in  that  country  is  essen- 
tial to  the  provisioning  and  the  peace  of  Europe.  We 
began  this  pacification  of  Russia  by  sending  in  Admiral 
Kolchak.  We  end  by  sending  in  Emma  Goldman.  The 
harm  that  she  did  during  her  thirty-four  years  in  the  United 
States  was  nothing  beside  the  unrest  and  international  irri- 
tation she  is  creating  in  Russia,  where  she  has  already  or- 
ganized the  "  Friends  of  American  Freedom."  A  nuisance 
here,  she  is  a  heroine  over  there  and  one  more  element  of  in- 
stability in  the  Russian  situation.  Look  at  Larkin,  whom  the 
British  deported  from  Ireland,  where  they  could  keep  an  eye 
on  him.  No  single  man  has  done  more  to  stir  up  bad  feeling 
against  Great  Britain  in  this  country.  What  sort  of  an 
international  house-cleaning  are  we  going  to  have  if  each 
country  grabs  up  turbulent  persons  and  dumps  them  across 
the  border  upon  its  neighbor's  land?  I  have  no  sympathy 
whatever  with  these  extremists,  but  as  a  matter  of  expediency 
they  may  be  doing  far  less  harm  when  they  talk  to  foreigners 
who  are  in  this  country  under  American  inspiration  than 
when  they  are  sent  with  bitterness  in  their  hearts  to  spread 
hatred  against  us  in  the  very  countries  to  which  we  must 
look  for  future  immigrants. 

Other  international  difficulties  are  bound  to  arise.  If  we 
make  peace  with  the  Soviet  Government,  how  can  we  declare 
any  one  who  endorses  its  political  and  economic  theories 
an  outlaw?  Already  the  Secretary  of  Labor  is  proposing 
to  decide  whether  that  government  advocates  revolution  so 
that  he  can  deport  Mr.  Martens,7*  a  job  which  seems  more 
within  the  duties  of  the  Secretary  of  State.  Soon  some 
one  will  suggest  that  the  attempted  assassination  of  Vis- 

7* "Martens  and  Our  Foreign  Policy,"  Lincoln  Colcord,  110  Nation 
324  (March  13,  1920).  Palmer  Deportations  Testimony,  180,  gives  the 
case  for  deportation. 


288  FREEDOM  OF  SPEECH 

count  French  and  the  death  of  numerous  English  officials 
in  Ireland  is  some  evidence  that  Sinn  Fein  is  an 
organization  which  "  advocates  the  duty,  necessity,  or  pro- 
priety of  the  unlawful  killing  of  officers  of  an  organized 
government  because  of  their  official  character,"  and  Secretary 
Wilson  will  have  to  pass  on  the  deportation  of  President 
De  Valera. 

Think  of  the  example  which  these  recent  raids  have  set 
to  less  orderly  nations,  this  resorting  to  methods  which  we 
have  repeatedly  declared  to  be  a  violation  of  international 
law,  when  used  against  Americans  abroad.75  We  can  no 
longer  take  that  position.  If  Mexico  should  conclude  that 
certain  Americans  there  had  advocated  a  revolution  in  that 
country  by  force  and  violence,  or  a  "  clean-up "  by  the 
United  States  (by  force),  then  it  could  seize  our  fellow- 
citizens  from  their  beds  at  midnight,  throw  them  into  Black 
Holes  like  the  Detroit  bull-pen,  separate  them  from  their 
families,  let  their  business  go  to  pieces,  turn  their  wives 
and  children  over  to  the  local  charities,  and  ship  them  in 
an  army  transport  to  New  Orleans,  knowing  that  every  act 
would  be  supported  by  precedents  of  what  has  been  done  in 

75(7/.  with  the  January,  1920,  raids,  the  following  facts  from 
Moore's  Digest  of  International  Law,  IV,  108:  "In  May,  1898,  F. 
Scandella,  a  citizen  of  the  United  States,  engaged  in  the  cattle  and 
transportation  business  at  Ciudad  Bolivar,  Venezuela,  was  suddenly  ar- 
rested while  walking  in  the  streets  of  that  city,  and  was  thrown  into 
prison,  where  he  was  denied  communication  with  his  family  and  friends. 
Next  day  he  was  taken  under  guard  to  a  steamer,  and  was  sent  to  the 
British  island  of  Trinidad.  His  wife  and  five  young  children  were  left 
without  funds;  his  cattle  and  mules  were  stolen;  and  his  house,  which 
was  about  three  miles  from  town,  was  sacked.  The  authorities  of  the 
State   of   Bolivar   alleged   as   the   cause  of   his   seizure   and   expulsion 

*  frequent   denunciations '    and   *  well-founded   suspicions '   that   he   was 

*  plotting  secretly  against  public  order.'  The  United  States  minister 
interposed  in  the  case,  presenting  testimonials  as  to  Mr.  Scandella's 
character  and  standing;  and  the  President  of  the  Republic  intimated 
a  desire  to  settle  the  case  outside  of  diplomatic  channels.  Scandella 
was  permitted  to  return  to  Venezuela;  and  early  in  July,  1898,  the  case 
was  understood  to  have  been  adjusted  on  the  basis  of  $1,600  in  cash, 
American  gold,  and  a  promise  of  reimbursement  for  property  taken  or 
destroyed."  Other  examples  of  arbitrary  expulsion  are  the  Hollander 
case  in  Guatemala,  ibid.,  102;  and  the  Bluefields  cases  in  Nicaragua, 
ibid.,  99.  Several  arbitrations  on  expulsion  are  contained  in  Moore's 
Digest  of  International  Arbitrations,  IV,  c.  LX. 


THE  DEPORTATIONS  289 

this  country  last  winter  to  the  citizens  of  a  government  that 
was  too  weak  to  hit  back. 

Finally,  in  deciding  whether  radical  deportations  should 
be  carried  out  further,  we  ought  to  consider  two  classes  of 
people  in  this  country — first,  ourselves;  secondly,  all  the 
aliens. 

That  deportations  are  very  popular  with  American  citi- 
zens is  undeniable,  far  more  so  than  the  proposed  federal 
sedition  bills.  How  can  we  account  for  this  astonishing 
desire  to  reverse  our  national  policy?  Besides  the  nervous 
effect  of  the  war,  the  shock  of  the  Russian  Revolution,  the 
unpreparedness  for  wide  intellectual  divergencies,  of  which 
I  shall  speak  more  fully  in  the  next  chapter,  there  is,  I  sus- 
pect, another  element.  Genuinely  grateful  as  we  all  are  in 
our  thinking  moments  to  our  immigrant  population,  most 
of  us  have  a  hidden  emotion  which  comes  to  the  surface  in 
a  time  of  excitement,  the  wish  that  we  did  not  have  in  our 
midst  these  foreigners  who  are  so  different  from  ourselves. 
The  basis  of  dislike  is  normally  unlikeness.76  It  is  just  the 
same  feeling  that  led  Dr.  Johnson  to  say  after  the  experience 
of  a  lifetime  that  most  foreigners  were  fools.  We  are  go- 
ing through  the  old  Know  Nothing  affair  over  again. 

This  instinct  is  normally  controlled  by  a  recognition  of 
what  immigration  has  done  for  the  United  States.  It  is 
not  true  that  the  aliens  owe  us  everything  and  we  owe  them 
nothing.  They  have  no  vote,  but  they  have  hands  and  mus- 
cles. They  have  come  here  at  our  request,  often  at  our 
earnest  solicitation,  to  dig  our  sewers,  cart  our  garbage, 
weave  our  cloth,  build  our  roads  and  railways.  And  they 
have  minds  like  ourselves.  Absence  of  citizenship  means 
the  loss  of  the  vote,  but  does  it  give  us  the  moral  right  after 
a  man  is  admitted  to  prescribe  what  he  shall  think,  under 
penalty  of  banishment  from  his  new  home,  and  perhaps  forcij 
ble  return  to  the  secret  police  from  whom  he  fled?     Doubt- 

76 "The  Nervousness  of  the  Jew,"  Dr.  A.  Myerson,  4  Mental  Hy- 
giene 65  (January,  1920) ;  Bagehot  elaborates  the  point  in  his  essay 
on  "The  Metaphysical  Basis  of  Toleration." 


290  FREEDOM  OF  SPEECH 

less,  a  policy  of  hands-off  will  result  in  the  presence  of  a  few 
dangerous  agitators  springing  up  in  the  great  army  of 
workers,  but  we  should  be  willing  to  take  the  foam  with 
the  beer.  This  is  not  the  first  time  that  restless  spirits, 
many  of  whom  had  been  actually  engaged  in  the  labor  wars 
of  Europe,  have  carried  the  instinct  of  industrial  strife  and 
violence  with  them  to  their  new  country.77  We  have  lived 
through  it  until  this  year  in  confident  serenity.  We  have 
believed  that  the  unrest  brought  from  the  other  side  of  the 
ocean  would  eventually  be  dissipated  by  contact  with  Amer- 
ican life.  The  radical  shows  the  same  change  under  a  fos- 
tering environment  as  the  Jew,  who  is  rapidly  becoming  as- 
similated to  his  neighbors.  "  What  persecution  could  not 
do  through  the  centuries,  toleration  does  in  a  generation."  78 
The  Bolshevist  peasant  in  Russia,  having  acquired  a  bit  of 
land,  is  already  angering  his  rulers  by  his  conservatism.  In 
the  same  way  a  savings  bank  account,  a  steady  job,  and 
plenty  of  good-humored  toleration  and  friendly  help  and 
encouragement,  will  bring  into  harmony  with  our  ideals  all 
but  a  few  heated  theorists  who  have  been  in  our  midst  all 
through  the  war  and  ought  not  in  peace  to  be  such  a  menace 
to  our  national  safety  that  we  cannot  counteract  them  by 
sound  reasoning.  Secretary  Wilson  would,  if  he  had  his 
own  way,  adopt  this  very  method : 79 

I  look  upon  any  alien  who  comes  to  this  country  and  advocates 
the  use  of  force  for  the  overthrow  of  our  Government  as  being 
in  exactly  the  same  position  as  an  invading  enemy,  and  that  it  is 
no  undue  hardship  to  send  him  back  to  the  country  whence  he 
came.  Nevertheless,  I  would  not  deal  with  the  subject  matter 
in  that  way.  In  dealing  with  it  during  the  period  of  the  war 
the  policy  of  the  Department  of  Labor  was  to  send  high-class, 
intelligent  working  men,  who  had  lived  the  lives  and  spoke  the 
language  of  the  workers  themselves,  into  the  places  where  working 
men  congregate,  carrying  a  counter-propaganda  puncturing  the 

77  See  account  of  the  Molly  Maguires  in  Rhodes,  History  of  the 
United  States,  VIII. 

78  Myerson,  op.  cit. 

79  Letter  to  John  E.  Milholland,  reprinted  in  110  Nation  326  (March 
13,  1920). 


THE  DEPORTATIONS  291 

fallacy  of  the  philosophy  of  force  as  applied  to  democratic  in- 
stitutions. We  believed  we  had  successfully  met  the  situation  until 
Congress  in  its  wisdom  curtailed  the  appropriation  that  made  it 
possible  for  us  to  carry  on  the  work  we  had  been  doing. 


VII.  Suggested  Changes  m  Our  Deportation  Policy 

As  an  alternative  to  our  present  policy  of  deportations  I 
would  suggest  a  continuance  of  Secretary  Wilson's  plan  for 
the  first  step.  The  last  few  years  have  taught  us  that  the 
melting-pot  will  not  entirely  take  care  of  itself.  Just  as  the 
merits  of  free  trade  in  goods  are  lessened  if  the  normal 
processes  of  competition  are  checked  by  monopolies  and 
dumping,  so  free  trade  in  ideas  requires  that  the  barriers  to 
the  interchange  of  argument  presented  by  illiteracy  and 
foreign  languages  shall  somehow  be  broken  down. 

Secondly,  Congress  should  put  into  force  the  following 
recommendation  from  the  Secretary  of  Labor : 80 

If  lawfully  admitted  aliens  are  to  be  deported  from  the  United 
States  for  any  cause,  in  my  judgment  the  deportation  should  be 
the  result  of  judicial  proceedings  in  the  courts  rather  than  through 
administrative  action. 

The  Assistant  Secretary  made  the  same  recommendation 
four  years  ago : 81 

In  most  cases  administrative  decisions  must  in  the  very  nature 
of  administration  be  made  by  subordinates;  in  all  instances  they 
must  be  made  along  hard  and  fast  lines  according  to  unelastic 
legislation  designed  to  promote  a  governmental  policy.  Deter- 
minations regarding  private  rights  by  such  decisions  are  mere 
incidents  of  administration.  .  .  .  Nothing  in  my  official  experience 
in  the  Department  of  Labor  has  impressed  me  more  deeply  than 
the  conviction  that  fundamental  personal  rights  should  be  more 

so  Ibid. 

si M  Administrative  Decisions  in  Connection  with  Immigration," 
Louis  F.  Post,  10  Am.  Pol.  Set.  Rev.  260,  261  (1916).  See  Post  Deporta- 
tions Testimony,  239,  246  ff.  An  alternative  method  would  be  an  inde- 
pendent administrative  tribunal  of  three  experts  to  sit  in  a  purely 
judicial  capacity  upon  all  deportation  cases,  like  the  Commissioner  of 
Patents  in  his  field. 


292  FREEDOM  OF  SPEECH 

scrupulously  guarded  in  immigration  cases  than  is  possible  through 
administrative  decisions  made  in  the  course  of  executive  routine. 

Thirdly,  a  conference  might  be  held  to  include  immigra- 
tion officials,  members  of  Congress,  men  who  have  come  into 
contact  with  radical  aliens  on  the  President's  Mediation 
Commission  and  in  the  conduct  of  war  industries,  and  schol- 
ars like  Brissenden  who  have  studied  revolutionary  organi- 
zations. This  conference  should  outline  for  the  guidance 
of  Congress  a  program  for  our  future  deportation  policy. 
It  would  seem  desirable  to  limit  deportable  aliens  to  men 
who  are  themselves  personally  objectionable  on  account  of 
the  advocacy  of  force.  , 

Finally,  the  Secretary  of  Labor  or  the  President  should 
be  given  discretion  whether  or  not  to  expel  an  alien  who  is 
within  a  deportable  class.  At  the  present  time  Assistant 
Secretary  Post 82  shows  that  deportation  must  be  automatic, 
no  matter  how  cruel  or  unwise  it  may  be.  An  imprisoned 
criminal  may  be  pardoned  by  the  President,  but  not  even  he 
can  prevent  an  alien  who  comes  under  the  statutes  from  being 
sent  overseas. 

I  make  these  suggestions  as  an  American,  believing  that 
we  must  depend  on  a  large  immigrant  population  for  many 
years  to  come  and  that  we  all  desire  them  to  be  loyal  mem- 
bers of  the  community,  devoted  to  our  institutions  whether 
or  not  they  decide  to  abandon  their  allegiance  to  their  old 
land.  Men  cannot  be  forced  to  love  this  country.  They 
will  love  it  rather  because  it  does  not  employ  force  except 
against  obviously  wrongful  overt  acts.  They  will  love  it  as 
the  home  of  wise  tolerance,  of  confidence  in  its  own  strength 
and  freedom.  Undoubtedly  there  is  much  discontent  in  cer- 
tain groups  of  aliens  at  the  present  time.  It  has  been  ac- 
centuated by  the  excitement  of  the  Russian  Revolution, 
which  must  eventually  subside.  We  are  not  likely  to  de- 
crease this  discontent  by  dragging  men  away  from  their 
families  and  either  shipping  them  abroad  or  releasing  them 

82  ibid. 


THE  DEPORTATIONS  293 

after  many  bitter  days  in  prison.  The  relatives  and  friends 
of  those  deported  will  not  have  any  increased  love  for  our 
government.  The  raids  have  become  a  text  for  more  agi- 
tators, who  speak  to  men  and  women  who  now  have  a  real 
reason  for  wanting  to  get  rid  of  the  existing  form  of  gov- 
ernment. It  is  not  the  soap-box  orators,  but  Mr.  Palmer 
with  his  horde  of  spies  and  midnight  housebreakers,  that  have 
brought  our  government  into  hatred  and  contempt.  Yet  it 
is  not  too  late  to  abandon  this  great  error,  recompensing 
the  injured  and  adopting  a  fresh  policy  for  the  future.  Let 
us  limit  punishment  to  overt  acts.  Let  us  trust  an  Anglo- 
Saxon  jury  trial  to  safeguard  us  even  from  aliens.  Let  us 
rely  on  tried  American  methods,  and  not  upon  the  secret 
and  summary  processes  of  the  last  few  months. 


CHAPTER  VI 

JOHN  WILKES,  VICTOR  BERGER,  AND  THE  FIVE 

MEMBERS 

If  Charles  wished  to  prosecute  the  five  members,  a  bill  against 
them  should  have  been  sent  to  a  grand  jury. — Macaulay,  Essay 
on  Hallam. 

It  is  one  of  the  unfortunate  results  of  governmental  action 
against  freedom  of  speech  that  the  persons  who  retain  suffi- 
cient courage  to  come  into  conflict  with  the  law  are  often 
of  a  heedless  and  aggressive  character,  which  makes  them 
unattractive  and  devoid  of  personal  appeal.  Too  often  we 
assume  that  such  persistent  trouble-makers  are  the  only  per- 
sons injured  by  a  censorship  or  a  sedition  law,  and  con- 
clude from  the  indiscreet  and  unreasonable  qualities  of  their 
speech  and  writing  that  after  all  the  loss  to  the  world  of 
thought  has  been  very  slight.  Too  often  we  forget  the 
multitude  of  cautious  and  sensitive  men,  men  with  wives  and 
children  dependent  upon  them,  men  who  abhor  publicity, 
who  prefer  to  keep  silent  in  the  hope  of  better  days.  We 
cannot  know  what  is  lost  through  the  effect  upon  them  of 
repression,  for  it  is  simply  left  unsaid.1  The  effort  of  the 
agitator  is  made  for  their  sake  as  well  as  his  own,  and  if 
he  wins  the  gain  to  truth  comes,  not  perhaps  from  his  ideas, 
but  from  theirs.  The  men  and  women  mentioned  in  this 
book,  whom  reflection  has  made  me  consider  victims  of  un- 
wise and  often  illegal  suppression,  are  not  indeed  political 
prisoners  whose  ideals  I   can   share,  as   I  might   those  of 

i Tolstoy  once  wrote:  "You  would  not  believe  how,  from  the  very 
commencement  of  my  activity,  that  horrible  Censor  question  has  tor- 
mented me!  I  wanted  to  write  what  I  felt;  but  at  the  same  time  it 
occurred  to  me  that  what  I  wrote  would  not  be  permitted,  and  invol- 
untarily I- had  to  abandon  the  work.  I  abandoned,  and  went  on  aban- 
doning, and  meanwhile  the  years  passed  away." — Graham  Waixas,  The 
Great  Society,  196. 

294 


WILKES  AND  HIS  SUCCESSORS  295 

Silvio  Pellico  or  Grotius,  and  it  may  be  that  even 
after  due  allowance  has  been  made  for  the  natural  blind- 
ness of  a  contemporary  to  the  merit  of  their  thinking, 
that  only  one  or  two  among  them,  like  Bertrand  Russell, 
are  men  whose  work  has  enduring  worth.  Yet  the  views 
and  even  the  personal  qualities  of  the  victims  of  persecu- 
tion have  little  relation  to  the  justice  of  their  cause.  Few 
objects  of  intolerance  have  touched  such  a  low  level  of 
thought  and  action,  few  have  rendered  more  numerous  and 
more  valuable  services  to  liberty  than  John  Wilkes. 

I.    John  Wilkes 

In  his  person  though  he  were  the  worst  of  men,  I  contend 
for  the  safety  and  security  of  the  best. — Lord  Chatham. 

"  That  name,"  says  Trevelyan,  "  which  was  seldom  out 
of  the  mouths  of  our  great-grandfathers  for  three  weeks 
together,  had  been  stained  and  blotted  from  the  first."  A 
rake  and  a  prodigal,  unfaithful  to  the  wife  whose  fortune 
he  looted  for  use  in  election  briberies,  lacking  in  genuine 
devotion  to  jany  political  ideal,  he  nevertheless  by  sheer 
pluck  and  impudence  led  the  fight  to  establish  in  the  law  of 
all  English-speaking  countries  five  great  principles  of  free- 
dom: the  immunity  of  political  criticism  from  prosecution; 
the  publicity  of  legislative  debates;  the  abolition  of  out- 
lawry, which  condemned  a  man  in  his  absence;  the  pro- 
tection of  house  and  property  from  unreasonable  searches 
and  seizures;  and  the  right  of  a  duly  elected  representative 
of  a  constituency  to  sit  in  the  legislature  unless  disquali- 
fied by  law,  no  matter  what  personal  objections  his  col- 
leagues may1  have  to  his  opinions  and  writings  or  to  his 
previous  convictions  for  sedition.  So  great  were  his  achieve- 
ments that  he  became  a  household  word  on  this  side  of  the 
Atlantic.  One  of  the  largest  cities  in  Pennsylvania  is  named 
for  him.  Men  called  their  children  after  him.  One  New 
England  admirer  had  three  sons,  Wilkes,  Pitt,  and  Liberty. 
In  the  eyes  of  our  forefathers  he  was  the  most  conspicuous 


296  FREEDOM  OF  SPEECH 

combatant  against  the  doctrine,  so  obnoxious  to  them,  that 
men  might  be  maltreated,  imprisoned,  exiled,  disfranchised, 
for  the  supposedly  evil  tendencies  of  their  political  opinions. 
The  preceding  chapters  have  shown  the  gradual  revival  of 
that  doctrine  in  our  midst,  first  in  war  and  now  in  peace, 
first  against  pacifists  and  pro-Germans,  then  against  radical 
aliens,  until  finally  the  war  with  "  evil-thinking  "  has  brought 
us  to  the  point  of  governmental  action  against  radical  citi- 
zens with  a  constantly  diminishing  standard  of  radicalism, 
and  two  of  the  great  principles  for  which  Wilkes  fought 
amid  the  applause  of  our  ancestors  are  in  grave  peril,  free- 
dom from  unreasonable  searches  and  seizures  and  the  right 
of  the  people  to  choose  their  representatives. 

II.    The  Raids  of  1763  and  the  Raids  of  1919 

The  poorest  man  may  in  his  cottage  bid  defiance  to  all  the 
forces  of  the  Crown ;  it  may  be  frail,  its  roof  may  shake,  the  wind 
may  blow  through  it;  the  storm  may  enter,  the  rain  may  enter; 
but  the  King  of  England  can  not  enter;  all  his  forces  dare  not 
cross  the  threshold  of  that  ruined  tenement. — Lord  Chatham. 

On  the  23rd  of  April,  1763,  appeared  No.  45  of  the  North 
Briton,  commenting  upon  the  king's  speech  and  upon  the 
unpopular  peace  recently  concluded.  It  was  conducted  by 
Wilkes,  who  had  played  a  large  part  through  this  news- 
paper in  driving  Lord  Bute  from  office  and  now  castigated 
his  successor,  George  Grenville,  of  Stamp  Act  fame.  Other 
journalists  abused  public  men  under  such  disguises  as  the 
use  of  initials,  but  the  North  Briton  called  them  by  name. 
The  Ministry  resolved  to  prosecute  for  libel,  but  it  was 
unknown  who  was  the  libeler,  since  those  responsible  for 
the  newspaper  had  kept  their  identity  concealed.  Lord 
Halifax,  one  of  the  Secretaries  of  State,  issued  what  was 
then  called  a  general  warrant,  directing  four  messengers 
to  take  a  constable,  search  for  the  authors,  printers,  and 
publishers,  and  seize  them  when  found,  together  with  their 
papers. 


WILKES  AND  HIS  SUCCESSORS  297 

No  one  having  been  charged,  or  even  suspected — no  evidence  of 
crime  having  been  offered — no  one  was  named  in  this  dread  in- 
strument. The  offense  only  was  pointed  at,  not  the  offender.  The 
magistrate,  who  should  have  sought  proofs  of  crime,  deputed 
this  office  to  his  messengers.  Armed  with  their  roving  commission, 
they  set  forth  in  quest  of  unknown  offenders ;  and  unable  to  take 
evidence,  listened  to  rumors,  idle  tales,  and  curious  guesses.  They 
held  in  their  hands  the  liberty  of  every  man  whom  they  were 
pleased  to  suspect.  Nor  were  they  triflers  in  their  work.  In 
three  days,  they  arrested  no  less  than  forty-nine  persons  on 
suspicion,  many  as  innocent  as  Lord  Halifax  himself.2 

Among  the  number  were  Leach,  a  printer  who  had  printed 
another  number  of  the  North  Briton,  whose  papers  were 
seized;  and  the  publisher  and  printer  of  No.  45,  with  all 
their  workmen.  From  them  Wilkes  was  discovered  to  be 
the  real  offender,  and  he  was  carried  off  to  the  Secretaries 
of  State.  As  soon  as  he  was  out  of  his  house,  the  mes- 
sengers returned  to  it  and  took  entire  possession,  refusing 
admission  to  his  friends.  They  sent  for  a  blacksmith,  who 
opened  the  drawers  of  his  bureau.  The  messengers  dumped 
his  papers,  including  his  will  and  pocket-book,  into  a  sack, 
and  went  off  with  them  without  even  taking  an  inventory. 
Wilkes  brought  an  action,  not  against  the  messengers,  but 
against  the  man  higher  up,  the  Under  Secretary  of  State, 
who  had  personally  superintended  the  execution  of  the  war- 
rant. Chief  Justice  Pratt,  afterwards  Lord  Chancellor  Cam- 
den, said  of  the  warrant :  s 

If  such  a  power  is  truly  invested  in  a  secretary  of  state,  and 
he  can  delegate  this  power,  it  certainly  may  affect  the  person 
and  property  of  every  man  in  this  kingdom,  and  is  totally  sub- 
versive of  the  liberty  of  the  subject. 

Wilkes  recovered  £1,000.  Then  he  went  still  higher,  and 
sued  the  Cabinet  Minister  who  had  issued  the  warrant,  for 
false  imprisonment,  obtaining  £4,000  damages.     His  asso- 

2  2  May's  Constitutional  History,  125. 

s  Wilkes  v.  Wood,  19  How.  St.  Tr.  1167  (1763). 


298  FREEDOM  OF  SPEECH 

ciatcs  brought  similar  actions.     It  is  said  that  altogether 
these  suits  cost  the  Grenville  Government  £100,000. 

This  warrant  was  doubly  illegal  in  failing  to  specify  the 
persons  to  be  arrested  and  in  giving  no  authority  to  search 
and  seize  papers  or  other  property.  Another  warrant,  is- 
sued the  previous  year  because  of  alleged  libels  in  the  Moni- 
tor, did  specify  the  author,  John  Entinck,  and  directed  that 
he  be  seized,  "  together  with  his  books  and  papers."  This 
warrant  was  more  specific,  but  not  sufficiently  so  to  be  legal, 
for  it  did  not  name  the  particular  papers  to  be  seized,  but 
gave  authority  to  the  messengers  to  take  all  his  books  and 
papers.  Entinck  sued  the  messengers  and  recovered  £300. 
Pratt  said  in  this  case : 4 

...  If  this  point  should  be  determined  in  favor  of  the  juris- 
diction, the  secret  cabinets  and  bureaus  of  every  subject  in  this 
kingdom  will  be  thrown  open  to  the  search  and  inspection  of  a 
messenger,  whenever  the  secretary  of  state  shall  think  fit  to  charge, 
or  even  to  suspect,  a  person  to  be  the  author,  printer,  or  publisher 
of  a  seditious  libel. 

The  messenger,  under  this  warrant,  is  commanded  to  seize  the 
person  described,  and  to  bring  him  with  his  papers  to  be  examined 
before  the  secretary  of  state.  In  consequence  of  this,  the  house 
must  be  searched;  the  lock  and  doors  of  every  room,  box,  or 
trunk  must  be  broken  open;  all  the  papers  and  books  without 
exception,  if  the  warrant  be  executed  according  to  its  tenor,  must 
be  seized  and  carried  away;  for  it  is  observable,  that  nothing  is 
left  either  to  the  discretion  or  to  the  humanity  of  the  officer. 

This  power  so  assumed  by  the  secretary  of  state  is  an  execution 
upon  all  the  party's  papers,  in  the  first  instance.  His  house  is 
rifled;  his  most  valuable  secrets  are  taken  out  of  his  possession, 
before  the  paper  for  which  he  is  charged  is  found  to  be  criminal 
by  any  competent  jurisdiction,  and  before  he  is  convicted  either 
of  writing,  publishing,  or  being  concerned  in  the  paper.    .    .    . 

Papers  are  the  owner's  goods  and  chattels :  they  are  his  dearest 
property;  and  are  so  far  from  enduring  a  seizure,  that  they  will 
hardly  bear  an  inspection;  and  though  the  eye  cannot  by  the 
laws  of  England  be  guilty  of  a  trespass,  yet  where  private  papers 
are  removed  and  carried  away,  the  secret  nature  of  those  goods 
will  be  an  aggravation  of  the  trespass,  and  demand  more  con- 
siderable damages  in  that  respect.     Where  is  the  law  that  gives 

*  Entinck  v.  Carrington,  ibid.,  1029  (1765). 


WILKES  AND  HIS  SUCCESSORS  299 

any  magistrate  such  a  power  ?  I  can  safely  answer,  there  is  none ; 
and  therefore  it  is  too  much  for  us  without  such  authority  to  pro- 
nounce a  practice  legal,  which  would  be  subversive  of  all  the 
comforts  of  society.   .    .    . 

If  suspicion  at  large  should  be  a  ground  of  search,  especially 
in  the  case  of  libels,  whose  house  would  be  safe? 

The  law  of  this  case  that  search  must  be  by  warrant  de- 
scribing the  property  to  be  seized  is  embodied  in  the  Con- 
stitution of  the  United  States.  "  Can  we  doubt,"  asks  Jus- 
tice Bradley,5  "  that  when  the  Fourth  and  Fifth  Amend- 
ments were  penned  and  adopted,  the  language  of  Lord  Cam- 
den was  relied  on  as  expressing  the  true  doctrine  on  the 
subject  of  searches  and  seizures,  and  as  furnishing  the  true 
criteria  of  the  reasonable  and  '  unreasonable '  character  of 
such  seizures?  "  We  had  our  own  grounds  for  opposing 
such  arbitrary  practices.  The  first  of  that  long  series  of 
contests  which  led  up  to  the  American  Revolution  was  the 
attack  of  James  Otis  upon  the  Boston  Custom  House  offi- 
cers who  were  searching  for  smuggled  goods  under  general 
warrants.  "  Then  and  there,"  said  John  Adams,  "  the  child 
Independence  was  born." 

The  Fourth  Amendment  reads  thus: 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  warrants  shall  issue,  but  upon  prob- 
able cause,  supported  by  oath  or  affirmation  and  particularly  de- 
scribing the  place  to  be  searched,  and  the  persons  or  things  to  be 
seized. 

The  United  States  Supreme  Court  has  made  repeated  use 
of  this  Amendment 6  to  prevent  the  use  of  evidence  which 
has  been  seized  without  a  search-warrant  (even  though  under 
a  warrant  of  arrest)  or  with  a  search-warrant  which  fails 
to  specify  the  particular  papers  to  be  seized. 

5  See  the  full  discussion  of  the  historical  background  of  the  Fourth 
Amendment  in  Boyd  v.  U.  S.,  infra. 

«  Boyd  v.  U.  S.,  116  U.  S.  616  (1886);  Weeks  v.  U.  S.,  232  U.  S. 
383   (1914);  Silverthorne  Lumber  Co.  v.  U.  S.,  251  U.  S.  385   (1920). 


300  FREEDOM  OF  SPEECH 

In  Boyd  v.  United  States,  the  federal  customs  officials, 
acting  under  a  statute  and  with  a  warrant,  compelled  the 
defendant  to  produce  an  invoice  which  they  believed  would 
enable  them  to  forfeit  goods.  The  Supreme  Court  held  that 
the  evidence  could  not  be  used. 

Any  compulsory  discovery  .  .  .  compelling  the  production 
of  his  private  books  and  papers,  to  convict  him  of  crime,  or  to 
forfeit  his  property,  is  contrary  to  the  principles  of  a  free  gov- 
ernment. It  is  abhorrent  to  the  instincts  of  an  Englishman;  it 
is  abhorrent  to  the  instincts  of  an  American.  It  may  suit  the 
purposes  of  despotic  power;  but  it  cannot  abide  the  pure  atmos- 
phere of  political  liberty  and  personal  freedom. 

In  Weeks  v.  United  States,  Justice  Day  said  of  a  seizure 
of  papers  before  indictment: 

.  .  .  This  protection  reaches  all  alike,  whether  accused  of 
crime  or  not,  and  the  duty  of  giving  to  it  force  and  effect  is 
obligatory  upon  all  entrusted  under  our  Federal  system  with  the 
enforcement  of  the  laws.  The  tendency  of  those  who  execute  the 
criminal  laws  of  the  country  to  obtain  conviction  by  means  of 
unlawful  seizures  and  enforced  confessions,  the  latter  often  ob- 
tained after  subjecting  accused  persons  to  unwarranted  practices 
destructive  of  rights  secured  by  the  Federal  Constitution,  should 
find  no  sanction  in  the  judgments  of  the  courts  which  are  charged 
at  all  times  with  the  support  of  the  Constitution  and  to  which 
people  of  all  conditions  have  a  right  to  appeal  for  the  maintenance 
of  such  fundamental  rights. 

.  .  .  The  efforts  of  the  courts  and  their  officials  to  bring 
the  guilty  to  punishment,  praiseworthy  as  they  are,  are  not  to  be 
aided  by  the  sacrifice  of  those  great  principles  established  by  years 
of  endeavor  and  suffering  which  have  resulted  in  their  embodiment 
in  the  fundamental  law  of  the  land. 

The  most  recent  case  is  Silverthorne  Lumber  Co.  v.  United 
States,  decided  in  January,  1920.  After  the  officers  of  a 
corporation  had  been  arrested,  "  representatives  of  the  De- 
partment of  Justice  and  the  United  States  Marshal  without 
a  shadow  of  authority  went  to  the  office  of  their  company 
and  made  a  clean  sweep  of  all  the  books,  papers,  and  docu- 
ments found  there."  Photographs  and  copies  were  made  and 
the  originals  returned.    Justice  Holmes  held  that  the  seizure 


WILKES  AND  HIS  SUCCESSORS     301 

was  "  an  outrage,"  which  prevented  the  government  from 
making  any  use  of  the  copies  or  even  from  obtaining  a  court 
order  directing  the  corporation  to  produce  the  originals. 
Thus,  under  the  federal  law,  an  illegal  search  and  seizure 
not  only  subjects  the  officials  and  other  persons  participat- 
ing in  the  raid  to  civil  actions  for  damages,  such  as  were 
brought  by  Wilkes  and  his  associates,  but  also  prevents  the 
government  from  making  even  the  most  indirect  use  by  way 
of  evidence  of  the  purloined  material. 

It  is,  of  course,  necessary  and  legal  that  searches  should 
sometimes  be  made  for  the  detection  of  crime.  For  instance, 
the  person  of  the  man  apprehended  as  a  criminal  can  be 
searched  without  a  warrant  for  a  revolver  or  burglar's  tools ; 
and  search-warrants  can  be  obtained  to  look  for  stolen  goods 
or  articles  which  are  retained  in  violation  of  revenue  laws. 
These  warrants  have  such  very  serious  consequences  that 
they  can  only  be  obtained  for  very  urgent  and  satisfactory 
reasons,  and  the  rules  of  law  pertaining  to  them  already 
mentioned  in  the  discussion  of  Wilkes  and  soon  to  be  stated, 
are  of  more  than  ordinary  strictness,  and  must  be  carefully 
observed.  Even  duly  authorized  searches  are  so  obnoxious 
in  a  liberty-loving  country,  that  the  law  should,  as  Cooley 
points  out,  be  very  slow  to  extend  them : 7 

The  power  of  the  legislature  to  authorize  a  resort  to  this 
process  is  one  which  can  properly  be  exercised  only  in  extreme 
cases,  and  it  is  better  oftentimes  that  crime  should  go  unpunished 
than  that  the  citizen  should  be  liable  to  have  his  premises  invaded, 
his  desks  broken  open,  his  private  books,  letters,  and  papers  ex- 
posed to  prying  curiosity,  and  to  the  misconstructions  of  ignorant 
and  suspicious  persons, — and  all  this  under  the  direction  of  a 
mere  ministerial  officer,  who  brings  with  him  such  assistants  as  he 
pleases,  and  who  will  select  them  more  often  with  reference  to 
physical  strength  and  courage  than  to  their  sensitive  regard  to 
the  rights  and  feelings  of  others.  To  incline  against  the  enact- 
ment of  such  laws  is  to  incline  to  the  side  of  safety.  In  principle 
they  are  objectionable;  in  the  mode  of  execution  they  are  neces- 
sarily odious ;  and  they  tend  to  invite  abuse  and  to  cover  the  com- 
mission of  crime. 

*  Constitutional  Limitations,  7  ed.,  482. 


302  FREEDOM  OF  SPEECH 

Searches  and  seizures,  whether  valid  or  not,  are  like  spies, 
the  price  that  a  nation  pays  for  sedition  laws,  for  these 
can  only  be  enforced  by  prying  methods.  The  Espionage 
Act  is  careful  to  include  a  title  on  search-warrants.  Over 
thirty-five  big  raids  by  federal  officials  took  place  during 
the  war,  sometimes  with  proper  warrants,  sometimes  without.8 
Since  the  armistice,  the  Espionage  Act  was  used  to  close 
the  Seattle  Union-Record,  until  a  court  declared  the  action 
to  be  invalid.9  The  preceding  chapter  has  shown  the  absence 
of  search-warrants  in  the  recent  deportation  round-ups, 
which  should  not  only  result  in  the  release  of  most  of  the 
aliens,  but  subject  the  members  of  the  Department  of  Jus- 
tice, including  Attorney  General  Palmer,  to  the  same  kind 
of  civil  actions  which  Wilkes  sustained  against  Lord  Halifax, 
the  Secretary  of  State.    ' 

The  best  known  instance  of  searches  and  seizures,  is,  how- 
ever, the  spectacular  series  of  raids  conducted  in  June,  1919, 
by  a  joint  committee  of  the  New  York  Senate  and  Assembly. 
Probing  committees  seem  indigenous  to  New  York.  They 
had  one  in  1780  to  detect  and  defeat  conspiracies  of  Loyal- 
ists.10 On  March  26,  1919,  the  legislature  adopted  a  joint 
resolution,  which,  after  reciting  that  a  large  number  of  per- 
sons within  the  state  were  circulating  propaganda  calcu- 
lated to  overthrow  the  government  of  the  state  and  nation, 
and  that  it  was  the  duty  of  the  legislature  to  learn  the  whole 
truth  regarding  these  seditious  activities  and  pass  appro- 
priate laws,  appointed  a  committee  of  six  "  to  investigate 
the  scope,  tendencies,  and  ramifications  of  such  seditious  ac- 
tivities, and  to  report  the  result  of  its  investigation  to  the 
Legislature."  The  committee  had  power  "  to  compel  the 
attendance  of  witnesses  and  the  production  of  books   and 


s  Act  of  June  15,  1917,  c.  30,  Title  XI.  For  a  list  of  raids,  see 
War-time  Prosecutions,  38-40. 

»  Chapter  II,  note  114. 

io  Minutes  of  the  Commissioners  for  Detecting  and  Defeating  Con- 
spiracies in  the  State  of  New  York,  ed.  V.  H.  Patsits,  N.  Y.,  1909. 
See  also  on  anti-Loyalist  legislation  in  New  York,  establishing  test 
oaths,  Cummings  v.  Missouri,  4  Wall.  277,  passim. 


WILKES  AND  HIS  SUCCESSORS  303 

papers,"  and  was  in  general  a  legislative  committee.  In  no 
sense  was  it  a  body  for  the  prosecution  of  crime.11 

There  were  in  New  York  several  headquarters  of  radical 
organizations  which  this  Lusk  Committee,  so  called  because 
of  its  chairman,  determined  to  investigate.  If  the  officers 
of  these  organizations  had  been  served  with  a  subpoena  duces 
tecum,  the  usual  order  to  produce  any  books  and  papers  that 
were  wanted,  which  as  just  stated  the  Committee  had  power 
to  issue,  no  reason  has  ever  been  shown  to  believe  that  such 
material  would  not  have  been  forthcoming.  Instead,  the 
Committee  proceeded  to  take  out  search-warrants  and  raid 
the  organizations,  one  after  another,  throwing  their  entire 
offices  into  hopeless  confusion.  New  York  has  not  a  con- 
stitutional provision,  like  the  Fourth  Amendment,  but  its 
Civil  Rights  Law  enacts  precisely  the  same  words,  and  the 
Code  of  Criminal  Procedure  is  very  explicit.  Also  no  per- 
son can  be  compelled  in  any  criminal  case  to  give  evidence 
against  himself.12  It  is  possible  that  the  federal  rule  against 
the  use  of  illegally  seized  evidence  does  not  prevail  in  New 
York,13  but  the  test  of  what  is  illegal  remains  the  same  and 
renders  liable  to  civil  and  criminal  penalties  and  to  the  con- 
demnation of  all  law-abiding  persons  any  officials  who  con- 
duct lawless  and  disorderly  searches  and  seizures,  especially 
when  they  act  in  the  name  of  law  and  order. 

It  is  true  that  the  Lusk  Committee  obtained  search-war- 
rants for  its  raids,  but  this  does  not  render  the  proceedings 
valid  unless  the  warrants  complied  with  the  definite  require- 
ments of  the  law,  which  are  as  follows:  (1)  Property  may 
be  seized  even  though  no  crime  has  been  committed,  if  it  is 
held  or  concealed  with  the  intent  to  use  it  as  the  means  of 
committing  a  public  offense,  for  example,  infernal  machines.14 

"Concurrent  Resolution,  March  26,  1919. 

121  Birdseye  &  Gilbert,  Consol.  Laws,  2d  ed.,  1079,  §8;  Code  of 
Criminal  Procedure,  §§  791-813;  N.  Y.  Cons.,  Art.  I.,  §  6.  See  Boyd  v. 
U.  S.,  116  U.  S.  616,  on  self-incrimination  in  connection  with  searches. 

is  P.  v.  McDonald,  177  N.  Y.  App.  Div.  806  (1917). 

i*Cooley,  op.  cit.,  431,  doubts  the  validity  of  warrants  for  preven- 
tive purposes.     However,  the  N.  Y.  Code  of  Crim.  Proc,  §  792,  is  ex- 


304  FREEDOM  OF  SPEECH 

A  man's  privacy  must  not  be  invaded  for  the  sole  purpose 
of  obtaining  evidence  against  him,  but  only  to  obtain  a  dan- 
gerous instrument  of  past  or  future  crimes.  (2)  The  war- 
rant is  to  be  issued  by  a  judicial  officer,  after  a  showing  made 
before  him  under  oath  that  there  is  probable  cause  for  sus- 
picion of  a  crime  and  the  concealment  of  articles  involved 
in  it,  which  must  be  particularly  described  by  the  affidavit. 
(3)  The  magistrate  must  examine  on  oath  the  complainant 
and  any  witnesses  he  may  produce,  take  written  depositions 
subscribed  by  the  witnesses,  and  satisfy  himself  that  there 
is  probable  cause  to  believe  the  suspicion  of  crime  is  well 
founded.  The  suspicion  itself  is  no  ground  for  the  warrant 
except  as  the  facts  justify  it.15  (4)  The  warrant  must 
specify  the  place  to  be  searched  and  the  precise  objects  to 
be  seized.  Very  great  particularity  is  required,  and  not  such 
blanket  descriptions  as  "  goods,  wares  and  merchandises," 
or,  as  Entinck's  case  proved,  "  his  books  and  papers."  In 
other  words,  there  must  be  a  real  exercise  of  discretion  on 
the  part  of  the  judge  or  magistrate,  and  he  must  not  be  a 
mere  rubber  stamp  for  any  government  official  who  wants  a 
hurry-up  warrant  to  clean  out  somebody's  house  or  office. 
(5)  The  warrant  must  command  that  the  articles  to  be 
searched  for  be  brought  before  the  magistrate,  to  the  end 
that,  upon  further  examination  into  the  facts,  the  goods, 
and  the  party  in  whose  custody  they  were,  may  be  disposed 
of  according  to  law.  And  it  is  a  fatal  objection  to  such 
a  warrant  that  it  leaves  the  disposition  of  the  articles  to 
the  searching  officer,  instead  of  enabling  the  judge  to  deter- 
mine by  investigation  the  truth  of  the  complaint  made.  The 
property  must  be  delivered  in  conformity  with  the  war- 

plicit.  In  some  cases,  preparation  of  the  dangerous  object  might  amount 
to  a  criminal  attempt. 

isCooley,  op.  cit.,  429;  Code  Cr.  Proc,  §§793ff.;  Gaynor,  J.  (after- 
wards Mayor),  in  Matter  of  Blum,  9  Misc.  571  (1894),  in  nullifying 
a  warrant  of  arrest  issued  on  information  and  belief:  "  Human  liberty 
was  never  so  cheap  as  that  under  our  law.  ...  It  is  important  that 
crime  should  be  punished,  but  far  more  important  that  arbitrary  power 
should  not  be  tolerated.  The  *  oath  or  affirmation  ■  required  is  of  facts." 
Comfort  v.'  Fulton,  39  Barb.  56  (1861),  accord. 


WILKES  AND  HIS  SUCCESSORS  305 

rant,  together  with  a  detailed  written  inventory.16  A  hear- 
ing is  then  to  be  held,  and  if  the  grounds  for  the  warrant 
fail,  the  property  must  be  returned.  (6)  The  magistrate 
must  send  the  depositions,  warrant,  and  inventory,  to  the 
court  which  has  power  to  inquire  through  a  grand  jury  into 
the  offense  in  respect  to  which  the  warrant  was  issued.  The 
New  York  statutes  and  decisions  are  explicit  on  all  these 
matters,  and  make  it  a  misdemeanor  to  procure  a  warrant 
maliciously  and  without  probable  cause,  or  for  an  officer  to 
exceed  his  authority  or  exercise  it  with  unnecessary  sever- 
ity." 

Let  us  consider  how  these  requirements  were  observed  in 
the  various  raids.  The  first  was  against  the  Bureau  of 
the  Representative  of  the  Russian  Socialist  Soviet  Republic 
in  the  United  States,18  which  had  been  established  in  April, 
1918,  in  the  World  Tower  Building,  by  L.  C.  A.  K.  Martens, 
the  as  yet  unrecognized  "  ambassador  "  of  the  Republic  in  the 
United  States.  An  agent  of  the  Committee  made  affidavit 
to  a  magistrate  that  he  had  picked  up  a  typewritten  docu- 
ment from  the  floor  of  the  Bureau  entitled  "  Groans  from 
Omsk,"  apparently  a  call  to  the  workingmen  of  Omsk  to 
establish  a  Soviet  form  of  government,  and  that  the  Bureau 
was  "  engaged  in  the  distribution  of  literature  calculated  to 
stimulate  revolutionary  activities  in  this  state."  A  search- 
warrant  was  then  issued  in  blanket  form  authorizing  the 
seizure  of  "  All  documents,  circulars,  and  papers  printed  or 
typewritten,  having  to  do  with  Socialist,  Labor,  Revolution- 
ary, or  Bolshevik  activities;  all  books,  letters,  and  papers 
pertaining  to  the  activities  of  said  Bureau,  all  circulars  and 
literature  of  any  sort,  kind,  or  character ; "  in  the  words 
of  the  Times,  "  practically  everything  that  might  be  con- 
strued as  documentary  evidence  in  the  place."     These  were 

is  Cooley,  431;  Code  Cr.  Proc,  §§  797,  805  ff. 

«  Notes  12,  13,  15,  16,  19-20;  Sanford  v.  Richardson,  176  N.  Y.  App. 
Div.  199  (1916). 

is  For  a  description  of  the  Bureau's  work,  see  American  Labor  Y ear- 
Book,  1919-20,  383-386.  The  raid  is  narrated  in  New  York  Times,  June 
13,  1919,  and  following  days.     See  Bibliography. 


306  FREEDOM  OF  SPEECH 

to  be  brought  forthwith  before  the  magistrate  at  his  office. 
On  June  12,  1919,  a  squad  of  the  State  Constabulary  took 
possession  of  the  Bureau,  excluded  all  persons  in  charge, 
and  ransacked  every  drawer  and  cabinet  for  papers  and 
other  material,  even  breaking  open  the  cash-box.  Hundreds 
of  books  and  pamphlets,  Martens's  private  bank  books,  and 
all  letters  and  other  documents  in  the  files  were  taken  away 
in  disorder,  including  more  than  a  thousand  letters  of  Ameri- 
can business  concerns  relating  to  the  shipment  of  merchandise 
to  Russia.  All  these  papers  were  taken  on  trucks,  not  to  the 
magistrate,  but  to  the  office  of  the  Lusk  Committee  in  the 
Prince  George  Hotel,  where  it  is  charged  that  they  were  ex- 
amined not  only  by  members  of  the  Committee,  but  by  an 
agent  of  the  British  Secret  Service,  who  shortly  afterwards 
departed  for  England  with  the  information  that  he  had  ob- 
tained. It  is,  of  course,  well  known  that  Great  Britain  may 
soon  resume  business  relations  with  Russia.  This  charge  is 
denied  by  the  Committee,  and  the  investigation  proposed  by 
the  Socialist  Assemblymen  lapsed  upon  their  expulsion.  Let- 
ters taken  from  the  Bureau  were  read  into  the  record  of  the 
Lusk  Committee,  and  disclosed  to  the  press,  besides  the  names 
of  a  large  number  of  persons  on  the  mailing  list  of  the  Bureau, 
although  there  was  nothing  to  indicate  that  they  were  in  any 
way  connected  with  its  work,  or  sympathized  with  its  aims. 
None  of  this  material  was  ever  delivered  to  the  magistrate  who 
issued  the  search-warrant  or  steps  taken  to  institute  crim- 
inal proceedings.  The  seized  papers  and  books  were  merely 
used  as  the  barns  for  the  Committee's  subsequent  examina- 
tion of  Martens  and  his  associates,  in  order  to  prepare  a 
report  to  the  legislature  and  provide  fire-eating  material 
for  the  newspapers. 

The  Appellate  Division  of  the  New  York  Supreme  Court 
has  declared : 19 

Under  the  broad  provisions  of  the  Fourth  Amendment  to  the 
Federal  Constitution  and  of  our  Bill  of  Rights,  which  is  sub- 

i»  Matter  of  Ehrich  v.  Root,  134  N.  Y.  App.  Div.  432,  438  (1909). 


WILKES  AND  HIS  SUCCESSORS     307 

stantially  the  same  as  that  enacted  in  the  other  States  of  the 
Union,  it  has  been  held  that  the  right  to  security  of  one's  person, 
house,  papers  and  effects  against  unreasonable  searches  and  seiz- 
ures extends  as  well  to  letters  and  sealed  packages,  and  prohibits 
searches  for  property  other  than  those  to  aid  in  the  adminis- 
tration of  the  criminal  law. 

If  it  be  urged  that  the  Lusk  Committee  was  acting  to 
obtain  evidence  as  the  basis  of  a  criminal  prosecution  against 
this  Bureau  and  its  affairs,  the  proceeding  was  still  more 
invalid,  because  it  would  compel  persons  to  give  evidence 
against  themselves  contrary  to  the  New  York  Constitution. 
That  the  legislature  intended  by  a  mere  joint  resolution 
to  confer  upon  a  committee  "  a  power  far  in  excess  of  that 
conferred  upon  any  tribunal  or  official — a  power  so  extreme 
as  to  be  despotic  in  its  character  "  is  unthinkable.  The  same 
court  has  said  that  the  right  against  unnecessary  searches 
and  seizures  and  the  right  against  self-incrimination  are 
"  the  complements  of  each  other,  directed  against  the  dif- 
ferent ways  by  which  a  man's  immunity  from  giving  evi- 
dence against  himself  may  be  violated." 20 

No  inquisitorial  officer  should  be  permitted,  of  his  own  volition, 
arbitrarily  and  without  any  check  or  safeguards  upon  the  rights 
of  the  citizen,  to  compel  him  to  produce  and  submit  to  his 
scrutinizing  gaze  all  his  books  and  papers  of  the  most  private 
and  confidential  character.  .  .  .  Nor  is  it  any  answer  to  say  that 
this  examination  is  not  sought  in  any  criminal  proceedings.  In 
the  absence  of  a  full  and  complete  statute  of  indemnity,  a  person 
should  not  be  compelled,  when  acting  as  a  witness  in  any  in- 
vestigation, to  give  evidence  which  may  tend  to  imperil  his  con- 
stitutional privilege.  .  .  .  Compulsory  process  to  produce  such 
papers,  not  in  a  judicial  proceeding,  but  before  a  commissioner 
of  inquiry  is  as  subversive  of  "  all  the  comforts  of  society  "  as 
their  seizure  under  the  general  warrant. 

If  any  business  man  will  consider  what  it  would  mean 
to  have  a  number  of  men  breaking  into  his  office  with  such 

20  Matter  of  Foster,  139  N.  Y.  App.  Div.  769  (1910).  See  also  Ex 
parte  Clarke,  126  Cal.  236  (1899). 


308  FREEDOM  OF  SPEECH 

a  blanket  warrant  and  close  his  business  for  a  day,  turn 
all  his  letter  files  into  confusion,  and  carry  off  some  of  his 
most  important  correspondence  for  disclosure  to  outsiders, 
he  will  see  what  is  the  possible  result  of  encouraging  lawless- 
ness of  this  kind.  We  are  disposed  to  pardon  raids  of  this 
sort  because  they  are  against  radicals.  We  ought  to  remem- 
ber that  the  same  methods  may  be  used  by  any  other  investi- 
gating committee,  for  instance,  for  the  purpose  of  learning 
why  prices  are  high,  in  which  case  they  might  be  employed 
against  any  wholesale  or  retail  establishment. 

The  Lusk  Committee  next  raided  the  Rand  School,  on 
East  Fifteenth  Street,  near  Fifth  Avenue,  a  Socialist  and 
Labor  college,  established  in  1906,  and  having  over  5,000 
registered  students.  Its  methods  are  those  of  any  other  in- 
stitution of  higher  education,  and  its  work  is  stated  by  its 
Director  to  fall  into  two  parts,  "  that  which  offers  oppor- 
tunities for  the  general  public  to  study  Socialism  and  related 
subjects,  that  which  gives  Socialists  such  systematic  instruc- 
tion and  training  as  may  render  them  more  efficient  workers 
in  and  for  the  Socialist  Party,  the  Trade  Unions  and  the 
Co-operatives."  21  It  also  conducts  a  large  reference  library 
and  reading  room,  containing  several  thousand  volumes, 
pamphlets,  and  periodicals,  open  to  the  public  without 
charge,  and  a  book  store,  doing  a  large  mail-order  business, 
chiefly,  though  by  no  means  exclusively,  in  books  and  pam- 
phlets relating  to  social  and  labor  questions.  It  is  supported 
partly  from  this  store  and  its  moderate  tuition  fees  and 
partly  by  private  contributions.  Except  for  the  fact  that 
its  owner,  the  American  Socialist  Society,  had  been  convicted 
under  the  Espionage  Act  for  publishing  Scott  Nearing's 
Great  Madness,22  it  had  never  come  in  conflict  with  the 
law. 

On  June  21,  agents  of  the  Committee  appeared  with  ten 

2i  American  Labor  Tear-Book  1919-20,  pp.  206-8,  109-112.  The  raid 
is  narrated  in  New  York  Times,  June  22,  1919,  and  following  days. 
See  Bibliography. 

22  See  Appendix  II  and  page  27,  supra. 


WILKES  AND  HIS  SUCCESSORS  309 

state  troopers  and  forty  ex-members  of  the  American  Pro- 
tective League  (now  disbanded  by  the  Department  of  Jus- 
tice), carrying  another  blanket  warrant,  authorizing  the 
seizure  of  "  All  publications,  documents,  books,  circulars, 
letters,  typewritten  or  printed  matter  having  to  do  with 
Anarchists,  Socialists  advocating  violence,  revolutionary  or 
Bolshevist  activities,  and  all  books,  letters,  and  papers  per- 
taining to  the  activities  or  business  carried  on  in  said  offices, 
and  all  circulars  and  letters  of  any  sort,  kind,  or  char- 
acter." This  was  obtained  on  affidavit  that  certain  books 
and  pamphlets  which  the  informant  purchased  in  the  public 
book  shop  on  the  ground  floor  contained  "  revolutionary, 
seditious,  and  obscene  statements."  A  number  of  the  raiders 
carried  arms.  They  proceeded  to  ransack  all  the  rooms  on 
the  ground  floor  of  the  school  and  load  the  papers  into 
trucks,  which  as  before  were  not  taken  to  the  magistrate, 
but  to  the  headquarters  of  the  Lusk  Committee.  Two  days 
later  the  raiders  returned  to  the  school  with  a  new  warrant 
obtained  on  affidavit  that  three  persons  had  been  heard  to 
say  at  the  school,  "  It  is  a  good  thing  they  haven't  opened 
the  big  safe  on  the  third  floor."  Safe  experts  were  directed 
to  drill  a  hole  in  the  three-ton  safe  and  open  it.  The  raiders 
then  removed  all  the  correspondence,  check  stubs,  accounts, 
and  minutes  of  the  meetings  of  the  American  Socialist  So- 
ciety. The  Director  of  the  school  drew  the  attention  of 
the  state  troopers  to  the  fact  that  these  papers  clearly  fell 
outside  the  warrant.  He  replied,  "  Oh,  that  ain't  what  we're 
after.  We  want  to  get  at  the  source  of  the  financial  support 
of  the  Rand  School."  The  Committee,  without  having  any 
one  from  the  Rand  School  to  explain  the  papers  and  the 
purposes  of  the  school,  immediately  gave  all  kinds  of  pre- 
judicial reports  to  the  press  throughout  the  country.  It 
will  be  recalled  that  the  function  of  the  Committee  was  to 
report  to  the  Legislature.  The  Attorney  General  began  an 
action  to  dissolve  the  charter  of  the  Rand  School,  which 
was  ignominiously  dropped  at  the  first  sign  of  a  fight.  He 
could  not  even  produce  a  prima  facie  case. 


310  FREEDOM  OF  SPEECH 

Mr.  Samuel  Untermeyer,  who,  though  not  a  Socialist, 
undertook  the  school's  case  without  pay,  wrote  to  Senator 
Lusk: 

There  is  a  library  connected  with  the  Rand  School,  which 
conducts  also  a  book  store  for  the  sale  of  books  and  periodicals. 
Its  printed  catalogue,  which  I  have  now  seen  for  the  first  time, 
embraces  thousands  of  books,  mainly  classics  and  economics, 
among  which,  it  appears,  you  have  discovered  one  periodical  and 
two  or  three  books  from  which  you  have  extracted  and  published 
occasional  sentences  containing  discussions  on  birth  control,  revolu- 
tionary changes  in  government,  and  the  like.  You  have  de- 
liberately attempted  to  distort  these  few  instances  in  the  public 
prints  so  as  to  create  the  false  impression  that  this  is  the  general 
character  of  the  teachings  of  the  School,  when  in  point  of  fact 
the  School  appears  to  be  an  educational  institution  of  an  unusually 
high  order,  with  courses  of  studies  taught  by  some  of  the  most 
eminent  professors  in  the  country,  most  of  them  holding  positions 
in  the  great  universities  of  the  country. 

The  New  York  Public  Library  and  probably  every  other  great 
public  library  and  book  store  has  on  its  shelves  hundred  of  books 
of  the  character  you  condemn  to  every  one  that  the  Rand  book 
store  or  library  contains.  Why  not  seize  their  property  and 
blow  open  their  safes,  under  an  improvidently  granted  warrant 
and  try  to  close  their  doors?  .  .  .  You  might  with  equal  justifica- 
tion have  raided  any  book  store  in  New  York  City. 

These  searches  were  illegal:  (1)  the  affidavit  stated  no 
probable  cause  of  use  of  the  papers  for  crime,  but  only  the 
court's  rumors  and  suspicions  of  something  objectionable; 
(2)  the  complainant  was  not  examined  by  the  magistrate, 
who  took  no  pains  to  satisfy  himself  of  a  valid  cause  for 
search;  (3)  the  warrant  did  not  particularly  state  the  arti- 
cles to  be  seized,  but  was  as  bad  as  that  against  Entinck, 
or  worse ;  (4)  a  large  portion  of  the  correspondence  and  other 
papers  seized  could  not  possibly  be  instruments  of  crime; 
(5)  the  papers  were  not  taken  to  the  magistrate;  (6)  the 
whole  affair  had  no  connection  with  any  criminal  proceed- 
ing, but  was  half  legislative  investigation  and  half  advertis- 
ing. 

Massachusetts  has  a  constitutional  provision  in  its  Bill  of 


WILKES  AND  HIS  SUCCESSORS  311 

Rights  23  like  the  federal  Fourth  Amendment,  requiring  the 
same  particular  description  of  the  articles  to  be  seized.  Nev- 
ertheless, the  district  attorney  of  Middlesex  County  raided  a 
book-bindery  in  Cambridge  and  carried  off  forty-five  hundred 
red-bound  copies  of  The  Proletarian  Revolution  in  Russia, 
by  N.  Lenine  and  Leon  Trotsky,  a  collection  of  documents 
on  recent  events,  by  virtue  of  a  warrant  authorizing  the 
seizure  of  obscene  literature.  In  Boston,  the  police  raided  a 
Communist  hall  with  a  warrant  setting  up  that  firearms  were 
illegally  on  the  premises,24  but  as  the  Boston  Herald  naively 
put  it,  "  they  had  accurate  information  which  made  it  pos- 
sible for  them  to  seize  the  papers  they  sought  almost  as  soon 
as  they  entered  the  hall."  If  they  could  seize  papers  on 
such  a  warrant,  they  could  enter  a  house  and  take  silver- 
ware. And  this  in  the  state  where  James  Otis  denounced 
general  warrants  as  "  the  worst  instrument  of  arbitrary 
power,  the  most  destructive  of  English  liberty  and  the  fun- 
damental principles  of  law,  that  ever  was  found  in  an  Eng- 
lish law  book,"  since  they  placed  "  the  liberty  of  every  man 
in  the  hands  of  every  petty  officer." 

III.    The  Exclusion  of  Wilkes  from  the  House  of  Commons 

Dr.  Johnson :  "  Is  there  not  a  law,  Sir,  against  exporting  the 
current  coin  of  the  realm  ?  " 

Wilkes :  "  Yes,  Sir :  but  might  not  the  House  of  Commons, 
in  case  of  real  evident  necessity,  order  our  own  current  coin  to 
be  sent  into  our  own  colonies  ?  " 

Dr.  Johnson :  "  Sure,  Sir,  you  don't  think  a  resolution  of  the 
House  of  Commons  equal  to  the  law  of  the  land? 

Wilkes:     "  God  forbid,  Sir." 

We  now  return  to  a  second  great  principle  established  by 
Wilkes.  The  Grenville  Government,  which  found  him  such 
an  expensive  opponent,  brought  an  information  against  him 

23  Part  First,  Art.  XIV.  3d  District  Court,  E.  Middlesex,  No.  2972, 
Nov.  12,  1919.  The  court  found  there  was  no  obscenity  and  the  books 
were  returned. 

**  Boston  Herald,  December  18,  1919;  italics  mine.  Gun  warrants  are 
authorized  by  Mass.  Laws,  1919,  c.  179. 


312  FREEDOM  OF  SPEECH 

for  seditious  libel  on  account  of  what  would  now  be  con- 
sidered an  ordinary  political  editorial.  He  was  a  member 
of  the  House  of  Commons.  The  House  ordered  the  news- 
paper to  be  burned  by  the  common  hangman  and  summoned 
Wilkes  to  attend  for  further  proceedings.  Meanwhile  the 
government  encouraged  bullies  to  make  way  with  him. 
Forced  into  a  duel,  he  fled  to  France.  Evidence  was  taken 
of  his  being  the  author  and  publisher  of  the  North  Briton, 
No.  45,  and  he  was  expelled  for  the  seditious  libel  published 
during  his  term  as  member  of  Parliament.  May  considers 
that  this  expulsion  was  legal,  but  precipitate  and  vindictive, 
for  Wilkes  was  about  to  be  tried  for  his  offense,  and  the 
House  might  at  least  have  waited  for  his  conviction,  instead 
of  prejudging  his  cause  and  anticipating  his  legal  punish- 
ment.25 Later  he  was  convicted  in  his  absence,  and  outlawed 
for  contumacy. 

Four  years  went  by,  the  general  election  of  1768  was 
approaching,  and  he  returned  from  exile  to  stand  for  Par- 
liament. After  a  defeat  in  the  City  of  London,  he  presented 
himself  as  a  candidate  for  Middlesex.  The  working  people 
allowed  no  man  to  travel  to  the  polls  without  a  paper  in  his 
hat  inscribed,  "  Number  45.  Wilkes  and  Liberty !  "  Con- 
vict and  outlaw  as  Wilkes  was,  his  vote  was  overwhelming. 

After  his  election,  Wilkes  surrendered  himself  into  cus- 
tody, and  went  to  jail.  Lord  Mansfield  reversed  the  out- 
lawry, and  Wilkes  was  sentenced,  on  the  original  charge  of 
seditious  libel,  to  nearly  two  years  in  prison.  Obviously,  the 
King  should  have  pardoned  him.  His  sentence  was  unwar- 
ranted, and  its  remission  would  have  relegated  him,  as 
Trevelyan  puts  it,  "  to  an  obscurity  whence,  but  for  the  in- 
fatuation of  his  enemies,  he  would  never  have  emerged."  A 
feeble  speaker,  he  would  have  been  negligible;  in  the  words 
of  Junius,  "  a  silent  senator,  and  hardly  supporting  the  elo- 
quence of  a  weekly  newspaper."  But  the  King  and  the 
Cabinet  were  his  implacable  enemies  and  he  was  left  in 
prison.     And,  then  going  back  forty  years  to  the  precedent 

25  l  May,  Constitutional  History,  312. 


WILKES  AND  HIS  SUCCESSORS  313 

of  a  member  who  had  been  expelled  for  forgery,  the  House 
of  Commons  declared  Wilkes's  seat  to  be  vacant  by  a  vote 
of  two  hundred  and  nineteen  to  one  hundred  and  thirty- 
seven. 

A  new  election  was  held,  and  though  still  in  prison,  he  was 
re-elected.  The  House  next  day  voted  that,  having  been 
expelled,  he  was  incapable  of  serving  in  Parliament.  A  third 
election  followed  with  the  same  result.  Burke  told  his  fellow 
members  that  Wilkes  had  grown  great  by  their  folly,  and 
Townshend  reminded  his  hearers  "  that  a  heavy  account 
would  some  day  be  exacted  from  them  if  they  continued  to 
postpone  all  useful  legislation  for  the  sake  of  a  frivolous 
and  interminable  squabble."  But  the  election  was  declared 
null  and  void  without  a  division.  An  opponent  was  produced 
for  the  fourth  election  in  one  Luttrell,  who  drew  one  vote 
to  Wilkes's  four,  but  was  declared  by  the  House  of  Com- 
mons to  be  member  for  Middlesex,  after  a  debate  in  which 
even  George  Grenville  rallied  to  the  support  of  his  old  enemy, 
Wilkes,  with  such  vehemence  that  when  he  sat  down  he  spat 
blood,  shortening  his  life  to  diminish  the  majority  against 
the  lawfully  elected  candidate.  Blackstone  tried  to  show 
that  Wilkes  was  disqualified  by  common  law,  but  was  con- 
futed by  a  passage  in  the  early  editions  of  his  Commentaries, 
which  he  carefully  altered  in  the  edition  of  1773  and  which 
said  that  every  British  subject  not  in  certain  specified  classes 
was  "  eligible  of  common  right."  The  majority  was  forced  to 
rely  on  precedents  from  the  Great  Civil  War,  when  the  ma- 
jority expelled  the  minority  and  was  itself  expelled  in  turn, 
until  the  House  of  Commons  was  reduced  to  forty-six  mem- 
bers. Luttrell's  election  was  confirmed,  against  the  petition 
of  the  Middlesex  electors,  and  the  King  prorogued  Parlia- 
ment. 

Burke  expounded  the  principle  involved  in  Wilkes's  exclu- 
sion in  his  Thoughts  on  the  Present  Discontents.  The  only 
check  on  arbitrary  power  is  the  presence  here  and  there  on 
the  benches  of  members  endowed  with  a  "  spirit  of  independ- 
ence carried  to  some  degree  of  enthusiasm,   an  inquisitive 


314  FREEDOM  OF  SPEECH 

character  to  discover,  and  a  bold  one  to  display,  every  cor- 
ruption and  every  error  of  government."  Such  qualities  are 
distasteful  to  those  in  power,  and  Wilkes  was  the  example 
chosen  to  discourage  others,  just  as  the  arrest  of  five  mem- 
bers by  Charles  I,  if  successfully  conducted,  would  have 
stifled  liberty  as  effectually  as  the  execution  of  fifty.  The 
question  was  whether  the  people  or  the  government  should 
select  the  legislature.  The  leading  Whigs  stood  behind 
Burke,  and  denounced  the  position,  that  a  resolution  of  any 
branch  of  the  legislature  could  "  make,  alter,  suspend,  abro- 
gate, or  annihilate  the  law  of  the  land." 

Of  all  the  statements  of  the  cause  of  Wilkes,  that  of 
Burke  in  debate  has  the  greatest  value  for  our  own 
time: 

Accumulative  crimes  are  things  unknown  to  the  courts  below. 
In  those  courts  two  bad  things  will  not  make  one  capital  offense. 
This  is  a  serving  up  like  cooks.  Some  will  eat  of  one  dish,  and 
some  of  another,  so  that  there  will  not  be  a  fragment  left.  Some 
will  like  the  strong  solid  roast-beef  of  the  blasphemous  libel.  One 
honorable  member  could  not  bear  to  see  Christianity  abused, 
because  it  was  part  of  the  common  law  of  England.  This  is 
substantial  roast-beef  reasoning.  One  gentleman  said  he  meant 
Mr.  Wilkes's  petition  to  be  the  ground  of  expulsion ;  another,  the 
message  from  the  House  of  Lords.  "  I  come  into  this  resolution," 
says  a  fourth,  "  because  of  his  censure  upon  the  conduct  of  a  great 
magistrate."  "  In  times  of  danger,"  says  a  fifth,  "  I  am  afraid  of 
doing  anything  that  will  shake  the  government."  These  charges 
are  all  brought  together  to  form  an  accumulated  offense,  which 
may  extend  to  the  expulsion  of  every  other  member  of  this  House. 
This  law,  as  it  is  now  laid  down,  is  that  any  member  who,  at  any 
time,  has  been  guilty  of  writing  a  libel  will  never  be  free  from 
punishment.  Is  any  man,  when  he  takes  up  his  pen,  certain  that 
the  day  may  not  come  when  he  may  wish  to  be  a  member  of 
Parliament?  This,  sir,  will  put  a  last  hand  to  the  liberty  of  the 
press. 

It  was  not  until  his  fourth  election  had  been  annulled  that 
Wilkes  left  prison.  The  persecution  of  the  government  had 
turned  him  from  an  obscure  member  of  Parliament  into  a 
man  of  national  prominence.     As  Junius  said,  "  The  rays 


WILKES  AND  HIS  SUCCESSORS  315 

of  the  Royal  indignation,  collected  upon  him,  served  only  to 
illuminate,  and  could  not  consume."  The  people,  unable  to 
send  him  to  Parliament,  made  him  Alderman  and  then  Lord 
Mayor  of  London,  while  Luttrell  voted  with  the  majority  in 
the  Commons.  At  the  next  general  election  in  1774,  he  was 
returned  for  Middlesex  and  allowed  to  take  his  seat,  since 
Massachusetts  was  causing  too  much  trouble  to  encourage  a 
stirring  up  of  old  grievances  at  home.  Thereafter,  he  sat 
without  interruption,  while  the  men  who  had  expelled  him 
brought  the  nation  into  its  lowest  humiliation.  In  1782 
the  resolution  of  1769  declaring  him  incapable  of  election 
was  expunged  from  the  records  "  as  being  subversive  of  the 
rights  of  the  whole  body  of  electors  of  this  kingdom." 

IV.    The  Exclusion  of  Victor  L.  Berger  from  the 
House  of  Representatives 

The  most  prominent  person  convicted  under  the  Espio- 
nage Act,  with  the  exception  of  Debs,  was  Victor  L.  Berger. 
He  was  born  in  Austria  in  1860,  came  to  this  country  in 
1878,  and  was  a  founder  of  the  Socialist  Party  in  the  United 
States,  editor  of  the  Milwaukee  Leader,  and  member  of  Con- 
gress, 1911-1913,  the  first  Socialist  to  serve  in  Washington. 
The  left-wing  Socialists  have  always  regarded  him  as  a 
bourgeois  member  of  the  party.  Before  we  entered  the  Eu- 
ropean War,  he  gave  vigorous  expression  to  the  orthodox 
Socialist  views  about  war,  and  employed  many  of  the  argu- 
ments in  favor  of  American  neutrality  which  were  used  at 
that  time  by  non-Socialists,  for  instance,  in  the  key-note 
speech  of  Governor  Glynn  at  the  Democratic  National  Con- 
vention of  1916  and  in  the  President's  note  of  December  18, 
1916,  to  all  the  belligerents,  asking  them  to  state  their  terms 
of  peace.  Unlike  the  great  majority  of  Americans,  Berger 
and  other  Socialists  did  not  consider  the  German  submarine 
campaign  of  February,  1917,  a  sufficient  reason  for  changing 
their  minds,  but  maintained  that  war  was  justified  only  in 
case  of  invasion.     He  was  a  member  of  the  resolutions  com- 


316  FREEDOM  OF  SPEECH 

mittee  of  the  Socialist  Convention  at, St.  Louis  and  signed 
the  Proclamation  and  War  Program  of  April  14,  1917, 
which  has  already  been  mentioned.26  It  branded  the  declara- 
tion of  war  as  a  crime  against  the  people  of  the  United 
States  and  the  nations  of  the  world,  and  stated  that  in  all 
modern  history  there  had  been  no  war  more  unjustifiable. 
Mr.  Roosevelt  called  these  planks  "  treason  to  the  United 
States."  27  Berger  published  this  platform  in  the  Milwaukee 
Leader,  and  poured  out  a  stream  of  editorials,  articles,  and 
cartoons,  denouncing  the  war  policies  of  the  government. 
He  did  not,  however,  urge  any  one  to  resist  the  draft,  and 
indeed  advised  one  Socialist  conscientious  objector  to  put  on 
the  uniform.  Berger  testified  that  several  men  in  his  im- 
mediate family  volunteered,  although  his  opposition  would 
have  prevented  them  from  doing  so.  It  is,  of  course,  well 
known  that  the  record  of  Wisconsin  and  Milwaukee  in  the 
war  was  very  high,  and  while  Berger  can  take  no  credit  for 
this,  it  tends  to  disprove  that  opposition  to  war  produces 
violations  of  the  draft  act  or  other  war  laws.28 

In  September,  1917,  the  Leader  was  deprived  of  its 
second-class  mailing  privilege  for  the  future  by  a  blanket 
order  of  the  Postmaster  General,  and  relief  was  subsequently 
denied  by  the  courts.29  The  newspaper  thus  lost  a  daily  cir- 
culation of  approximately  15,000  subscribers.  All  first- 
class  mail  addressed  to  the  Leader  was  returned  to  the 
sender.  The  District  of  Columbia  Court  of  Appeals  said 
of  the  articles  on  which  the  exclusion  was  based,  and  in  this 
opinion  the  House  of  Representatives  committee  afterwards 
concurred : 

No  one  can  read  them  without  becoming  convinced  that  they 
were  printed  in  a  spirit  of  hostility  to  our  own  government  and 
in  a  spirit  of  sympathy  for  the  Central  Powers;  that  through 

26  P.  162,  supra. 

27  Berger  Hearings,  I,  72. 

28  Ibid.,  II,  460;  I,  323;  I,  166. 

2»  U.  S.  ex.  rel.  Milwaukee  Social  Democrat  Pub.  Co.  v.  Burleson, 
258  Fed.  282  (1919).    The  full  record  is  in  Berger  Hearings,  I,  503  ff. 


WILKES  AND  HIS  SUCCESSORS  317 

them,  appellant  sought  to  hinder  and  embarrass  the  government 
in  the  prosecution  of  the  war. 

The  reader  can  determine  the  general  character  of  the 
Milwaukee  Leader  from  the  passages  abstracted  in  a  later 
paragraph,  and  decide  for  himself  whether  the  judicial  and 
legislative  comments  quoted  in  this  chapter  are  correct  in 
concluding  that  Berger  wanted  to  aid  Germany.  My  own 
opinion  is  that  they  err  in  confusing  opposition  to  the  war 
with  wishing  the  enemy  to  win.  Whether  Berger  was  within 
the  terms  of  the  Espionage  Act  or  not,  I  find  in  his  writings 
no  desire  that  the  militarism  and  autocracy  of  Germany 
should  triumph,  but  rather  a  series  of  extremely  bitter  and 
cynical  attacks  upon  what  seemed  to  him  the  Junkerism  and 
selfishness  of  all  the  governments  on  both  sides  of  the  war. 
They  indicate  that  he  wanted  the  war  to  end  at  once  because 
in  the  absence  of  invasion  he  sincerely  believed  it  unnecessary 
and  a  crushing  burden  upon  the  workers  of  America.  I  say 
this  although  I  thoroughly  detest  the  attitude  of  Berger. 
I  can  understand  the  abhorrence  of  Debs  for  a  law  which 
compels  a  man  to  kill  fellow-workers  because  their  rulers 
quarrel,  and  recognize  that  he  speaks  from  the  heart  even 
while  I  disagree  with  him.  But  for  Berger  the  war  seems 
only  an  impersonal  step  in  an  economic  argument.  His  is 
not  the  position  of  the  man  who  has  weighed  the  good  and 
bad  reasons  and  motives  which  are  inextricably  mingled  in 
war  as  in  most  human  actions,  and  finding  that  the  bad 
outweigh  the  good,  calls  for  peace  despite  the  ideals  which 
he  recognizes  behind  the  war.  Berger  ignores  the  good,  and 
sets  forth  only  meanness.  He  sneers  at  the  possibility  of 
noble  purposes  in  the  conflict,  and  nowhere  utters  a  word  of 
praise  or  sympathy  for  those  who  gave  up  home  and  life 
with  the  desire  that  the  world  should  not  be  made  an  armed 
camp  and  that  oppressed  nations  should  be  free  from  mili- 
tary domination. 

Despite  all  this,  the  fundamental  question  remains, 
whether  it  is  for  the  advantage  of  government  by  public 
opinion  and  popular  election  that  just  because  most  of  us 


318  FREEDOM  OF  SPEECH 

consider  a  person's  views  detestable,  he  should  be  thrown 
into  prison  and  American  citizens  should  be  denied  the  right 
to  be  represented  by  the  man  of  their  choice. 

In  February,  1918,  Berger  was  indicted  with  four  other 
Socialists  for  conspiracy  under  the  Espionage  Act.  The 
indictment  was  brought  in  Chicago,  because  the  defendants 
were  alleged  to  have  agreed  there  for  the  issue  of  publica- 
tions in  various  places.  The  overt  acts  which  Berger  him- 
self was  said  to  have  committed  consisted  of  five  editorials 
in  the  Leader,  which  were  in  substance  as  follows:  (1)  We 
were  in  the  war  because  the  Allies  were  at  the  end  of  their 
rope,  and  their  obligations  would  otherwise  be  worthless; 
continued  fighting  would  maintain  the  existing  high  prices 
of  munition  stocks;  war  meant  absolute  freedom  from  labor 
troubles,  since  strikes  would  be  put  down  as  treason;  the 
plutocracy  and  its  government  in  Washington  would  be 
enabled  to  establish  autocracy  as  a  war  necessity ;  war  would 
be  a  wonderful  chance  to  establish  a  large  permanent  army ; 
the  commercial  rivalry  of  Germany  would  be  ended.  The 
submarines,  Belgium,  invasion,  and  democracy  had  nothing 
to  do  with  it.  (2)  There  are  many  men  driven  insane  at 
the  front.  (3)  Young  men  do  not  talk  as  if  they  consid- 
ered it  an  honor  to  be  drafted.  (4)  Only  big  business  men 
and  their  satellites  are  enthusiastic  over  the  war,  but  they  do 
not  fight.  (5)  The  Bible. contains  many  passages  which  are 
opposed  to  war  and  must  therefore  be  considered  as  treason- 
able. 

Shortly  before  the  indictment,  Berger  was  nominated  for 
the  United  States  Senate  on  a  Socialist  platform  announcing 
that  if  elected  he  would  work  for  a  speedy,  general,  demo- 
cratic, and  permanent  peace  without  forcible  annexations 
and  punitive  indemnities ;  an  immediate  armistice  and  peace 
conference ;  the  withdrawal  of  American  troops  from  Europe 
and  their  use  to  secure  this  country  from  invasion ;  confisca- 
tion of  war  profits ;  and  safeguards  to  prevent  panic  or  un- 
employment when  demobilization  should  take  place.  War 
would  ruin  the  country  and  could  be  ended  by  electing  men 


WILKES  AND  HIS  SUCCESSORS  319 

pledged  to  end  it.30  He  was  defeated,  but  in  spite  of  the 
charges  pending  against  him  received  over  100,000  votes. 

In  November,  1918,  before  the  trial  began,  he  was  elected 
to  Congress  from  the  fifth  district  of  Wisconsin,  polling 
17,920  votes  against  12,450  for  the  Democratic  candidate 
and  10,678  for  the  Republican.  In  December,  he  was  put 
on  trial  before  Judge  Kenesaw  Mountain  Landis,  who  sev- 
eral years  ago  imposed  a  fine  of  $29,000,000  on  the  Standard 
Oil  Company,  which  was  afterwards  set  aside.  Judge  Landis 
sentenced  Berger  and  the  other  defendants  to  twenty  years 
imprisonment.  An  appeal  to  the  Circuit  Court  of  Appeals 
is  still  pending,  and  the  defendants  were  released  on  bail.31 

When  Berger  presented  himself  to  the  House  of  Represen- 
tatives to  be  sworn  in,  it  was  charged  that  he  was  ineligible, 
and  the  question  was  referred  to  a  special  committee,  which 
reported 32  for  reasons  hereafter  stated  that  he  was  not 
entitled  to  take  the  oath  of  office  or  hold  a  seat  as  Rep- 
resentative. At  the  same  time  the  candidate  with  the  next 
highest  number  of  votes,  Joseph  P.  Carney,  had  claimed  the 
seat,  on  the  ground  that  since  Berger  was  ineligible  those 
persons  who  had  voted  for  him  should  be  considered  to  have 
deliberately  thrown  away  their  ballots — in  the  words  of  an 
English  judge,  just  as  if  they  had  voted  "  for  the  man  in 
the  moon."  33  Although  this  is  the  English  law,  and  a  Wis- 
consin decision  had  reached  the  same  result  where  the  lead- 
ing candidate  was  known  at  the  time  of  the  election  to  be 
dead,34  the  Congressional  practice  is  otherwise,  and  holds 

so  Berger  Hearings,  I,  340. 

3i  Volume  II  of  Berger  Hearings  contains  the  full  record  of  the 
trial.  The  charge  is  also  in  Bull.  Dept.  Just.,  No.  186.  Comment  from 
the  Socialist  side  is  in  American  Labor  Year-Book,  1919-20,  pp.  97-100, 
and  the  Socialist  Review,  February,  1920.  O'Brian  speaks  of  "  the  dig- 
nity and  fairness  "  which  characterized  the  work  of  the  court.  52  Rep. 
N.  Y.  Bar  Assn.  310  (1919). 

32  House  of  Representatives,  66th  Cong.,  1st  Sess.,  Ho.  Cal.  No.  91, 
Rep.   No.  413,  hereafter  called   Berger  Report. 

33  Lord  Campbell,  C.  J.,  in  Regina  v.  Coaks,  3  E.  &  B.  249,  254 
(1854). 

»*  Beresford-Hope  v.  Lady  Sandhurst,  23  Q.  B.  D.  79  (1889).  Women 
were  allowed  to  vote  for  County  Councillor  and  were  supposed  to 
be  eligible  to  hold  the  office.    The  highest  candidate  was  a  woman.    The 


320  FREEDOM  OF  SPEECH 

that  electors  ought  not  to  be  disfranchised  in  such  a  fashion, 
especially  when  they  supposed  the  leading  candidate  to  be 
eligible.35  It  would  be  absurdly  harsh  to  presume  that  those 
who  voted  for  Berger  in  November  knew  that  he  was  dis- 
qualified, just  because  a  jury  convicted  him  the  following 
January.  Consequently,  Carney  gained  nothing  by  his  con- 
test, but  on  November  11,  1919,  the  House  of  Representa- 
tives with  only  one  dissenting  member,  Voigt  of  Wisconsin, 
declared  Berger's  seat  vacant.36 

The  Governor  of  Wisconsin  ordered  a  special  election  on 
December  19,  1919.  The  Republicans  and  Democrats  nomi- 
nated a  fusion  candidate,  H.  H.  Bodenstab,  and  the  German 
paper,  the  Herold,  appealed  to  all  German-Americans  to 
support  their  compatriot  against  Berger.  The  Socialist  vote 
was  increased  by  nearly  8,000  over  the  first  election,  Berger 
receiving  25,802  ballots  to  19,800  for  his  opponent.  On 
January  10,  1920,  the  House  again  refused  to  seat  him. 
This  time,  six  Representatives  voted  in  his  favor,  including 
Floor  Manager  James  R.  Mann,  who  said  during  the  debate : 

Mr.  Berger  has  been  elected  anew  to  the  House  by  a  majority 
of  those  who  vote  in  his  district  and  to  me  the  question  is 
whether  we  shall  maintain  inviolate  the  representative  form  of 
government  where  people  who  desire  changes  in  the  fundamental 
or  other  laws  of  the  land  shall  have  the  right  to  be  represented 
on  the  floor  of  this  House,  when  they  control  a  majority  of  the 
votes  in  a  Congressional  district. 

I  do  not  share  the  views  of  Mr.  Berger,  but  I  am  willing  to  meet 
his  views  in  an  argument  before  the  people  rather  than  to  say 
we  shall  deny  him  the  opportunity  to  be  heard  when  selected 
by  the  people  in  the  legal  form  and  invite  them,  in  effect,  to 
resort  to  violence. 

Has  it  come  to  the  point  that  a  man  who  believes  certain  things 
cannot  be  heard?  His  people,  his  constituents,  desire  him  to 
represent  them.    It  is  not  our  duty  to  select  a  representative  from 

court  seated  the  highest  male  candidate.  State  ex  rel.  Bancroft  v. 
Frear,  144  Wis.  79  (1910). 

35  Smith  v.  Brown,  1  Hinds'  Precedents  448;  Re  Abbott,  1  ibid. 
478.     Accord,  P.  ex  rel.  Furman  v.  Clute,  50  N.  Y.  451   (1872). 

36  The  debates  on  the  two  exclusions  are  in  New  York  Times  No- 
vember 12,  1919,  January  11,  1920. 


WILKES  AND  HIS  SUCCESSORS  321 

( 
this  Congressional  district.  That  is  the  duty  of  the  people  back 
at  home.  We  cannot  take  the  attitude  of  refusing  to  permit 
the  voice  of  the  people  of  a  district  to  be  heard  by  their  own 
selection  with  safety  to  the  future  of  the  country. 

Berger  afterwards  stated  that  he  was  accused  of  calling 
the  late  war  a  capitalist  war,  and  that  the  President  had 
said  the  same  thing  at  St.  Louis  on  September  5,  1919,  when 
he  declared: 

Why,  my  fellow  citizens,  is  there  any  man  here  or  woman  who 
does  not  know  that  the  seed  of  war  in  the  modern  world  is 
industrial  and  commercial  rivalry?  This  war  was  a  commercial 
and  industrial  war.     It  was  not  a  political  war. 

Within  an  hour  after  Berger  was  unseated,  the  Socialist 
committee  in  Milwaukee  announced  his  renomination  for  a 
third  contest.  However,  he  has  not  yet  equalled  the  record 
of  Wilkes,  for  the  Governor  of  Wisconsin  has  decided  that 
another  special  election  would  be  too  expensive.  Meanwhile, 
Berger  has  been  forbidden  to  speak  in  several  cities,  includ- 
ing that  founded  by  Roger  Williams,  and  Jersey  City  for- 
cibly ran  him  out  of  town.  Whatever  the  legal  merits  of 
his  case  in  the  courts  and  Congress,  his  enemies  like  those  of 
Wilkes  have  adapted  against  him  the  very  methods  that 
vastly  increase  his  influence. 

The  question  whether  a  person  who  is  duly  elected  to 
either  branch  of  Congress  is  rendered  ineligible  because  dur- 
ing a  war  he  expressed  opinions  opposed  to  its  continuance 
and  the  methods  by  which  it  was  waged  is  full  of  difficulties. 
It  is  sometimes  supposed  that  the  clause  in  the  Constitu- 
tion,37 "  Each  House  shall  be  the  Judge  of  the  Elections, 
Returns,  and  Qualifications  of  its  own  Members,"  gives  a 
majority  the  unlimited  right  to  exclude  any  one.  The  prob- 
lem is   less   simple  than   that.      Each  house  is   to   act   as 

37  U.  S.  Cons.,  Art.  1,  §5.  That  this  a  judicial  proceeding,  to  be 
decided  in  accordance  with  legal  principles  as  established  by  precedents, 
cases  of  Abbott,  1  Hinds'  Prec.  478;  Lorimer,  in  Webb  and  Pierce, 
Senate  Election  Cases,  1061;  and  page  340,  infra. 


322  FREEDOM  OF  SPEECH 

"judge,"  that  is,  it  must  decide  the  facts  by  applying  to 
them  rules  of  law,  and  must  not  proceed  arbitrarily.  For 
instance,  the  majority  has  no  right  to  exclude  the  minority 
by  a  new  Pride's  Purge.  It  is  undoubtedly  true  that  if  the 
House  of  Representatives  should  exclude  a  man  on  some 
whimsical  ground,  no  appeal  would  lie  from  its  action. 
Neither  is  there  any  appeal  from  the  Supreme  Court,  but 
for  this  very  reason  it  feels  a  grave  responsibility  to  decide 
according  to  law.  In  the  same  way,  the  House  has  only  the 
power  to  decide  whether  the  man  received  the  proper  number 
of  votes  and  satisfies  the  qualifications  established  by  law, 
and  it  ought  not  to  create  new  requirements  for  a  particular 
case  any  more  than  a  criminal  judge  ought  to  invent  new 
crimes. 

What  then  are  the  lawful  qualifications  for  membership 
in  the  House  of  Representatives?  The  authorities  disclose 
two  divergent  views.  The  first  is,  that  the  Constitution  con- 
tains all  the  qualifications,  and  that  if  a  district  elects  a  man 
who  conforms  to  its  requirements,  he  must  be  seated,  no 
matter  how  unfit  he  is  considered  by  the  rest  of  the  House. 
His  unfitness  is  not  a  reason  for  exclusion  by  a  majority 
vote,  but  may  if  continuing  in  character  justify  his  expul- 
sion by  a  two-thirds  vote.  The  second  view  holds  that  addi- 
tional tests  may  be  imposed  by  statute  or  possibly  in  accord- 
ance with  established  usage  to  cover  obvious  cases  of  unfit- 
ness, such  as  conviction  of  crime.  Since  the  committee  report 
in  the  Berger  case  held  that  he  should  be  unseated,  even 
under  the  first  view,  we  can  postpone  the  controversy 
whether  his  conviction  was  a  bar,  until  after  discussing  his 
eligibility  under  the  terms  of  the  Constitution. 

The  original  requirements  are  threefold : 38 

No  Person  shall  be  a  Representative  who  shall  not  have  attained 
to  the  Age  of  twenty-five  Years,  and  been  seven  Years  a  Citizen 
of  the  United  States,  and  who  shall  not,  when  elected,  be  an 
Inhabitant  of  that  State  in  which  he  shall  be  chosen. 

38  Tj.  S.  Cons.,  Art.  I,  §  2. 


WILKES  AND  HIS  SUCCESSORS  323 

Berger  satisfied  all  these.  However,  the  committee  reported 
that  he  was  excluded  by  a  fourth  qualification,  enacted  in 
1868  by  section  3  of  the  Fourteenth  Amendment: 

No  person  shall  be  a  Senator  or  Representative  in  Congress, 
or  elector  of  President  and  Vice  President,  or  hold  any  office, 
civil  or  military,  under  the  United  States,  or  under  any  State, 
who,  having  previously  taken  an  oath,  as  a  member  of  Congress, 
or  as  an  officer  of  the  United  States,  or  as  a  member  of  any  State 
legislature,  or  as  an  executive  or  judicial  officer  of  any  State, 
to  support  the  Constitution  of  the  United  States,  shall  have 
engaged  in  insurrection  or  rebellion  against  the  same,  or  given  aid 
or  comfort  to  the  enemies  thereof.  But  Congress  may  by  a  vote  of 
two-thirds  of  each  House,  remove  such  disability. 

At  the  outset  the  committee  decided  not  to  be  governed 
by  the  action  of  the  judge  and  jury  at  Chicago,  but  to  re- 
view all  the  evidence  at  that  trial,  the  proceedings  about  the 
exclusion  of  the  Leader  from  the  mails,  and  the  fresh  testi- 
mony introduced  at  the  hearings.  The  conclusions  of  fact 
were  as  follows : 39 

After  a  careful  consideration  of  all  the  evidence,  in  the  opinion 
of  your  committee  the  admitted  acts,  writings,  and  declarations 
of  Victor  L.  Berger  and  of  the  men  with  whom  he  was  associated 
in  the  management  and  control  of  the  Socialist  Party  from  the 
time  of  the  entrance  of  this  country  into  the  war  until  their 
indictment  by  a  Federal  grand  jury,  giving  such  acts  and  the 
language  of  the  writings  and  declarations  their  ordinary  everyday 
meaning  and  without  considering  any  other  evidence,  clearly 
establishes  a  conscious,  deliberate  and  continuing  purpose  and 
intent  to  obstruct,  hinder,  and  embarrass  the  Government  of  the 
United  States  in  the  prosecution  of  the  war  and  thus  to  give  aid 
and  comfort  to  the  enemies  of  our  country.  The  writings  and 
activities  of  Mr.  Berger  and  his  associates  could  have  had  no  other 
purpose.  That  Victor  L.  Berger  was  disloyal  to  the  United  States 
of  America  and  did  give  aid  and  comfort  to  its  enemies  at  a  time 
when  its  existence  as  a  free  and  independent  Nation  was  at  stake 
there  can  not  be  the  slightest  doubt. 

Even  if  Berger's  guilt  under  the  Espionage  Act  be  con- 
sidered as  established,  three  replies  are  conceivable  to  the 

3»  Berger  Report,  7. 


324  FREEDOM  OF  SPEECH 

proposition  that  such  guilt  renders  him  ineligible  under  the 
Fourteenth  Amendment.  (1)  This  provision  may  relate  to 
the  Civil  War  only,  like  section  4  of  the  same  Amendment 
about  pensions  and  Confederate  debts.  Since  section  1,  for- 
bidding states  to  deprive  citizens  of  the  United  States  of  life, 
liberty,  or  property  without  due  process  of  law,  has  been 
construed  to  protect  much  more  than  the  rights  of  eman- 
cipated slaves,  the  committee  rejected  this  argument.  (2) 
Early  in  the  Spanish  War,  in  order  to  cement  good  feeling 
between  North  and  South,  both  houses  by  the  necessary  two- 
thirds  vote  adopted  a  blanket  resolution,  "  that  the  disa- 
bility imposed  by  section  three  .  .  .  heretofore  incurred  is 
hereby  removed."  40  The  committee  held  that  this  could  not 
apply  to  a  subsequent  disability.  (3)  Berger's  violation  of 
the  Espionage  Act  was  not  a  bar  under  the  Fourteenth 
Amendment  because  it  did  not  amount  to  treason.  This  is  a 
very  important  point  and  it  is  an  odd  commentary  on  legis- 
lative justice  that  every  one  involved  in  the  Berger  case, 
except  Representative  Mann,  overlooked  it  completely  and 
assumed  that  "  aid  and  comfort  to  the  enemy  M  was  synony- 
mous with  guilt  under  the  Espionage  Act.  Of  course,  this 
phrase  is  often  employed  loosely  in  conversation  and  Con- 
gressional debates  to  include  all  sorts  of  language  that  is 
considered  disloyal  in  war  time,  but  legally  these  words  have 
a  technical  significance,  and  they  are  used  in  a  statute  or 
in  the  Fourteenth  Amendment  in  the  same  sense  as  in  the 
clause  of  the  Constitution  defining  treason.41     Therefore,  the 

40  Act,  June  6,  1898,  c.  389. 

4i  Art.  Ill,  §  3:  "  Treason  against  the  United  States,  shall  consist 
only  in  levying  War  against  them,  or  in  adhering  to  their  Enemies, 
giving  them  Aid  and  Comfort."  The  omission  of  any  mention  of  ad- 
herence in  the  Fourteenth  Amendment  is  immaterial.  Judge  Leavitt 
said  in  1861  (1  Bond  611):  "The  words  in  the  definition,  adhering  to 
their  enemies,  seem  to  have  no  special  significance,  as  the  substance  is 
found  in  the  words  which  follow — giving  them  aid  and  comfort."  Judge 
Learned  Hand  said  in  U.  S.  v.  Robinson,  259  Fed.  685,  690  (1919): 
"  The  words  *  adhering '  must  be  taken  as  defined  by  the  phrase  *  giving 
aid  and  comfort.'"  The  U.  S.  Supreme  Court  has  reached  the  same 
result  in  construing  the  Captured  and  Abandoned  Property  Act  of 
March  12,  1863  (12  Stat.  L.  820),  which  allowed  the  owner  of  any  cap- 
tured property  to  reclaim  its  value  from  the  United  States,  on  proof 


WILKES  AND  HIS  SUCCESSORS  325 

acts  of  aid  and  comfort  which  would  disqualify  Berger  from 
serving  in  Congress  under  the  Amendment  (if  section  three 
is  still  in  force)  must  be  of  the  same  general  character  with 
those  necessary  to  convict  him  of  treason. 

Was  Berger  guilty  of  treason?  In  answering  this  ques- 
tion, we  must  not  be  misled  by  colloquial  usage.  Mr.  Roose- 
velt denounced  the  St.  Louis  Socialist  platform  as  "  trea- 
son," and  "  traitor  "  is  a  heart-warming  conversational  epi- 
thet for  any  one  who  wants  a  war  stopped,  but  lawyers  and 
legislators  must  be  less  vague  in  accusing  a  man  of  a  crime 
that  is  punishable  with  death.  Chief  Justice  Marshall  said 
long  ago  42  that  treason  should  not  be  extended  by  construc- 
tion to  doubtful  cases,  and  there  has  never  been  a  decision 
that  talking  against  a  war  is  treason.  If  it  were,  Vallan- 
digham,  Milligan,  and  the  other  Copperheads  would  surely 
have  been  prosecuted  for  this  crime.  The  few  writers  43  who 
assert  that  the  Espionage  Act  of  1917  created  no  new  crimes, 
but  that  causing  insubordination  in  the  armed  forces  and  ob- 
structing enlistment  are  also  treason,44  are  forced  to  rely  on 
one  or  two  sweeping  judicial  definitions,  like  Lord  Reading's 
charge  in  the  trial  of  Sir  Roger  Casement,  that  it  is  giving 
aid  and  comfort  to  the  enemy  to  do  any  act  which  tends 
to  strengthen  them  or  tends  to  weaken  the  power  of  one's 
own  country  to  resist.45    So  broad  a  statement  would  if  taken 

that  he  had  "never  given  aid  or  comfort  to  the  present  rebellion." 
In  Young  v.  U.  S.,  97  U.  S.  39,  62  (1877),  the  Court  held,  through 
Chief  Justice  Waite,  that  although  a  British  claimant  could  not  commit 
treason  since  he  owed  no  allegiance,  "  the  acts  of  aid  and  comfort 
which  will  defeat  a  suit  must  be  of  the  same  general  character  with 
those  necessary  to  convict  of  treason.  ...  It  is  sufficient  if  he  has 
done  that  which  would  have  made  him  a  traitor  if  he  had  owed  al- 
legiance to  the  United  States." 

« Ex  parte  Bollman  and  Swartwout,  4  Cranch  77,  127   (1807). 

43  Charles  Warren,  "  What  Is  Giving  Aid  and  Comfort  to  the 
Enemy,"  27  Y.  L.  J.  331  (1918);  Thomas  F.  Carroll,  17  Mich.  L.  Rev. 
660   (1918). 

44  If  so,  the  treason  statute  would  have  rendered  the  Espionage  Act 
unnecessary.  Instead  the  treason  statute  proved  well-nigh  useless  during 
the  war.    See  p.  41,  supra. 

45  Rex  v.  Casement  [1917],  1  K.  B.  98,  133.  Warren,  op  cit,  quotes 
other  judges.  They  plainly  refer  to  language  used  to  cause  men  to 
join  the  enemy  and  participate  in  his  operations.    Such  words  form  an 


326  FREEDOM  OF  SPEECH 

literally  revive  all  the  evils  of  constructive  treason,  but  it 
must  be  limited  with  reference  to  the  particular  facts  which 
the  jury  were  considering.  Casement  had  issued  a  procla- 
mation to  Irish  prisoners  in  Germany  urging  them  to  form 
a  regiment  in  the  German  army.46  The  use  of  words  in  an 
attempt  to  gain  recruits  for  the  enemy  is  absolutely  dif- 
ferent from  telling  your  fellow-citizens  that  they  ought  to 
stop  fighting.  It  may  be  that  the  latter  is  so  dangerous 
that  it  must  be  punished,  but  only  as  sedition,  which  con- 
sists of  words  creating  disaffection.  Treason  requires  overt 
acts  of  direct  assistance  to  the  enemy.  The  distinction  is 
fundamental.  It  is  inconceivable  that  the  trivial  utterances 
which  were  held  criminal  under  the  Espionage  Act  because  of 
their  bad  tendency  and  the  supposed  intention  to  hinder  the 
war  were  already  subject  under  the  treason  statute  to  a 
death  penalty. 

This  distinction  is  clearly  brought  out  by  the  kind  of 
conduct  which  has  been  held  to  be  "  giving  aid  and  comfort 
to  the  enemy,"47  for  example,  furnishing  money,  troops  or 
arms,  saltpeter  for  gunpowder,  steamers  for  blockade  run- 
ning, delivering  up  deserters  and  prisoners,  and  actually 
joining  the  enemy  in  person.  Contrast  these  acts, 
which  advance  the  cause  of  the  enemy  by  their  immediate 
effect,  with  newspaper  articles  attacking  the  war,  which  may 
encourage  the  enemy  but  do  not  promote  his  success  in  any 

element  in  acts  of  direct  aid.  These  judges  are  not  speaking  of  ex- 
pressions of  opinion  about  the  injustice  of  a  war,  even  if  intended  to 
deter  men  from  enlisting  in  one's   own  army.     Cf.  note  49. 

4«  It  is  doubtful  if  even  this  would  be  treason  in  this  country,  inas- 
much as  no  one  was  persuaded  to  enlist.  Respublica  v.  Roberts,  1  Dall. 
39  (Pa.  1778).  But  see  U.  S.  v.  Robinson,  259  Fed.  685,  690,  on  un- 
successful attempts  to  aid.  This  point  in  the  Casement  trial  received 
no  attention  from  the  Court  of  Appeal,  which  was  entirely  occupied 
with  the  question  whether  treason  could  be  committed  outside  England, 
answered  in  the  affirmative.  It  is  interesting  to  Americans  to  find 
that  one  of  the  authorities  relied  on  was  a  legal  opinion  rendered  in 
1775  that  certain  persons  in  New  Hampshire  could  be  prosecuted  for 
treason. 

47  Carlisle  v.  U.  S.,  16  Wall.  147  (1872);  U.  S.  v.  Fricke,  259  Fed. 
673  (1919);  Young  v.  U.  S.,  97  U.  S.  39  (1878);  U.  S.  v.  Hodges,  2 
Wheel.  Cr.  477  (1815);  King  v.  Ahlers  [1915]  1  K.  B.  616.  For  other 
examples  see  Warren,  op.  cit.,  especially  on  p.  347  a. 


WILKES  AND  HIS  SUCCESSORS  327 

tangible  or  measurable  way.  The  result  is  indirect  and 
purely  mental.  It  is  true  that  words  do  sometimes  consti- 
tute treason,  as  when  a  letter  is  sent  to  the  enemy  containing 
military  information,  or  even  a  wireless  message.48  Here  lan- 
guage has  all  the  qualities  of  action,  because  it  furnishes  the 
enemy  with  something  he  can  use.  It  is  treason  if  he  be 
given  a  gun  to  batter  down  a  fort  or  a  photograph  of  its 
plan  or  a  written  description.  That  the  last  is  in  words  is 
immaterial.  But  if  words  are  used  in  a  speech  demanding 
immediate  peace,  this  is  not  assistance  by  acts  at  all,  and 
furnishes  the  enemy  with  nothing  but  emotions  of  dubious 
value.  Judges  have  frequently  declared  that  expressions  of 
opinion  are  not  treason.49  It  is  interesting  to  note  that  even 
in  the  excitement  of  the  Civil  War,  when  Congress  was  pass- 
ing on  the  qualifications  of  members  under  the  much  broader 
terms  of  the  Test  Oath  Act  of  1862,  soon  to  be  more  fully 
discussed,  a  line  was  usually  (though  not  always)  drawn 
between  language  adverse  to  the  North,  even  though  clearly 
intended  to  embarrass  the  conduct  of  the  war,  and  definite 
acts  of  assistance  to  the  South,  such  as  participation  in  an 
ordinance  of  secession  or  the  offer  of  a  military  invention  to 
Jefferson  Davis.  In  the  Berger  case,  however,  the  committee 
did  not  consider  at  all  whether  he  was  guilty  of  acts  of  treason. 
There  is  nothing  in  the  record  to  show  any  aid  to  Germany 
except  by  the  indirect,  intangible  method  of  creating  a  body 
of  opinion  opposed  to  the  continuance  of  the  war.  And  this 
is  a  risk  which  a  nation  governed  by  public  opinion  must 
take,  which  ours  has  taken  by  guarantying  freedom  of  speech. 
To  call  it  treason  is  contrary  not  only  to  the  First  Amend- 
ment but  to  the  law  of  treason.  Therefore,  Berger  did  not 
in  any  legal  sense  give  aid  and  comfort  to  the  enemy,  and 

48  U.  S.  v.  Robinson,  259  Fed.  685  (1919)  (invisible  ink);  U.  S.  v. 
Werner,  247  Fed.  708.    See  Warren,  op.  cit. 

« Charges  to  Grand  Jury,  5  Blatchf.  549,  550  (1861):  "Words, 
oral,  written,  or  printed,  however  treasonable,  seditious  or  criminal  of 
themselves,  do  not  constitute  an  overt  act  of  treason  within  the  defini- 
tion of  the  crime";  accord,  1  Bond  609,  612  (1861);  2  Sprague  292, 
294    (1863). 


328  FREEDOM  OF  SPEECH 

he  was  not  barred  from  the  House  of  Representatives  by  the 
Fourteenth  Amendment. 

Consequently,  if  Berger's  exclusion  is  to  be  justified,  it 
can  only  be  on  the  second  theory  already  mentioned,  that  the 
House  of  Representatives  had  power  to  impose  qualifications 
not  mentioned  in  the  Constitution.  The  instances  of  addi- 
tional qualifications  mentioned  in  the  Berger  Report  were 
imposed  by  statutes  like  the  Test  Oath  Act  of  1862  or  the 
Edmunds  Act  abolishing  polygamy.  No  such  statute  ap- 
plies to  Berger,  so  that  he  could  only  be  barred  if  additional 
requirements  can  be  based  on  unwritten  law  or  the  will  of  a 
single  branch  of  the  legislature.  This  question  will  be  exam- 
ined at  length  in  connection  with  the  New  York  Socialists. 
It  will  be  seen  that  there  is  some  authority  that  a  man  who 
has  been  convicted  of  crime  after  his  election  to  the  legisla- 
ture should  not  be  allowed  to  occupy  his  seat,  but  that  there 
is  a  sharp  disagreement  whether  he  should  be  excluded  or 
expelled.50  The  reason  for  declaring  the  seat  vacant  is  that 
his  constituents  should  have  the  opportunity  to  reconsider 
their  votes  if  they  were  cast  in  ignorance  of  a  fact  which  so 
materially  affects  his  fitness  for  the  office.  This  argument 
supports  the  first  exclusion  of  Berger,  but  not  the  second,  for 
the  overwhelming  vote  received  by  him  at  the  second  election, 
after  his  conviction,  made  it  clear  that  the  electorate  consid- 
ered guilt  under  the  Espionage  Act  no  disqualification  for 
their  representative  in  Congress.  The  Wilkes  case  estab- 
lished the  principle  that  such  a  decisive  expression  of  opinion 
given  with  full  knowledge  of  the  offense  of  sedition  should  not 
afterwards  be  overridden  by  one  branch  of  the  legislature. 
Indeed,  the  House  of  Representatives  went  one  step  farther 
than  the  House  of  Commons,  for  Wilkes  when  disqualified 
was  in  prison  and  wholly  incapable  of  serving,  but  Berger 
was  out  on  bail  pending  an  appeal.  His  conviction  might  be 
reversed  and  he  was  capable  of  taking  his  seat.    An  Ameri- 

50  See  p.  344,  infra.  Berger  Report,  p.  10,  says  that  the  power  of 
expulsion  is  limited  to  causes  arising  out  of  the  conduct  of  a  member 
after  his  induction  into  office. 


WILKES  AND  HIS  SUCCESSORS  329 

can  precedent  is  Matthew  Lyon,  who  was  elected  to  Congress 
by  voters  who  had  full  knowledge  of  his  prosecution  under 
the  Sedition  Act  of  1798.  He  was  allowed  to  qualify,  and 
when  he  was  subsequently  convicted  and  imprisoned  the 
House  of  Representatives  by  a  close  vote  refused  to  expel 
him.51  The  Wilkes  and  Lyon  cases  are  opposed  to  the  belief 
of  some  persons  that  sedition  is  more  of  a  disqualification 
than  other  crimes  because  it  involves  a  breach  of  allegiance. 
On  the  contrary,  the  opinion  of  the  voters  about  a  conviction 
for  a  political  crime  is  entitled  to  peculiar  respect.  Such 
crimes  do  not  usually  arise  from  an  individual  malevolence, 
as  do  murder  and  robbery,  but  from  political,  economic,  or 
ethical  views  which  are  shared  by  a  group,  for  instance,  of 
pacifists  or  Socialists,  and  which  are  considered  dangerous 
because  they  clash  with  the  will  of  the  majority.  The  elec- 
tion of  such  a  criminal  is  in  effect  an  approval  of  these  views 
by  the  voters  of  his  district,  so  that  the  legislature  by  ex- 
cluding or  expelling  him  denies  expression  to  a  political,  eco- 
nomic, or  ethical  theory  which  is  held  by  a  considerable  mass 
of  the  electorate.  The  tide  of  public  opinion  with  regard  to 
disloyal  utterances  is  very  likely  to  vary  with  time  and 
locality.  The  penalty  affixed  by  the  statute  sufficiently 
guards  against  their  dangerous  consequences  in  the  emer- 
gency of  war.  If  an  additional  penalty  not  included  in  the 
law  is  imposed  by  one  branch  of  the  legislature  after  hostili- 
ties have  ceased,  the  result  is  to  block  changes  in  public 
opinion,  whereas  the  theory  of  democratic  government  is  that 
such  changes  shall  find  an  immediate  and  ready  expression 
through  the  ballot. 

Lincoln's  principle  52  that  the  nation  must  be  able  to  pro- 
tect itself  in  war  against  utterances  which  actually  cause 
insubordination  and  obstruct  the  raising  of  armies  may 
justify  some  of  the  Espionage  Act  convictions,  but  his  policy 
was  absolutely  opposed  to  the  annexation  of  political  dis- 
qualifications when  the  emergency  had  passed.  Berger's 
utterances  were  far  less  dangerous  in  their  tendency 
5i2  Hinds'  Precedents  850.  52  p.  H7,  supra. 


330  FREEDOM  OF  SPEECH 

than  those  expressed  by  many  persons  who  took  office  un- 
molested during  the  Civil  War.  A  large  number  of  Demo- 
crats were  elected  to  Congress  in  1864  on  a  platform  drafted 
by  the  notorious  Vallandigham,  which  declared  the  war  a 
failure.63  The  reasoning  of  the  Berger  committee  would  have 
allowed  the  Republican  majority  in  Congress  to  exclude  the 
Democratic  minority.  Apart  from  the  fact  of  conviction, 
the  conduct  of  these  men  furnishes  a  close  analogy  to  Ber- 
ger, much  closer  than  the  persons  excluded  under  the  Test 
Oath  Act,  most  of  whom  had  committed  treason,  while  a 
few  others  came  from  Border  States  and  had  definitely  iden- 
tified themselves  with  the  South.  The  Mexican  War  af- 
fords more  honorable  precedents  for  the  principle  that  men 
who  oppose  a  war  in  public  discussion  should  afterwards 
be  sworn  in  at  the  National  Capitol  without  question.  Daniel 
Webster  said  at  a  public  meeting  in  1847:  "  We  are,  in  my 
opinion,  in  a  most  unnecessary  and  therefore  a  most  un- 
justifiable war."  Henry  Clay  asked:  "  Must  we  blindly  con- 
tinue the  conflict,  without  any  visible  object,  or  any  pros- 
pect of  a  definite  termination?  ...  It  is  the  privilege  of 
the  people  in  their  primary  assemblies,  and  of  every  private 
citizen,  however  humble,  to  express  an  opinion  in  regard 
to  the  purposes  for  which  the  war  should  be  continued." 
Charles  Sumner  outdid  Berger  in  vituperation :  "  The  Mex- 
ican War  is  an  enormity  born  of  slavery.  .  .  Base  in  ob- 
ject, atrocious  in  beginning,  immoral  in  all  its  influences, 
vainly  prodigal  of  treasure  and  life;  it  is  a  war  of  infamy 
which  must  blot  the  pages  of  our  history."  54  The  addi- 
tional element  of  conviction  in  the  Berger  case  should  be 
limited  in  its  effect  to  the  statutory  penalty  and  should 
not  overthrow  the  principle  recognized  in  the  cases  just 
mentioned  and  many  others,  that  variations  of  public  opinion 
with  respect  to  a  war,  especially  if  it  is  past,  should  be 
allowed  to  reflect  themselves  in  the  national  legislature  with- 
es J.  F.  Rhodes,  History  of  the  United  States,  IV,  522  ff. 
54  Berger  Hearings,  I,  712,  713.  On  the  War  of  1812,  see  Beveridge's 
Marshall,  IV,  c.  I. 


WILKES  AND  HIS  SUCCESSORS  331 

out  interference.  It  is  significant  that  all  the  Entente  pow- 
ers, except  Japan,  have  admitted  to  their  legislatures  with- 
out any  hesitation  Socialists  who  opposed  the  war  as  vig- 
orously as  Berger,  with  the  same  intention  to  bring  it  to  an 
immediate  close.  Indeed,  some  of  the  Italian  Socialists  were 
elected  while  serving  prison  sentences  for  their  militant  anti- 
war activities.55 

Therefore,  although  Berger's  statements  in  the  Milwaukee 
Leader,  before  the  committee,  and  in  Congress  at  the  time 
of  his  exclusion,  entitle  him  to  no  personal  sympathy,  never- 
theless the  twofold  denial  of  his  seat  was,  apart  from  all 
questions  of  legality,  a  great  mistake  and  a  wrong  to  the 
voters   of  the  fifth  district  of  Wisconsin. 

The  action  of  the  House  of  Representatives  has,  how- 
ever, still  more  serious  and  far-reaching  aspects.  If  it  had 
been  based  simply  on  Berger's  conviction  its  effect  would 
be  limited  to  men  who  have  been  actually  convicted  under 
the  Espionage  Act,  although  if  such  were  its  ground,  it 
would  have  been  desirable  to  follow  the  view  of  the  mi- 
nority member  of  the  committee,  Mr.  Rodenberg,  and  sus- 
pend legislative  action  until  the  final  result  of  the  prose- 
cution had  been  reached  by  the  Circuit  Court  of  Appeals. 
The  great  evil  of  the  case  is  that  the  House  of  Repre- 
sentatives and  its  committee  assumed  the  power  to  go  be- 
hind the  conviction,  and  expressed  the  view  that  without 
any  conviction  at  all  Berger  could  be  deprived  of  his  seat 
because  of  his  opposition  to  the  war.  The  chairman  of  the 
committee,  Mr.  Dallinger,  said  in  the  debate  upon  the  first 
exclusion  : 

The  one  and  only  issue  in  this  case  is  that  of  Americanism.  It 
is  whether  a  man  who  in  191 1  took  an  oath  as  a  member  of  the 
House  to  support  the  Constitution  of  the  United  States  and  who, 
when  this  country  declared  war  against  the  Imperial  German 
Government,  became  the  head  and  front  of  an  organized  con- 
spiracy to  hinder,  obstruct,  and  embarrass  the  Government  in 
its  fight  for  existence,  should  be  admitted  to  membership  in  this 

55  Socialist  Review,  February,  1920,  p.  159. 


332  FREEDOM  OF  SPEECH 

House  simply  because  a  constituency  in  one  of  our  States  has 
seen  fit  to  give  him  a  plurality  of  its  vote. 

This  issue  is  far  broader  than  the  question  of  a  conviction 
for  a  violation  of  a  particular  statute  by  a  court  in  Chicago,  an 
appeal  from  which  may  be  set  aside  by  a  higher  court  on  technical 
grounds,  and  your  committee  is  convinced  upon  all  the  facts  and 
upon  all  the  precedents  in  this  House  that  Victor  L.  Berger 
should  be  excluded  from  membership,  and  that  the  question  should 
be  determined  by  the  House  here  and  now.  In  our  opinion  the 
House  expects  it;  the  men  who  fought  for  their  country  in  the 
great  war  expect  it;  the  entire  country  expects  it. 

Therefore,  while  the  precise  legal  ground  of  the  Berger  ex- 
clusion was  the  Fourteenth  Amendment,  the  case  gave  public 
currency  to  the  broad  proposition  that  "  disloyalty  "  during  a 
war  would  bar  a  duly  elected  representative.  Thus  long  after 
a  war  was  over,  a  legislature  could  without  any  previous  judi- 
cial condemnation  conduct  an  inquiry  into  the  mental  state  of 
a  man  during  the  war  and  the  tendency  of  his  utterances 
to  discourage  the  national  cause,  just  the  kind  of  investi- 
gation which  is  shown  in  my  second  chapter  to  have  proved 
so  vague  and  unsatisfactory  in  the  hands  of  an  impartial 
judge  and  jury  and  which  was  justified  if  at  all  only  by 
the  great  necessities  and  dangers  of  the  war.  Further- 
more, the  conduct  for  which  Berger  was  convicted  and  ex- 
cluded was  said  by  him  and  regarded  by  many  of  his  oppo- 
nents to  be  that  of  the  Socialist  Party  generally,  so  that  if 
conviction  were  an  immaterial  factor  as  Mr.  Dallinger  said, 
Berger's  ineligibility  could  naturally  be  extended  to  any 
Socialist.  Thus  the  popular  impressions  created  by  the 
Berger  case  paved  the  way  for  one  of  the  most  astonishing 
episodes  in  American  political  life. 

V.  The  Five  Socialist  Members  of  the  New  York  Assembly 

Then  stood  there  up  one  in  the  council,  a  Pharisee,  named 
Gamaliel,  a  doctor  of  the  law,  had  in  reputation  among  all  the 
people,  and  said  unto  them:  "Ye  men  of  Israel,  take  heed  to 
yourselves  what  ye  intend  to  do  as  touching  these  men.  Refrain 
from  these  men  and  let  them  alone :  for  if  this  counsel  or  this  work 


WILKES  AND  HIS  SUCCESSORS  333 

be  of  men,  it  will  come  to  nought;  but  if  it  be  of  God,  ye  can 
not  overthrow  it;  lest  haply  ye  be  found  even  to  fight  against 
God." — The  Acts  of  the  Apostles. 

On  January  7,  1920,  just  before  the  second  exclusion  of 
Berger,  and  while  the  front  pages  of  the  press  were  still 
full  of  the  great  conspiracy  which  would  have  overthrown 
the  nation  had  it  not  been  for  the  New  Year's  round-up 
of  four  thousand  left-wing  radicals,  the  New  York  Legis- 
lature opened  its  session.  Among  the  members  of  the  As- 
sembly or  lower  house  were  five  Socialists,  Claessens,  Solo- 
mon, Waldman,  De  Witt,  and  Orr.  The  Socialist  Party 
of  New  York  was  a  legally  recognized  party  under  the 
Election  Law,56  so  that  its  candidates  had  as  much,  right 
on  the  ballot  as  Democrats  or  Republicans.  All  these  So- 
cialists except  De  Witt  had  previously  served  in  the  As- 
sembly. The  opposition  of  the  party  to  the  war  had  aroused 
no  objection  to  its  representatives  at  any  time  during  the 
conflict,  even  when  ten  of  them  took  their  seats  at  Albany 
just  before  the  Spring  Drive  of  1918.  And  on  this  day,  in 
1920,  the  five  members  took  office  without  interference,  swear- 
ing that  they  would  support  the  Constitution  of  the  United 
States  and  that  of  New  York,  and  discharge  the  duties  of 
their  office  to  the  best  of  their  ability,  and  that  they  had 
not  influenced  votes  by  bribe  or  promise.  The  New  York 
fundamental  law  prescribes  this  oath  and  makes  it  all- 
sufficient  : 57 

No  other  oath,  declaration  or  test  shall  be  required  as  a  quali- 
fication for  any  office  of  public  trust. 

They  occupied  their  seats  and  entered  into  all  the  busi- 
ness of  the  day,  participating  in  the  organization  of  the 
House  and  voting  for  Speaker  and  other  officers.  These 
proceedings  occupied  upwards  of  two  hours. 

56  Sec.  3  (9)  "The  term  'party'  means  any  political  organization 
which  at  the  last  preceding  election  for  governor  polled  at  least  fifteen 
thousand  votes  for  governor."  The  Socialist  candidate  in  1918  received 
over  120,000. 

6T  N.  Y.  Const,  Art.  XIII,  §  1. 


334  FREEDOM  OF  SPEECH 

Suddenly  the  newly-elected  Speaker,  without  notice  or  mo- 
tion, directed  the  Sergeant-at-Arms  to  present  the  five  Social- 
ist members  before  the  bar  of  the  House.58  The  surprised 
men  were  paraded  down  into  the  well  of  the  Assembly  cham- 
ber in  front  of  the  Speaker's  rostrum,  in  full  view  of  their 
fellow  members  and  hundreds  of  guests,  who  crowded  the 
galleries  and  the  floor  to  witness  the  ceremonies  of  the  open- 
ing day.  There  they  were  lined  up  with  the  Sergeant-at- 
Arms  on  guard,  while  the  Speaker  addressed  them: 

You  are  seeking  seats  in  this  body,  you  who  have  been  elected 
on  a  platform  that  is  absolutely  inimical  to  the  best  interests  of  the 
State  of  New  York  and  of  the  United  States. 

He  then  declared  that  the  Socialist  Party  was  not  truly 
a  political  party,  but  a  subversive  and  unpatriotic  organiza- 
tion, and  informed  them  that  if  the  House  should  adopt  a 
resolution  declaring  their  places  vacant  they  would  be  given 
an  opportunity  to  appear  before  a  tribunal  to  prove  their 
rights  to  a  seat  in  the  Assembly. 

A  resolution  59  drafted  by  the  Attorney  General  in  his 
capacity  as  counsel  for  the  Lusk  Committee  was  presented. 
This  did  not  even  recite  that  the  members  were  charged 
with  certain  offenses,  but  stated  facts  as  if  already  proved, 
an  Alice-in-Wonderland  performance  of  "  sentence  first — 
verdict  afterwards."  It  declared  that  they  were  members 
of  the  Socialist  Party  of  America,  which  adhered  to  the 
revolutionary  forces  of  Soviet  Russia  and  endorsed  the  prin- 
ciples of  the  Communist  International  of  Moscow,  and  this 
was  pledged  to  the  forcible  and  violent  overthrow  of  all  or- 
ganized governments.  They  agreed  to  be  guided  by  the 
party  constitution  and  platform,  and  could  be  expelled  from 
the  party  for  disobeying  the  instructions  of  the  Executive 
Committee,  which  might  include  aliens.  The  party  by  its 
St.  Louis  platform  had  opposed  the  war,  and  thereby  stamped 
itself  and  all  its  members  with  an  inimical  attitude  to  the 

68  Brief 8,  and  New  York  Times,  January  8,  1920. 
w  Record,  p.  367. 


WILKES  AND  HIS  SUCCESSORS  335 

best  interests  of  New  York  and  the  United  States.  These 
five  members  had  subscribed  to  its  principles  and  its  aims 
and  purposes  against  the  government.  They  had  been  con- 
nected with  an  organization  convicted  of  a  violation  of  the 
Espionage  Act.  Therefore,  it  concluded,  they  were  denied 
seats  in  the  Assembly  "  pending  determination  of  their  qual- 
ifications and  eligibility  to  their  respective  seats  " ;  and  the 
investigation  of  their  qualifications  and  eligibility  was  re- 
ferred to  the  Committee  on  Judiciary.  The  roll-call  was 
then  taken  and  the  five  Socialists  were  called  upon  to  vote 
as  members.  After  the  passage  of  the  Resolution  they  were 
hustled  by  the  Sergeant-at-Arms  out  of  the  chamber,  where 
their  seats  remained  vacant  for  the  remainder  of  the  ses- 
sion, to  the  disfranchisement  of  sixty  thousand  voters  of 
the  City  of  New  York. 

In  one  of  those  magnificent  decisions  whereby  the  Supreme 
Court  of  the  United  States  in  former  years  fortified  the 
civil  liberties  wrested  from  authority  by  the  long  struggles 
of  the  seventeenth  and  eighteenth  centuries  and  proclaimed 
in  the  American  Bill  of  Rights,  Justice  Bradley  warned  us 
that  illegitimate  and  unconstitutional  practices  get  their 
first  footing  by  silent  approaches  and  slight  deviations  from 
legal  modes  of  procedure.60  Since  the  15th  day  of  June, 
1917,  the  nation  had  been  led  on  by  its  panic-stricken  fear 
of  adverse  opinion  to  abandon  one  national  tradition  after 
another.  Every  unheeded  prediction  of  the  handful  of  lib- 
erals was  more  than  fulfilled.  The  Espionage  Act  was 
only  to  punish  interference  with  recruiting  and  military  dis- 
cipline. It  was  used  against  all  prominent  opposition  to 
the  war.  Every  one  agreed  that  freedom  of  speech  meant 
the  absence  of  previous  administrative  restraint  on  political 
discussion — and  the  Postmaster  General  was  allowed  to  es- 
tablish a  whimsical  censorship  of  the  political  press  and 
maintain  it  long  after  the  last  American  soldier  had  been 
demobilized.  Suppression  was  said  to  be  only  a  war  meas- 
ure. The  states  prolonged  it  into  peace,  and  the  Attorney 
«o  Boyd  v.  U.  S.,  116  U.  S.  616,  635  (1885). 


336  FREEDOM  OF  SPEECH 

General  of  the  United  States  begged  Congress  to  imitate 
them.  Radical  aliens  were  put  under  control,  and  a  similar 
law  was  demanded  for  radical  citizens.  One  by  one,  the 
right  of  freedom  of  speech,  the  right  of  assembly,  the  right 
to  petition,  the  right  to  protection  against  unreasonable 
searches  and  seizures,  the  right  against  arbitrary  arrest, 
the  right  to  a  fair  trial,  the  hatred  of  spies,  the  principle 
that  guilt  is  personal,  the  principle  that  punishment  should 
bear  some  proportion  to  the  offense,  had  been  sacrificed 
and  ignored.  Here  and  there  a  solitary  and  despised  pro- 
test— the  rest  was  silence.  And  now  the  waves  of  hysteria 
dashed  against  the  very  foundation  of  American  life,  the 
right  of  the  people  to  elect  their  own  rulers.  Berger  was 
excluded  after  he  was  convicted  of  crime,  but  these  men 
were  excluded  without  any  conviction,  without  any  crime, 
without  any  trial,  from  the  offices  which  they  had  taken  with 
all  the  qualifications  and  formalities  prescribed  by  the  fun- 
damental law.  At  last  the  leaders  of  thought  were  awakened 
to  the  realization  that  a  government  cannot  be  saved,  is  not 
worth  saving,  at  the  cost  of  its  own  principles. 

The  successor  of  Jefferson  had  taken  no  step  to  stop 
the  encroachments  on  freedom  of  speech,  had  signed  his 
name  to  both  Espionage  Acts,  had  allowed  his  officers  with- 
out a  reproach  to  censor  and  raid  and  arrest  as  they 
chose.  It  was  reserved  for  the  Republican  presidential 
candidate  at  the  election  of  1916  to  become  the 
champion  of  Anglo-Saxon  liberties.  Charles  Evans  Hughes, 
leader  of  the  American  bar,  former  Governor  of  New  York, 
former  Justice  of  the  Supreme  Court,  within  forty-eight 
hours  of  the  Albany  imbroglio,  wrote  Speaker  Sweet  that  it 
was  absolutely  opposed  to  the  fundamental  principles  of 
our  government  for  a  majority  to  undertake  to  deny  rep- 
resentation to  the  minority  through  the  men  who  had  been 
elected  by   a  ballot   lawfully   cast.61 

If  there  was  anything  against  these  men  as  individuals,  if  they   « 
were  deemed  to  be  guilty  of  criminal  offenses,  they  should  have 

ei  New  York  Times,  January  10,  1920;  Sweet's  reply,  January  11. 


WILKES  AND  HIS  SUCCESSORS  337 

been  charged  accordingly.  But  I  understand  that  the  action  is 
not  directed  against  these  five  elected  members  as  individuals  but 
that  the  proceeding  is  virtually  an  attempt  to  indict  a  political 
party  and  to  deny  it  representation  in  the  Legislature.  This  is 
not,  in  my  judgment,  American  government. 

Are  Socialists  unconvicted  of  crime,  to  be  denied  the  ballot? 
If  Socialists  are  permitted  to  vote,  are  they  not  permitted  to  vote 
for  their  own  candidates?  If  their  candidates  are  elected  and 
are  men  against  whom,  as  individuals,  charges  of  disqualifying 
offenses  cannot  be  laid,  are  they  not  entitled  to  their  seats  ?  .   .   . 

I  understand  that  it  is  said  that  the  Socialists  constitute  a 
combination  to  overthrow  the  Government.  The  answer  is  plain. 
If  public  officers  or  private  citizens  have  any  evidence  that  any 
individuals,  or  group  of  individuals,  are  plotting  revolution  and 
seeking  by  violent  measures  to  change  our  Government,  let  the 
evidence  be  laid  before  the  proper  authorities  and  swift  action 
be  taken  for  the  protection  of  the  community.  Let  every  resource 
of  inquiry,  of  pursuit,  of  prosecution  be  employed  to  ferret  out 
and  punish  the  guilty  according  to  our  laws.  But  I  count  it  a 
most  serious  mistake  to  proceed,  not  against  individuals  charged 
with  violation  of  law,  but  against  masses  of  our  citizens  combined 
for  political  action,  by  denying  them  the  only  resource  of  peaceful 
government;  that  is,  action  by  the  ballot  box  and  through  duly 
elected  representatives  in  legislative  bodies. 

Speaker  Sweet,  after  consultation  with  the  Lusk  Com- 
mittee, replied  that  the  Socialists  were  not  expelled,  but 
merely  subjected  to  an  investigation  by  the  body  which  was 
charged  by  the  Constitution  with  the  authority  to  inquire 
into  the  fitness  of  those  who  seek  seats  in  the  Assembly* 
The  question  presented  squarely  was  whether  the  different 
organizations  which  they  sought  to  represent  in  the  leg- 
islature advocated  methods  and  employed  tactics  to  over- 
throw our  form  of  government,  which  would  justify  thei* 
exclusion  from  participating  in  legislative  proceedings.  He 
thus  characterized  the  proceeding,  as  did  the  Attorney  Gen- 
eral of  New  York,62  not  as  an  inquiry  into  the  personal 
unfitness  of  these  men  or  into  the  overt  acts  of  any  one,  but 
into  the  opinions  and  words  of  whole  groups.  Finally  he 
stated  that   criticism   of  the  Assembly   action  without   full 

«2  Ibid.,  January  9. 


338  FREEDOM  OF  SPEECH 

knowledge  of  the  facts  gave  aid  and  comfort  to  those  ele- 
ments of  our  society  which  seek  the  destruction  of  our  in- 
stitutions. 

Nevertheless,  criticism  poured  in,  not  only  from  Social- 
ists and  labor  unions,  but  from  large  conservative  groups 
like  the  National  Security  League.  The  New  York  Board 
of  Aldermen  refused  to  follow  the  example  of  the  Assembly 
as  to  its  Socialist  members.  For  once  the  Tribune  and  the 
Review  stood  shoulder  to  shoulder  with  the  New  Repub- 
lic and  the  Nation,  and  outdid  them  in  the  vigor  of  their 
condemnation.  The  Bar  Association  of  the  City  of  New 
York  adopted  resolutions  offered  by  Governor  Hughes,  op- 
posing any  attempt  to  exclude  legislators  because  of  their 
affiliation  with  any  political  party,  when  they  are  seeking  by 
constitutional  and  legal  methods  to  bring  about  any  change 
in  the  Constitution  and  laws.  The  Association  appointed  a 
committee  of  non-Socialists  to  appear  before  the  Judiciary 
Committee  of  the  Assembly  and  safeguard  the  principles  of 
representative  government.68  No  action  could  have  done 
more  to  strengthen  the  confidence  of  workingmen  in  the  public 
spirit  of  the  bar. 

The  Assembly  paid  no  more  attention  to  these  protests 
than  the  House  of  Commons  to  the  remonstrances  of  Burke 
and  the  voters  of  England  on  behalf  of  Wilkes.  The  As- 
sembly was  past  saving,  but  the  nation  was  saved.  The 
American  people,  long  bedrugged  by  propaganda,  were 
shaken  out  of  their  nightmare  of  revolution.  The  red  ter- 
ror became  ridiculous  on  the  lips  of  Speaker  Sweet.  A 
legislature  trembling  before  five  men — the  long-lost  Ameri- 
can sense  of  humor  revived  and  people  began  to  laugh.  That 
broke  the  spell.  The  light  of  day  beat  in  not  only  upon 
the  Assembly,  but  upon  Congress  and  the  Department  of 
Justice.  Never  again  did  the  hysteria  of  the  past  year  re- 
turn. The  raids  of  January  2d  were  flood-tide,  and  with 
Governor  Hughes'  letter  on  the  9th,  the  ebb  set  in.  Then 
followed  the  opposition  of  the  conservative  press  and  sober 

«s  New  York  Post,  January  14. 


WILKES  AND  HIS  SUCCESSORS  339 

speakers  to  the  pending  federal  sedition  bills,  the  disclosures 
in  the  Colyer  trial  of  the  illegal  character  of  the  New  Year's 
round-up,  the  decision  of  Secretary  Wilson  legalizing  the 
Communist  Labor  Party,  the  wholesale  cancellation  of  de- 
portation warrants.  The  American  people  owe  a  lasting  debt 
of  gratitude  to  the  New  York  Assembly. 

But  there  was  no  return  to  sanity  in  Albany.  On  Jan- 
uary 20th  the  investigation  of  the  five  members  began  before 
the  Judiciary  Committee,  which  was  appointed  by  the 
Speaker  who  had  taken  such  a  definite  stand  against  them. 
At  the  outset  the  Bar  Association  committee  appeared,  with 
Mr.  Hughes  as  its  chairman,  but  was  not  allowed  to  par- 
ticipate in  the  proceedings.  Before  withdrawing  it  filed  a 
brief  and  these  recommendations :  64 

That  the  Judiciary  Committee  at  once  report  to  the  Assembly 
that  there  is  no  question  properly  before  the  Judiciary  Committee 
of  any  disqualification  on  the  part  of  these  members;  that  no 
charges  against  these  members  of  any  constitutional  disqualifica- 
tion, or  of  any  misconduct  in  office  or  of  any  violation  of  law  on 
their  part  have  been  properly  made,  that  the  members  under 
suspension  should  at  once  be  restored  to  the  privileges  of  their 
seats  and  that  if  it  be  desired  to  present  any  charges  against  them 
of  any  violation  of  law,  such  charges  should  be  properly  for- 
mulated, and  that  until  such  charges,  properly  laid,  have  been 
established  by  proof,  after  due  opportunity  to  be  heard,  these 
members  shall  enjoy  all  the  privileges  of  their  seats  in  recog- 
nition of  their  own  rights  and  of  the  rights  of  their  constituencies. 

This  position  is  conclusively  established  by  the  Bar  As- 
sociation in  its  brief.65  After  the  respondents  had  taken  the 
constitutional  oath  of  office,  and  in  the  absence  of  any  per- 
sonal misconduct  during  their  term,  they  became  entitled 
to  participate  in  all  proceedings  of  the  Assembly  until  they 
were  actually  ousted.  This  has  always  been  the  practice 
in  Congress,  even  on  charges  of  bribery;  for  instance,  Sen- 
ator Lorimer  participated  in  all  the  proceedings  of  the 
Senate  until  he  was  finally  disqualified,  and  Senator  Truman 

«4  Record,  p.  6;  Socialist  Brief,  p.  7. 
«s  Pages  8-20. 


340  FREEDOM  OF  SPEECH 

H.  Newberry  of  Michigan,  who  has  been  actually  convicted 
of  corrupt  practices,  still  retains  his  seat  and  will  continue 
to  do  so  even  during  any  investigation  that  may  be  made 
of  his  conduct  by  the  Senate.  The  issue  of  free  speech, 
however,  is  less  concerned  with  the  unwarranted  method  of 
the  proceedings  against  the  five  members  than  with  the  ques- 
tion whether  there  was  any  legal  cause  to  deprive  them  of 
their  seats  by  any  method  whatever. 

The  opening  clause  of  the  New  York  Constitution  pro- 
vides that  no  member  of  this  state  shall  be  disfranchised 
unless  by  the  law  of  the  land,  or  the  judgment  of  his  peers. 
Like  the  United  States  Constitution,  it  makes  each  House 
"  the  judge  of  the  elections,  returns  and  qualifications  of 
its  own  members,"  66  but  it  imposes  the  restriction  already 
mentioned  that  no  declaration,  test  or  oath  shall  be  imposed 
except  that  specified.  Certain  offices  are  a  disqualification,67 
but  even  the  right  to  vote  is  not  a  requisite  for  eligibility.68 
The  power  to  expel  is  conferred  by  statute.69  The  power  to 
suspend  is  not  given  by  Constitution  or  statute.  Although 
this  was  an  inquiry  into  qualifications  and  not  an  expulsion, 
yet  since  the  method  is  immaterial  it  is  desirable  to  review  the 
cases  of  both  exclusion  and  expulsion  to  determine  whether 
a  Legislature,  especially  in  the  absence  of  any  disqualifying 
statute,  can  lawfully  unseat  a  member  for  opinions  and 
affiliations  without  overt  acts. 

The  analysis  of  the  law  on  this  question  is  peculiarly 
difficult.  The  judicial  precedents  are  necessarily  few  and 
indirect  in  their  bearing,  for  the  courts  have  uniformly 
denied  that  they  have  any  power  to  review  either  legislative 
expulsions  or  legislative  decisions  on  the  qualifications  of 
members.70    The  house  in  making  decisions  on  qualifications 

ee  Art.  Ill,  §  10. 

•7  Art.  Ill,  §  8. 

«»  Barker  v.  People,  3  Cow.  686,  703  (1824);  Cooley,  Constitutional 
Limitations,  7th  ed.,  894  note. 

6»  Legislative  Law,  §  3.  ■  Each  house  has  the  power  to  expel  any 
of  its  members  after  the  report  of  a  committee  to  inquire  into  the 
charges  against  him  shall  have  been  made." 

to  Hiss  v.  Bartlett,  3  Gray  (Mass.)  468  (1855);  French  v.  Senate, 


WILKES  AND  HIS  SUCCESSORS  341 

and  in  other  election  cases  acts  in  a  judicial  capacity,  in  spite 
of  the  doctrine  of  the  separation  of  powers,  and  such  con- 
troversies do  not  fall  within  the  general  judicial  power  vested 
in  the  courts,  since  the  constitutions  expressly  confer  juris- 
diction upon  the  legislative  chamber  in  question.  However, 
judges  have  sometimes  been  called  upon  to  discuss  whether 
anybody  has  power  to  add  to  the  constitutional  require- 
ments for  eligibility.  Justice  Story,  in  denying  that  the 
states  can  impose  additional  tests  for  a  member  of  Congress, 
for  example,  that  he  shall  reside  in  the  district  which  elects 
him,  writes : 71 

It  would  seem  but  fair  reasoning,  upon  the  plainest  principles 
of  interpretation,  that  when  the  Constitution  established  certain 
qualifications  as  necessary  for  office,  it  meant  to  exclude  all  others 
as  prerequisites.  From  the  very  nature  of  such  a  provision,  the 
affirmation  of  these  qualifications  would  seem  to  imply  a  negative 
of  all  others. 

There  is  much  force  in  his  position,  that  the  power  to 
judge  "  qualifications  "  means  only  constitutional  qualifica- 
tions, but  it  does  present  difficulties,  especially  when  the  con- 
stitutional requirements  for  eligibility  are  so  meagerly  stated 
as  in  New  York.  Can  inisanity  be  made  a  bar,  or  is 
it  only  a  ground  for  expulsion  after  admission?  Were 
women  eligible  to  Congress,  before  they  were  allowed  to  vote, 
inasmuch  as  they  were  not  specifically  excluded?  Or  were 
they  under  a  common  law  ineligibility,  which  had  to  be  read 
into  the  Constitution?72  At  all  events,  some  judges  have 
been  willing  to  admit  that  in  some  instances  the  requirements 
of  the  Constitution  may  be  added  to,  but  only  within  narrow 
limits.  (1)  Additional  qualifications  can  be  imposed  only 
by  law;  that  is,  by  a  statute  enacted  by  both  houses  of  the 
legislature,  and  signed  by  the  governor.     The  body  which 

146  Cal.  604.  (1905) ;  P.  ex  rel  Hatzel  v.  Hall,  80  N.  Y.  117,  122  (1880) ; 
P.  v.  Mahaney,  13  Mich.  482,  492  (1865). 

7il  Story  on  the  Constitution,  §625;  Congress  has  always  refused 
to  recognize  these  state  limitations  as  valid.    1  Hinds'  Prec.  381,  384,  387. 

72  "  Eligibility  ofl  Women  for  Public  Office,"  33  Harv.  L.  Rev.  295 
(1919). 


342  FREEDOM  OF  SPEECH 

judges  the  qualifications  of  its  members  cannot  itself  legally 
create  new  qualifications  any  more  than  the  Supreme  Court 
of  the  United  States  can  legally  create  new  income  taxes. 
One  house  cannot  make  the  law,  and  eligibility  is  fixed  by 
law.73  (2)  The  highest  court  of  the  state  of  New  York  has 
decided  that  the  legislature  under  its  power  to  punish  crimes 
can  pass  a  valid  statute,  making  conviction  for  duelling  a 
disqualification  for  the  legislature,  but  said  through  Chan- 
cellor Sanford : 74 

Eligibility  .  .  .  belongs  equally,  to  all  persons  whomsoever, 
not  excluded  by  the  constitution.  I  therefore  conceive  it  to  be 
entirely  clear,  that  the  legislature  can  not  establish  arbitrary  exclu- 
sions from  office,  or  any  general  regulation  requiring  qualifications, 
which  the  constitution  has  not  required.  If,  for  example,  it  should 
be  enacted  by  law,  that  all  physicians,  or  all  persons  of  a  particu- 
lar religious  sect,  should  be  ineligible  to  public  trusts ;  .  .  .  any 
such  regulation,  would  be  an  infringement  of  the  constitution; 
and  it  would  be  so,  because,  should  it  prevail,  it  would  be  in 
effect,  an  alteration  of  the  constitution  itself.  .  .  .  There  may 
be  an  exclusion  by  law,  in  punishment  for  crimes;  but  in  no  other 
manner,  and  for  no  other  cause. 

(3)  In  New  York  and  other  states  which  have  constitutions 
forbidding  any  other  "  oath,  declaration,  or  test "  except 
that  specified,  this  prohibits  not  merely  new  forms  of  test 
oaths,  but  all  arbitrary  requirements  as  a  qualification  for 
voting  or  office-holding,  particularly  those  based  on  opinions 
and  party  affiliations,  and  it  makes  no  difference  that  these 
requirements  are  imposed  by  statute.  Thus,  the  New  York 
Court  of  Appeals  has  held  a  statute  unconstitutional  which 
required  voters  to  swear  that  they  had  never  borne  arms 
against  the  United  States,  given  aid  to  the  enemy,  deserted, 
or  evaded  the  draft.75      It  has   also  invalidated   a   statute 

78  Barker  v.  People,  3  Cow.  686,  707  (1824);  P.  ex  rel.  Bush  v. 
Thornton,  25   Hun   456,  463    (1881). 

7*  Barker  v.  People,  3  Cow.  686,  703,  704,  707.    The  italics  are  mine. 

75  Green  v.  Shumway,  39  N.  Y.  418  (1868);  Goetcheus  v.  Matthewson, 
61  N.  Y.  420  (1875).  Similar  disqualifications  for  preaching,  teaching, 
or  practising  law  have  been  declared  invalid  under  the  U.  S.  Consti- 
tution. Cummings  v.  Missouri,  4  Wall.  277  (1866) ;  Ex  parte  Garland, 
*  Wall.  333. 


WILKES  AND  HIS  SUCCESSORS  343 

which  made  all  persons  except  members  of  the  two  leading 
political  parties  ineligible  for  the  Albany  police  commission. 
Judge  O'Brien  declared:76 

The  legislature  of  this  state  has  no  power  to  enact  a  law  which 
proscribes  any  class  of  citizens  as  ineligible  to  hold  public  office 
on    account   of    political   belief    or   party    affiliations. 

Clearly,  all  these  cases  render  the  unseating  of  the  five 
Socialists  illegal.  They  were  not  made  ineligible  by  any 
law,  but  by  the  fiat  of  the  Assembly  alone.  They  had  not 
been  convicted  of  crime,  and  they  were  guilty  of  no  crime 
which  was  a  statutory  bar  to  office.  And  they  were  pro- 
scribed for  their  political  beliefs  and  party  affiliations. 

Let  us  now  turn  to  the  legislative  precedents  and  see  how 
far  they  agree  with  the  judicial  discussion.  At  the  outset, 
the  reader  must  be  warned  that  these  precedents  rarely 
afford  a  satisfactory  formulation  of  the  principle  on  which 
the  house  acted,  which  can  be  automatically  applied  in  sub- 
sequent cases  after  the  manner  of  court  decisions.  A  legis- 
lature is  not  by  nature  a  judicial  body.  Its  members  are 
chosen  and  organized  for  carrying  out  policies,  and  not,  like 
judges,  for  the  sole  purpose  of  thinking  together.  When 
they  are  called  upon  to  perform  judicial  duties  in  trying 
impeachments  and  charges  of  bribery,  the  most  earnest 
efforts  to  attain  impartiality  hardly  prevent  them  from 
being  swayed  by  party  motives,  and  their  debates  lack  the 
training  and  the  restraints  which  mold  the  words  of  judges. 
The  Lorimer  case  brought  out  these  qualities  of  a  legislative 
trial,  and  a  few  years  ago  the  New  York  Senate  refused  to 
expel  two  members  for  corrupt  practices,  who  were  subse- 
quently tried  and  convicted  for  the  same  offense.  Moreover, 
the  basis  of  a  legislative  discussion  is  often  obscure  because  of 

7eRathbone  v.  Wirth,  150  N.  Y.  459,  485  (1896),  and  see  cases  cited 
from  other  states.  (Some  of  the  judges  rested  the  invalidity  of  the 
statute  on  other  clauses  of  the  N.  Y.  Constitution.)  The  legislature 
may  of  course  impose  requirements  which  relate  directly  to  fitness  for 
the  particular  office,  e.g.,  that  only  physicians  are  eligible  to  the  board 
of  health.    Rogers  v.  Common  Council,  123  N.  Y.  173,  184  (1890). 


344  FREEDOM  OF  SPEECH 

the  number  of  persons  who  join  in  the  debate.  Sometimes 
the  only  certain  fact  is  that  the  member  was  or  was  not 
unseated.  It  is  significant  that  the  Wilkes  case  led  Parlia- 
ment to  delegate  the  trial  of  controverted  elections  to  a  tri- 
bunal of  judges.77  The  Berger  and  Socialist  cases  might 
well  lead  us  to  consider  establishing  a  preliminary  investiga- 
tion by  judges  instead  of  by  a  legislative  committee  and  thus 
obtaining  the  benefit  of  a  trained  judicial  opinion  as  the  basis 
of  the  action  of  the  house.78 

The  English  legislative  precedents  show  that  Parliament 
has  no  control  over  the  eligibility  of  candidates  but  simply 
administers  the  laws  defining  their  qualifications.  One  house 
of  Parliament  cannot  create  a  disability  unknown  to  the  law. 
This  was  established  by  the  Wilkes  case  and  by  that  of 
Charles  Bradlaugh,  who  was  at  first  debarred  and  expelled 
from  the  House  of  Commons  on  the  ground  that  as  an  ag- 
nostic he  could  not  conscientiously  take  the  oath,  but  was 
eventually  on  re-election  sworn  in  without  objection,  and  the 
resolution  debarring  him  was  expunged  from  the  journals. 
On  the  other  hand,  each  house  has  power  to  suspend  or  expel 
by  way  of  punishment.  Members  have  been  suspended  for 
disregarding  the  authority  of  the  chair  or  obstructing  busi- 
ness. They  have  been  expelled  for  crimes  and  other  dis- 
graceful acts  which  render  them  unfit  for  a  seat  and  which 
if  not  so  punished  would,  bring  discredit  on  Parliament. 
Lord  Campbell  thinks  even  an  offense  before  election  is  cause 
for  expulsion  if  conviction  follows  election,  for  there  might 
be  a  presumption  that  his  constituents  would  not  have  elected 
a  person  guilty  of  such  misconduct,  and  it  might  be  fair  to 
give  them  an  opportunity  of  determining  whether  they 
would  still  have  him  for  a  representative.  Expulsion  is  not 
a  disqualification  if  the  member  be  re-elected.     Except  for 

77  May,  Parliamentary  Practice,  12  ed.,  581. 

78  This  plan  is  already  in  force  in  Pennsylvania.  Re  McNeill,  111 
Pa.  St.  235  (1885).  The  legislature  could  not  completely  delegate  the 
decision  of  such  contests.  S.  v.  Gilmore,  20  Kan.  551  (1878);  Dalton 
v.  S.  ex  rel.  Richardson,  43  Oh.  St.  652,  680  (1885).  The  Presidential 
Electoral   Commission   of   1877   affords   an   analogy. 


WILKES  AND  HIS  SUCCESSORS  345 

Wilkes  and  Bradlaugh,  no  person  has  been  expelled  in 
modern  times  for  conduct  involving  the  expression  of  opin- 
ions, and  both  these  expulsions  were  officially  declared  to  be 
wrong  and  expunged.79 

The  Congressional  precedents  also  afford  no  support  for 
the  contention  of  the  New  York  Assembly  that  duly  elected 
legislators  can  be  disqualified  or  expelled  for  disloyal  opin- 
ions which  have  not  been  made  a  bar  by  law.  There  is  no 
authority  that  a  house  will  go  into  the  question  of  the  moral 
fitness  of  a  member  to  occupy  a  seat.  Where  would  such 
an  inquiry  stop,  and  what  standards  could  be  fixed?  Each 
house  undoubtedly  has  the  right  to  expel  a  member  for  actual 
crimes  committed  after  his  induction  to  office,  but  it  is  set- 
tled that  it  cannot  punish  him  for  an  offense  committed 
before  his  election,  and  even  Lord  Campbell's  view  of  the 
effect  of  conviction  after  election  is  opposed  by  the  case 
already  mentioned  of  Matthew  Lyon,  imprisoned  under  the 
Sedition  Act  of  1798.  This  disposes  of  the  half-hearted  con- 
tention that  the  New  York  Socialists  had  violated  the  Es- 
pionage Act  during  the  war.80 

At  the  outbreak  of  the  Civil  War  several  Southern 
Senators  and  Representatives  were  expelled  for  their  treason- 
able conduct  in  remaining  permanently  absent  from  their 
Congressional  duties  and  either  taking  up  arms  against  the 

79  May,  op.  cit.,  59-62,  153-156,  187.  He  does  not  discuss  the  ques- 
tion whether  a  member  can  be  expelled  for  an  offense  committed  before 
his  election.  1  Story  on  the  Constitution,  §838,  says  the  power  is  not 
limited  to  offenses  during  the  particular  session.  Lord  Campbell's 
opinion  is  in  his  Life  of  Lord  Camden,  Lord  Chancellors,  (1846  ed.) 
V,  276. 

zoBerger  Report,  10;  opinion  by  Speaker  Cannon  in  3  Hinds'  Prec. 
1157;  2  ibid.  829-860,  1  ibid.  521,  for  cases.  But  see  arguments  contra, 
1  ibid.  437,  524.  Apparently  no  one  has  been  expelled  from  Congress 
for  crimes,  except  those  against  the  Government,  but  several  men  have 
resigned.  There  is  some  doubt  whether  a  member  can  be  expelled  for 
crimes  unrelated  to  his  office.  See  the  majority  and  minority  reports  in 
the  Roberts  case.  1  Hind's  Prec.  523.  The  House  refused  to  expel 
Herbert  of  California  in  1857,  who  was  charged  with  homicide,  and 
Harris  of  Maryland  in  1865,  though  convicted  of  aiding  the  rebellion 
(probably  before  election),  and  Cannon  of  Utah  in  1875,  though  a 
polygamist.  1  Hinds'  Prec.  500.  For  the  Espionage  Act  charge,  see 
Assembly  Outline,  75.    No  evidence  is  given. 


346  FREEDOM  OF  SPEECH 

government  or  entering  the  Confederate  lines  and  actively 
participating  in  the  rebellion.81  On  the  other  hand,  both 
houses  refused  to  expel  members  from  border  states  who 
had  committed  no  overt  acts,  but  had  vigorously  opposed  by 
speeches  the  prosecution  of  the  war  by  the  North.82  Among 
these  were  Representative  Long  of  Ohio,  who  declared  himself 
in  favor  of  recognizing  the  independence  of  the  Confederacy, 
Representative  Harris  of  Maryland,  who  said,  "  I  hope  you 
will  never  subjugate  the  South,"  and  Senator  Powell  of 
Kentucky.  Powell  presided  at  a  large  Southern  States' 
Rights  convention  in  Kentucky  in  June,  1861,  which  urged 
the  recall  of  the  Northern  armies  and  the  recognition  of  the 
Confederacy  and  endorsed  the  action  of  the  Governor  in  re- 
fusing to  furnish  troops  to  subjugate  the  South  and  for- 
bidding both  sides  to  invade  Kentucky.  In  September,  1861, 
he  was  a  delegate  to  a  second  convention,  which  adopted 
resolutions  drafted  by  a  committee  of  which  he  was  a  mem- 
ber, proclaiming  the  neutrality  of  Kentucky  and  refusing 
aid  by  money,  taxation,  or  loans  to  "  a  cause  so  hopeless 
as  the  military  subjugation  of  the  Confederate  States." 
The  Committee  on  the  Judiciary  reported  against  expulsion, 
and  its  chairman,  Senator  Trumbull  of  Illinois,  whose 
loyalty  no  man  can  question,  stated  in  debate  that  though 
the  resolutions  were  downright  opposition  to  the  constituted 
authorities  of  the  government  and  wholly  unjustifiable,  and 
though  the  neutrality  of  Kentucky  did  favor  the  cause  of 
the  rebellion,  yet  when  that  neutrality  was  abandoned  Powell 
had  discharged  his  duties  to  the  government  at  Washing- 
ton ;  "  and  no  man  is  to  be  expelled  from  this  body  because  he 
disagrees  with  others  in  opinion."  The  resolution  of  expul- 
sion was  overwhelmingly  defeated. 

The  Assembly  relies  on  the  case  of  Senator  Bright  of 
Indiana,  who  was  expelled  by  a  bare  two-thirds  for  writing 
a  letter  to  Jefferson  Davis,  bringing  a  military  invention  to 

si  2  Hinds'  Prec.  812,  813,  822-826.  See  also  the  expulsion  of  Senator 
Blount  in  1797  for  trying  to  alienate  the  Creek  Indians  from  the  resident 
Government  officials,  2  ibid.  813. 

82  2  ibid.  803,  827. 


WILKES  AND  HIS  SUCCESSORS  347 

his  attention.  It  is  true  that  some  language  used  in  the 
debate  about  other  utterances  of  Bright  implied  a  power  to 
expel  merely  for  disloyal  opinions,  but  his  conduct  was 
treasonable  aid  to  the  enemy  if  the  requisite  intent  existed, 
and  Senator  Trumbull  in  moving  his  expulsion  based  it 
squarely  on  the  ground  of  treason.83  Therefore,  this  and  all 
the  other  expulsion  cases  draw  the  line  between  overt  acts 
identifying  the  legislator  with  the  enemy  and  opposition  to 
war  by  words.  A  legislator  can  be  expelled  only  for  criminal 
or  otherwise  disgraceful  conduct  subsequent  to  his  election, 
and  not  for  disloyal  language  or  for  affiliations  with  political 
groups,  even  if  like  the  Kentucky  neutrals  they  oppose  the 
government  without,  however,  joining  its  enemies. 

The  Congressional  precedents  on  the  unseating  of  mem- 
bers because  they  are  not  qualified  are  still  more  important, 
since  the  action  of  the  New  York  Assembly,  though  often 
called  an  expulsion,  was  really  an  adjudication  of  ineligi- 
bility and  not  an  expulsion  for  misconduct.  A  review  of 
these  precedents  reveals  two  sharply  conflicting  views.  The 
first  accords  with  Story's  opinion  that  no  addition  can  be 
made  to  the  constitutional  requirements.84  The  Constitution 
gives  the  people  the  inalienable  right  to  choose  any  one  they 
please  who  has  the  qualifications  named.  An  insane  man 
cannot  take  his  seat  if  he  lacks  the  mental  capacity  to  take 
the  constitutional  oath.  Bribery  and  corrupt  practices  con- 
nected with  the  election  prevent  him  from  being  duly  elected, 
for  fraud  vitiates  all  transactions,  and  an  unseating  on  this 
ground,  as  in  the  Lorimer  case,85  is  not  a  disqualification  for 

83  2  ibid.  821;  see  extracts  from  debates  omitted  by  Hinds  in  As- 
sembly Outline,  83,  and  Socialist  Brief,  110. 

s*  The  fullest  discussion  of  both  views  is  in  the  minority  report  in 
the  Roberts  case,  1  Hinds'  Prec.  518  (unseated).  See  also  Stark, 
1  ibid.  433  (seated) ;  Smith  v.  Brown,  1  ibid.  441  (unseated) ;  McKee 
v.  Young,  1  ibid.  451  (unseated) ;  Thomas,  1  ibid.  466  (unseated) ; 
Maxwell  v.  Cannon,  1  ibid.  493  (seated);  Campbell  v.  Cannon,  1  ibid. 
500  (unseated) ;  Smoot,  1  ibid.  561  (seated) ;  discussion  by  House  Com- 
mittee, 1  ibid.  591;  Berger  Hearings  and  Report  (unseated).  Among 
those  presenting  the  first  view  are  Littlefield  of  Maine,  1  ibid.  537; 
Senator  Knox,  1  ibid.  587;  Senator  Reverdy  Johnson,  1  ibid.  489. 

85  Webb  and  Pierce,  Senate  Election  Cases,  1002.  But  see  P.  ex  rel. 
Bush  v.  Thornton,  25  Hun  456  (1881). 


348  FREEDOM  OF  SPEECH 

crime,  but  a  decision  that  no  valid  election  has  taken  place. 
Crime  as  such  is  no  bar,  except  treason  by  virtue  of  the 
Fourteenth  Amendment.  Representative  government  relies 
on  the  judgment  of  the  people  to  pick  fit  men,  not  on  the 
wisdom  of  a  House  of  Congress  or  any  other  select  group. 
In  the  improbable  event  that  a  district  should  elect  a  con- 
victed murderer,  he  can  act  so  long  as  he  is  at  large.  If 
the  general  welfare  requires  that  this  be  made  impossible, 
then  the  Constitution  should  be  amended.  A  power  in  the 
legislature  to  add  new  qualifications  is  equivalent  to  a  power 
to  change  those  prescribed  by  the  fundamental  law.  If  it 
can  add  crime  or  disloyal  acts  as  bars,  it  can  add  profiteer- 
ing as  well.  There  is  no  line  to  be  drawn,  once  it  is  allowed 
to  cross  the  constitutional  limits.  It  can  turn  our  democ- 
racy into  an  oligarchy  by  imposing  high  property  qualifica- 
tions, or  into  a  dictatorship  of  the  proletariat  by  declaring 
ineligible  all  persons  deriving  income  from  rents  and  invested 
capital. 

The  second  view  allows  some  additions  to  be  made  to  the 
constitutional  qualifications.  Otherwise,  the  great  leaders 
of  the  Confederacy  might  have  been  seated  before  the  Four- 
teenth Amendment,  or  Brigham  Young  could  have  been 
elected  and  his  forty  wives  have  occupied  the  gallery  to  see 
him  sworn  in.  Is  a  man  to  be  brought  from  a  felon's  cell  to 
the  floor  of  the  Senate?  Suppose  a  representative  just  before 
he  is  sworn  in  should  create  some  outrageous  disturbance 
in  the  House;  if  he  cannot  be  disqualified,  will  it  be  neces- 
sary to  go  through  the  rigmarole  of  first  swearing  him  in, 
and  then  expelling  him?  The  duty  of  each  chamber  to 
preserve  the  nation  and  carry  on  business  is  said  not  to  be 
sufficiently  safeguarded  if  the  constitutional  requirements 
are  exclusive  of  all  others. 

The  view  forbidding  all  additions  seems  to  me  the  sounder 
in  the  United  States  Government,  and  still  more  obligatory 
under  the  New  York  Constitution,  with  its  clause  against 
other  tests.  It  must  be  conceded,  nevertheless,  that  notwith- 
standing the  ability  of  the  men  who  have  taken  this  position, 


WILKES  AND  HIS  SUCCESSORS  349 

it  has  frequently  been  rejected  in  Congressional  practice, 
and  is  also  opposed  to  the  opinion  of  the  New  York  Court, 
rendered  however  before  the  adoption  of  the  test  clause  just 
mentioned,  that  conviction  for  crime  could  be  made  a  bar 
by  statute.86  Yet  even  if  the  second  view  be  accepted,  the 
range  of  new  qualifications  has  been  so  closely  limited  by 
Congress  that  neither  of  the  two  views  furnishes  the 
slightest  support  for  the  proceedings  of  the  New  York 
Assembly. 

In  the  first  place,  the  Congressional  precedents  agree  with 
the  Wilkes  case  and  the  judicial  decisions  that  qualifications 
must  be  established  by  law,  and  that  the  resolution  of  one 
house  of  Congress  cannot  make  law.  When  Representative 
Connor  of  Texas  was  charged  with  having  cruelly  whipped 
negro  soldiers  under  his  command  and  bribing  them  not  to 
testify  against  him  before  a  military  court,  Garfield  asked 
if  anything  in  the  Constitution  and  laws  of  the  United 
States  forbade  that  a  moral  monster  should  be  elected  to 
Congress.  Connor  was  sworn.87  The  House  also  refused 
to  inquire  into  a  charge  of  seduction,  and  the  Senate  into 
one  of  embezzlement.88  All  the  exclusions  which  have  oc- 
curred were  for  offenses  which  had  expressly  been  made  a 
disqualification  by  Act  of  Congress.89 

The  most  important  of  these  statutes  was  enacted  in  July, 
1862.  In  January  of  that  year  the  Senate  had  decided  that 
Stark  of  Oregon  was  entitled  to  take  his  seat,  although  he 
had  made  disloyal  speeches.  Senator  Harris  of  New  York, 
the  Chairman  of  the  Judiciary  Committee,  denied  in  debate 
that  the  Senate  ought  to  be  the  ultimate  judge  of  a  man's 
fitness  or  was  competent  to  reject  him  upon  any  view  it 

se  See  p.  342,  supra. 

87  Grafton  v.  Connor,  1  Hinds'  Prec.  488. 

saAcklen,  1  ibid.  489;  Roach,  1  ibid.  570. 

8»  Besides  the  statutes  mentioned,  Act  of  February  26,  1853,  c.  81, 
10  Stat,  at  L.  171,  disqualifies  any  member  convicted  of  receiving  bribes 
for  discharging  an  official  function.  B.  F.  Whittemore  of  South  Carolina 
resigned  to  avoid  expulsion  for  sale  of  West  Point  appointments,  was 
at  once  re-elected,  and  disqualified.  1  Hinds'  Prec.  487.  The  case 
cannot  be  supported.    See  1  ibid,  540  for  a  vigorous  attack  on  this  case. 


350  FREEDOM  OF  SPEECH 

might  take  of  his  moral,  intellectual,  or  political  capacity.90 
It  was  not  until  the  passage  of  the  Test  Oath  Act,91  obliging 
men  to  swear  before  admission  to  office  that  they  had  never 
borne  arms  against  the  United  States,  given  aid,  counte- 
nance, counsel,  or  encouragement  to  the  enemy,  or  yielded  a 
voluntary  support  to  any  pretended  government,  that  per- 
sons were  excluded  for  disloyal  conduct.  Such  an  Act  is  of 
course  impossible  under  the  New  York  Constitutional  pro- 
hibition of  additional  oaths  and  tests.  And  it  is  noteworthy 
that  although  the  terms  of  this  statute  included  much  more 
than  treason,  the  ironclad  oath  was  not  used  to  bar  mem- 
bers for  personal  disloyalty  or  passive  sympathy  with  the 
rebellion,  or  speeches  denouncing  the  war  as  an  abolition 
war  and  opposing  any  further  aid  toward  its  prosecution.92 
One  man  was  excluded  who  had  sent  food  to  a  Confederate 
camp,  brought  a  gun,  and  pointed  out  a  house  where  a 
Union  soldier  was  hiding,  telling  the  Southerners  to  go  and 
get  him,  a  clear  case  of  treason.63  The  most  extreme  case 
was  John  Young  Brown,  who  was  disqualified  for  a  letter 
to  the  press,  saying  that  Kentucky  would  not  furnish  a  man 
or  a  dollar  to  aid  Lincoln  in  his  unholy  war  against  the 
South,  that  an  invading  Northern  army  would  be  resisted 
to  the  death,  and  that  any  Kentuckian  joining  it  ought  to 
be  and  would  be  shot  down  before  he  left  the  state.94  This 
is  the  only  instance  of  disqualification  from  Congress  for 
utterances  without  overt  acts.     Thus,  even  in  the  heat  of  the 

so  l  Hinds'  Prec.  433.  The  Assembly  Outline,  82,  erroneously  cites 
this  case  as  authority  for  the  exclusion  of  the  Socialists;  besides  that 
of  Smoot,  who  was  also  seated.  The  only  other  authorities  cited  are 
the  case  of  Roberts,  a  polygamist  disqualified  by  statute,  and  Bright 
expelled  for  treason,  and  a  Virginia  vote  of  1619  excluding  men  who 
denied  they  were  subject  to  the  government  of  Virginia.  The  Assembly 
Brief  cites  several  cases  under  the  Test  Oath  Act;  and  several  instances 
of  expulsion.    The  principles  of  these  cases  are  discussed  in  the  text. 

si  Act  of  July  2,  1862,  c.  128,  12  Stat,  at  L.  502. 

92  Kentucky  Members,  1  Hinds'  Prec,  441 ;  Symes  v.  Trimble,  1 
ibid.  459. 

93  McKee  v.  Young,  Rowell  Dig.  Election  Cases  H.  R.,  222.  Hinds 
does  not  state  the  facts  fully.  Senator  Thomas  of  Maryland  was  dis- 
qualified for  aiding  his  son  to  enter  the  Confederate  army.  1  Hinds' 
Prec.  466. 

94  Smith  v.  Brown,  1  Hinds'  Prec.  444. 


WILKES  AND  HIS  SUCCESSORS  351 

Civil  War,  disloyalty  was  not  a  bar  to  an  elected  member 
of  Congress,  until  it  was  expressly  made  so  by  a  statute, 
and  not  then  unless  it  was  evidenced  by  actual  aid  to  the 
enemy  or  words  of  acute  virulence. 

Some  doubt  was  cast  upon  the  validity  of  the  Test  Oath 
Act,  and  in  1868  it  was  virtually  superseded  by  section  three 
of  the  Fourteenth  Amendment,95  on  which  rightly  or  wrongly 
the  exclusion  of  Berger  was  based. 

The  Church  of  Jesus  Christ  of  Latter-day  Saints  is  a 
much  more  closely  knit  and  powerful  organization  than  the 
Socialist  Party  and  instead  of  being  legalized  by  statute 
has  frequently  been  made  the  object  of  adverse  legislation. 
Consequently,  the  decisions  upon  the  admission  of  Mormons 
to  Congress  are  much  in  point.  The  constitutional  question 
was  not  squarely  raised  while  Utah  was  still  a  territory  be- 
cause each  house  was  held  to  have  complete  control  over  the 
eligibility  of  Delegates,  who  were  distinguished  from  Rep- 
resentatives. Nevertheless,  the  decisions  at  that  time  make 
the  distinction  which  I  have  emphasized  between  overt  acts 
and  mere  opinions.96  In  1868  the  election  of  Hooper  was 
contested  on  the  ground  that  he  represented  the  institution 
of  polygamy  and  a  community  hostile  to  the  other  portions 
of  the  United  States  and  was  disqualified  by  a  secret  oath. 
The  House  Committee  reported  that  Mormonism  was  antag- 
onistic to  the  United  States  but  had  never  organized  rebel- 
lion or  sedition  against  the  supreme  authority  of  the  Union, 
or  committed  treason  by  any  overt  act.  Hooper  was  accord- 
ingly seated.  On  the  other  hand,  a  Delegate  who  was  himself  a 
polygamist  was  unseated.  Even  in  this  case  a  strong  minority 
protested  against  the  assumption  by  the  House  of  the  arbi- 
trary power  to  inquire  into  the  moral  fitness  of  candidates, 
and  asked  whether  if  it  was  a  bar  for  a  Delegate  to  live 
with  four  women  who  were  married  to  him,  it  would  also  be 
a  bar  if  three  of  them  were  not. 

95  P.  323,  supra.    See  Reverdy  Johnson  in  1  Hinds'  Prec.  469. 
ssMcGrorty  v.  Hooper,  1  Hind's  Prec.  490;  Maxwell  v.  Cannon,  1 
ibid.  493;  Campbell  v.  Cannon,  1  ibid.  500. 


352  FREEDOM  OF  SPEECH 

After  the  admission  of  Utah  as  a  state,  the  issue  became 
acute.  The  Edmunds  Act  of  1882  had  disqualified  any 
polygamist,  whether  convicted  or  not,  from  office  under  the 
United  States.97  Brigham  H.  Roberts,  a  convicted  polyga- 
mist, who  was  still  living  with  three  wives,  was  elected  Rep- 
resentative in  1898,  and  was  finally  unseated  after  a 
thorough  discussion  from  both  points  of  view  of  the  question 
whether  Congress  or  the  House  could  add  qualifications  to 
those  specified  in  the  Constitution.08  The  majority  relied 
to  a  large  extent  on  his  ineligibility  under  the  Edmunds  Act, 
so  that  the  case  supports  the  principle  already  stated,  that 
if  any  disqualification  can  be  added  to  the  Constitution,  it 
must  be  created  by  law.  The  minority  in  an  opinion  by 
Representative  Littlefield  of  Maine,  and  De  Armond  of  Mis- 
souri, which  has  been  approved  by  Chief  Justice  Cullen  of 
New  York,"  contended  that  Congress  could  not  add  any 
qualification  to  the  Constitution,  especially  if  it  did  not 
satisfy  the  test  of  Chancellor  Sanford  10°  that  it  must  be 
based  upon  a  conviction  of  crime.  The  minority  declared 
that  Roberts  should  not  be  disqualified  but  expelled,  not  for 
any  offense  prior  to  his  election  but  because  he  was  continu- 
ing to  commit  the  crime  of  polygamy.  Inasmuch  as  the  vote 
for  unseating  him  was  more  than  two-thirds,  the  method  of 
removal  became  academic.  At  all  events  the  decision  is  no 
authority  for  the  case  of  the  New  York  Socialists,  because 
it  rested  upon  a  statute  and  upon  an  alleged  breach  of  the 
compact  which  Utah  had  made  on  entering  the  Union  to 
abandon  polygamy  forever,  and  furthermore  it  involved 
overt  criminal  acts  and  not  opinions  or  party  affilia- 
tions. 

This  distinction  is  clearly  brought  out  by  the  refusal  of 

97  Act,  March  22,  1882,  c.  47,  §  8;  22  Stat,  at  L.  31.  This  was  held 
in  the  Roberts  case  to  apply  to  members  of  Congress. 

»8  i  Hind's  Prec.  518-560. 

»9  Dissenting  opinion,  P.  v.  Ahearn,  196  N.  Y.  221,  252  (1909): 
"  No  lawyer  can  read  the  clear  and  forceful  minority  report  of  Messrs. 
Littlefield  and  De  Armond  without  at  least  doubting  the  correctness 
of  this  decision." 

ioo  p.  342,  supra. 


WILKES  AND  HIS  SUCCESSORS  353 

the  Senate  in  1904  to  exclude  or  expel  Reed  Smoot.101  He 
was  not  himself  a  polygamist  or  otherwise  disqualified  by 
statute,  and  had  personally  opposed  polygamy  in  Utah,  but 
he  was  one  of  the  twelve  apostles  who  together  with  the  first 
president  ruled  over  the  Mormon  hierarchy,  and  as  a  body 
encouraged  the  continuance  of  polygamous  cohabitation  (at 
least  in  long-standing  marriages)  and  controlled  the  po- 
litical affairs  of  Utah.  According  to  the  majority  of  the 
Committee,  Mr.  Smoot  came  there,  "  not  as  the  accredited 
representative  of  the  State  of  Utah,  but  as  the  choice  of  the 
hierarchy  which  controls  the  church  and  has  usurped  the 
functions  of  the  State."  102  Nevertheless,  the  Senate  refused 
to  look  beyond  the  question  of  his  personal  guilt  of  crime  or 
disbar  him  for  the  political  and  ethical  purposes  of  the 
organization  to  which  he  belonged.  A  powerful  argument 
for  the  prevailing  view  was  made  in  debate  by  Senator  Knox 
of  Pennsylvania,  who  pointed  out  that  the  Constitutional 
disqualifications  do  not  in  any  way  involve  the  moral  quali- 
ties of  a  man.  They  relate  to  facts  outside  the  realm  of 
ethical  consideration  and  are  requirements  of  fact  easily 
established.  As  to  all  matters  affecting  a  man's  moral  or 
mental  fitness  the  states  are  to  be  the  judges,  in  the  first 
instance,  subject  to  the  power  of  the  Senate  to  reverse  their 
judgment  by  a  two-thirds  vote  of  expulsion  when  an  offense 
or  offensive  status  extends  into  the  period  of  service;  and 
such  a  question  can  only  be  raised  after  a  Senator  has  taken 
his  seat.  It  is  hardly  proper  to  adopt  a  rule  of  constitu- 
tional construction  based  upon  the  theory  that  states  will 
send  criminals  or  idiots  to  the  Senate.  This  position  limits 
the  effect  of  the  Test  Oath  cases  and  relegates  them  to  the 
status  of  consequences  of  the  extraordinary  situation  fol- 
lowing the  Civil  War. 

And  finally  the  precedents  in  the  New  York  Assembly 

1011  Hinds'  Prec.  561-590.  Socialist  Brief,  116.  The  majority  of 
the  committee  recommended  disqualification  but  the  Senate  adopted  the 
minority  view,  which  did  not  however  dispute  the  political  power  of  the 
hierarchy  or  its  attitude  toward  polygamy. 

102  l  ibid.  587. 


354  FREEDOM  OF  SPEECH 

itself  are  inconsistent  with  its  recent  action.103  In  1906  it 
refused  to  disqualify  a  member  for  fraudulent  practices  in 
connection  with  a  nomination.  In  1917  it  refused  to  oust 
another  on  the  ground  that  he  was  not  a  resident  of  the 
district  which  he  had  been  elected  to  represent.  And  in 
1918  Lucas  E.  Decker,  who  was  found  to  have  failed  to 
register  for  the  selective  draft  and  lied  to  excuse  himself, 
was  not  excluded.  The  committee  reported  that  the  cir- 
cumstances were  matters  of  public  record  while  Decker  was 
a  candidate  for  election,  and  that  "  in  order  to  remove  a 
member  of  the  Assembly  from  office,  under  the  Constitution, 
some  question  involving  the  election  or  returns  is  necessary 
before  the  Assembly  has  jurisdiction  in  the  premises,  or 
further,  that  the  person  so  elected  must  be  entirely  dis- 
qualified under  the  Constitution,  or  by  his  conduct  in  the 
house  must  disqualify  himself."  The  committee's  report  was 
adopted  and  Decker  declared  entitled  to  his  seat  by  a 
unanimous  vote. 

Consequently,  the  principle  is  indubitably  established,  by 
judicial  and  legislative  precedents,  that  the  power  to  add 
qualifications  to  those  fixed  by  the  Constitution,  if  it  exist 
at  all,  extends  at  the  most  to  overt  acts  which  have  been 
made  a  bar  by  statute.  And  in  New  York  State  in  view  of 
the  test  clause  in  the  Constitution  and  the  decision  of 
Chancellor  Sanford,  it  is  doubtful  if  even  a  statute  could 
impose  any  other  bar  than  conviction  for  crime.  No  such 
statute  existed  in  the  case  of  the  New  York  Socialists.  They 
were  convicted  of  no  crime,  they  were  not  even  charged  with 
any  crime  except  a  vague  and  unsubstantiated  allegation  of 
violation  of  the  Espionage  Act.104     The  action  of  the  As- 

los  Socialist  Brief,  104-109. 

10*  Assembly  Outline,  75.  The  subsequent  Assembly  Brief  reached  me 
too  late  for  extended  comment  upon  its  argument  (64-76,  195)  that  the 
Constitution,  by  requiring  an  oath  to  support  it,  also  impliedly  requires 
an  "  inner  state  of  mind "  and  so  makes  "  disloyalty "  or  membership 
in  a  "  disloyal  organization  "  a  disqualification  for  taking  the  oath,  which 
the  Assembly  is  authorized  to  investigate.  The  dangers  of  such  a  vague 
disqualification  are  obvious  and  no  precedent  exists  for  this  doctrine. 
Even  in  the  exasperations  and  exacerbations  of  politics  after  the  Civil 


WILKES  AND  HIS  SUCCESSORS  355 

sembly  must  be  characterized  as  a  flagrant  usurpation  of 
power,  only  to  be  found  in  that  government  of  which  Senator 
Root,105  who  had  good  reason  to  know,  said  that  for  forty 
years  it  had  been  about  as  representative  and  responsible 
as  the  government  of  Venezuela. 

The  conduct  of  the  investigation  was  thoroughly  in  har- 
mony with  its  illegality.  It  was  not  based  on  any  definite 
charges  nor  was  it  even  limited  to  the  accusations  in  the 
Resolution  of  January  7th.  The  affair  had  all  the  charac- 
teristics of  an  accumulative  crime  as  described  by  Burke 
in  the  Wilkes  case.106  Whenever  the  Attorney  General  or 
his  associate  counsel  thought  of  some  new  offense  with  which 
the  Socialist  Party  could  be  taxed,  it  was  lugged  into  the 
case  and  made  a  fresh  reason  for  exclusion.  The  Resolution 
was  construed  as  a  roving  commission  to  the  Judiciary  Com- 
mittee, to  find  as  many  objectionable  opinions  of  the  So- 
cialist Party  as  possible,  on  the  theory  that  twenty-seven 
bad  grounds  m  for  exclusion  might  be  rolled  together  and 
make  one  good  ground.  Inasmuch  as  there  was  no  demarca- 
tion of  counts  in  this  rag-bag  and  ever-reopened  indictment, 
no  single  fact  had  to  be  proved  to  the  satisfaction  of  a 
majority  of  the  Assembly.  One  member  could  vote  to 
exclude  the  five  Socialists  because  he  thought  they  were  as 
guilty  under  the  Espionage  Act  as  the  three  men  who  were 
convicted  at  Syracuse ; 108  another  because  he  considered 
Socialism  threatened  the  family;  a  third  to  protect  the 
church;   a  fourth,  because   Socialists   sought  to   set  up  a 

War  Congress  only  refused  the  Test  Oath  to  men  found  to  have 
committed  in  the  past  the  very  acts  which  the  oath  denied.  When  the 
Constitution  requires  a  solemn  oath  as  to  the  future,  it  leaves  the 
guarantee  of  its  performance,  not  to  the  speculations  of  other  human 
beings,  but  to  the  strongest  sanctions  of  conscience  and  religion.  Cf. 
note  112. 

105  Quoted  in  40  Rep.  Am.  Bar.  Assn.  365  (1915). 

ice  P.  314,  supra. 

107  See  a  list  of  these  charges  in  Socialist  Brief,  10 ;  also  the  report 
of  the  Committee,  New  York  Times,  March  31. 

i°8  See  p.  115,  supra.  The  whole  of  Judge  Garvin's  opinion 
in  the  Syracuse  case  was  read  into  the  Record,  p.  492,  and  reprinted 
in  Assembly  Outline,  75.  No  facts  or  other  reasons  than  this  are  given 
to  establish  the  guilt  of  the  five  members  under  the  Act. 


356  FREEDOM  OF  SPEECH 

Soviet  in  the  United  States;  some  one  else,  because  he  dis- 
liked the  vote  of  Claessens  against  the  military  training  of 
boys.  Others  might  object  on  the  ground  that  the  party 
fostered  the  claims  of  conscientious  objectors  or  worked  for 
the  repeal  of  the  draft  or  opposed  the  conscription  of  labor 
or  voted  against  large  military  appropriations.  The  range 
was  large  and  every  member  could  find  a  reason  of  his  own. 
It  was  the  Wilkes  case  over  again : 109 

The  very  enumeration  of  so  many  grounds  of  expulsion  implied 
their  separate  weakness  and  insufficiency;  while  it  was  designed 
to  attract  the  support  of  members,  influenced  by  different  reasons 
for  their  votes. 

Few  legal  documents  furnish  more  delightful  reading  than 
the  Outline,  as  it  is  called,  of  "  the  case  of  the  Assembly 
against  the  five  Socialist  Assemblymen," — the  title  is  a  sig- 
nificant comment  on  the  impartiality  of  a  tribunal  which 
constitutes  itself  both  judge  and  prosecutor.  This  makes 
it  clearer  than  ever  that  the  Socialists  were  not  excluded 
for  any  personal  unfitness  but  for  the  supposed  principles 
of  the  party.  Against  Orr  and  De  Witt  as  individuals, 
nothing  whatever  is  said.  Claessens  and  Waldman  are 
charged  with  intemperate  speeches,  which  "  breathe  in  every 
word  the  spirit  of  treason  and  revolution  with  thinly  veiled 
phrases  to  escape  the  prosecutions  of  the  federal  agents." 
In  other  words,  because  they  spoke  so  as  not  to  violate  the 
Espionage  Act,  that  makes  it  all  the  worse.  Also  Claessens 
is  guilty  of  teaching  at  the  Rand  School.  That  is  an  insti- 
tution which  circulates  the  decrees  of  Soviet  Russia,  and  has 
been  convicted  of  publishing  Nearing's  Great  Madness. 
Also  one  of  his  fellow-instructors  was  imprisoned  for  lead- 
ing raids  on  churches.  Obviously,  Claessens  "  stands  for  the 
overthrow  of  our  government."  And  Solomon  at  least  has 
committed  overt  acts  of  undoubted  enormity. 

In  1692  the  chief  accusers  of  the  Salem  witches  were  a 
club  of  young  girls  who  sent  more  than  one  old  woman  to 
her  death  by  telling  how  they  had  seen  her  drink  their  blood 

109  May's  Constitutional  History,  I,  316. 


WILKES  AND  HIS  SUCCESSORS     357 

or  cause  a  yellow  bird  to  sit  on  the  minister's  hat  where  it 
hung  on  a  peg  in  the  pulpit.110  In  1920  Ellen  Chivers,  a 
stenographer  just  under  eighteen  years  old,  testified  that 
three  years  before  when  she  was  barely  fifteen,  she  heard 
Solomon  make  a  speech  in  Brooklyn,  with  an  American  flag 
and  a  red  flag  flying  on  his  stand.111  A  detachment  of  sol- 
diers rode  up  recruiting  and  asked  to  borrow  his  platform. 
She  heard  Solomon  reply,  "Lend  you  my  platform?  Can 
you  borrow  my  platform?  Huh;  the  gutter  is  good  enough 
for  you."  They  spoke  from  their  jitney  and  went  on.  Nor 
was  this  the  worst.  A  band  of  music  came  by  on  a  trolley- 
car,  stopped  about  three  minutes,  and  struck  up  the  "  Star- 
Spangled  Banner."  And  then  in  her  presence  and  in  the 
presence,  she  declared,  of  two  policemen,  "  Mr.  Solomon 
turned  up  his  coat  collar,  put  down  his  hat,  and  pulled  it 
over  his  eyes,  spit  on  the  American  flag  and  sat  down." 
And  the  police  did  nothing. 

The  spy  who  is  regularly  employed  by  the  government 
was  brought  into  undesired  publicity  by  the  Colyer  trial. 
The  voluntary  informer  is  also  a  recurrent  feature  of  all 
prosecutions  for  opinion  since  the  day  of  Titus  Oates  and 
beyond.  This  girl  was  a  member  of  the  American  Anti- 
Socialist  League  and  had  attended  weekly  meetings  for  two 
years  before  she  testified.  She  had  not  mentioned  these  inci- 
dents to  any  member  of  that  society  or  to  her  sister  or  to 
any  one  else,  until  after  the  investigation  began,  when  she 
wrote  to  Speaker  Sweet,  because  she  thought  "  it  was  the 
duty  of  any  American  to  take  the  stand  against  one  who 
has  committed  treason  against  their  country."  The  two 
policemen  on  the  spot  afterwards  swore  that  no  such  disloyal 
acts  occurred.  The  Attorney  General's  brief  reprints  with- 
out question  the  testimony  of  Ellen  Chivers. 

Another  group  of  charges  was  presented  to  appeal  to 
Assemblymen    who    were    not    entirely    convinced    by    Miss 

no  Palfrey,  History  of  New  England,  IV,  102;  Hutchinson,  History 
of  the  Province  of  Massachusetts  Bay,  II,  27. 

m  Assembly  Outline,  71;  Record,  705-723,  for  Chivers'  testimony. 


358  FREEDOM  OF  SPEECH 

Chivers  and  to  attack  the  Socialists  who  could  not  be  ac- 
cused of  such  open  disloyalty.  Candidates  of  the  Socialist 
Party  were  said  to  be  bound  by  certain  pledges,  which  might 
conceivably  operate  to  ruin  the  country,  and  were  so  incon- 
sistent with  their  constitutional  oath  as  to  make  it  false. 
First,  the  National  Socialist  Constitution  provides  that  So- 
cialist office-holders  who  vote  to  appropriate  money  for 
military  or  naval  purposes  shall  be  expelled  from  the  party. 
The  New  York  Constitution  makes  it  the  duty  of  the  Legis- 
lature to  maintain  a  minimum  militia  of  10,000  men.  There- 
fore they  have  disqualified  themselves  to  take  the  oath  to 
support  this  Constitution.  Even  if  this  oath  were  not  obli- 
gatory, they  have  made  themselves  ineligible  by  promising 
to  take  a  course  which  if  supported  by  a  majority  of  the 
Assembly  would  destroy  the  entire  military  organization  of 
the  state  and  tend  to  expose  state  and  nation  to  destruc- 
tion from  its  enemies  without  and  within.  The  state's  right 
of  self-defense  gives  it  the  right  to  exclude  such  traitors. 
Their  intention  to  disregard  the  constitutional  provision 
about  the  minimum  militia  is  shown  by  their  opposition  in 
previous  sessions  to  laws  giving  extra  pay  for  the  National 
Guard  and  pay  while  in  federal  service,  also  to  laws  for  the 
expulsion  of  alien  enemies  from  teaching  in  the  public 
schools,  punishing  the  desecration  of  the  flag,  establishing 
military  training  for  boys,,  and  conscripting  labor.  The 
Attorney  General  neglected  to  add  that  they  also  voted 
against  the  establishment  of  the  Lusk  Committee. 

The  Socialists  replied  that  the  Constitution  was  para- 
mount. Inconsistent  party  pledges  were  rejected  by  virtue 
of  their  oath  as  Assemblymen.  The  National  Party  plat- 
form naturally  failed  to  consider  the  militia  requirement  of 
a  particular  state,  and  they  were  ready  to  carry  out  what- 
ever duty  that  requirement  imposed.  However,  until  some 
one  knew  better  what  it  meant,  other  members  of  the  As- 
sembly had  no  right  to  define  this  duty  for  them  112  or  say 

112  That  constitutional  duties  must  be  interpreted  by  the  person  ob- 
ligated under  the  sanction  of  his  official   oath,  Ops.   of  the  Justices, 


WILKES  AND  HIS  SUCCESSORS  359 

that  it  included  extravagant  appropriations  to  maintain  far 
more  than  the  constitutional  minimum  of  10,000  men.  If  a 
question  of  maintaining  that  minimum  were  presented,  they 
would  do  so.  They  were  not  obliged  to  vote  extras  or  con- 
script boys. 

Still  more  flimsy  is  the  charge  that  the  Socialist  legis- 
lators were  to  vote  as  a  unit  and  obey  the  wishes  of  the 
party  organization.  This  promise,  the  Republican  Attorney 
General  gravely  explains,  must  not  "  be  confused  with  party 
action  in  caucus  where  party  men  uniformly  reserve  the  right 
to  withdraw  if  a  proposed  measure  violates  their  conscience 
or  their  patriotism  or  is  not  with  party  issues."  113  And 
then  a  few  days  later  the  Republicans  proposed  to  displace 
Floor  Manager  Adler  because  he  voted  against  the  unseating 
of  the  five  members.  Nothing  can  be  more  touching  than 
the  indignation  which  the  bare  possibility  of  political  control 
by  outsiders  inspired  in  the  henchmen  of  New  York's 
"  invisible  government  " : 1U 

It  makes  no  difference  what  name  you  give,  whether  you  call 
it  Fenton  or  Conkling  or  Cornell  or  Arthur  or  Piatt,  or  by  the 
names  of  men  now  living.  The  ruler  of  the  state  during  the 
greater  part  of  the  forty  years  of  my  acquaintance  with  the 
state  government  has  not  been  any  man  authorized  by  the  con- 
stitution or  by  the  law. 

The  meat  of  the  Outline  is  the  portrayal  of  the  iniquities 
of  Socialism.  This  is  a  very  different  affair  from  the  body 
of  economic  principles  which  is  attacked  by  Carver,  Taussig, 
and  other  economists,  none  of  whom  was  summoned  as  an 
expert  by  the  prosecution.  The  Outline  conceives  it  as  "  a 
Revolutionary  Party,  having  the  single  purpose  of  destroy- 

56  N.  H.  576  (1875);  Andrew  Jackson,  in  United  States  Bank  veto, 
quoted  by  W.  M.  Evarts,  Arguments  and  Speeches,  I,  445. 

us  Assembly  Outline,  13.  Cf.  Bryce,  Am.  Commonwealth,  3  ed., 
I,  c.  XIX,  p.  204.  See  Hillquit's  remarks  on  the  Roman  augurs'  wink. 
Socialist  Brief,  p.  22.  I  omit  to  discuss  the  charge  that  the  Socialists 
were  required  to  resign  if  they  violated  the  party  platform,  as  this  was 
a  dead-letter. 

n^Elihu  Root,  Addresses  on  Government  and  Citizenship,  p.  202  (at 
the  N.  Y.  Const.  Conv.  of  19J5). 


360  FREEDOM  OF  SPEECH 

ing  our  institutions  and  government  and  substituting  the 
Russian-Soviet  government,  ...  an  anti-national  party 
whose  allegiance  is  given  to  the  Internationale  and  not  to  the 
United  States."  Its  purposes,  mass  action  and  the  general 
strike,  are  treasonable.  For  its  crimes  the  five  members  are 
responsible,  and  more  than  that,  for  the  acts  of  any  other 
person  in  that  party,  whether  or  not  he  belongs  to  their 
particular  faction.  As  Mr.  Stanchfield,  for  the  prosecution, 
openly  stated : 115 

The  whole  theory  of  this  investigation  rests  upon  the  proposi- 
tion that  the  Socialist  Party,  of  which  the  five  members  under 
investigation  are  confessedly,  concededly  members,  has  embarked 
upon  a  program  that  calls  for  the  overthrow  of  our  form  of 
government,  some  assert  by  constitutional  means,  others  by 
violence.  Now,  assuming  that  that  program  is  the  basic  charge 
under  investigation,  then  my  argument  runs  along  this  line: 
That  every  pamphlet,  every  declaration,  every  speech,  every 
statement  of  every  men  who  is  affiliated  with  or  belongs  to  that 
party,  not  necessarily  in  a  technical  sense  of  belonging  to  it,  but 
everybody  who  upholds  those  claims,  who  supports  those  princi- 
ples, who  stands  upon  that  platform,  is  bound  by  the  speeches, 
the  sentiments,  the  writings,  the  books,  the  publications  of  every 
other  man  affiliated  with  that  association,  whether  they  were 
present  at  the  time  when  it  was  made  or  they  were  uttered,  or 
whether  they  were  absent. 

No  person  who  has  followed  with  any  intelligence  the  pro- 
ceedings of  the  Socialist  Party  at  the  conventions  of  Sep- 
tember, 1919,  or  May,  1920,  can  doubt  that  that  party  is  as 
much  divided  into  factions  as  any  other.  Nevertheless,  the 
five  members  were  held  responsible  on  Stanchfield's  principle, 
not  merely  for  the  statements  in  the  party  platform  but  for 
the  Debs  speech  at  Canton,  Ohio,  statements  in  the  Moscow 
manifesto,  extracts  from  a  book  in  Yiddish  published  by  the 
Jewish  Socialist  Federation  of  America,  all  the  articles  con- 
tributed to  the  American  Socialist,  for  everything  that  was 
said  by  speakers  at  meetings  at  which  one  of  the  assembly- 
men was  present  as  well  as  for  statements  made  in  a  letter 

us  Record,  335. 


WILKES  AND  HIS  SUCCESSORS  361 

by  an  organization  to  which  he  was  bitterly  opposed.  This 
was  guilt  by  association  with  a  vengeance. 

And  finally  the  Attorney  General  corrects  one  member  of 
the  Committee  in  his  misapprehension  of  thinking  that  the 
duty  to  disqualify  for  disloyalty  rests  with  the  people  of  the 
district.  This,  he  says,  misconceives  the  representative  as 
an  officer  of  the  district  and  not  of  the  state,  and  he  shows 
the  gravity  of  the  error  by  an  extract  from  Burke's  "  Speech 
to  the  Sheriffs  of  Bristol": 

You  choose  a  member  indeed;  but  when  you  have  chosen  him, 
he  is  not  a  member  of  Bristol,  but  he  is  a  member  of  Parliament. 

"  Thoughts  on  the  Present  Discontents  "  had  been  more  to 
the  point.  And,  quoting  more  political  scripture,  he  warns 
the  Committee  in  Madison's  words  against  that  sectionalism 
which  leads  state  legislators  to  sacrifice  the  comprehensive 
and  permanent  interest  of  the  state  to  the  particular  and 
separate  views  of  the  counties  or  districts  where  they  re- 
side. 

When  such  testimony  and  arguments  were  admitted,  the 
result  was  a  foregone  conclusion.  The  Committee  recom- 
mended expulsion,  the  Assembly  characteristically  waited 
until  April  1st,  which  was  too  late  for  a  re-election,  and 
then  disregarding  the  maiden  speech  of  Theodore  Roose- 
velt, who,  with  all  his  inherited  abhorrence  of  Socialism  and 
pacifism,  refused  to  condemn  the  Socialist  Party  as  a  con- 
spiracy for  a  state  of  mind,  expelled  the  five  members  by  an 
overwhelming  vote.116  The  Legislature  proceeded  to  enact 
the  bills  drafted  by  the  triumphant  Lusk  Committee,  which 
not  only  throttle  the  Rand  School,  but  exclude  from  the 
definition  of  a  party  under  the  Election  Law  any  organiza- 
tion which  advocates: 

Principles,  doctrines,  or  policies  that  tend,  if  carried  into  effect, 
to  the  destruction,  subversion  or  endangering  of  the  existing 
governments   of   the   United   States   and   of  the   State   of   New 

lie  New  York  Times,  April  1st  and  2nd. 


362  FREEDOM  OF  SPEECH 

York,  and  of  the  rights,  privileges  and  institutions  secured  under 
such  constitutions.117 

Any  person  who  is  a  member  of  such  organization  is  made 
ineligible  for  public  office.  And  then  leaving  the  governor's 
welfare  bills  untouched  the  New  York  Legislature  adjourned, 
and  Speaker  Sweet  proclaimed  the  session  "  a  victory  for 
undivided  Americanism." 

Surely  this  event  ought  to  free  us  from  the  tyranny  of  this 
word,  which  seems  like  some  magic  helmet  to  render  the 
true  qualities  of  the  wearer  invisible  to  those  around  him. 
The  men  who  use  the  ideals  of  the  founders  of  our  Republic, 
not  as  an  inspiration  for  high-minded  action  on  their  own 
part  but  as  a  test  by  which  they  may  condemn  and  imprison 
and  disfranchise  their  fellow-citizens,  are  as  unpardonable 
as  the  persecutors  who  used  the  teachings  of  the  Gospels  to 
send  men  to  the  stake  in  this  world  and  hell-fire  in  the  next. 
Years  ago  William  Graham  Sumner  commented: 

Who  dares  say  that  he  is  not  "  American "  ?  Who  dares 
repudiate  what  is  declared  to  be  Americanism?  It  follows  that 
if  anything  is  base  and  bogus  it  is  always  labeled  American.  If 
a  thing  is  to  be  recommended  which  cannot  be  justified  it  is  put 
under  "  Americanism "  .  .  .  .  Then  we  see  what  Americanism 
and  patriotism  are.  They  are  the  duty  laid  upon  us  all  to 
applaud,  follow  and  obey  whatever  a  ruling  clique  of  newspapers 
or  politicians  chooses  to  say  or  wants  to  do.118 

The  absurdity  to  which  our  greatest  state  has  descended 
in  its  frantic  desire  to  suppress  disloyalty  cannot  be  en- 
tirely explained  by  the  fear  of  Bolshevism,  because  the 
danger  of  that  is  far  greater  in  European  countries,  which 
have  large  groups  of  Socialists  in  their  legislatures  unmo- 
lested. Nor  is  it  entirely  due  to  the  activities  of  organiza- 
tions like  the  Lusk  Committee.  Something  more  is  needed 
to  account  for  the  statement  of  the  New  York  Times  that 
the  expulsion  of  the  Socialists  was  as   clearly  and  demon- 

H7  2  Review,  422.  Governor  Smith  vetoed  all  the  Lusk  bills  in  a 
stinging  message. 

H8  Folkways,  p.  177. 


WILKES  AND  HIS  SUCCESSORS  363 

strablj  a  measure  of  national  defense  as  the  declaration  of 
war  again  Germany.119  Speaker  Sweet  and  his  associates 
would  not  have  acted  as  they  did  had  they  not  been  assured  of 
wide  support,  especially  in  the  country  districts.  Much  of 
the  panic-stricken  dread  of  Socialism  is  due  to  the  sentiment 
that  we  must  have  unanimity  of  thought  in  this  country. 
The  surprising  uniformity  of  American  life  has  long  excited 
attention  from  foreign  observers.120  Until  recently  we  have 
had  only  a  middle  class  without  any  proletariat  or  large 
group  of  extremely  wealthy  men.  Since  the  issues  of  the 
Civil  War  died  away,  whatever  few  fundamental  differences 
in  opinion  have  existed  have  rarely  coincided  with  party 
lines.  A  French  writer  in  his  biography  of  President 
Wilson  remarks  that  a  foreigner  on  coming  to  this  country 
does  not  understand  our  political  parties.  In  Europe  every 
party  has  a  platform  which  represents  a  definite  policy,  like 
monarchy,  clericalism,  Socialism.  He  finds  nothing  of  the 
kind  here.  Why  do  we  have  two  parties  when  they  do  not 
differ?  Halevy  explains  that  the  Republican  and  Demo- 
cratic parties  are  like  two  great  department  stores,  such  as 
the  Bon  Marche  and  the  Louvre.  Both  sell  very  much  the 
same  things.  Some  people  go  entirely  to  one,  some  go  en- 
tirely to  the  other,  some  go  first  to  one  and  then  to  the 
other.  They  are  there  because  they  have  always  been 
there.121  But  now  a  new  party  has  entered  the  field  which 
has  real  issues,  vital  one  way  or  the  other  to  all  of  us  and 
hence  the  antagonism  of  its  opponents  is  immediate  and 
bitter.  When  it  shows  signs  of  gaining  real  strength  then 
there  is  an  energetic  effort  to  stamp  it  out,  which  likes  to 
base  itself  on  patriotism  and  self-preservation. 

It  is  not  by  such  methods  that  the  nation  can  be  saved 
from  the  evil  tendencies  of  any  doctrine.  The  great  strength 
of  our  argument  against  violent-talking  radicals  in  the  past 
has  been  that  we  could  say  to  them:  "  It  is  true  that  in  the 

ii»  Editorial  of  April  2nd. 

120  See  Bryce's  American  Commonwealth,  II,  c.  CXII. 

i2i  Daniel  Halevy,  Le  President  Wilson,  Paris,  1918,  p.  109. 


364  FREEDOM  OF  SPEECH 

countries  that  you  came  from  you  .  naturally  resorted  to 
violence  because  you  had  no  vote  and  could  not  abolish  the 
abuses  to  which  you  objected.  It  is  not  so  in  this  country. 
If  you  want  a  change,  go  and  vote  for  it,  vote  for  men 
who  have  promised  to  bring  it  to  pass."  The  New  York 
Assembly  has  deprived  us  of  this  argument  in  the  state 
where  the  left  wing  is  strongest.  It  has  appealed  to  force 
as  the  normal  method  for  settling  conflicts  between  ideas. 
It  has  disregarded  the  counsel  of  its  wisest  men  to  take  that 
of  the  Lusk  Committee,  whose  whole  existence  has  been  a 
violation  of  constitutional  rights.  It  has  disfranchised 
60,000  American  citizens  on  the  basis  of  a  caricature  of 
Socialism  and  the  testimony  of  Ellen  Chivers.  It  has  re- 
pudiated government  by  representation  and  substituted  gov- 
ernment by  misrepresentation. 


CHAPTER  VII 

FREEDOM  AND  INITIATIVE  IN  THE  SCHOOLS 

The  Liberty  is  likely  to  survive  longer  than  anything  else  that 
I  have  written,  because  it  is  a  kind  of  philosophic  text-book  of 
a  single  truth,  which  the  changes  progressively  taking  place  in 
modern  society  tend  to  bring  out  into  ever  stronger  relief:  the 
importance,  to  man  and  society,  of  a  large  variety  in  types  of 
character,  and  of  giving  full  freedom  to  human  nature  to  expand 
itself  in  innumerable  and  conflicting  directions. — John  Stuart 
Mill,  Autobiography. 

The  state  which  refrains  from  fighting  revolutionary  doc- 
trines by  force  except  in  times  of  clear  and  present  danger 
is  not  helpless,  for  besides  abolishing  some  causes  of  discon- 
tent, it  can  employ  education  to  establish  among  its  citizens 
faith  in  progress  through  law.  If,  however,  the  advocates 
of  revolution  by  violence  should  share  in  the  control  of 
education,  the  state  would  seem  to  be  surrendering  its  last 
stronghold.  Such  a  possibility  is  indicated  to  many  by  the 
presence  of  radicals  among  public  school  teachers.  The 
situation  is  complicated  by  factors  which  lie  outside  the 
province  of  this  book,  like  the  claim  of  teachers  to  participate 
in  deciding  the  dismissal  of  one  of  their  number.  Questions 
of  the  fitness  of  some  particular  teacher  to  teach,  instead  of 
being  settled  purely  on  their  merits,  have  become  storm- 
centers  of  conflict  for  employees,  trade-unions,  and  the  press. 
On  one  side,  some  teachers  who  are  dismissed  for  good  rea- 
sons are  believed  by  their  friends  to  be  ousted  for  political  or 
economic  views.  On  the  other  side,  the  authorities  assert 
that  any  one  who  holds  certain  views  is  ipso  "facto  unfit  to 
teach.  For  example,  Dr.  John  L.  Tildsley,  while  Associate 
Superintendent  of  Schools  in  New  York,  declared,1  "  that 
men  or  women  who  are  Marxian  Socialists,  who  believe  in 

i  The  Public  and  the  Schools,  May  17,  1919,  Public  Education  Assn., 
N.  Y. 

365 


366  FREEDOM  OF  SPEECH 

the  Communist  Manifesto,  have  no  right  to  be  in  the  school 
system  because  such  teachers  believe  in  the  overturn  by  force 
of  those  elements  on  which  our  civilization  is  based."  The 
student  of  freedom  of  speech  is  concerned  with  the  compara- 
tive redness  of  these  proscribed  views,  and  with  the  question 
whether  a  teacher  is  to  be  dismissed  for  merely  believing  in 
them  or  only  if  he  expresses  them  to  his  classes.  The  follow- 
ing reflections  grow  out  of  the  New  York  controversy,  but 
merely  endeavor  to  suggest  some  controlling  principles.  Since 
the  problem  does  not  involve  the  legal  questions  which  have 
received  attention  in  previous  chapters,  it  may  be  helpful,  at 
the  cost  of  some  repetition,  to  restate  in  non-technical  lan- 
guage the  main  conclusions  of  this  book. 

When  I  heard  Dr.  Tildsley  say  he  believed  in  freedom  of 
speech  I  felt  glad  that  we  stood  in  the  same  position.  But 
when  he  went  on  and  said  no  one  who  favored  Marxian 
Socialism  should  teach  in  the  schools,  it  seemed  to  me  a 
little  like  a  character  in  James  Russell  Lowell,  a  gentleman 
of  the  Biglow  Papers,  who  said :  "  I  du  believe  in  Freedom's 
cause,  Ez  fur  away  as  Payris  is."  Or  something  like  the 
Irishman  who  inquired  of  his  friend,  "  What  is  this  Socialism 
that  I  hear  so  much  about?  "  Mike  said,  "  Why,  Pat,  don't 
you  know  what  that  is?  If  you  had  a  million  dollars,  you 
would  give  me  half,  wouldn't  you  ?  "  "  Sure,  I  would ! " 
"Well,  that's  Socialism."  Pat  said,  "That  is  a  grand 
thing !  Tell  me  some  more  about  it."  "  Well,"  replied  Mike, 
"  If  you  had  ten  dollars,  you  would  give  me  half,  wouldn't 
you?  "    "  I  would  not !    I've  got  ten  dollars  !  " 

We  all  believe  in  freedom  of  speech,  but  the  question  is, 
do  we  believe  in  it  when  it  is  disagreeable  to  us?  After  all, 
if  freedom  of  speech  means  anything,  it  means  a  willingness 
to  stand  and  let  people  say  things  with  which  we  disagree, 
and  which  do  weary  us  considerably.  A  good  deal  of  the 
public  discussion  on  the  matter  turns  on  the  use  of  the  word 
"  rights."  Those  who  want  to  speak  freely  insist  on  the 
right  of  freedom  of  speech;  and,  on  the  other  hand,  those 
who  wish  to  restrict  speakers  talk  of  the  right  of  the  gov- 


FREEDOM  AND  INITIATIVE  IN  SCHOOLS      367 

ernment  to  carry  on  war  and  the  right  of  the  government 
to  maintain  order,  and  there  we  have  a  deadlock.  Each  side 
says  it  is  in  the  right,  and  that  does  not  bring  us  anywhere 
at  all.  I  think  we  will  do  well  to  get  away  from  this  word 
"  right "  entirely,  and  look  at  it  from  another  point  of  view, 
not  from  the  legal  point  of  view,  but  simply  from  the  point 
of  view  of  the  individual  human  being  who  wants  to  speak 
and  the  great  group  of  human  beings  which  constitute  the 
society  in  which  he  speaks.  That  is,  we  have  his  individual 
interests  and  the  interests  of  society  at  large. 

First,  we  have  the  individual  interest  in  freedom  of  speech. 
"  Good,"  as  Emerson  says,  "  does  not  mean  good  to  eat  and 
good  to  wear."  It  means  to  live  our  own  lives  as  fully  as 
we  can  and  to  bear  witness  to  the  truth  for  which  we  came 
into  the  world.  I  did  intend  at  this  point  to  quote  from 
Jean-Christophe,  by  Romain  Rolland,  but  this  is  one  of  the 
proscribed  books  for  recommending  which  to  his  pupils  a 
teacher  was  dismissed  from  the  New  York  high  schools,  and 
so  I  will  refrain.  But  instead,  I  will  take  a  book  which  was 
written  three  thousand  years  ago,  which  is  fairly  safe — the 
Apology  of  Socrates  : 

If  in  acquitting  me  you  should  say:  "We  will  not  put  faith 
this  time,  O  Socrates,  in  your  accusers,  but  will  let  you  go,  on  the 
condition,  however,  that  you  no  longer  spend  your  time  in  this 
search  nor  in  the  pursuit  of  wisdom,  and  that  if  you  are  caught 
doing  either  again  you  shall  die  " — if,  I  say,  you  were  to  release 
me  on  these  conditions,  I  should  say  to  you:  "  Athenians,  I  love 
and  cherish  you,  but  shall  obey  the  God  rather  than  you;  and  as 
long  as  I  draw  breath  and  have  the  strength,  I  shall  never  cease  to 
follow  philosophy  and  to  exhort  and  persuade  any  one  of  you 
whom  I  happen  to  meet.  For  this,  be  assured,  the  God  commands ; 
and  I  believe  that  there  has  never  been  a  greater  good  in  the 
state  than  this  my  service  to  the  God;  for  I  do  nothing  but  go 
about  persuading  you,  both  young  and  old,  not  to  let  your  first 
thought  be  for  your  body  or  your  possessions,  nor  to  care  for 
anything  so  earnestly  as  for  your  soul."  And,  Athenians,  I  should 
go  on  to  say:  "  Either  hearken  to  my  accusers  or  not,  and  either 
acquit  me  or  not ;  but  understand  that  I  shall  never  act  differently, 
even  if  I  have  to  die  for  it  many  times." 


368  FREEDOM  OF  SPEECH 

That  is  the  individual  interest  in  free  speech.  Over 
against  that  we  have  to  set  the  social  interests — the  interest 
in  the  safeguarding  of  the  government  and  the  nation  from 
foreign  attack,  the  interest  in  order,  without  which  all  our 
individual  interests  would  be  lost,  the  interest  in  moral  and 
decent  living,  and  the  interest  in  the  training  of  the  young, 
which  is  the  main  thing  that  we  have  to  consider  here.  As 
between  that  individual  interest  and  those  social  interests, 
it  seems  easy  to  conclude  that  the  individual  interest  should 
always  give  way;  that,  as  is  often  said,  freedom  of  speech 
means  liberty,  not  license;  that  we  must  not  advocate  any- 
thing that  is  wrong,  anything  which  interferes  with  the  so- 
cial interests  in  order,  and  so  on.  But  we  have  to  remember 
that  not  only  do  we  have  the  social  interest  in  order,  and 
in  the  education  of  the  young,  and  in  morals,  but  that  free- 
dom of  speech  is  itself  a  social  interest ;  that  one  of  the  pur- 
poses for  which  society  exists  just  as  much  as  for  the  main- 
tenance of  order  is  the  discovery  and  the  spread  of  truth. 

Another  member  of  the  Lowell  family,  now  President  of 
Harvard,  said  in  his  report  to  the  Corporation  on  the  sub- 
ject of  freedom  of  speech,  which  every  Harvard  professor 
can  regard  as  a  Magna  Charta : 

Education  has  proved,  and  probably  no  one  would  now  deny, 
that  knowledge  can  advance,  or  at  least  can  advance  most  rapidly, 
only  by  means  of  an  unfettered  search  for  truth  on  the  part  of 
those  who  devote  their  lives  to  seeking  it  in  their  respective 
fields,  and  by  complete  freedom  in  imparting  to  their  pupils  the 
truth  that  they  have  found.  This  has  become  an  axiom  in  higher 
education,  in  spite  of  the  fact  that  a  searcher  may  discover  error 
instead  of  truth,  and  be  misled,  and  mislead  others,  thereby. 
We  believe  that  if  enough  light  is  let  in,  the  real  relations  of 
things  will  soon  be  seen,  and  they  can  be  seen  in  no  other  way. 

We  cannot  be  sure  that  any  statement  is  either  wholly 
true  or  wholly  false.  We  cannot  separate  the  truth  at  once. 
We  have  to  leave  the  separation  on  the  whole  to  time.  Any 
subject  may  have  some  bad  features,  but  we  must  let  the 
wheat  grow  with  the  tares  until  the  time  comes  when  the 
crop  is  ripe,  and  we  can  decide  between  them.     If  what  is 


FREEDOM  AND  INITIATIVE  IN  SCHOOLS      369 

said  does  dangerously  and  directly  interfere  with  those  other 
social  interests  in  order  and  in  education  of  the  young,  then 
speech  must  be  restrained.  But  until  that  time  comes — 
and  we  ought  to  be  sure  that  it  has  come — we  should  be  very 
careful  how  we  interfere.  Because  it  is  by  the  contest  of 
argument  that  the  truth  is  found.  Argument  on  one  side 
and  argument  on  the  other  is  the  best  way  that  we  have 
on  earth  to  bring  about  truth.  Once  force  is  thrown  into 
the  scale,  once  the  pressure  of  government  is  used  on  one 
side  or  the  other,  it  becomes  simply  a  matter  of  chance  on 
which  side  it  is  used,  and  then  the  natural  ability  to  decide 
the  matter  by  argument  is  altogether  gone.  I  say  it  is  just 
a  matter  of  chance.  For  instance,  force  here  is  to  be  thrown 
against  Marxian  Socialism,  a  doctrine  with  which  I  do  not 
at  all  agree;  but,  in  North  Dakota  it  is  to  be  thrown  on 
the  side  of  something  that  comes  pretty  near  Marxian  So- 
cialism. Under  a  populist  regime  in  Kansas  the  State  issued 
textbooks  that  had  to  be  used  in  the  schools,  which  devoted 
more  time  to  the  "  crime  of  '73,"  by  which  free  silver  was 
abolished,  than  to  the  Civil  War.  It  just  depends  on  what 
government  you  have.  The  administration  in  Washington  is 
now  publishing  textbooks  for  use  in  the  schools.2  When  we 
have  a  Republican  administration  we  may  have  a  different 
kind  of  textbook.  Therein  lies  the  difficulty  with  Dr. 
Tildsley's  argument  that  teachers  must  teach  and  think  ac- 
cording to  the  decision  of  a  majority  in  Congress.  It  is 
true  that  a  majority  decision  is  the  best  way  of  determining 
how  the  government  shall  act,  but  it  is  not  the  best  way  of 
deciding  what  is  right.  We  have  to  act  on  the  decision  of 
the  majority,  but  the  minority  are  not  thereby  precluded 
from  doubting  the  wisdom  of  the  decision,  and  it  may  even- 
tually be  that  they  will  again  become  the  majority  and  will 
put  an  end  to  that  particular  measure. 

If  the  majority  of  Congress  declares  war,  the  minority 
must  realize  that  we  are  at  war,  but  they  are  not  necessarily 

2 "A   Case  of  Federal   Propaganda  in  our  Public  Schools,"   Natl. 
Industrial  Conference  Board,  Feb.,  1919. 


370  FREEDOM  OF  SPEECH 

bound  to  believe  that  the  war  is  right,  and  why  should  they 
not  endeavor  to  stop  it  by  argument  when  they  believe  that 
it  has  gone  far  enough?  Once  again,  we  have  got  to 
balance  the  interests  in  this  matter — the  public  interest  in 
the  discovery  of  truth  against  the  public  interest  in  the 
education  of  the  young  and  protection  against  invasion. 
And  it  is  very  necessary  that  the  balancing  should  be  done 
by  people  who  realize  the  importance  of  freedom  of  speech. 
Freedom  of  speech  ought  to  weigh  very  heavily  in  the  scale. 
It  is  all  very  well  to  say  that  religious  views  should  be 
free;  that  scientific  investigation  should  be  free;  but  that 
political  opinion  cannot  be  free,  because  that  is  dangerous; 
that  Marxian  Socialism  is  so  dangerous  that  it  cannot  be 
free.  Three  centuries  ago,  people  felt  just  as  strongly 
about  religious  views  and  about  scientific  investigation  as 
they  do  now  about  political  investigation.  They  felt  just 
as  sure  that  any  view  which  was  not  in  accord  with  the 
orthodox  religion  would  unsettle  the  very  foundations  of 
morality,  and  that  consequently  no  one  should  teach  in  the 
schools  who  was  not  an  orthodox  Christian.  And  they  felt 
just  as  sure  about  scientific  investigation;  that  if  a  man 
said  the  earth  went  around  the  sun,  he  should  not  be  trusted 
anywhere.  If  they  felt  so  strongly  about  it  then,  and  were 
wrong,  how  can  we  be  sure  that  we  are  right  if  we  feel  the 
same  way  about  political  investigation?  On  that  we  must 
have  just  as  much  freedom  of  investigation  as  in  the  old 
days  was  necessary  for  scientific  discoveries.  It  is  easy 
enough  to  think  that  everything  that  is  different  from  our- 
selves must  necessarily  be  dangerous.  It  is  easy  to  believe 
that  political  ideas  which  are  different  from  our  own  must 
necessarily  advocate  the  use  of  force.  We  say,  how  could 
Socialism  come  into  existence  except  by  violence,  because  it 
is  so  objectionable.  I  do  not  believe  in  it,  and  hope  it  will 
not  come  into  existence.  But  I  do  not  see  why  it  may  not  be 
adopted  by  popular  suffrage,  the  same  as  other  ideas.  We 
ought  not  to  assume  it  can  only  win  by  violence,  simply  be- 
cause it  differs  from  our  views.     In  the  old  days  they  used 


FREEDOM  AND  INITIATIVE  IN  SCHOOLS      371 

to  get  rid  of  objectionable  persons  on  the  ground  that  they 
would  overthrow  society.  They  got  rid  of  Socrates  by  say- 
ing he  was  a  corrupter  of  the  youth.  They  got  rid  of  Jesus 
by  saying  he  planned  to  upset  the  Roman  state,  and  they 
said  it  is  more  expedient  that  one  man  should  die  than  that 
the  people  should  perish.  It  is  more  expedient,  now,  that 
one  man  should  be  put  in  prison  or  lose  his  job — it  is  just 
the  same  argument  we  use — than  that  the  people  should 
perish.  But  let  us  be  sure  that  the  people,  after  all,  are 
going  to  perish. 

In  war  time,  the  problem  is  perhaps  peculiar.  Everybody 
is  very  much  occupied.  We  haven't  time  to  think  things 
over,  and  people  will  say,  "  We  don't  care  what  sort  of  war 
it  is.  My  country,  right  or  wrong.  Let  us  go  ahead."  It 
is  something  like  the  colored  man  who  went  with  his  son  to 
rob  a  hen  coop,  and  sent  his  son  inside.  The  boy  turned 
and  stuck  his  head  out  of  the  door  and  said,  "  Father,  am 
dis  right  ?  "  And  the  father  said,  "  Dat  am  a  great  moral 
question.  We  will  argue  it  out  at  home  dis  evening.  You 
get  busy  and  hand  out  dem  chickens." 

I  think  this  war  was  right,  but  the  people  who  opposed 
it,  who  were  wrong  this  time,  may  be  right  next  time,  as 
they  were  right  in  the  Mexican  War.  They  may  be  right 
next  time,  and  we  ought  to  be  careful  how  we  require  every 
person  who  teaches  in  the  schools  to  support  every  war  that 
is  going  on.  But  now  we  have  peace.  We  cannot  postpone 
the  discussion  of  problems  until  the  "  war  "  is  over.  We 
shall  have  to  meet  them  as  they  arise.  Dr.  Tildsley  spoke  of 
our  being  under  the  spell  of  words.  There  is  one  word  we 
are  all  under  the  spell  of  at  the  present  time,  and  that  is, 
Americanism.  What  does  it  mean?  We  are  afraid  of  some- 
thing. We  were  afraid  of  Germany,  but  we  got  over  that. 
What  is  it  we  are  scared  about  now?  We  are  scared  of 
Russia.  Why?  Is  it  because  Russia  has  a  different  po- 
litical system  from  ours?  She  had  a  different  political  sys- 
tem under  the  Czar,  and  we  were  perfectly  willing  to  discuss 
his   system.      Is   it   because  the  people   have   a   tremendous 


372  FREEDOM  OF  SPEECH 

control  there?  We  have  been  perfectly  willing  to  discuss  the 
initiative  and  the  referendum  for  years.  Is  it  because  they 
have  a  restrictive  franchise  there?  We  have  a  restrictive 
franchise  in  certain  states  where  half  the  adult  population 
is  not  allowed  to  vote.  In  Rhode  Island,  where  I  used  to 
live,  the  men  who  are  most  scared  of  Bolshevism  are  the  men 
who  are  most  ready  to  keep  the  property  franchise  under 
which  people  who  have  less  than  $134  cannot  vote  for  many 
important  offices.  What  we  are  really  scared  of  is  not 
something  political ;  it  is  economic.  We  are  afraid  of  a 
system  which  takes  property  from  the  people  who  have  in- 
herited it  or  who  have  earned  it,  and  that  is  an  economic 
question.  It  is  not  Americanism  against  something  else.  It 
is  simply  a  choice  of  two  economic  systems,  and  we  have 
got  to  have  that  controversy  discussed  if  we  are  going  to 
decide  it  rightly. 

If  Americanism  means  anything,  it  means  free  speech, 
right  from  the  start.  The  Pilgrims  came  to  Massachusetts 
to  get  it,  and  Roger  Williams  left  Massachusetts,  not  only 
because  he  had  his  own  religious  views  but  because  he  at- 
tacked property  rights  in  land  not  purchased  from  the 
Indians.  Thomas  Jefferson  is  usually  considered  a  good 
American,  but  he  said  things  about  the  desirability  of  rebel- 
lion that  would  make  us  all  shudder.  Alexander  Hamilton 
argued  for  free  speech  here  in  New  York,  and  James  Russell 
Lowell  called  the  Mexican  War  murder.  The  abolitionists, 
men  whom  we  all  honor  to-day,  believed  in  Americanism — 
freedom  to  criticise  the  government  of  their  day  and  the 
institutions  of  property  of  their  day,  which  included  a  tre- 
mendous form  of  property — the  property  in  negro  slaves. 
I  believe  in  private  property  myself,  but  because  I  believe  in 
it  I  want  to  know  why  it  ought  to  be  supported. 

And  now,  for  the  problem  as  it  affects  teachers.  There 
are  two  views  of  teaching.  One  regards  teaching  as  a  sort  of 
handing  out  canned  goods  to  the  pupils,  so  much  canned 
goods,  so  much  knowledge.  Well,  if  it  is  a  canned  goods 
business,  we  may  need  a  Pure  Food  Law  to  make  sure  the 


FREEDOM  AND  INITIATIVE  IN  SCHOOLS      373 

children  get  the  right  brand  of  "  corn."  But  this  is  not  the 
real  theory.  That  was  held  by  President  Gilman  of  Johns 
Hopkins,  when  he  took  Professor  Gildersleeye  into  a  bare 
room  and  said,  "  Now,  radiate."  We  have  got  to  have  the 
kind  of  teachers  that  radiate.  For  that  we  not  only  need 
contented  teachers,  but  we  must  have  teachers  who  think 
for  themselves. 

In  a  pamphlet  issued  in  the  New  York  school  controversy, 
the  "  Reply  of  the  Superintendents,"  is  a  statement  that 
teachers  should  be  obedient,  and  to  support  it  a  quotation 
about  the  sort  of  obedience  that  is  necessary  in  the  army 
and  navy.  Of  course,  teachers  to  some  extent  have  to 
obey,  but  the  kind  of  obedience  we  ought  to  get  from  them 
is  far  from  the  kind  they  get  in  the  army  and  navy.  In  an 
autocracy,  they  might  get  along  without  teachers  of  inde- 
pendence. But  this  country  has  to  be  run  by  the  people 
in  it,  and  they  are  the  people  who  are  taught  in  the  schools ; 
and  if  the  teachers  cannot  think  for  themselves,  the  pupils 
cannot  think  for  themselves.  They  cannot  discuss  merely 
the  questions  of  the  past.  They  must  discuss  the  critical 
problems  of  the  present  time  if  they  are  to  solve  them. 

In  England  there  is  a  leisure  class  to  carry  on  the  gov- 
ernment. We  cannot  depend  on  that.  Now,  to  what  branch 
of  citizens  should  we  turn  more  for  help  in  these  matters 
than  the  teachers?  And  there  is  no  class  of  people  who  are 
more  injured  by  repression  than  teachers.  If  you  say  to 
any  other  man  that  he  must  not  express  his  ideas  on  political 
questions,  he  can  at  least  devote  himself  to  his  job,  but  if 
you  confine  the  teacher  in  his  thinking,  what  do  you  leave 
him?     That  is  his  job,  to  think. 

People  say  that  the  teacher  is  employed  by  the  govern- 
ment, and  ought  to  agree  with  the  government  which  pays 
him.  The  courts  are  just  as  much  a  part  of  the  government 
as  the  schools — more  so,  for  we  have  private  schools,  but 
we  do  not  have  private  courts.  Do  we  say  that  every  one 
in  the  court  must  agree  with  the  government?  Do  we  say 
that  the  judges  must  always  decide  in  favor  of  the  govern- 


,374,  FREEDOM  OF  SPEECH 

ment?  Not  at  ail!  They  often  decide  against  it.  We  retain 
lawyers  to  defend  criminals  whom  the  government  accuses. 
It  is  even  suggested  we  should  have  one  lawyer  to  do  so  all 
the  time.  Progressive  manufacturing  corporations  employ 
men  just  to  criticise  the  products  of  the  corporation  and  see 
how  they  can  be  better  made.  The  teacher  may  be  serving 
the  state  even  while  he  criticises  it. 

Of  course,  we  have  special  considerations  in  the  schools. 
We  have  this  social  interest  in  favor  of  the  education  of 
children.  We  cannot  let  everything  be  said  in  the  schools 
that  we  might  let  be  said  outside.  A  teacher  might  be 
allowed  to  stand  on  his  head  at  home,  but  not  in  school. 
In  the  same  way  there  is  much  he  ought  not  to  do  there 
in  the  way  of  free  speech.  If  he  taught  that  all  boys  and 
girls  at  sixteen  were  of  a  proper  age  to  marry,  he  certainly 
ought  to  lose  his  position.  He  must  adapt  his  discussion 
to  the  maturity  of  the  pupils  before  him.  And  we  certainly 
can  require  concentration  on  his  subject;  we  can  require 
judgment;  we  ought  to  demand  of  a  teacher  that  he  should  be 
a  master  of  his  subject  and  a  man  of  sound  common  sense. 

But,  on  the  other  hand,  you  cannot  control  the  mind  of 
an  expert.  You  cannot  stand  over  Galileo  and  say  "  Use 
your  telescope,  but  do  not  find  that  the  earth  goes  around 
the  sun."  You  cannot  stand  over  Pasteur  and  say,  "  In- 
vestigate spontaneous  generation,  but  do  not  discover  that 
spontaneous  generation  exists."  You  cannot  stand  over  a 
man  that  deals  with  economics  and  say,  "  Find  out  that  eco- 
nomics exists  according  to  this  or  that  system  " ;  or,  if  he 
deals  with  history,  say  to  him,  "  Find  out  that  the  men  who 
are  in  power  in  Russia  are  a  gang  of  thugs."  If  he  finds 
it  out,  all  right ;  but  you  cannot  force  him  to  do  so,  and  you 
cannot  force  him  to  teach  lies.  Outside  of  the  classroom  he 
should  be  even  more  free.  There  he  is  a  citizen,  and  as  the 
New  York  Constitution  says,  every  citizen  may  safely  speak, 
write,  and  publish  his  sentiments  on  all  subjects,  being  respon- 
sible for  the  abuse  of  that  right ;  and  no  law  shall  be  passed 
to  restrain  or  abridge  the  liberty  of  speech  or  of  the  press^ 


FREEDOM  AND  INITIATIVE  IN  SCHOOLS      375 

Be  sure  that  the  right  is  abused.  Be  sure  that  freedom 
of  speech  weighs  much  in  the  scale.  I  think  if  every  board 
which  had  to  pass  on  the  removal  of  a  teacher  would  first 
read  Milton's  Areopagitica  and  Mill  on  Liberty,  that  some 
of  the  decisions  would  be  very  different ;  because  they  would 
see  that,  after  all,  freedom  of  speech  is  just  as  important  as 
the  maintenance  of  order. 

Why  are  we  so  worried?  Why  are  we  so  scared?  Have 
we  no  confidence  in  the  arguments  that  can  be  used  against 
these  radical  ideas?  Parents  argue  on  the  other  side,  and 
we  have  with  us  the  army  and  the  police,  and  everybody 
who  has  a  savings  bank  account  or  a  life  insurance  policy. 
After  all,  the  dangers  of  rebellion  are  not  very  great,  unless 
our  case  is  very  weak,  and  I  do  not  think  it  is. 

Finally,  repression  will  produce  just  the  kind  of  spirit 
in  the  teachers  that  we  want  to  get  rid  of — that  is,  the 
revolutionary  spirit.  The  French  experience  in  this  matter 
has  been  very  instructive.3  There  the  government  threw  its 
force  against  religion.  Teachers  were  dismissed  because  they 
went  to  church.  Teachers  were  dismissed  for  attacking  the 
Prefect  of  their  department.  The  state  held  a  general 
inquisition  into  the  opinions  of  all  the  teachers,  a  cabinet 
minister  saying,  "  The  government  will  not  surrender  the 
right  to  know  the  attitude  of  its  servants  toward  the  repub- 
lic." And  they  even  had  a  law  that  government  officials, 
including  teachers,  should  wear  a  cheerful  countenance  on 
national  holidays.  What  was  the  result?  The  teachers  of 
France,  although  by  birth,  by  training,  by  disposition  af- 
filiated with  the  middle  class  rather  than  the  working  class, 
have  formed  a  revolutionary  trade-union  and  affiliated  them- 
selves with  the  syndicalist  organizations  of  France. 

It  is  all  very  well  to  say  that  we  ought  to  be  loyal  to  the 
state.  What  do  we  mean  by  the  state?  After  all,  it  comes 
right  straight  down  to  the  government  that  we  deal  with, 
and  the  government  comes  down  to  the  men  that  we  deal 
with,  which  means  the  educational  authorities,  and  those  who 
have  power  to  put  us  in  prison,  and  if  those  men  do  not 

3  H.  J.  Laski,  Authority  in  the  Modern  State,  c.  V. 


376  FREEDOM  OF  SPEECH 

stand  for  the  best  things  we  stand  for,— for  the  development 
of  mind  and  spirit  and  the  search  for  truth,  we  begin  to 
wonder  whether,  after  all,  that  government  ought  to  endure, 
and  whether  we  do  not  want  a  government  which  will  stand 
for  the  things  that  we  believe  in.  So  it  becomes  important 
that  the  men  who  constitute  the  government,  who,  after  all, 
are  really  the  state,  should  stand  for  these  things.  We  can- 
not love  the  state  as  a  mystical  unity,  when  that  unity  as  we 
actually  face  it  prevents  us  from  living  a  true  human  life.  So 
that,  in  order  to  make  people  loyal  to  the  state,  you  must 
make  the  state  a  sort  of  thing  that  they  want  to  be  loyal  to. 

We  have  got  to  take  risks.  Of  course,  it  is  not  perfectly 
safe  to  allow  teachers  to  be  free.  There  ought  to  be  this 
balancing  of  youth  against  truth.  But  there  are  plenty  of 
risks  that  we  take  in  life.  We  let  our  children  go  on  the 
street  although  they  may  be  run  over  by  automobiles  and 
trolley  cars.  We  do  not  keep  them  home  until  they  are 
twenty-one  years  of  age.  In  the  same  way,  we  might  like 
to  leave  them  until  a  little  later  before  we  discuss  some  of 
these  economic  problems,  but  then  they  are  out  at  work,  and 
it  is  too  late.  We  have  got  to  take  them  when  we  can  get 
them.  And  even  if  an  occasional  teacher  does  speak  very 
radically,  that  does  not  mean  that  high  school  students  will 
believe  all  he  says.  If  we  go  back  to  the  time  when  we  were 
sixteen,  we  remember  the  keenness  with  which  we  discussed 
those  problems.  We  did  not  take  everything  the  teacher  said 
for  granted,  and  the  more  he  said,  the  more  we  were  likely 
to  oppose  him.  } 

We  cannot  lead  sterilized  lives.  Think  of  the  chances 
America  took  by  allowing  people  with  very  little  education 
to  vote,  and  yet  that  is  a  risk  we  are  ready  to  run.  Democ- 
racy is  not  a  water-tight  compartment.  It  is  a  great  adven- 
ture, and  in  order  to  prepare  people  for  that  adventure  we 
have  to  teach  them  to  think  for  themselves  on  the  prob- 
lems they  will  have  to  face  when  they  grow  up.  It  is  not 
simply  teaching  them  the  ideals  of  the  day, — we  must  train 
them  to  make  the  ideals  of  to-morrow. 


APPENDIX  I 

BIBLIOGRAPHY  ON  FREEDOM  OF  SPEECH 

Note:  This  Bibliography  is  far  from  a  complete  list  of  even  the 
modern  material  in  the  English  language.  No  Continental  literature  is 
included  and  information  about  religious  liberty  must  be  sought  else- 
where.   The  purpose  is  to  cover  only  the  topics  of  the  book. 

A.   General  and  Historical  (Chapter  I) 

The  legal  meaning  of  freedom  of  speech  cannot  properly  be  deter- 
mined without  a  knowledge  of  the  political  and  philosophical  basis  of  such 
freedom.  Four  writings  on  this  problem  may  be  mentioned  as  invaluable : 
Plato's  Apology  of  Socrates;  Milton's  Areopagitica;  the  second  chapter  of 
Mill,  On  Liberty;  and  Walter  Bagehot's  essay,  "  The  Metaphysical  Basis 
of  Toleration."  The  second  chapter  of  J.  F.  Stephen,  Liberty,  Equality, 
Fraternity,  has  an  important  critique  on  Mill.  See,  also,  J.  B.  Bury, 
A  History  of  Freedom  of  Thought,  the  first  and  last  chapters;  Grote, 
Plato,  Chap.  VI;  Graham  Wallas,  The  Great  Society,  195-98.  The 
relation  of  freedom  of  thought  to  political  progress  is  discussed  by  same, 
"The  Price  of  Intolerance,"  125  Atlantic  116  (January,  1920);  H.  J. 
Laski,  Authority  in  the  Modern  State,  passim;  same,  "The  Temper 
of  the  Present  Time,"  21  New  Republic  335  (February  18,  1920). 
Francis  Hackett,  "The  Invisible  Censor,"  21  New  Republic  11  (Decem- 
ber 3,  1919),  sketches  the  psychology  of  suppression.  For  a  caustic 
point  of  view,  see  Fabian  Franklin,  "  Some  Free  Speech  Delusions," 
2  Unpopular  Rev.  223  (October,  1914).  The  difficulties  of  the  problem 
as  seen  from  actual  experience  on  both  sides  are  presented  in  Viscount 
Morley's  Recollections. 

By  far  the  best  textbook  on  this  and  the  other  civil  rights  is  Cooley, 
Constitutional  Limitations,  7th  ed.;  Dicey,  The  Law  of  the  Constitution, 
8th  ed.,  Chaps.  VI  and  VII  gives  the  English  law  of  freedom  of  speech 
and  assembly. 

The  best  discussion  of  the  legal  meaning  of  "  Freedom  of  the  Press 
in  the  United  States  "  will  be  found  in  an  article  under  that  name  by 
Henry  Schofield,  in  9  Publications  of  the  American  Sociological  Society 
67  (1914).  This  volume  is  devoted  entirely  to  "Freedom  of  Communi- 
cation," and  contains  several'  valuable  papers  on  different  aspects  of 
the  problem.  Other  general  legal  articles  are:  "The  Jurisdiction  of  the 
United  States  over  Seditious  Libel,"  H.  W.  Bikte,  41  Am.  L.  Reg. 
(n.  s.)  1  (1902);  "Restrictions  on  the  Freedom  of  the  Press,"  16 
Harv.  L.  Rev.  55  (1902);  "Free  Speech  and  Free  Press  in  Relation  to 
the  Police  Power  of  the  State,"  P.  L.  Edwards,  58  Cent.  L.  J.  383 
(1904);  "Freedom  of  Speech  and  of  the  Press,"  65  Univ.  of  Pa.  L.  Rev. 
170  (1916) ;  Joseph  R.  Long,  "  The  Freedom  of  the  Press,"  5  Va.  L.  Rev. 
225  (1918).  Freedom  of  speech  is  discussed  by  Dean  Pound  as  an 
interest  of  the  individual  in  his  "  Interests  of  Personality,"  28  Harv. 
L.  Rev.  445,  453  (1915);  and  as  an  alleged  bar  to  injunctions  of  libel  in 
his  "Equitable  Relief  against  Defamation  and  Injuries  to  Personality," 
29  Harv.  L.  Rev.  640,  648  (1916).    For  the  technique  of  political  trials, 

377 


378  APPENDICES 

see  Robert  Ferrari,  "Political  Crime  and  Criminal  Evidence,"  3  Minn. 
L.  Rev.  365  (1919);  "Political  Crime,"  20  Col.  L.  Rev.  308  (1920); 
"The  Trial  of  Political  Criminals  Here  and  Abroad,"  66  Dial  647 
(June  28,  1919).  Much  useful  material  is  collected  in  the  writings 
of  Theodore  Schroeder,  of  which  a  bibliography  by  N.  E.  Sankey-Jones 
is  published  by  the  New  York  Free  Speech  League,  1919.  Recent 
articles  by  him  are  "  A  Psychologic  Study  of  Judicial  Opinions,"  6  Cal. 
L.  Rev.  89  (1918);  "Political  Crimes  Denned,"  18  Mich.  L.  Rev.  30 
(1919). 

Origins  of  the  First  Amendment: 

The  history  of  freedom  of  speech  in  America  has  not  yet  been  fully 
investigated,  but  Clyde  A.  Duniway,  The  Development  of  Freedom  of 
the  Press  in  Massachusetts,  Cambridge,  Harvard  University  Press, 
1906,  is  extremely  useful  for  the  Colonial  period.  Max  Farrand, 
Records  of  the  Federal  Convention,  gives  material  on  the  proposed  free 
speech  clause,  II,  334,  340,  341,  545;  III,  122,  256,  290,  595,  599,  609. 
The  state  debates  on  this  clause  are  in  Elliot's  Debates  (2d  ed.,  1836), 
I,  359,  360,  362,  369,  371,  375;  II,  424,  511,  537;  III,  411,  414,  415, 
431,  551 ;  IV,  159,  175,  209,  301,  302.  J.  B.  McMaster  and  F.  D.  Stone, 
Pennsylvania  and  the  Federal  Convention,  1787-1788,  Hist.  Soc.  of 
Penn.,  1888,  has  contemporary  press  discussion. 

English  History  and  Law: 

Much  light  is  thrown  on  the  problem  by  sedition  trials  in  England, 
before  our  Revolution  and  during  the  French  Revolution.  The  best 
account  of  these  is  in  T.  Erskine  May,  2  Constitutional  History  of 
England,  2d  ed.,  1912,  Chaps.  IX-X,  summarized  by  Charles  A.  Beard  in 
16  New  Republic  350  October  19,  1918).  See,  also,  2  Stephen,  History 
of  the  Criminal  Law,  Chap.  XXIV;  Graham  Wallas,  Life  of  Francis 
Place,  N.  Y.,  1919;  Philip  A.  Brown,  The  French  Revolution  in  Eng- 
lish History,  London,  1918;  G.  O.  Trevelyan,  The  Early  History  of 
Charles  James  Fox,  relates  Wilkes  and  Junius  controversies.  See  bib- 
liography in  J.  F.  Rhodes,  History  of  the  United  States,  IV,  233  note. 

For  the  modern  law:  F.  M.  Anderson,  "The  Law  of  Sedition  in  the 
British  Empire,"  House  Judiciary  Hearings,  p.  273;  H.  J.  Laski,  "The 
Fundamental  Law  in  England,  31  Harv.  L.  Rev.  296  (l917)-  Canada: 
A.  V.  Thomas,  "  Quoting  Isaiah  in  Winnipeg,"  110  Nation  850  (January 
3,  1920);  J.  A.  Stevenson,  "A  Set-back  for  Reaction  in  Canada,"  110 
ibid.  292  (March  6). 

Sedition  Act  of  1798: 

Frank  Maloy  Anderson,  "The  Enforcement  of  the  Alien  and  Sedi- 
tion Laws,"  Ann.  Rep.  Am.  Hist.  Assn.  (1912)  115;  same,  "Contem- 
porary Opinion  of  the  Virginia  and  Kentucky  Resolutions,"  5  Am. 
Hist.  Rev.  45  (1900);  Albert  J.  Beveridge,  Life  of  John  Marshall, 
vols.  II  and  III,  passim,  is  vivid  and  collects  much  contemporary 
material.  The  four  reported  prosecutions  are  in  Wharton's  State  Trials, 
—Lyon,  333  (1798);  Cooper,  659  (1800);  Haswell,  684  (1800);  Cal- 
lender,  688  (1800).  Wharton,  23,  narrates  the  events  leading  up  to 
these  statutes;  see,  also,  Channing  and  other  standard  histories.  For 
references  to  the  Sedition  Act  in  Jefferson's  letters,  see  the  edition  of 
Paul  Leicester  Ford,  VII,  245:  "The  object  of  that  [the  bill]  is  the 
suppression  of  the  whig  presses;"  VII,  246;  VII,  266,  on  unconstitu- 
tionality; VII,  283,  "The  alien  and  sedition  laws  are  working  hard;" 


APPENDICES  379 

VII,  289,  311,  336,  350,  354,  355,  356,  on  popular  opposition  to  the  acts; 
VII,  367,  371,  483,  on  continuation  of  Sedition  Law  by  Congress;  VIII, 
54,  56  ff.,  308  ff.,  on  unconstitutionality  and  pardons;  IX,  456,  on  dis- 
missal of  prosecutions.  Madison's  Report  on  the  Virginia  Resolutions 
is  reprinted  in  Elliot's  Debates. 

Reference  Books: 

Soule's  Lawyer's  Reference  Manual,  for  abbreviations  of  legal  re- 
ports. 

New  York  Times  Index,  issued  quarterly,  is  very  valuable  for  finding 
press  accounts  of  prosecutions,  etc. 

B.   The  Wab  (Chapters  II  and  III) 

Important  decisions  under  the  U.  S.  Espionage  Act  are  printed  in 
the  Federal  (Fed.)  and  United  States  Supreme  Court  Reports  (U.  S.). 
The  latter  are  in  public  and  university  libraries.  The  Bulletins  of  the 
Department  of  Justice  on  the  Interpretation  of  War  Statutes  (cited 
herein  as  Bull.  Dept.  Just.),  Nos.  1-204,  contain  many  charges  not 
otherwise  reported.  Appendix  II,  infra,  tells  where  all  reported  pros- 
ecutions can  be  found.  Supreme  Court  records  and  briefs  are  in  the 
Harvard  Law  School  Library.  The  cases  before  July,  1918,  are  col- 
lected by  Walter  Nelles,  Espionage  Act  Cases,  with  Certain  Others 
on  Related  Points,  Natl.  Civil  Liberties  Bureau,  N.  Y.  This  has 
some  state  cases,  and  gives  a  careful  analysis  of  the  decisions.  The 
Bureau  has  also  published  War-time  Prosecutions  and  Mob  Violence, 
involving  the  rights  of  free  speech,  free  press,  and  peaceful  assem- 
blage (from  April  1,  1917,  to  March  1,  1919),  containing  an  annotated 
list  of  prosecutions,  convictions,  exclusions  from  the  mail,  etc.  It  has 
prepared  in  MSS.  "  A  Memorandum  Concerning  Political  Prisoners 
Within  the  Jurisdiction  of  the  Department  of  Justice  in  1919,"  for  the 
Attorney  General;  and  "Memorandum  to  the  President  of  the  United 
States  as  to  Persons  Imprisoned  for  Violation  of  the  War  Laws" 
(copies  in  Harvard  Law  School  Library). 

The  enforcement  of  the  Espionage  Act  and  similar  statutes  is  offi- 
cially summarized  in  the  Reports  of  the  Attorney  General  for  1917, 
1918,  and  1919,  with  lists  of  prosecutions  and  results, ,  and  circulars 
issued  to  district  attorneys.  See,  also  "  Suggestions  of  Attorney-Gen- 
eral Gregory  to  Executive  Committee  in  Relation  to  the  Department  of 
Justice,"  4  Am.  Bar.  Assn.  J.  305  (1918).  An  invaluable  account  of 
the  war  work  of  the  Department  is,  John  Lord  O'Brian,  "  Civil  Liberty 
in  War-time,"  52  Rep.  N.  Y.  Bar  Assn.  275  (1919).  A  military  view 
of  censorship  is  "  The  Proper  Relations  between  the  Army  and  the 
Press  in  War,"  Army  War  College,  November,  1915. 

The  American  Labor  Year-Book,  1919-20,  Rand  School,  N.  Y.,  nar- 
rates several  prosecutions  in  detail. 

The  issues  involved  in  the  current  decisions  are  presented  in  non- 
technical form  by  these  articles:  "Freedom  of  Speech,"  Z.  Chafee,  Jr., 
17  New  Republic,  66  (November  16, 1918)  ;  Ralph  Barton  Perry  in  a  book 
review,  7  Yale  Rev.  670  (April,  1918);  "The  Supreme  Court  vs.  the 
Supreme  Court,"  22  New  Republic  235  (April  21,  1920). 

Legal  Articles  on  the  War: 

"Freedom  of  Speech  and  of  the  Press,"  W.  R.  Vance,  2  Minn.  L. 
Rev.  239   (1918);  "The  Espionage  Act  Cases,"  32  Harv.  L.  Rev.  417 


380  APPENDICES 

(1919);  "Threats  to  Take  the  Life  of  the  President,"  32  Harv.  L.  Rev. 
724  (1919);  "The  Vital  Importance  of  a  Liberal  Construction  of  the 
Espionage  Act,"  Alexander  H.  Robbins,  87  Cent.  L.  J.  145  (1918); 
"  Sufficiency  of  Indictments  under  the  Espionage  Act,"  87  Cent.  L.  J. 
400  (1918).  The  Espionage  Act  is  one  of  the  topics  covered  by  Judge 
Charles  M.  Hough,  "Law  in  War  Time— 1917,"  31  Harv.  L.  Rev.  692, 
696  (1918).  Thomas  F.  Carroll,  "Freedom  of  Speech  and  of  the  Press 
in  War  Time,"  17  Mich.  L.  Rev.  621  (1919);  Z.  Chafee,  Jr.,  "Freedom 
of  Speech  in  War  Time,"  32  Harv.  L.  Rev.  932  (1919). 

Treason : 

Charles  Warren,  "What  Is  Giving  Aid  and  Comfort  to  the 
Enemy?",  27  Tale  L.  Rev.  331  (1918). 

Post-office : 

"  Federal  Interference  with  the  Freedom  of  the  Press,"  Lindsay 
Rogers,  23  Yale  L.  J.  559  (1914),  substantially  reprinted  as  Chapter  IV 
of  his  Postal  Power  of  Congress,  Baltimore,  John  Hopkins  Press,  1916; 
R.  E.  Cushman,  "  National  Police  Power  under  the  Postal  Clause  of 
the  Constitution,"  4  Minn.  L.  Rev.  402  (1920);  William  Hard,  "Mr. 
Burleson,  Espionagent,"  19  New  Republic  42  (May  10,  1919),  and 
"Mr.  Burleson,  Section  48iy2  B,"  19  New  Republic  76  (May  17,  1919); 
"  Burleson  and  the  Call,"  22  New  Republic  157  (January  7,  1920) ; 
"The  Call,"  1  Review  652  (December  13,  1919).  For  examples  of  war 
censorship  and  legal  discussion  of  Title  XII  of  the  Espionage  Act, 
Carroll,  op.  cit.,  in  17  Mich.  L.  Rev.  629. 

Particular  Cases  under  the  Espionage  Act  and  State  War  Acts: 

Abrams  (Chapter  III): 

The  principal  sources  are  the  Transcript  of  Record,  Supreme  Court 
of  the  United  States,  October  Term,  1919,  No.  316,  Jacob  Abrams 
et  al.,  Plaintiff s-in-Error,  v.  The  United  States;  the  two  briefs;  and  the 
opinions  of  the  court  in  40  Sup.  Ct.  Rep.  17  (1919),  also  reprinted  in 
"The  Espionage  Act  Interpreted,"  20  New  Republic  377  (November  26, 
1919).  Transcript  and  briefs  are  in  the  library  of  the  Law  School 
of  Harvard  University.  It  has  not  been  thought  necessary  to  give  ref- 
erences to  the  Record  except  for  significant  passages.  Some  informa- 
tion about  the  trial  not  contained  in  the  Record  is  taken  from  current 
issues  of  the  New  York  Times  and  the  New  York  Call,  or  from  personal 
conversation  and  correspondence;  the  sources  of  such  unofficial  data  are 
indicated  in  every  instance,  and  have  been  carefully  checked  from  the 
Stenographic  Minutes  of  the  trial,  in  the  U.  S.  Attorney's  office, 
N.  Y.,  where  they  were  very  kindly  placed  at  my  disposal.  See  also 
Palmer  Deportations  Testimony,  173. 

For  criticism  of  the  trial,  see  the  pamphlet,  Sentenced  to  Twenty 
Years  Prison,  published  by  the  Political  Prisoners  Defense  and  Relief 
Committee,  New  York,  1919;  "Our  Ferocious  Sentences,"  107  Nation 
504  (November  2,  1918). 

Comment  in  support  of  the  majority  opinion  of  the  Supreme  Court 
will  be  found  in  a  note,  "The  Espionage  Act  and  the  Limits  of  Legal 
Toleration,"  33  Harv.  L.  Rev.  442  (January,  1910) ;  and  in  articles, 
"Justice  Holmes's  Dissent,"  1  Review  636  (December  6,  1919);  John 
H.  Wigmore,  "  Freedom  of  Speech  and  Freedom  of  Thuggery,"  14 
III.  L.  Rev.  539.  The  minority  opinion  is  supported  by  a  note,  "  Free 
Speech  in  Time  of  Peace,"  in  29  Yale  L.  J.  337  (January,  1920) ;  and 


APPENDICES  381 

14  III.  L.  Rev.  601;  and  articles  "The  Call  to  Toleration,"  20  New 
Republic  360  (November  26,  1919),  "What  Is  Left  of  Free  Speech," 
Gerard  C.  Henderson,  21  JSew  Republic  50  (December  10,  1919). 

Berger  (see  under  Legislative  Exclusion). 

Debs : 

David  Karnsner,  Debs,  his  Authorized  Life  and  Letters  from  Wood- 
stock Prison  to  Atlanta,  N.  Y.,  1919.  Reviewed  by  Harry  Salpeter, 
"Martyr  or  Felon?",  110  Nation  520  (April  17,  1920).  Scott  Nearing, 
"The  Debs  Decision,"  Rand  School,  N.  Y.,  1919,  contains  Debs'  ad- 
dresses at  Canton  and  in  the  court-room.  "  The  Law  of  the  Debs  Case 
and  Freedom  of  Speech,"  19  New  Republic  13  (May  3,  1919) ;  followed 
by  correspondence,  ibid.,  151  (May  31).  "The  Trial  of  Eugene  Debs," 
Max  Eastman,  The  Liberator  (November,  1918),  gives  another  defend- 
ant's impression. 

I.  W.  W.  (see  under  Radical  Activities). 

Nearing : 

Scott  Nearing,  "The  Great  Madness:  a  Victory  for  the  American 
Plutocracy,"  Rand  School,  N.  Y.,  1917. 

O'Hare : 

"  The  Conviction  of  Kate  Richards  O'Hare  and  North  Dakota  Poli- 
tics," Natl.  Civil  Liberties  Bureau,  N.  Y.;  "The  Kate  O'Hare  Booklets," 
published  by  Frank  P.  O'Hare,   St.   Louis. 

Syracuse  Socialist  Case  of  1920  (Steene,  Hotze,  and  Preston):  21 
New  Republic  302  (February  11,  1920) ;  "  Bringing  the  Constitution 
into  Disrepute,"  ibid.  330  (February  18,  1920). 

Townley  : 

C.  R.  Johnson,  "The  Conviction  of  Townley,"  20  New  Republic  18 
(August  6,  1919);  Judson  King,  "The  Prosecution  of  Mr.  Townley," 
109  Nation  143  (August  2,  1919);  "The  Trial  of  Townley  and  Gilbert," 
1  Review  (July  26,  1919).  An  impartial  account  of  the  Non-Partisan 
League  is  Arthur  Ruhl,  "The  North  Dakota  Idea,"  Atlantic  Monthly 
(May,   1919). 

C.   Radical  Activities  in  the  United  States  and  Peace-time  Restric- 
tions upon  Freedom  of  Speech  (Chapters  IV  and  V) 

Backgrounds : 

All  consideration  of  governmental  activity  against  radicalism  should 
be  preceded  by  an  inquiry  into  the  nature  and  purposes  of  the  various 
radical  movements,  which  must  be  carefully  kept  distinct.  Bertrand 
Russell,  Proposed  Roads  to  Freedom:  Socialism,  Anarchism  and  Syndi- 
calism, N.  Y.,  1919,  is  a  fair-minded  survey  though  opposed  to  the 
present  system.  Among  books  on  Russia  are  E.  H.  Wilcox,  Russia's 
Ruin;  Russian- American  Relations,  ed.  Cumming  and  Pettit.  See,  also, 
under  I.W.W.,  infra. 

On  anarchy  legislation  of  the  past  and  similar  problems,  Ernst 
Freund,  The  Police  Power,  §§471-484.  F.  T.  Hill,  Famous  Battles  of 
the  Law,  narrates  the  Chicago  affair  of  1886.  Concrete  data  on  the 
handling  of  radical  meetings  before  the  war  are  furnished  by  Arthur 
Woods,  Policeman  and  Public,  New  Haven,  1919;  and  J.  F.  Rhodes, 
History  of  the   United  States,  Vol.  VIII,  N.  Y.,   1919.     The  work  of 


382  .  APPENDICES 

the    New    York    Bomb    Squad    is    told   by   Tunney    and    Hollister    in 
Throttled,  Boston,  1919. 

Blasphemy : 

Austin  W.  Scott,  "  The  Legality  of  Atheism,"  31  Harv.  L.  Rev.  289 
(1917). 

Sex  topics: 

Theodore  Schroeder,  Obscene  Literature  and  Constitutional  Law, 
N.  Y.,  1911,  and  other  writings  by  him;  J.  C.  Ruppenthal  "Criminal 
Statutes  on  Birth  Control,"  10  J.  Cr.  L.  &  Crim.  48  (1919);  and  see 
P.  v.  Byrne,  163  N.  Y.  Supp.  680,  682. 

Moving-picture  Censorship : 

Amy  Woods,  "  Boston  and  the  *  Movie  *  Censorship,"  44  Survey  108 
(April  17,  1920). 

Strikes  and  Labor  Troubles: 

The  ability  of  freedom  of  speech  to  withstand  such  strains  has  not 
been  sufficiently  studied.  William  Hard  has  written  a  series  of  articles 
on  Passaic:  "America  in  Passaic,"  22  New  Republic  182  (April  7, 
1920);  "Learn  from  Passaic,"  22  ibid.  213  (April  14);  "They  Must 
Have  Espionage,"  22  ibid.  248  (April  21).  On  the  Steel  Strike,  see 
S.  Adele  Shaw,  "The  Makings  for  Revolution,"  20  ibid.  52  (August 
13,  1919) ;  W.  Z.  Foster,  The  Great  Steel  Strike;  The  Interchurch  Re- 
port on  the  Steel  Strike  of  1919. 

Proposed  Federal  Sedition  Bills  and  National  Conditions: 

Four  official  reports  have  been  published,  which  are  valuable  not  only 
in  relation  to  this  topic,  but  also  for  information  about  deportations, 
state  legislation,  radical  activities,  and  the  work  of  the  Department  of 
Justice.  These  are:  (1)  Bolshevik  Propaganda,  Hearings  before  a  Sub- 
committee of  the  Committee  on  the  Judiciary,  United  States  Senate, 
Sixty-fifth  Congress,  Third  Session  and  thereafter,  pursuant  to  Senate 
Resolutions  439  and  469  Washington,  1919.  This  is  the  report  of  the 
Overman  Committee,  and  contains  the  testimony  of  Raymond  Robins 
and  others  on  Russian  internal  affairs.  Cited  as  Bolshevik  Propaganda 
in  this  book. 

(2)  Investigation  Activities  of  the  Department  of  Justice,  Letter  from 
the  Attorney  General  transmitting  in  Response  to  a  Senate  Resolution 
of  October  17,  1919,  a  Report  on  the  Activities  of  the  Bureau  of  In- 
vestigation of  the  Department  of  Justice  against  Persons  advising 
Anarchy,  Sedition,  and  the  Forcible  Overthrow  of  the  Government, 
Sen.  Doc.  No.  153,  66th  Cong.,  1st  Sess.,  Wash.,  1919.  Cited  as  Investi- 
gation Activities  in  this  book. 

(3)  Rule  Making  in  Order  the  Consideration  of  S.  3317,  Hearings 
before  the  Committee  on  Rules,  House  of  Representatives,  66th  Cong., 
2d  Sess.,  on  H.  Res.  438,  Wash.,  1920.  Cited  as  House  Rules  Hearings 
in  this  book. 

(4)  Sedition,  Hearing  before  the  Committee  on  the  Judiciary,  House 
of  Representatives,  66th  Cong.,  2d  Sess.,  on  S.  3317,  H.  R.  10650  and 
12041,  Serial  16,  February  4  and  6,  1920.  Wash.,  1920.  This  contains 
official  publications  of  the  Communist  parties,  etc.  Cited  as  House 
Judiciary   Hearings   in  this  book. 

See  also  copies  of  the  various  bills  and  the  proposed  amendments; 


APPENDICES  383 

also  House  Judiciary  Report  submitting  Graham  Bill,  H.  R.  Report 
No.  542,  66th  Cong.,  2d  Sess.;  also  Reports  listed  under  Deportations. 
Among  articles  in  periodicals  on  these  bills  and  the  "  red  hysteria," 
are:  Frank  I.  Cobb,  "The  Press  and  Public  Opinion,"  21  New  Republic 
144  (December  31,  1919);  Z.  Chafee,  Jr.,  "Legislation  Against 
Anarchy"  (Overman  Bill),  19  ibid.  379  (July  23,  1919);  "A  New 
Alien  and  Sedition  Law,"  20  ibid.  366  (November  26,  1919);  Swin- 
burne Hale,  "  The  *  Force  and  Violence '  Joker,"  21  ibid.  231  (January 
21,  1920);  "The  Red  Hysteria"  (Harvard  Liberal  Club  Dinner),  21 
ibid.  249  (January  28);  William  Hard,  "Perhaps  the  Turn  of  the 
Tide"  (House  Rules  hearings  on  Graham  Bill),  21  ibid.  313  (February 
11);  "What  Is  Attorney  General  Palmer  Doing?"  (circular  letter  by 
him),  110  Nation  190  (February  14);  "The  Issue  of  Free  Speech,"  1 
Review  634  (December  6,  1919);  "  Mock- Hysteria,"  2  Review  43  (Janu- 
ary 17,  1920);  "What  Shall  We  Do  with  the  Direct  Actionist?",  89 
Cent.  L.  J.  313  (1919);  Walter  Lippman  and  Z.  Chafee,  Jr.,  "Free 
Speech  and  Free  Press  as  Factors  in  International  Affairs,"  League  of 
Free  Nations  Bulletin,  March,  1920. 

State  Sedition  and  Syndicalism  Laws: 

"Criminal  Syndicalism,"  20  Colum.  L.  Rev.  232  (1920);  letter  in 
110  Nation  202  (February  14,  1920).  California,  Perry  L.  Edwards, 
"Criminal  Syndicalism— Back-firing  Against  Industrial  Unrest  by  the 
Legislature  of  California,"  89  Cent.  L.  J.  336  (1919);  "The  Conviction 
of  Anita  Whitney,"  Clare  Shipman,  110  Nation  365  (March  20,  1920). 
Connecticut,  "'The  Most  Brainiest  Man,'"  110  ibid.  510  (April  17). 
Massachusetts,  Z.  Chafee,  Jr.,  "  Warns  of  Anti-Anarchy  Bill,"  Boston 
Sunday  Advertiser,  April  13,  1919.  New  Jersey,  H.  E.  Cory,  "The  In- 
tellectuals and  the  Wage  Workers,"  N.  Y.,  1919  (p.  208  on  Boyd  case). 
New  York,  Swinburne  Hale,  "  Criminal  Anarchy,"  21  New  Republic 
270  (January  28,  1920);  [McAdoo  decision  against  Gitlow  and  Larkin], 
House  Judiciary  Hearings,  p.  155 ;  A.  Giovannitti,  "  Commercialism  on 
Trial,"  Liberator,  March,  1920  (Gitlow  trial).  Oregon,  "American  by 
Decree"  (foreign  language  press),  22  New  Republic  262  (April  28, 
1920). 

See  U.  S.  official  reports,  supra,  and  Appendix  V,  infra. 

Industrial  Workers  of  the  World: 

There  are  two  studies  by  scholars.  Paul  Frederick  Brissenden:  The 
I.W.W.:  A  Study  of  American  Syndicalism.  Colum.  Univ.  Studies 
in  History,  etc.,  vol.  83,  2d  ed.,  N.  Y.,  J£20.  Carleton  H.  Parker:  "The 
I.W.W.,"  Atlantic  Monthly,  651  (November,  1917),  reprinted  in  his 
The  Casual  Laborer  and  Other  Essays,  N.  Y.,  1920. 

For  the  Chicago  trial,  see  U.  S.,  v.  W.  D.  Haywood  et  al.  Bull. 
Dept.  Just.,  No.  175;  Evidence  and  Cross-Examination  of  W.  D.  Hay- 
wood [in  same];  Evidence  and  Cross-Examination  of  J.  T.  (Red) 
Doran  [in  same];  Indictment  [in  same],  I.W.W.  Pub.  Bureau, 
Chicago.;  "The  Truth  about  the  I.W.W.",  Natl.  Civil  Liberties  Bureau, 
N.  Y.;  "The  Persecution  of  the  Radical  Labor  Movement  in  the 
United  States."     N.  Y.  Defense  Committee  of  the  I.W.W.,  N.  Y. 

The  Sacramento  trial  is  discussed  in  "01'  Rags  and  Bottles,"  108 
Nation  114  (January  25,  1919);  American  Labor  Year-Book,  1919-20, 
100  and  107,  has  accounts  of  Chicago  and  Sacramento  trials. 

For  the  Washington  situation,  see  [Washington  Injunction  Against 
Membership    in    the    I.W.W.],    109    Nation    843    (January    3,    1920); 


384.  APPENDICES 

Jerrold  Owen:  "  Centralia,"  American  Legion  Weekly,  December  12, 
1919;  Anna  Louise  Strong,  "Centralia:  An  Unfinished  Story,"  110 
Nation  508  (April  17,  1920);  E.  M.,  "Centralia,"  22  New  Republic  217 
(April  14,  1920).    Ole  Hanson,  Americanism  vs.  Bolshevism. 

Deportation  of  Aliens   (Chapter  V): 

The  best  review  of  the  procedure  is  by  Assistant  Secretary  of 
Labor  Louis  F.  Post,  "Administrative  Decisions  in  Connection  with 
Immigration,"  10  Am.  Pol.  Sci.  Rev.  251  (1916).  Recent  legal  arti- 
cles: Howard  L.  Bevis,  "The  Deportation  of  Aliens,"  62  U.  of  Pa. 
L.  Rev.  97  (1920);  "Deportation  of  Seditious  Aliens,"  23  Law  Notes 
(N.  Y.)  64  (1919);  "Deportation  of  Aliens  who  Advocate  the  Over- 
throw of  Government  by  Force,"  89  Cent.  L.  J.  369  (1919).  John  Lord 
O'Brian,  "The  Menace  of  Administrative  Law,"  address  to  Maryland 
Bar  Association;  June,  1920. 

Original  sources:  The  administrative  hearings  are  largely  buried  in 
the  files  of  the  immigration  officials.  A  few  cases  are  extracted  in 
Charles  Recht,  "  American  Deportation  and  Exclusion  Laws,"  League 
for  Democratic  Control,  Boston,  1919,  and  "The  Anarchist  Deporta- 
tions," 21  New  Republic,  96  (December  24,  1919).  The  whole  proce- 
dure in  the  Communist  raids  is  exhaustively  shown  by  the  record  in 
Katzeff  v.  Skeffington  (Colyer  case)  in  the  United  States  District  Court 
in  Boston.  The  Federal  Reporter  contains  several  recent  decisions  on 
the  deportation  of  radicals.  The  decision  of  Secretary  of  Labor  Wilson 
on  the  Communist  Party  is  in  House  Judiciary  Hearings  (p.  17),  which 
also  gives  the  platform,  manifesto,  etc.,  of  this  and  the  Communist 
Labor  Party.  Much  of  the  same  material  with  a  history  of  the  creation 
of  the  two  parties  is  also  accessible  in  American  Labor  Y ear-Book, 
1919-20.  Part  of  the  decision  of  Assistant  Secretary  Post  on  the  raid 
cases  is  in  "  On  Behalf  of  Louis  F.  Post,"  22  New  Republic  264  (April 
28,  1920).  The  most  valuable  document  in  the  raids  is  Judge  Anderson's 
decision  in  the  Colyer  case,  in  the  Federal  Reporter,  265  Fed.  17. 

The  history  of  left-wing  Socialism  is  also  narrated  by  an  impartial 
observer,  Gordon  S.  Watkins,  "The  Present  Status  of  Socialism  in  the 
United  States,"  124  Atlantic  821  (December,  1919);  and  in  H.  W. 
Laidler,  "  Socialism  in  Thought  and  Action." 

Congressional  reports  of  especial  value,  66th  Congress,  2d  Session,  1920: 
(1)  Three  pamphlets  of  Hearings  before  a  Subcommittee  of  the  House 
Committee  on  Immigration  and  Naturalization,  "Communist  and 
Anarchist  Deportation  Cases,"  "  I.W.W.  Deportation  Cases,"  "  Com- 
munist Labor  Party  Deportation  Cases,"  all  cited  herein  as  House 
Immigration  Hearings.  These  contain  many  administrative  decisions, 
but  not  the  complete  records.  (2)  "  Investigation  of  Administration 
of  Louis  F.  Post,  Assistant  Secretary  of  Labor,  in  the  Matter  of 
Deportation  of  Aliens,  Hearings  before  the  Committee  on  Rules, 
etc.,  on  H.  Res.  522,"  2  parts;  cited  herein  as  Post  Deportations 
Testimony.  (3)  "Attorney  General  A.  Mitchell  Palmer  on  charges 
made  against  the  Department  of  Justice  by  Louis  F.  Post  and  others, 
Hearings  before  the  Committee  on  Rules,  etc.,"  Part  I;  cited  herein 
as  Palmer  Deportations   Testimony. 

Much  important  testimony  from  the  Colyer  case,  including  the  official 
instructions,  is  in  the  pamphlet,  "To  the  American  People.  Report 
upon  the  Illegal  Practices  of  the  United  States  Department  of  Justice," 
by  12  lawyers,  National  Popular  Government  League,  Washington,  May, 
1920;  cited  herein  as  Illegal  Practices. 


APPENDICES  385 

Popular  articles  on  the  "  Buf ord  "  and  the  January  raids  are :  "  The 
Deportation,"  1  Review  695  (December  27,  1919);  "The  Raid  on  the 
Reds,"  2  Review  22  (January  10,  1920) ;  "  Deporting  a  Political  Party," 
21  New  Republic  186  (January  14,  1920).  Ernst  Freund,  "Burn- 
ing Heretics,"  21  ibid.  266  (January  28,  1920);  "A  Federal  Judge 
Speaks  Up"  (Bourquin,  J.,  in  Re  Jackson),  22  ibid.  135  (March 
31);  "Deportations  and  the  Law,"  110  Nation  131  (January 
31);  F.  R.  Barkley,  "Jailing  Radicals  in  Detroit,"  110  ibid.  136;  F.  C 
Howe,  "Lynch  Law  and  the  Immigrant  Alien,"  110  ibid.  194  (February 
14) ;  "  Another  Man  Without  a  Country^  110  ibid.  289  (March  6) ; 
Lincoln  Colcord,  "  Martens  and  Our  Foreign  Policy "  (correspondence 
of  Secretary  Wilson  and  John  E.  Milholland),  110  ibid.  324  (March 
13) ;  Winthrop  D.  Lane,  "  The  Buford  Widows,"  43  Survey  391  (January 
10) ;  "  Aliens  and  Sedition  in  the  New  Year,"  43  ibid.  422  (January  13) ; 
Sidney  Howard,  "The  Colyer  Trial  Opens,"  44  Survey  105  (April  17). 
See,  also,  some  of  the  articles  on  the  red  hysteria,  etc. 

Accounts  of  the  New  England  raids  from  the  point  of  view  of 
the  aliens  are,  "The  Soviet  of  Deer  Island,  Boston  Harbor,  January- 
February,  1920,  by  One  of  the  Members,"  Boston  Branch  of  Am.  Civil 
Liberties  Union;  "Deported  via  Deer  Island,"  MSS.  report  prepared 
for  the  Bureau. 

Searches  and  Seizures  (Chapters  V  and  VI): 

"The  Case  of  the  Rand  School,"  published  by  the  School,  N.  Y., 
1919;  "The  Truth  about  the  Lusk  Committee,"  Nation  Press,  N.  Y., 
1920;  "Whose  Home  Will  Be  Safe?",  19  New  Republic  303  (July  9, 
1919);  Anna  L.  Strong,  "A  Newspaper  Confiscated — and  Returned," 
109  Nation  738  (December  13,  1919). 


D.   Power  of  a  Legislature  to  Exclude  or  Expel  for  Opinions 
(Chapter  VI) 

For  the  English  law,  T.  Erskine  May,  Parliamentary  Practice,  12th 
ed.,  London,  1917;  same,  Constitutional  History  of  England,  vol.  I,  for 
Wilkes,  and  also  G.  O.  Trevelyan,  Early  History  of  Charles  James  Fox, 
and  Macaulay's  second  Essay  on  Chatham.  Justin  McCarthy,  History  of 
Our  Own  Times,  vol.  Ill,  for  Bradlaugh. 

For  Congress,  Asher  Hinds,  Precedents  of  the  House  of  Represen- 
tatives of  the  United  States,  Washington,  1907.  This  contains  many 
Senate  cases.  See,  also,  Webb  &  Pierce,  Compilation  of  Senate  Election 
Cases,  1789-1913,  Washington,  1913.  Other  Congressional  compilations 
may  be  useful.  Massachusetts  cases  are  collected  by  Cushing,  Loring, 
and  Russell;  New  York,  by  Armstrong. 

Berger : 

Victor  L.  Berger,  Hearings  before  the  Special  Committee  appointed 
under  the  Authority  of  House  Resolution  No.  6  concerning  the  Right 
of  Victor  L.  Berger  to  be  Sworn  in  as  a  Member  of  the  Sixty-sixth 
Congress,  2  vols.,  Wash.,  1919.  (These  contain  records  of  the  prosecu- 
tion and  Milwaukee  Leader  case.)     Cited  herein  as  Berger  Hearings. 

Ho.  Cal.  No.  91,  66th  Cong.,  1st  Sess.,  Report  No.  413,  Case  of 
Victor  L.  Berger  of  Wisconsin.     Cited  herein  as  Berger  Report. 

"  Victor  L.  Berger,"  Socialist  Review,  (February,  1920) ;  "  The  Berger 
Victory,"   109  Nation  820    (December  27,   1919);   for   account   of   the 


386  APPENDICES 

trial  from  the  side  of  the  defense,  American  Labor  Y ear-Book,  1919-20, 
97-100. 

New  York  Socialists: 

The  record  of  the  investigation  was  printed  by  the  Assembly.  Briefs 
include,  Brief  of  Special  Committee  appointed  by  the  Association  of  the 
Bar  of  the  City  of  New  York  (January  20,  1920) ;  Outline  of  the  Evi- 
dence taken  before  the  Judiciary  Committee  to  and  including  February 
5,  1920,  with  a  discussion  of  some  conclusions  to  be  drawn  therefrom 
[against  Socialists  and  signed  by  Attorney-General  and  associate 
counsel];  Brief  for  the  Socialist  Assemblymen,  March  15,  1920;  Brief 
for  the  Judiciary  Committee,  March  24,  1920. 

Articles  in  periodicals  (all  in  1920):  "The  Issues  in  the  Fight  at 
Albany,"  2  Review  121  (February  7);  "  Hillquit  on  the  Socialist  Pro- 
gramme," 2  Review  193  (February  28);  "Governor  Smith's  Oppor- 
tunity," 2  Review  421  (April  24) ;  "  Speaker  Sweet  Does  His  Bit,"  22 
New  Republic  210  (January  21);  "The  Mob  in  High  Places,"  22  New 
Republic  279  (February  4);  "Up  to  the  Voters,"  22  New  Republic 
200  (April  14)  [Lusk  Bills] ;  22  New  Republic  171  (April  7) ;  "  Minority 
Rights  at  Albany,"  110  Nation  288  (March  6);  Lewis  S.  Gannett,  "The 
Socialists'  Trial  at  Albany:  A  Summary,"  110  Nation  361  (March  20); 
Loula  D.  Lasker,  "  Back  in  the  Districts :  What  New  York  Assembly- 
men's Constituents  Are  Thinking,"  53  Survey  767  (March  20);  Robert 
Minor,  "Dissolving  the  Duma  at  Albany,"  Liberator  (March  20). 

E.   Schools 

Henry  R.  Linville,  John  L.  Tildsley,  and  Z.  Chafee,  Jr.,  "  The  Schools 
and  the  Issue  of  Freedom,"  in  leaflets,  "The  Public  and  the  Schools," 
published  by  Public  School  Education  Assn.,  N.  Y.,  May  3,  17,  24,  1919. 
Various  pamphlets  have  been  issued  on  both  sides  of  the  controversies 
in  New  York  and  Washington,  and  several  articles  printed  in  the 
Nation. 


APPENDIX  II 

INDEX  OF  REPORTED  CASES  UNDER  THE  ESPIONAGE 
ACTS  OF  1917  AND  1918 

This  index  is  meant  to  include  all  Espionage  Act  cases  involving 
freedom  of  speech  which  are  contained  in  the  following  reports,  ab- 
breviated as  shown: 

Bulletins  of  the  Department  of  Justice  on  the  Interpretation  of  War 
Statutes  (B); 

Federal  Reporter  (F),. containing  cases  in  the  Circuit  Court  of  Ap- 
peals, and  occasionally  in  the  District  Courts; 

United  States  Reports  (U.  S.),  containing  Supreme  Court  decisions; 

One  case  is  officially  reported  only  in  Report  of  the  Attorney  Gen- 
eral for  1918  (A),  which  gives  facts  of  many  more. 

Some  recent  Supreme  Court  cases  are  in  the  Supreme  Court  Reporter 
(Sup.). 

A  few  cases  are  from  Nelles,  Espionage  Act  Cases  (N). 

So  far  as  practicable  I  have  indexed  not  only  the  defendant  who 
gives  his  name  to  the  case  but  every  defendant.  This  seemed  unde- 
sirable in  the  cases  of  the  93  I.W.W.'s  in  the  Haywood  case  and  the 
27  Socialists  in  the  Baltzer  case.  Consequently,  while  there  are  184 
persons  indexed  below,  118  more  should  be  added  to  give  the  total 
number  of  persons  whose  prosecutions  are  reported,  making  302  in  all. 
Besides  these  many  Espionage  Act  cases  have  never  been  reported. 
Notes  of  these  are  in  War-time  Prosecutions  and  Mob  Violence,  which 
contains  the  facts  of  many  others.  The  total  number  of  persons  con- 
victed is  reported  as  877,  with  285  cases  still  pending  on  June  30,  1919. 
The  Attorney  General's  Reports  for  1918  and  1919  show  that  there 
were  988  cases  commenced  in  1917-18,  and  968  in  1918-19.  Out  of 
these  1,956  cases  only  a  small  fraction  are  reported  anywhere. 

In  each  instance  I  have  given  the  defendant's  name,  the  state  where 
he  was  prosecuted  (omitting  United  States  Districts  within  a  state),  a 
reference  to  the  report,  the  result  of  the  case,  and  the  sentence. 

Abbreviations  are: 
C,  conviction. 
Acq.,  acquittal. 
Acq.  d.,  acquittal  directed. 
Ind.,  indictment. 

Aff.,  affirmed  by  Circuit  Court  of  Appeals  or  Supreme  Court. 
Rev.,  reversed  by  Circuit  Court  of  Appeals  or  Supreme  Court. 

An  asterisk  shows  that  the  sentence  has  been  shortened  by  the  Presi- 
dent, and  the  length  of  the  commuted  sentence  or  date  of  its  expiration 
is  added.  It  is  possible  that  some  commutations  have  been  omitted. 
Information  as  to  convictions,  sentences,  pardons,  etc.,  if  not  contained 
in  the  reports,  has  been  obtained  from  War-time  Prosecutions;  New 
York  Times,  May  9,  1919;  and  from  the  Attorney  General's  Report  for 
1919. 

387 


388 


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APPENDIX  III 
TEXT  AND  CONSTRUCTION  OF  THE  ESPIONAGE  ACT  OF  1918 

Title  I,  §3,  as  amended,  reads  as  follows  (Act  of  May  16,  1918, 
c.  75,  §1,  U.  S.  Corny.  Stat.,  1918,  §  10212  c).  The  italicized  words 
punish  language  for  remote  tendencies:  Cf.  the  Sedition  Act  of  1798. 

"  Whoever,  when  the  United  States  is  at  war,  shall  willfully  make  or 
convey  false  reports  or  false  statements  with  intent  to  interfere  with  the 
operation  or  success  of  the  military  or  naval  forces  of  the  United  States, 
or  to  promote  the  success  of  its  enemies,  or  shall  willfully  make  or 
convey  false  reports  or  false  statements,  or  say  or  do  anything  except 
by  way  of  bona  fide  and  not  disloyal  advice  to  an  investor  or  investors, 
with  intent  to  obstruct  the  sale  by  the  United  States  of  bonds  or  other 
securities  of  the  United  States  or  the  making  of  loans  by  or  to  the 
United  States,  and  whoever,  when  the  United  States  is  at  war,  shall 
willfully  cause,  or  attempt  to  cause,  or  incite  or  attempt  to  incite,  in- 
subordination, disloyalty,  mutiny,  or  refusal  of  duty,  in  the  military 
or  naval  forces  of  the  United  States,  or  shall  willfully  obstruct  or 
attempt  to  obstruct  the  recruiting  or  enlistment  service  of  the  United 
States,  and  whoever,  when  the  United  States  is  at  war,  shall  willfully 
utter,  print,  write,  or  publish  any  disloyal,  profane,  scurrilous,  or  abu- 
sive language  about  the  form  of  government  of  the  United  States,  or 
the  Constitution  of  the  United  States,  or  the  military  or  naval  forces  of 
the  United  States,  or  the  flag  of  the  United  States,  or  the  uniform  of 
the  Army  or  Navy  of  the  United  States,  or  any  language  intended  to 
bring  the  form  of  government  of  the  United  States,  or  the  Constitution 
of  the  United  States,  or  the  military  or  naval  forces  of  the  United 
States,  or  the  flag  of  the  United  States,  or  the  uniform  of  the  Army 
or  Navy  of  the  United  States  into  contempt,  scorn,  contumely,  or  dis- 
repute, or  shall  willfully  utter,  print,  write,  or  publish  any  language 
intended  to  incite,  provoke,  or  encourage  resistance  to  the  United  States, 
or  to  promote  the  cause  of  its  enemies,  or  shall  willfully  display  the 
flag  of  any  foreign  enemy,  or  shall  willfully  by  utterance,  writing,  print- 
ing, publication,  or  language  spoken,  urge,  incite,  or  advocate  any  cur- 
tailment of  production  in  this  country  of  any  thing  or  things,  product 
or  products,  necessary  or  essential  to  the  prosecution  of  the  war  in 
which  the  United  States  may  be  engaged,  with  intent  by  such  curtail- 
ment to  cripple  or  hinder  the  United  States  in  the  prosecution  of  the 
war,  and  whoever  shall  willfully  advocate,  teach,  defend,  or  suggest  the, 
doing  of  any  of  the  acts  or  things  in  this  section  enumerated,  and  who- 
ever shall  by  word  or  act  support  or  favor  the  cause  of  any  country 
with  which  the  United  States  is  at  war  or  by  word  or  act  oppose  the 
cause  of  the  United  States  therein,  shall  be  punished  by  a  fine  of  not 
more  than  $10,000  or  imprisonment  for  not  more  than  twenty  years, 
or  both:  Provided,  That  any  employee  or  official  of  the  United  States 
Government  who  commits  any  disloyal  act  or  utters  any  unpatriotic  or 
disloyal  language,  or  who,  in  an  abusive  and  violent  manner  criticizes 
the  Army  or  Navy  or  the  flag  of  the  United  States  shall  be  at  once 
dismissed  from  the  service.  Any  such  employee  shall  be  dismissed  by 
the  head  of  the  department  in  which  the  employee  may  be  engaged,  and 

395 


396  APPENDICES 

any  such  official  shall  be  dismissed  by  the  authority  having  power  to 
appoint  a  successor  to  the  dismissed  official." 

The  conspiracy,  harboring,  and  search-warrant  sections  of  the  Act  of 
1917  apply  to  the  section  just  quoted;  and  also  the  mail  provisions 
which  were  amended  on  May  16,  1918,  by  the  addition  of  a  section 
authorizing  the  Postmaster  General,  "  upon  evidence  satisfactory  to  him 
that  any  person  or  concern  is  using  the  mails  "  in  violation  of  the  Es- 
pionage Act,  to  have  all  mail  of  every  kind  addressed  to  that  person 
or  concern  returned  to  the  sender.  (Act,  May  16,  1918,  c.  75,  §2- 
U.  S.  Comp.  Stat.,  1918,  §  10401  d.    See  Carroll,  in  17  Mich.  L.  Rev.  689.) 

Cases  involving  the  new  crimes  created  by  the  Espionage  Act  of  1918, 
reported  in  the  Bulletins  of  the  Department  of  Justice  on  the  Interpre- 
tation of  War  Statutes,  the  Federal  Reporter,  and  the  U.  S.  Reports. 
through  1919,  are  as  follows: 

(1)  Obstruction  of  war  loans.  United  States  v.  Bold,  Bull.  183  (Ore., 
Wolverton,  J.);  United  States  v.  Brackett,  Bull.  170  (E.  D.  Mo., 
Munger,  J.);  Kumpula  v.  United  States,  261  Fed.  49  (C.  C.  A.  9th, 
1919,  per  Hunt,  J.);  Hall  v.  United  States,  256  Fed.  748,  Bull.  189 
(C.  C.  A.  4th,  1919,  per  Pritchard,  J.). 

(2)  Disloyal,  etc.  language  about  form  of  government  of  United 
States.  Abrams  v.  United  States,  40  Sup.  Ct.  Rep.  17  (1919)  (Clarke, 
J.;  Holmes,  J.,  dissenting.) 

(3)  Language  intended  to  defame  form  of  government.  Abrams  v. 
United  States,  supra. 

(4)  Disloyal,  etc.  language  about  military  or  naval  forces.  United 
States  v.  Buessel,  Bull.  131  (Conn.,  1918,  Howe,  J.);  United  States  v. 
Curran,  Bull.  140  (S.  D.  N.  Y.,  1918,  L.  Hand,  J.) ;  United  States  v. 
Martin,  Bull.  157  (E.  D.  Tenn.,  1918,  Sanford,  J.;  criticism  of  Presi- 
dent's military  policy  is  within  this  clause  since  he  is  commander-in- 
chief  of>  army  and  navy) ;  United  States  v.  Equi,  Bull.  172  (Ore.,  1918, 
Bean,  J.) ;  Partan  v.  United  States,  261  Fed.  515  (C.  C.  A.  9th,  1919, 
per  Hunt,  J.). 

(5)  Language  intended  to  defame  the  military  or  naval  forces. 
United  States  v.  Equi,  supra;  United  States  v.  Vevig,  Bull.  162  (Alaska, 
1918,  Bunnell,  J.) ;  Partan  v.  United  States,  supra. 

(6)  Disloyal,  etc.  language  about  flag.  United  States  v.  Buessel, 
supra. 

(7)  Language  intended  to  defame  the  flag.  United  States  v.  Equi, 
supra. 

(8)  Language  intended  to  incite,  etc.  resistance  to  United  States  or 
promote  cause  of  enemies.  United  States  v.  Zademack,  Bull.  143  (N.  D. 
Oh.,  1918,  Westenhaver,  J.);  United  States  v.  Debs,  Bull.  155  (N.  D. 
Oh.,  1918,  Westenhaver,  J.) ;  United  States  v.  Martin,  supra;  United 
States  v.  Weist,  Bull.  169  (E.  D.  Mo.,  1918,  Munger,  J.);  United  States 
v.  Equi,  supra;  United  States  v.  Carlson,  Bull.  185  (W.  D.  Wash.,  1918, 
Neterer,  J.);  United  States  v.  Albers,  Bull.  191  (Ore.,  1919,  Wolverton, 
J.);  United  States  v.  Dodge,  Bull.  202  (W.  D.  N.  Y.,  1919,  Hazel,  J.); 
258  Fed.  300  (C.  C.  A.  2d,  1919,  Rogers,  J.);  certiorari  denied,  250 
U.  S.  660,  40  Sup.  Ct.  Rep.  10  (1919);  Abrams  v.  United  States,  supra; 
Kumpula  v.  United  States,  supra. 

(9)  Language  urging  curtailment  of  production  of  war  materials. 
United  States  v.  Carlson,  supra;  Abrams  v.  United  States,  supra. 

(10)  Favor  cause  of  enemies  or  oppose  that  of  United  States. 
United  States  v.  Buessel,  supra;  United  States  v.  Zademack,  supra; 
United  States  v.  Schoberg,  Bull.  149   (E.  D.  Ky.,  1918,  Cochran,  J.); 


APPENDICES  397 

United  States  v.  Bunyard,  Bull.  168  (E.  D.  Mo.,  1918,  Munger, 
J.) ;  United  States  v.  Weist,  supra;  United  States  v.  Bold,  supra;  United 
States  v.  Albers,  supra;  United  States  v.  Dodge,  supra;  Schulze  v. 
United  States,  259  Fed.  189  (C.  C.  A.  9th,  1919,  per  Gilbert,  J.); 
United  States  v.  Brackett,  supra;  Kumpula  v.  United  States,  supra. 

See  also  recent  cases  in  Appendix  II:  Ault,  Listman,  Lockhart,  Rust, 
Seattle  etc.  Co.,  Strong,  Mamaux,  Wimmer. 


APPENDIX  IV 

NORMAL  LAW  OF  FOUR  JURISDICTIONS  AGAINST  ACTUAL 
OR  THREATENED  VIOLENCE 

(See  page  165) 

Massachusetts:  Treason,  R.  L.  (1902)  c.  206;  murder  or  attempt  to 
murder,  c.  207;  destruction  of  property  by  explosives,  or  attempt 
thereto,  c.  208  §§85,  86;  indirect  participation  in  a  crime,  c.  215,  §3; 
attempts  to  commit  any  crime,  c.  215  §  6 ;  solicitation  of  another  to 
commit  a  crime  is  punishable  under  this  section,  Commonwealth  v. 
Peaslee,  177  Mass.  267,  and  also  at  common  law,  Commonwealth  v. 
Flagg,  135  Mass.  545,  quoted  in  the  text. 

New  York:  Treason,  Penal  Law  (1909),  §§2380-2383;  murder, 
§§  1044  ff.;  damage  to  building  by  explosive,  §  1420;  manufacture,  stor- 
ing, or  shipping  of  explosives,  §1894;  attempt  to  injure  building  with- 
out damage,  §1895;  indirect  participation  or  attempt  to  commit  any 
crime,  §§2,  260-262;  solicitation  of  another  to  commit  a  crime  is  prob- 
ably punishable  under  this  section,  People  v.  Strauss,  100  Misc.  661, 
and  also  at  common  law;  any  act  seriously  disturbing  the  person  or 
property  of  another,  or  seriously  disturbing  the  public  peace,  §43;  this 
includes  advocacy  of  revolution  and  assassination,  People  v.  Most,  171 
N.  Y.  423.    The  N.  Y.  anarchy  act  is  discussed  in  the  body  of  the  book. 

Washington:  Treason,  Remington's  Code  (1915),  §§2317-2319;  mur- 
der, §§2392ff.;  damage  by  explosives,  or  placing  them,  §§2652,  2653; 
unlawful  making,  storing,  or  shipping  explosives,  §§2403,  2504,  2506; 
indirect  participation  in  any  crime,  §2260;  attempts  toward  any  crime, 
§2264;  solicitation  of  another  is  punishable  under  this  section,  State 
v.  George,  79  Wash.  262,  and  also  at  common  law.  The  Wash,  syndi- 
calism and  sedition  acts  are  discussed  in  the  body  of  the  book. 

District  of  Columbia:  Treason,  punishable  under  general  Federal 
law;  murder,  Code,  §798;  placing  explosives  near  buildings  or  dis- 
charging them,  §§  825  a,  885 ;  indirect  participation  in  crime,  §  908 ;  at- 
tempts, §  906 ;  solicitation  is  probably  a  common  law  offense  punishable 
under  §910. 


APPENDIX  V 

STATE  WAR  AND  PEACE  STATUTES  AFFECTING 
FREEDOM  OF  SPEECH 

(Note:  As  some  of  the  statutes  have  varying  penalties,  in  order  to 
avoid  confusion  only  the  punishment  for  the  most  serious  offense  is 
mentioned,  which  will  indicate  the  relative  severity  of  these  laws.  Fines 
may  operate  as  a  term  of  imprisonment  if  the  defendant  is  obliged  to 
work  them  out  when  too  poor  to  pay.  An  asterisk  shows  that  this  par- 
ticular statute  has  been  discussed  in  a  reference  listed  in  the  Bib- 
liography. The  cases  listed  are  only  the  appellate  court  decisions  under 
the  statutes;  many  prosecutions  never  reach  such  a  court.  Each  decision 
given  affirms  a  conviction  by  the  trial  court  unless  otherwise  described. 
"  Reversed  "  means  that  a  conviction  was  reversed  on  appeal.  The  list 
ends  with  the  year  1919.) 


Part  I 


Statutes  against  Opposition  to  War.     (See  p.  110  of  text.) 

Alaska  Laws,    1917,   c.   60    (utter   any   seditious   matter   or 

tending  to  excite  discontent,  etc.;  fair  and  honest 
criticism  excepted.)     1  yr.  or  $1,000. 

Florida  Laws,  1917,  c.  7392,  No.  134  (persuading  or  publicly 

attempting  to  persuade  a  person  not  to  enlist  in 
war  or  when  "  our  foreign  relations  tend  to  indi- 
cate an  impending  war  or  state  of  war"). 
Misdemeanor. 

Hawaii  Laws,    1918   sp.,   Act    19    ("language   calculated   or 

tending  to  discourage  or  prevent  the  vigorous  pros- 
ecution of  the  war";  "disrespect  to  any  flag  of 
the  United  States  " ;  "  contemptuous  or  abusive  lan- 
guage about  any  allied  nation  or  its  flag  or  uni- 
form"; also  peace  clauses).     1  yr.,  $1,000. 

(See  sedition  statute,  part  II;  no  express  war  pro- 
vision, but  opposition  punished  in:) 

State  v.  Gibson,  174  N.  W.  34   (1919). 

Laws,  1917  sp.,  No.  10  (like  Minn.,  1917).    3  mos.- 
1  yr.,  $100-$500. 

Laws,    1918,    No.    138    (like    contempt    part   of    Es- 
pionage Act  of  1918).     5  yrs.,  $50-$5,000. 
(See  sedition  statute,  part  II.) 

Minnesota  Laws,  1917,  c.  463  (see  text;  repealed  by  next  statute). 

1  yr.,  $100-$500. 
399 


Iowa 


Louisiana 


400 


APPENDICES 


State  v.  Holm,  139  Minn.  267;  L.  R.  A.  1918 
c.  304  (1918). 

State  v.  Spartz,  140  Minn.  203   (quashed). 

State  v.  Freerks,  140  Minn.  349. 

State  v.  Townley,  140  Minn.  413   (quashed). 

State  v.  Kaercher,  141  Minn.  186. 

State  v.  Luker,  169  N.  W.  700   (1918). 

State  v.  Hartung,  169  N.  W.  712  (1918)  (dis- 
sent). 

State  v.  Gilbert,  169  N.  W.  790. 

State  v.  Martin,  169  N.  W.  792   (dissent). 

State  v.  Deike,  172  N.  W.  777  (1919  reversed). 

State  v.  Gilbert,  171  N.  W.  798. 

State  v.  Townley,  171  N.  W.  930  (ind.  good). 

State  v.  Rempel,    172   N.   W.   919    (reversed). 

State  v.  Ludemann,  172  N.  W.  887  (reversed). 

State  v.  Rempel,  172  N.  W.  888  (reversed). 

State  v.  Randall,  173  N.  W.  425. 

Laws,  1919,  c.  93  (practically  all  of  U.  S.  Act  of 
1918,  except  obstructing  enlistment).  20  yrs., 
$20,000. 

Montana  Laws,  1918  sp.,  c.  11  (model  for  U.  S.  Act  of  1918). 

1-20  yrs.,  $200-$20,000. 

State  v.  Kahn,  182  Pac.  107   (1919). 

State  v.  Griffith,  184  Pac.  219  (1919)  (re- 
versed). 

State  v.  Wyman,  186  Pac.  1. 

State  v.  Smith,  188  Pac.  644  (1920  reversed). 

State  v.  Smith,   190   Pac.   107    (reversed). 

Ex  parte  Stair,  263  Fed.  145  (habeas  corpus 
denied). 


Nebraska 


Laws,  1919,  c.  77  (copies  U.  S.  Act  of  1917  for  war, 
and  rest  of  U.  S.  Act  of  1918  for  all  times).  1-20 
yrs.,   $200-$20,000. 

Laws,  1918  sp.,  c.  5  (very  wide;  punishes  conceal- 
ment of  knowledge  that  sedition  has  been  com- 
mitted; also  any  violation  of  U.  S.  Act  of  1917.) 
20  yrs.,  $10,000. 


Gerdes  t>.  State,  175  N.  W.  606   (1919)    (re- 
versed). 

New  Jersey        Laws,  1918,  c.  36   (like  Minn.,  1917).     7  yrs.,  $ir- 
$2,000. 

State  v.  Tachin,  106  Atl.  145  (1919);  108  Atl. 
318   (dissent). 

(See  sedition  statute,  part  II). 


APPENDICES 


401 


Texas  Laws,  1918  (4th  Called  Sess.),  c  8  (like  La.).    2-25 

yrs. 

Ex  parte  Acker,  212  S.  W.  500  (1919). 
Fromme  v.  State,  212  S.  W.  501. 
Meyer  v.  State,  212  S.  W.  504. 
Ex  parte  Meckel,  220  S.  W.  81  (1920,  held  un- 
constitutional).    3    mos.-l    yr.,    $100-$1,000. 

Wisconsin  Laws,  1918  sp.,  c.  13  (like  Minn.,  1917).    1  yr.,  $1,000. 

(Note:  In  addition  to  the  sedition  statutes  mentioned,  several  states 
during  the  period  of  hostilities  passed  criminal  syndicalism  laws,  see 
part  II — Arizona,  Idaho,  Minnesota,  Montana,  South  Dakota.) 


Paet  II 

Statutes  not  Limited  to  War.     (See  pp.  180-194  of  text.) 

A.   Bed  Flags  and  Other  Insignia: 

Arizona  Laws,  1919,  c.  11.    6  mos.,  $100-$300. 

California  Laws,  1919,  c.  142.     Felony. 

Colorado  Laws,  1919,  c.  171.     1-10  yrs. 

Connecticut        Public  Acts,  1919,  c.  35.     6  mos.,  $200. 

New  Haven  Red  Flag  Ordinance  (1919),  29  Yale  L. 
Journ.  108. 

Delaware  Laws,  1919,  c.  231.    15  yrs.,  $2,000. 

Idaho  Laws,  1919,  c.  96.     1-10  yrs.,  $1,000. 

Illinois  Laws,  1919,  p.  420,  sec.  265  f.    1-10  yrs. 

Indiana  Laws,  1919,  c.  125    (preamble   referring  to   Russia). 

5  yrs.,  $5,000. 

Iowa  Laws,  1919,  c.  199.     6  mos.,  $1,000. 

Kansas  Laws,  1919,  c.  184.    18  mos.-3  yrs. 

Massachusetts    Laws,  1913,  c.  678,  sec.  2   (repealed  by  Laws,  1915, 
c.  255).     6  mos.,  $100. 

-ii  Comm.  v.  Karvonen,  219  Mass.  30  (1914). 

Michigan  Laws,  1919,  No.  104.    5  yrs.,  $1,000. 

Minnesota  Laws,  1919,  c.  46.    Felony. 

Montana  Laws,  1919,  c.  25.    1-5  yrs., 


402  APPENDICES 

Nebraska  Laws,  1919,  c.  208.     5  yrs,,  $1,000. 

New  Jersey  Laws,  1919,  c.  78.    15  yrs.,  $2,000. 

New  Mexico  Laws,  1919,  c.  33.    6  mos.,  $100. 

New  York  Laws,  1919,  c.  409.    Misdemeanor. 

Oklahoma  Laws,  1919,  c.  133.    10  yrs.,  $1,000. 

Oregon  Laws,  1919,  c.  35.     10  yrs.,  $1,000. 

South  Dakota  Laws,  1919,  c.  191.    30  days,  $100. 

Utah  Laws,  1919,  c.  129.     1-10  yrs.,  $1,000. 

Vermont  Laws,  1919,  c.  195.    6  mos.,  $200. 

Washington  Laws,  1919,  c.  181.    Felony. 

West  Virginia  Laws,  1919,  c.  24,  sec.  2.     1  yr.,  $100-$500  (first  of- 
fense); 1-5  yrs.   (second  offense). 

Wisconsin  Laws,  1919,  c.  369.    $10-$100    (30  days  on  default). 

B.  Statutes  Against  Incitement  to  Specific  Acts  of  Violence: 

(Note:  The  grouping  adopted  below  is  necessarily  somewhat  arbi- 
trary. Groups  B-E  run  into  one  another,  and  the  line  between  sedi- 
tion and  syndicalism  is  not  always  clear.) 

*  Massachusetts  Laws,  1919,  c.  191.     3  yrs.,  $1,000. 

*  New  Jersey     Laws,  1908,  c.  278.    High  misdemeanor. 

State  v.  Boyd,  86  N.  J.  L.  75;  87  N.  J.  L.  328 
(1915). 

State  tf.  Quinlan,  86  N.  J.  L.  120;  87  N.  J.  L. 
333  (1915;  with  dissenting  opinion). 

State  v.  Scott,  86  N.  J.  L.  133  (1914)  (re- 
versal). 

Vermont  Laws,   1919,   No.    194    (like   Mass.,   but   has   "indi- 

rectly").   3  yrs.,  $1,000. 

C.  Statutes  Against  Incitement  to  Crime  Generally: 

Indiana  Laws,    1919,   c.    125,   sec.   2    (includes    advocacy   of 

revolution   by   "general   cessation    of    industry"). 
5   yrs.,  $5,000. 

Washington       Laws,  1909,  c.  249,  sec.  312.    Gross  misdemeanor. 

State  v.  Fox,  71  Wash.  185   (1912). 
Fox  v.  Washington,  236  U.  S.  273  (1915). 


APPENDICES  403 

Wyoming  Laws,  1919,  c.  76.    5  yrs.,  $5,000. 


D.  Statutes  Against  Criminal  Anarchy: 

*New  York       Laws,  1902,  c.  371.    10  yrs.,  $5,000: 


Washington 


Von    Gerichten    v.    Seitz,    94    App.    Div.    130 
(1904). 

Laws,  1909,  c.  249,  sees.  311,  314-316.     10  yrs.,  $5,000. 
State  v.  Lowery,  104  Wash.  520  (1918). 


E.   Peace-Time  Sedition  Statutes: 

*  Connecticut  Public  Acts,  1919,  c.  191  (public  advocacy  of  "any 
measure,  doctrine,  proposal  or  propaganda  intended 
to  injuriously  affect  the  government"  of  U.  S.  or 
Conn.).    3  yrs.,  $1,000. 

Public  Acts,  1919,  c.  312  ("abusive,  disloyal,  scur- 
rilous matter  about  form  of  government  of  U.  S., 
military  forces,  etc.,  or  matter  intended  to  bring 
them  into  contempt,  or  which  creates  or  fosters 
opposition  to  organized  government").  5  yrs., 
$500. 

Hawaii  Laws,  1918  sp.,  Act  19   (like  contempt  part  of  Es- 

pionage Act  of  1918;  also  war  clauses  and  peace 
clauses).     1-10  yrs.,  $100-$1,000. 

Illinois  Laws,  1919,  p.  420,  adding  to  Criminal   Code  sees. 

265  a-g  (advocacy  of  reformation  or  overthrow  of 
present  representative  form  of  government  by  vio- 
lence or  other  unlawful  means;  issuing  books,  etc.; 
membership  in  society,  etc.)      1-10  yrs. 

Iowa  Laws,  1917,  c.  372  (exciting  or  attempting  to  excite 

insurrection  or  sedition,  advocating  subversion  or 
destruction  by  force  of  la.  or  U.  S.  government; 
attempting  to  excite  hostility  or  opposition  to 
them;  membership  in  association,  etc.).  20  yrs., 
$1,000-$10,000. 

State  v.  Gibson,  174  N.  W.  34   (1919). 

Louisiana  Laws,  1917  sp.,  No.  24  (like  la.).    20  yrs.,  $10,000. 

Montana  Laws,  1919,  c.  77  (like  war-time  statute,  supra,  and 

U.  S.  Espionage  Act  of  1918).  1-20  yrs.,  $200- 
$20,000. 


404 


APPENDICES 


New  Laws,  1919,  c.  155  (advocating  overthrow  of  govern- 

Hampskire  ment  or  interference  with  any   public  or   private 

right  whatever  by  force;  any  act  which  tends  to 
encourage  violation  of  law).  10  yrs.,  $5,000.  In- 
junction provision. 

New  Jersey        Laws,  1918,  c.  44   (like  la.).    20  yrs.,  $10,000. 

New  York  Laws,  1917,  vol.  2,  c.  416   (removal  of  officers,  civil 

service  employees,  and  teachers  for  treasonable  or 
seditious  acts  or  utterances). 

Laws,  1918,  vol.  2,  c.  246  (elimination  of  school  text- 
books containing  seditious  or  disloyal  matter). 

Pennsylvania  Laws,  1919,  No.  275  (any  publication,  utterance,  or 
conduct  which  tends  to  cause  any  outbreak  of  vio- 
lence, to  encourage  conduct  with  a  view  of  over- 
throwing by  force  or  show  or  threat  of  force  the 
government  of  U.  S.  or  Pa.,  to  encourage  any 
overt  act  with  a  view  of  bringing  them  into  hatred 
or  contempt,  or  to  incite  harm  to  officials  or  public 
property,  etc.  Cf.  Palmer  federal  bill).  20  yrs., 
$100-$10,000. 

West  Virginia  Laws,  1919,  c.  24  (see  text).  1  yr.,  $100-$500  (first 
offense);    1-5  yrs.    (second  offense). 

Criminal  Syndicalism  Statutes  (substantially  of  a  uniform  type,  unless 
otherwise  noted): 

Alaska  Laws,  1919,  c.  6.     10  yrs.,  $5,000. 

Arizona  Laws,   1918   sp.,  c.   13    (special   wording).     10   yrs., 

$5,000.  Message  of  Governor  Hunt,  refusing  to 
sign  this  Act,  ibid.  49;  Senate  and  House  Reso- 
lutions denouncing  the  I.W.W.,  ibid.  55,  67. 

*  California        Laws,  1919,  c.  188.    1-14  yrs. 

Ex  parte  McDermott,  183  Pac.  437  (1919). 
Hawaii  Laws,  1919,  c.  186.     10  yrs.,  $5,000. 

Idaho  Laws,  1917,  c.  145.     10  yrs.,  $5,000. 

Iowa  Laws,  1919,  c.  382.     10  yrs.,  $5,000. 

Michigan  Laws,  1919,  No.  255.    10  vts.,  $5,000. 

Minnesota  Laws,  1917,  c.  215.     10  yrs.,  $5,000. 

State   v.    Moilen,    167    N.    W.    345    (1918);    1 
A.  L.  R.  331. 


APPENDICES  405 

Montana  Laws,  1918  sp.,  c.  7.     1-5  yrs.,  $200-$l,000. 

Nebraska  Laws,  1919,  c.  261.     (Adds  "or  for  profit.")     1-10 

yrs.,  $1,000. 

Nevada  Laws,  1919,  c.  22.     10  yrs.,  $5,000. 

Ohio  Laws,  1919,  House  Bill  No.  477.     10  yrs.,  $5,000. 

Oklahoma  Laws,  1919,  c.  70.     (Adds  "or  for  profit.")     10  yrs., 

$5,000. 

Oregon  Laws,  1919,  c.   12.     (Adds   "or  for  profit.")     1-10 

yrs.,  $1,000. 

South  Dakota    Laws,  1918,  c.  38.    1-25  yrs.,  $1,000-$10,000. 

Utah  Laws,  1919,  c.  127.     1-5  yrs.,  $200-$l,000. 

Washington       Laws,  1919,  c.  3.     10  yrs.,  $5,000.     (Repealed  by  the 
following  act.) 
Laws,  1919,  c.  174  (special  wording,  favoring  "  crime, 
sedition,    violence,    intimidation    or    injury"    as    a 
means   of  change).     Felony. 
Laws,  1919,  c.  173  (special  wording,  favoring  sabo- 
.  tage).    Felony. 


INDEX  OF  CASES 


Note:  Prosecutions  are  indexed  by  the  name  of  the  accused,  whether 
conducted  by  the  King  (Rex),  the  Queen  (Regina),  the  United  States, 
or  a  state  (People,  Commonwealth,  Respublica).  All  other  cases  are  in- 
dexed by  the  plaintiff's  name.  Important  prosecutions  and  election 
cases  are  also  in  the  General  Index.  Many  federal  and  state  prosecu- 
tions not  discussed  in  this  book  are  indexed  in  Appendices  II  and  V. 


Abbott,  Be,  320  to.,  321  to. 
Abrams    v.    U.    S.,    120-160;    see 

General  Index. 
Acklen  Election  Case,  349  to. 
Ahearn,  P.  v.,  352  to. 
Ahlers,  R.  v.,  326  to. 
Albers,  U.  S.  v.,  57  to.,  59  to. 
American     School     of     Magnetic 

Heating   v.    McAnnulty,    105  to., 

285  re. 
American      Socialist      Society     v. 

U.  S.,  27  and  to.,  308,  356. 
Aso,  U.  S.  v.,  167,  168  and  to.,  173. 
Atchison  etc.  Ry.  v.  Brown,  11  to. 
August  v.  U.  S.,  149  to. 
Ault,  U.  S.  v.,  115  to. 

Bailey  v.  Alabama,  36  to. 

Baker,  U.  S.  v.,  101  to. 

Baltzer,  U.  S.  v.,  64,  65  and  to., 
88  to. 

Bancroft  v.  Frear,  320  to. 

Barker,  P.  v.,  340  to.,  342  to. 

Beatty  v.  Gillbanks,  183  and  to. 

Beresford-Hope  v.  Lady  Sand- 
hurst, 319  to. 

Berger  Election  Case,  315-332; 
see  General  Index. 

Bernat  and  Dixon,  Ex  parte, 
272  w. 

Billingsley  v.  U.  S.,  166  to. 

Blanding,  C.  v.,  8  to.,  24  to. 

Blodgett,  U.  S.  v.,  62,  64. 

Blount,  Expulsion  Case,  346  to. 

Blum,  Matter  of,  304  to. 

Bollman  and  Swartwout,  Ex  parte, 
325  to. 

Bosny  v.  Williams,  236  and  to. 

Boutin,  U.  S.  v.,  57  to. 

Boyd,  S.  v.,  192  to. 


Boyd   v.    U.    S.,   299,   300,   303  to., 

335  to. 
Bradlaugh  Election  Case,  344 
Bright  Expulsion   Case,  346,  347, 

350  w. 
Brinton,  U.  S.  v.,  83. 
Bryant  v.  U.  S.,  40  to. 
Buessel,  U.  S.  v.,  128  to. 
Burman,  P.  v.,  183  to. 
Bush,    P.    ex    rel.,    v.    Thornton, 

342  to.,  347  to. 
Butler  v.  Perry,  36 ». 

Campbell  v.  Cannon,  347  to.,  351  to. 
Cannon,    Election    and    Expulsion 

Cases,  345  to.,  347  to.,  351  and  to. 
Carlisle  v.  U.  S.,  326  to. 
Casement,  R.  v.,  325,  326. 
Chandler,  S.  v.,  31  to. 
Charges  to  Grand  Jury,  327  to. 
Chin  Wah,  Be,  241  to. 
Chin  Yow  v.  U.  S.,  255  to. 
Clap,  C.  v.,  24  to. 
Clark,  S.  v.,  151  to. 
Clark,  U.  S.  v.,  215  and  to. 
Clarke,  Ex  parte,  307  to. 
Claudius  v.  Davie,  7  to. 
Cobbett,  Trial  of,  8  to. 
Coaks,  R.  v.,  319  to. 
Coldwell,  U.  S.  v.,  9  to. 
Colyer  and  Katzeff  v.  Skeffington, 

242-249,   257,    270    and    to.,    271, 

339. 
Comfort  v.  Fulton,  304  to. 
Connolly  v.  Union  Sewer  Pipe  Co., 

282  to. 
Cowan  v.  Fairbrother,  12  TO. 
Croswell,  P.  v.,  30  and  to. 
Cummings     v.     Missouri,     302  to., 

342  to. 


407 


408 


INDEX  OF  CASES 


Curran,  U.  S.  v.,  128  to. 
Cuthell,  R.  v.,  58  and  to. 

Dailey  v.  Superior  Court,  61  to. 
Dalton,  S.  v.,  344  to. 
Danbury  Hatters'  Case,  53  ». 
Darmer,  U.  S.  i\,  110  to. 
Darwin,  S.  v.,  112  to. 
Davidson  v.  New  Orleans,  16  to. 
Dean  of  St.  Asaph,  R.  v.,  8  to.,  9  to. 
Debs  v.  U.  S.,  90-93;  see  General 

Index. 
Dennie,  Resp.  v.,  8». 
Denson,  U.  S.  v.,  57  to.,  59  to. 
Dobbs'  Case,  150  to. 
Doe  v.  U.  S.,  60,  67. 
Drakard,  R.  v.,  27,  28. 

Eastman,  P.  v.,  171  to. 
Eastman,  U.  S.  v.,  85  to.,  86,  126. 
Ehrich  v.  Root,  306  to. 
Eisner  v.  Macomber,  106  to. 
Entinck  v.  Carrington,  298  to.,  304. 
Equi,  U.  S.  v.,  33  to.,  128  to. 

Flagg,  C.  v.,  165. 

Fong  Yue  Ting  v.   U.  S.,  235  to., 

241  to.,  249  to. 
Fontana,  U.  S.  t>.,  48  to. 
Foster,  Matter  of,  307  to. 
Fox,  S.  v.,  188  n. 
Fox  v.  Spicer,  42  n. 
Fox  v.  Washington,  188  n. 
Fraina  v.  U.  S.,  13  n.,  59  and  n. 
Frank  v.  Skeffington,  252-254. 
Freerks,  S.  v.,  57  n. 
French  v.  Senate,  340  n. 
Frieke,  U.  S.  v.,  41  n.,  326  n. 
Frishman,  C.  v.,  182-185. 
Frohwerk  v.  U.  S.,  15,  16  and  n., 

SSn.,  90. 
Furman,    P.    ex.    rel.,    v.    Clute, 

320  n. 

Garland,  Ex  parte,  342  n. 
Gegiow  v.  Uhl,  239  n. 
Gibson,  S.  v.,  Ill  n. 
Gillow,  R.  v.,  150  n. 
Gilmore,  S.  v.,  344  n. 
Goetcheus  v.  Matthewson,  342  n. 
Goldman,  U.  S.  v.,  13  n.,  41  w.,  126. 
Goldsmith,  U.  S.  v.,  57  n.,  59  n. 
Goldstein  v.  U.  S.,  10  w.,  60,  61. 
Gompers     v.     Bucks     Stove     and 

Range  Co.,  53  n. 
Gompers  v.  U.  S.,  32  n. 


Grafton  v.  Connor,  349  n. 

Granzow,  U.  S.  v.,  57  n. 

Grau,  U.  S.  ex  rel,  v.  Uhl,  272 ». 

Green  v.  Shumway,  342  n. 

Guiney  v.  Bonham,  272  n. 

Gulf  etc.  Ry.  v.  Ellis,  282  n. 

Haffer,  P.  v.,  172  n. 
Hall,  U.  S.  v.,  59  to. 
Halliday,  R.  v.,  42  to. 
Halter  v.  Nebraska,  112  to. 
Harris  Expulsion  Case,  345  to.,  346. 
Harrison,  Ex  parte,  11  to. 
Harshfield  ».  U.  S.,  59  and  to.,  93  to. 
Hatzel  v.  HaL,  341  to. 
Haywood,  U.  S.  v.,  85  to.,  87  to.,  163. 
Head  v.  U.  S.,  88  to. 
Henning,  U.  S.  t>.  48  to. 
Herbert  Expulsion  Case,  345  to. 
Hiss  v.  Bartlett,  340  to. 
Hitchcock,  U.  S.  v.,  57  to. 
Hodges,  U.  S.  v.,  326  w. 
Holm,  S.  v.,  Ill  to. 
Houston  v.  Moore,  112  to. 
Hunt,  R.  v.,  27,  28,  68. 
Hurtado  v.  California,  36  to. 

I.  C.  C.  v.  Brimson,  242  to. 

Jackson,  Ex  parte,  (Fed.),  241  to., 

242  to.,  273  to.,  274. 
Jackson,  Ex  parte,  (U.  S.),  108  to. 
Ju  Toy,  U.  S.  v.,  238  n.,  255  and  to. 

Karamann  v.  U.  S.,  93  to. 
Kansas  v.  Colorado,  34  to. 
Karvonen,  C.  v.,  186  to.,  187  to. 
Kaufman,  U.  S.  v.,  57  to. 
Kentucky  v.  Dennison,  191  to. 
Kentucky  Members  Election  Case, 

350  to. 
Kirchner,  U.  S.  v.,  57  to. 
Konkel  v.  S.,  112  to. 
Krafft,  U.  S.  v.,  57  to. 
Kramer,  U.  S.  v.,  110  ro. 
Kumpula  i>.  U.  S.,  83  and  to. 

Listman,  U.  S.  v.,  115  to. 

Loewe  v.  Lawlor,  53  to. 

Lopez  v.  Howe,  278-280. 

Louthan  t\  C,  11  to. 

Lowery,  S.  v.,  272  to. 

Low  Hong,  U.  S.  v.,  255  to. 

Low  Wah  Suey  v.  Backus,  238  to., 

239  to. 
Ludemann,  S.  v.,  60  to. 


INDEX  OF  CASES 


409 


Lynch,  P.  v.,  Ill  to. 

Lyon  Expulsion  Case,  329,  345. 

McClure*  S.  v.,  7  to. 

McCulloch  v.  Maryland,  34  to. 

McDonald,  P.  v.,  303  to. 

McGrorty  v.  Hooper,  351  to. 

McKee,  S.  v.,  11  to. 

McKee  v.  Young,  347  to.,  350  to. 

McNeill,  Re,  344  to. 

Magon  v.  U.  S.,  214  to. 

Mahaney,  P.  v.,  341  w. 

Mamaux  v.  U.  S.,  80  to. 

Martin,  U.  S.  v.,  128  ro. 

Masses   Publishing  Co.  v.   Patten, 

46-56;  see  General  Index. 
Maxwell  v.  Cannon,  347  to.,  351  to. 
Meckel,  Ex  parte,  111  n.,  192  to. 
Merryman,  Ex  parte,  34  to.,  81  to. 
Metcalf,   S.   ex   rel.,  v.   Dist.   Ct., 

11  n. 
Miller,  In  re,  257,  261  n.,  339. 
Miller,  U.  S.  v.,  57  n. 
Milligan,  Ex  parte,  33  and  n.,  42  to., 

69  to.,  81  to.,  96  to.,  113,  116,  117  to., 

325. 
Milwaukee  Social  Dem.  Pub.  Co. 

v.  Burleson,  316  w. 
Mitchell,  Ex  parte,  239  to. 
Moiien,  S.  v.,  192  to.,  272  to. 
Molyneux,  P.  v.,  85  to. 
Moore,  U.  S.  v.,  150  to. 
Most,  P.  v.,  205,  206. 
Most,  R.  v.,  205  to. 
Moy  Suey  v.  U.  S.,  255  to. 
Moy  Wing  Sun  v.  Prentis,  241  to. 
Muir,  R.  v.,  28,  146  w. 
Mutual    Film    Co.    v.    Industrial 

Commn.,  10  to. 

Nagler,  U.  S.  v.,  57  to. 

Neagle,  22 e,  200. 

Nearing,  U.  S.  v.,  27,  53  to.,  55  to., 

85  to.,  125. 
Nesin,  P.  v.,  110  to. 
New     Yorker     Staats-Zeitung     v. 

Nolan,  110  to. 
Nishimura  Ekiu  v.  U.  S.,  230  to. 
Norman  v.  Mathews,  42  to. 

Ogletree  v.  S.,  150  w. 
O'Hare,  U.  S.  v.,  83,  162. 
Orear  v.  U.  S.,  40  to. 
Oswald,  Resp.  v.,  8  to. 

Pacific  Ry.  Com'n,  In  re,  242  to. 
Palmer,  R.  v.,  28. 


Pape,  U.  S.  v.,  59  and  60  to. 
Patterson  v.  Colorado,  9ro. 
Peaslee,  C.  v.,  53,  89. 
Pembliton,  R.  v.,  150  to. 
Pettine,  Ex  parte,  280  to.,  281  to. 
Phillips,  U.  S.  v.,  13  to.,  41  to.,  79  to., 

126. 
Pierce,  S.  v.,  11  to. 
Pierce,  U.  S.  v.,  13  to.,  94  and  to., 

101-106,   134,   135  to.,  285  to. 
Pioneer  Press  Co.,  S.  v.,  12  to. 
Powell  Expulsion  Case,  346. 
Preis,  In  re,  257,  261. 
Printing  Co.,  S.  v.,  12  to. 
Public  Clearing  House  v.  Coyne, 

108  to. 

Quinlan,  S.  «>.,  189  to. 

Ragan,  S.,  ex  rel.,  v.  Junkin,  11  to. 
Rathbone  v.  Wirth,  343  to. 
Reeder,  U.  S.  v.,  41  to. 
Roach  Election   Case,  349  to. 
Roberts     Election     Case,     345  to., 

347  n.,  350  to.,  352  and  to. 
Roberts  v.  People,  150  to. 
Roberts,  Resp.  v.,  326  n. 
Robertson  v.  Baldwin,  7  to.,  36  to. 
Robinson,    U.    S.   v.,   41  to.,  324  to., 

326  to.,  327  to. 
Rogers  v.  Common  Council,  343  to. 
Rogers,   U.   S.  v.,   166  to. 
Ronnfeldt  v.  Phillips,  119  to. 
Russell,  Bertrand,  R.  v.,  2,  42  to., 

59  and  to. 

St.  Louis  etc.  Ry.  v.  Griffin,  11  to. 
Samson  v.  Columbia,  110  to. 
Sandberg,  U.  S.  v.,  57  to.,  59  to. 
Sanford  v.  Richardson,  305  to. 
Schaefer  v.   U.   S.,  85,  87,  94-101, 

106,  218  to.,  265  and  to. 
Schenck  v.   U.   S.,   9n,   16  to.,  88- 

93;   see  General  Index. 
Schoberg,  U.  S.  v.,  38  to.,  59  to. 
Schurmann  v.  U.  S.,  110  to. 
Scott,  S.  v.,  189  to. 
Selective   Draft   Law   Cases,  7  to., 

40  to. 
Shaffer,  U.  S.  v.,  57  to. 
Shelley's  Case,  38. 
Silverthorne  Lumber  Co.  v.  U.  S., 

242  to.,  299  to.,  300. 
Skuy  v.  U.  S.,  149  to. 
Smith    v.    Brown,    320  to.,    347  to., 

350  to. 


410 


INDEX  OF  CASES 


Smoot  Election  Case,  347  to.,  352, 

353. 
Socialists    Election    Case,   332-364. 
Spirit  of  '76,  U.  S.  v.,  10,  38  to., 

43,  60,  61. 
Star  v.  Brush,  110  to. 
Star  Opera  v.  Hylan,  110  to.,  183  to. 
Stark    Election   Case,   347  to.,  349, 

350  and  to. 
Starr,  Ex  parte,  113  to. 
Steene,  U.  S.  v.,  116  to. 
Stephens,  U.  S.  v.,  51  to. 
Stern  v.  Remick,  242  to. 
Stilson  v.  U.  S.,  93  and  to. 
Stokes,   U.   S.   v.,   13  to.,  28  to.,  58, 

59,  67,  87  to.,  92,  118,  119. 
Strong,  U.  S.  v.,  115  to. 
Stuppiello,  U.  S.  v.,  280  to. 
Sugarman  v.  U.  S.,  88  ro.,  89,  90. 
Sultan  v.  Star  Co.,  110  to. 
Swelgin,  U.  S.  v.,  272  and  273  to. 
Swift  v.  U.  S.,  53  to. 
Symes  v.  Trimble,  350  to. 

Tachin,  S.  v.,  Ill  to.,  112  to.,  192  to. 

Taubert,  U.  S.  v.,  81  to. 

Thomas     Election     Case,     347  to., 

350  to. 
Toledo   Newspaper  Co.  v.   U.   S., 

12  and  to. 
Townley;  see  General  Index. 
Truss,  In  re,  257. 
Turner  v.  Williams,  275,  277,  278, 

283. 


Van   Lonkhuyzen  v.  Daily  News, 

110  TO. 
Vegelahn  v.  Guntner,  53  to. 
Von  Bank,  U.  S.  v.,  57  to. 
Von  Gerichten  v.  Seitz,  188  to. 

Waldman  Election  Case,  332-364. 

Waldron,  U.  S.  v.,  61,  62. 

Wallace,  U.  S.  v.,  13  to.,  62. 

Wallace  v.  Georgia  Ry.,  11  to. 

Weeks  v.  U.  S.,  241  to.,  299  n.,  300. 

Weems  v.  U.  S„  148  to. 

Weinsberg,  U.  S.  v.,  57  to. 

Weist,  U.  S.  v.,  57  to. 

Wells  v.  U.  S.,  41  to.,  168  and  to., 
173. 

Werner,  U.  S.  v.,  41  to.,  327  to.;  see 
Schaefer  v.  U.  S. 

Wheeler,  U.  S.  v.,  45  to. 

Whitaker,  P.  v.,  110  to. 

White,  U.  S.  v.,  57  to. 

Whittemore  Election  Case,  349  to. 

Wiborg  r.  U.  S.,  149  to. 

Wilkes  v.  WTood,  297  to. 

Wilkes  Election  Case,  311-315,  328, 
356. 

Wishek,  U.  S.  v.,  48  to. 

Wong  Quong  Wong,  U.  S.  »., 
241  to. 

Workingmen's  Co-operation  Pub- 
lishing Association,  U.  8.  ex  rel., 
v.  Burleson,  115  to. 

Wursterbarth,  U.  S.  v.,  109,  110  to. 


U.  S.  Steel  Corp.,  U.  S.  v.,  106  to.      Youn&  u-  s-  v ->  325  n>  326  w- 


Vallandigham,    ifo    parte,    117  to., 
325. 


Zenger  trial,  23  and  to. 
Zimmerman,  U.  S.  v.,  82. 


GENERAL  INDEX 


Note:  The  Index  of  Cases  should  also  be  consulted  for  prosecutions, 
etc.,  since  only  a  few  of  the  most  important  are  listed  in  this  index. 


Abercrombie,  J.  W.,  Solicitor  of 
the  .Department  of  Labor,  243, 
248,  249,  258. 

Abolitionists,  3,  209,  210,  372. 

Abrams,  Jacob,  123-126,  131,  138  n., 
141,  142,  148;  trial  and  decision, 
9n.,  22  n.,  46,  68,  85  n.,  93,  94, 
100,  106,  116;  chapter  III.,  120- 
160,  202,  207,  215,  216,  220. 

Adams,  John,  2,  210,  299;  on  as- 
sassination, 223. 

Addison,  Judge,  21  n. 

Administrative  law,  conclusive- 
ness of  the  decisions  of  officials: 
post-office,  45,  54,  106-109,  199, 
233,  234;  deportations,  232-240, 
254-256,  291,  292;  treaty  funds 
and  Land  Office,  233;  taxation, 
233;  danger  of  wide  range  of 
administrative  discretion  in 
criminal  statutes,  75. 

Agents  provocateurs,  269-271. 

Agitators,  value  for  liberty,  294, 
295. 

Aldrich,  Edgar,  Judge,  81. 

Alice  in  Wonderland,  232,  334. 

Alien  Law  of  1798,  1,  162;  text 
summarized,  29;  compared  with 
contemporary  deportations,  109, 
240. 

Aliens,  denaturalization  of,  see 
same;  deportation  of,  109,  110, 
229-293;  value  to  U.  S.,  227,  236, 
289,  293;  reasons  for  not  be- 
coming naturalized,  235,  236. 

Altercations,  language  in,  prose- 
cuted, 59  and  n.,  68. 

American  Federation  of  Labor, 
193,  198,  255,  267,  272  n.,  278. 

American  Labor  Party,  267. 

American  Labor  Y ear-Book,  257, 
273  w.,  305  n.,  308  n.,  319  re. 

American  Protective  League,  71, 


American  Revolution,  2,  9,  17, 
21,  24,  46,  203,  209,  299,  326  n.; 
censorship  of  moving  pictures, 
10,  60,  61. 

American  Socialist  Society, 
Rand  School,  308-310;  prosecu- 
tion, 27  and  n.,  308,  356. 

Americanism,  178,  227,  331,  362, 
372. 

Amidon,  C.  F.,  Judge,  46,  48 «.., 
56,  76,  83. 

Amnesty,  after  Civil  War,  2; 
after  World  War,  116,  117,  118 
and  n. 

Anarchists,  2,  83,  97,  223,  309; 
in  Abrams  case,  123,  142-147, 
159;  past  outrages,  164,  165; 
regulation  of  explosives,  168, 
169;  state  statutes  against  crim- 
inal anarchy,  187-194;  anarchy 
acts  generally,  163-228  passim; 
extradition,  191  n.;  deportations 
of  violent  anarchists,  275;  of 
philosophical  anarchists,  275- 
280,  285. 

Anderson,  A.  B.,  Judge  (Ind.), 
82. 

Anderson,  F.  M.,  on  Sedition 
Law  of  1798,  78  n.,  81  n. 

Anderson,  G.  W.,  Judge  (Mass.), 
70  to.,  194  n.,  242-250,  253-257, 
268. 

Angell,  W.  F.,  on  Caillaux  trial, 
136  n. 

Ansell,  S.  T.,  General,  on  militia, 
lllra. 

Antin,  Mary,  82. 

Antonelli,  Etienne,  La  Russie 
Bolcheviste,  132  n. 

Antony,  funeral  oration,  55,  214. 

Ariete,  El,  anarchistic  society, 
167,  168,  173,  174. 

Arizona,  Bisbee  deportations,  45; 
syndicate  law,  190. 


411 


412 


GENERAL  INDEX 


Army,  criticism  of  flogging  in,  27, 
28,  68;  abuse  of  uniform,  crime, 
45,  114,  115;  criticism  of  incom- 
petent general  by  troops,  50. 
See  Conscription;  War. 

Army  and  the  Press,  Relation  Be- 
tween, 98,  99. 

Arrests,  without  warrant,  in  Civil 
War,  116,  117;  under  Espionage 
Act,  123,  159;  in  deportation 
proceedings,  237,  241  and  n., 
243-246,  248;  of  citizens  for  de- 
portation, 242,  244,  245,  249, 
252-256;  general  warrants,  296, 
297. 

Art,  and  freedom  of  speech,  17, 
31,  32,  175.     See  Censorship. 

Assassination,  52,  163-169  'passim, 
173,  175,  196,  198,  199,  205 
passim,  230,  231,  263,  268. 

Assembly,  right  of,  5,  In.,  50;  in 
war,  57,  58;  in  peace,  172,  177, 
178,  180,  182-185,  205,  206;  per- 
mits for  use  of  streets,  15,  180, 
182,  183;  red  flag  laws,  180-187. 

Association,  guilt  by,  112,  113, 
192,  193,  230,  231  and  n.,  250, 
257,  262-268,  281,  285,  336,  337, 
360,  361. 

Associations,  to  suppress  sedition, 
71,  72,  357. 

Atheists,  2,  172  n.,  196  and  to. 

Attempts,  criminal,  304  n.;  rela- 
tion to  freedom  of  speech,  25, 
165,  173;  to  Espionage  Act,  51- 
53,  88,  89,  155;  attempts  to  ob- 
struct recruiting,  41,  44,  46;  in 
federal  crimes,  166,  201. 

Attorney  General,  alleged  Star- 
Spangled  Banner  prosecutions, 
102,  103;  supervision  over 
judges,  84,  85;  no  control  over 
deportations,  242,  252.  See 
Gregory;  Palmer;  Justice,  De- 
partment of. 

Audience,  character  of,  as  affect- 
ing  criminality  of  utterances, 
57-61,  206. 

Bagehot,  Walter,  34,  140  to.,   197, 

207,  289  n. 
Bail,  under  Espionage  Act,  46;  in 

deportations,  248. 
Bakunin,  221. 
Baldwin,  Roger,  193  n. 
Barkley,  F.  R.,  248  to.,  255  n. 


Beale,  Joseph  H.,  on  criminal  at- 
tempts, 51  nn. 

Bean,  R.  S.,  Judge,  33  to. 

Beard,  imprisonment  for  wearing 
long,  172,  183. 

Beckstrom,  J.  W.,  prosecution, 
102  n. 

Beecher,  Edw.,  Alton  Riots,  3n. 

Belgium,  63. 

Bentham,  J.,  266. 

Berger,  Victor  L.,  Milwaukee 
Leader,  64,  107,  315-318,  323; 
prosecution,  79,  101,  162,  318, 
319,  323,  331;  exclusion  from 
Congress,  201,  315-332,  333,  336. 

Berkman,  A.,  47. 

Berri,  Due  de,  175. 

Bettman,  Alfred,  73,  125  n.,  167, 
262  n.,  263  n. 

Beveridge,  A.  J.,  Life  of  Marshall, 
11  n.,  22,  23  n.,  65  n.,  81  to., 
211  to.,  265  n.,  330  n. 

Bible,  110,  332,  333;  prosecution 
for  quoting,  218.     See  Jesus. 

Bikle,  H.  W.,  on  sedition  law, 
199  n.,  204  to. 

Billboard-Posters,  indecent,   10. 

Bill  op  Rights,  adopted  by  U.  S., 
4;  important  for  interpreting  as 
well  as  invalidating  statutes,  4- 
6;  comparison  with  European 
constitutions,  5  and  n.;  subject 
to  implied  exceptions,  7;  apply 
in  war,  33,  34,  42  to.,  86  and  to.; 
do  not  crystallize  antiquity,  35, 
36;  deportation,  281-291;  mis- 
cellaneous references,  3,  228. 

BlSBEE   DEPORTATIONS,   45. 

Bishop,  on  intent,  150  to. 

Bismarck,  sedition  legislation,  263. 

Black,  Jeremiah,  69,  113. 

Blackstone,  William,  9,  31  n. ; 
definition  of  freedom  of  speech, 
8-12,  19,  21,  22  to.,  23  to.,  31,  32, 
108,  199;  on  incitement,  53;  on 
Wilkes,  313. 

Blanc,  Louis,  286  n. 

Blasphemy,  14,  170,  172. 

Bledsoe,  B.  F.,  Judge,  10,  38. 

Bolshevists,  in  U.  S.,  2,  60-120 
passim,  124,  168,  185,  196,  197, 
219,  261,  309;  Overman  Com- 
mittee, 134,  135,  164.  See  Rus- 
sia. 

Bombs,  163-169  passim,  196,  212, 
268. 


GENERAL  INDEX 


413 


Bonds.    See  Liberty  Bonds. 

Books,  danger  of  suppression  un- 
der federal  sedition  law,  220- 
224;  Rand  School,  308-310. 

Borah,  Senator,  37  to. 

Boston,  182-186,  191,  311. 

Bourquin,  G.  M.,  Judge,  59  to., 
273  to.,  274. 

Bradlaugh,  Charles,  exclusion 
case,  344. 

Bradley,  Joseph,  Justice,  299,  335. 

Brandeis,  L.  D.,  Justice,  53  n.,  85, 
89,  94-106,   148,  202,  218,  285  to. 

Braxfield,    Lord,    87,    146  to.,   210. 

Breach  of  the  peace,  acts  caus- 
ing, not  protected  by  free 
speech  clauses,  24,  25;  punish- 
ment of  language  as,  74  and  to., 
102  to.,  110  n.,  Ill,  171,  172,  205, 
208. 

Brewer,  Justice,  278. 

Bright,  John,  104,  117. 

Brissenden,  Paul,  292. 

Brook  Farm,  177,  277. 

Brown,  Philip  A.,  French  Revolu- 
tion in  English  History,  28  to., 
146  to. 

Bryce,  James,  6  to.,  363  to. 

Buford,  230,  249. 

Bureau  of  Investigation,  164, 
195,  243-247,  269-271.  See  Jus- 
tice, Department  of. 

Burke,  Edmund,  266,  313,  314, 
338,  355,  361. 

Burleson,  A.  R.,  Postmaster  Gen- 
eral, 107,  108,  109  to.,  115,  199, 
229,  335. 

Burnside,  Ambrose  E.,  General, 
suppression  of  newspapers,  116. 

Burr,  Aaron,  201,  265. 

Byron,  52. 

Caffey,  F.  Z.,  U.  S.  Attorney,  126. 

Caillaux,  Mme.,  trial,  136  to. 

California,  syndicalism  prosecu- 
tion, 190  to.;  Oriental  question, 
209. 

Callender,  prosecution  under  Act 
of  1798,  78  n. 

Cambridge,  raids,  311. 

Camden,  Lord,  297,  298. 

Caminetti,  A.,  Commissioner  Gen- 
eral of  Immigration,  243,  251. 

Campbell,  Lord,  344. 

Canada,  free  speech  in,  42,  218, 
269. 


Carroll,  T.  F.,  on  war  laws,  42  to., 
325  to. 

Cartoons,  Opper,  52;  in  Masses, 
46. 

Casement,  Sir  Roger,  treason 
prosecution,  325,  326. 

Censorship,  press,  8-12,  19,  21, 
23  to.,  25,  32,  38,  42  and  to.,  179, 
180;  in  Russia,  176,  294  to.;  bill- 
boards, 10;  moving  pictures,  10, 
61  to.,  179,  203 «.;  theater,  172, 
175;  mails,  see  Post-office,. 
telegraph,  109  to.;  of  military 
information,  10,  98,  99;  by 
municipalities,  110  n.,  190,  191; 
foreign-language  press,  see 
same;  Ex  post  facto  censorship 
of  books,  190,  220-224. 

Centralia  shootings,  115,  163, 
197,  212. 

Chamberlain,  Senator,  sedition 
bill,  41,  42. 

Chase,  Samuel,  Justice,  80. 

Chase,  S.   P.,  Chief  Justice,  33  to. 

Chatham,  Lord,  250,  295,  296. 

Chesterfield,  Lord,  52. 

Chicago  Times,  suppression,  116 
and  117  to. 

Chinese,  exclusion  of,  230  #\,  255, 
273. 

Chivers,  Ellen,  testifies  against 
Socialist  assemblymen,  357,  358, 
364. 

Cibber,  Colley,  175. 

Citizens,  American,  arrests  for 
deportation,  see  Arrests;  in  for- 
eign countries,  288  and  to. 

Civil  Relief  Act,  Soldiers'  and 
Sailors',  112. 

Civil  War,  American,  2,  363;  op- 
position to,  41,  46,  81,  90,  116, 
117;  treason  cases,  324;  legisla- 
tion exclusions,  325-330,  345-353. 

Clarke,  J.  H.,  Justice,  87,  94, 
129,  139,  140-142,  148-159,  215, 
216. 

Claessens,  August,  N.  Y.  Social- 
ist assemblyman,  333,  356. 

Clay,  Henry,  330. 

Clayton,  H.  D.,  Judge,  in  Abrams 
trial,  28  to.,  86  w.,  chapter  III., 
125-148. 

Cobden,  Richard,  117. 

Coke,  Edward,  19. 

Colleges,  expulsion  of  pacifist 
student,  110  to. 


414 


GENERAL  INDEX 


Collier's  Weekly,  on  telegraph 
censorship,  109  n. 

Columbia  Law  Review,  192  n., 
263  n. 

Columbia  University,  expels  pac- 
ifist student,  110  n. 

Colyer  case,  deportations,  242- 
250,  257,  268,  270  and  n.,  271, 
339,  357. 

Common  law,  not  embodied  in 
constitutional  definition  of  free 
speech,  14,  22-24,  170;  of  crimes 
not  adopted  in  U.  S.  courts, 
22. 

Communists,  52,  139,  172,  177,  188, 
223,  365;  raids,  230,  242-272; 
under  Espionage  Act,  261; 
Communist  Labor  Party,  243 /f., 
250,  256,  257,  261  and  n.,  262, 
339;  Communist  Party  of  Amer- 
ica, 243,  250;  origin,  256,  262, 
268;  program  and  Secretary 
Wilson's  decision,  256-262; 
proof  of  membership  in,  231  n., 
250,  257,  262-268;  spies  in,  268- 
272 ;  Communist  International, 
259,  260,  334. 

Commutations,  of  Espionage  Act 
sentences,  73,  86  n.  See  Par- 
dons. 

Confederacy,  control  of  the  press, 
117  and  n. 

Congress,  116;  freedom  of  debates, 
3;  criticism  of,  punished  under 
Sedition  Act  of  1798,  29,  204; 
under     Espionage     Act,     62-64, 

102  f.,  129;  declaration  of  war 
against  Germany,  40;  used  as 
evidence     in     prosecutions,     57, 

103  f.;  freedom  of  discussion 
for  elections,  62-65,  329-331;  se- 
dition bills,  194-199;  House 
Rules  hearings,  198,  250-252; 
House  Judiciary  Committee, 
197;  House  Immigration  Com- 
mittee, 251;  repays  fines  of  1798, 
30,  157;  Continental  Congress, 
17;  Confederate  Congress,  117  n. 
See  United  States  statutes; 
Sedition  Bills;  Espionage  Act; 
Deportations  ;  Legislative  Ex- 
clusions (Berger,  Test  Oath 
Act,  etc.). 

Connecticut,  Bridgeport  strike, 
153;  sedition  prosecution,  190  n.; 
Hartford  deportations,  246. 


Conscientious  objectors,  discus- 
sion of,  2,  47,  59,  86. 

Conscription,  military,  violation 
of,  40,  144,  145;  constitution- 
ality, 7,  35,  40;  criminal  to  dis- 
cuss, 57,  62,  88;  advocacy  of  re- 
sistance to  draft,  40,  41,  53,  57, 
88-90,  200;  discussion  opposing 
draft,  25,  57,  62,  64,  65,  86,  102; 
in  Masses  case,  46-56;  opposing 
re-election  of  Congressmen  who 
voted  for,  62;  urging  rearrange- 
ment of  quotas,  64,  65;  men  of 
draft  age  held  within  armed 
forces,  57,  58,  64;  efficiency  of 
draft  organization,  40,  64; 
slacker  round-up,  107,  108;  in 
peace,  35,  115,  358. 

Conservatives,  benefit  from  free- 
dom of  speech,  3;  some  advocate 
violence,  260,  261. 

Conspiracy,  at  common  law,  92, 
110  n.;  under  United  States 
Criminal  Code,  in  war,  40-42,  46, 
81  n„  90,  101,  148  n.,  168,  173; 
in  peace,  166-169,  173,  196,  205, 
206,  213;  does  not  cover  injuri- 
ous conduct  of  single  person,  41, 
50,  90,  167,  196;  under  Espion- 
age Act,  43,  45,  124,  265. 

Constant,  Benj.,  286. 

Constitution,  see  various  topics, 
e.g.,  Speech,  freedom  of;  also 
United  States  Constitution, 
and  the  names  of  states;  and 
Bills  of  Rights. 

Constructive  measures,  proposed 
by  writer,  for  opposition  to 
war,  41,  46;  for  anarchy  and 
violence,  165-169;  for  I.  W.  W., 
274,  275;  for  revolutionary 
aliens  generally,  289-293. 

Contempt  proceedings,  8,  11  n., 
12  n.,  15. 

Continental  Congress,  address  to 
people  of  Quebec,  17. 

Conventions,  political,  prohibition 
of,  invalidated  by  free  speech 
clause,  11  n. 

Conversations,  prosecuted,  59  and 
n. 

Cooley,  Thomas  M.,  on  freedom  of 
speech,  11,  13,  14,  48,  219  n.; 
on  searches  and  seizures,  301, 
303  n.,  304  n.,  305  n.;  on  legisla- 
tive eligibility,  340  n. 


GENERAL  INDEX 


415 


Copperheads,  41,  325. 

Corrupt    practices,    statute    void 

under  free  speech  clause,  11  to. 
Cory,  H.  E.,  N.  J.  sedition  law, 

189  to. 
Courts  martial,  for  sedition,  33  to., 

42. 
Creel,  George,  108. 
Crimes,    relation    to    free    speech 

clauses,   14,  15,   16;   normal  law 

of,  164-180. 
Cruel  and  unusual  punishment, 

excessive  sentences  as,  148  to. 
Cruelty,  charges  against  officials, 

145,  146,  159,  189  n.,  247,  248. 
Cudgel,  liberty  of  the,  18. 
Cullen,  Chief  Justice,   on   exclu- 
sion for  opinions,  352. 

Dallinger,  F.  W.,  Representa- 
tive, on  Berger  case,  331,  332. 

Darwin,  Charles,  32. 

Davis,  David,  Justice,  33  to. 

Day,  Justice,  241  to.,  300. 

De  Armond,  Representative,  352 
and  to. 

De  Witt,  S.  A.,  N.  Y.  Socialist 
assemblyman,  333,  356. 

Debs,  E.  V.,  prosecution,  16,  22  to., 
79,  85-93  passim,  100,  117,  124, 
162,  212,  317,  360. 

Declaration  of  Independence,  60, 
209,  223. 

Defamation.     See  Libel. 

Defense  of  the  Realm  Act.  See 
Great  Britain. 

Denaturalization,  of  Pro-Ger- 
mans, 109,  110;  under  sedition 
bills,  198;  of  I.  W.  W.,  272,  273; 
of  philosophical  anarchist,  280. 

Deportations,  Bisbee,  45;  from 
Russia,  176;  of  Americans  from 
other  countries,  288  and  to.; 
from  England,  263  to.;  in  history 
of  persecution,  284;  of  aliens  in 
U.  S.,  229-293;  Act  of  1798,  29, 
109,  240;  effect  of  economic 
views  of  judges,  81;  punish- 
ment for  sedition,  198;  federal 
power,  200,  230,  284;  Statute  of 
1918,  109,  110;  text,  230,  231, 
240;  of  1920,  230  n.,  231  to.;  ad- 
ministrative machinery,  232-240, 
291,  292;  raids  of  January,  1920, 
230,  241-254,  292,  293;  Palmer- 
Post    controversy,    250-252;    ar- 


rest of  citizens,  242,  244,  245, 
249,  252-256;  Communists,  256- 
272;  Wilson  decision  on  Com- 
munist Party,  257  f .,  268 ;  on 
Communist  Labor  Party,  261; 
proof  of  membership  in  pro- 
scribed associations,  231  to.,  250, 
257,  262-268,  281,  285;  use  of 
spies,  268-272;  I.  W.  W.,  272- 
275;  violent  and  philosophical 
anarchists,  276-280;  effect  of 
due  process  clause  and  First 
Amendment,  280-291 ;  wisdom, 
284-291;  danger  of  international 
difficulties,  287  f.;  constructive 
measures  suggested,  289-293 ; 
need  of  pardoning  powers,  292. 

Detroit,  deportations,  243  to.,  248, 
255  to.,  288. 

Dicey,  A.  V.,  5  to.,  76  and  to., 
183  n. 

Dickens,  Charles,  140. 

Dictagraph,  used  to  prosecute  for 
conversations,  59  n. 

Disorderly  conduct,  pacifism  pun- 
ished as,  74  and  to.,  102  n.,  110  to. 
See  Breach  of  the  Peace. 

Disque,  Colonel,  113,  163. 

District  attorneys,  United  States. 
See  Prosecuting  officials. 

District  Courts,  United  States, 
administration  of  Espionage 
Act,  46-87;  juries  in,  78-80. 

Doe,  J.  P.,  prosecution,  60,  67. 

Dorr  War,  164. 

Draft.     See  Conscription. 

Dreyfus,  Alfred,  115,  136. 

Due  process  of  law,  involves  bal- 
ancing, 35,  38;  in  deportation 
proceedings,  232,  241,  242  to., 
254,  255,  280-285. 

Duguit,  Leon,  on  the  state,  109. 

Duma,  176. 

Duniway,  C.  A.,  Freedom  of  the 
Press  in  Mass.,  19  to.,  23  to.,  24  to. 

Eastman,  Max,  79,  85  to.,  86,  126. 

See  Masses. 
Egypt,  108. 
Eighteenth      Amendment.       See 

Prohibition. 
Electoral  College,  114. 
Ellenborough,  Lord,  28,  68. 
Elliot's  Debates,  cited,  5  to.,  19  n.} 

20  to.,  21  to.,  211  to.,  240  to. 
Emerson,  277s  367. 


416 


GENERAL  INDEX 


Empey,  Guy,  261. 

England.     See  Great  Britain. 

Enlistment,    voluntary,    interfer- 
ence with,  41,  43,  53,  57,  169. 

Entinck,     John,     raid     on,     298, 
304. 

Erskine,  Thomas,  19,  23. 

Esmein,  A.,  175  to. 

Espionage  Act,  40-160. 

Act  of  1917:  origin  and  text, 
40-43;  a  military  statute,  48  and 
to.,  50,  51,  73;  construction  gen- 
erally, 43,  44,  57,  58,  69,  216, 
218,  335,  in  Masses  case,  46-56, 
in  prosecutions,  56-66,  by  Su- 
preme Court,  1,  15-17,  57,  65, 
87-106,  265;  false  statements,  51, 

56,  57,  94-106,  134,  135,  218; 
insubordination  and  recruiting, 
57  f. 

Act  of  1918:  origin,  43-46; 
summarized,  44,  45;  text  and 
digest  of  cases,  395-398;  con- 
struction generally,  51,  113^., 
by  prosecuting  attorneys,  74-76, 
by  employers,  74,  in  Abrams 
case,  120-160,  by  Supreme  Court, 
116,  141,  148-160;  Constitution 
and     government    clauses,     114, 

128,  129;  army  and  navy  clauses, 
114,  115;  munitions  clause,  127, 

129,  130,  137-144,  149-153;  re- 
sistance to  U.  S.,  127,  129,  137, 
141,  149,  153  n.,  215,  216;  op- 
posing cause  of  U.  S.,  114. 

Human  machinery  of  Act,  66- 
87,  public  feeling,  70-73,  prose- 
secuting  officials,  73-76,  juries, 
76-80,  judges,  80-87;  sentences, 
58-62,  87  and  to.,  147,  148,  159, 
220;  constitutionality,  12  and  to., 
15,  16,  32,  47,  48,  88,  89,  114- 
116,  128,  129,  154;  relation  to 
state  war  statutes,  110-113;  use 
of  Act  against  radicals,  77, 
81  f.,  162,  against  actual  incite- 
ment to  violation  of  draft  law, 

57,  88-90,  after  armistice,  113- 
116,  229,  261,  302,  335;  com- 
parison, with  Sedition  Act  of 
1798,  56,  128,  with  Civil  War, 
41,  46,  116,  117,  with  Defense 
of  the  Realm  Act,  118  and  to.; 
inadequate  and  evil  results  of 
Act,  46,  100,  118,  119,  335,  336; 
effect   in    future    wars,   46,    64, 


113-119;     repeal     essential,     93, 
159,  160. 

Conspiracy  section,  43,  45, 
124;  misprision  section,  43,  45; 
search  warrants,  43,  45,  302; 
postal  powers,  43,  45,  see  Post- 
Office;  non-sedition  parts  of 
Act,  6,  43;  deportation,  2?    n. 

Relation  of  Act  to  law  of  at- 
tempts and  solicitation,  49,  51- 
53,  88,  89,  155;  intention  in 
prosecutions,  54-56,  63-68,  86; 
proved  by  utterances  outside  in- 
dictment, 58,  67,  85  and  «.,  140- 
142,  and  before  U.  S.  entered 
War,  67;  in  Abrams  case, 
127  f.,  139-145;  truth  usually 
no  defense,  56,  115. 

Relation  of  Act  to  peace- 
time sedition  statutes,  197,  216; 
to  treason,  325-328. 

Effect  on  legislative  exclusion, 
323-335  passim,  345,  354-356. 

Alphabetical  index  of  cases, 
387-395. 

Evarts,  W.  M.,  229,  359  to. 

Evidence,  questions  of,  in  war 
cases,  utterances  outside  indict- 
ment, 58,  67,  68,  85  and  to.;  self- 
incrimination,  69;  law  and  fact, 
101-106;  Robins  testimony  in 
Abrams  case,  132-137. 

Exile,  as  punishment  for  sedition, 
109,  110,  157,  176,  197,  198.  See 
Deportations;  Denaturaliza- 
tion. 

Explosions,  163-169  passim. 

Express,  as  substitute  for  mails, 
109  and  to. 

Extradition,  of  political  crim- 
inals, 191  and  to.,  286.^ 

Fact,  questions  of,  101-106. 

Federalist  judges,  8,  9,  21,  22,  31, 
78,  80,  81. 

Federalist  party,  wrecked  by  Se- 
dition Act  of  1798,  30,  116. 

Ferrari,  Robert,  on  political 
trials,  85  to.,  136  to. 

Ferrer,  278,  279. 

Field,  Stephen,  Justice,  96  to., 
235. 

Fifth  Amendment,  in  war,  33 
and  to.,  42  to.,  299.  See  Due 
Process  of  Law. 

Finished  Mystery,  pamphlet,   101. 


GENERAL  INDEX 


417 


First  Amendment.  See  Speech, 
Freedom  of. 

Fish,  Hamilton,  on  intervention, 
160  n. 

Flag,  United  States,  185,  187; 
abuse  of,  45,   171,   185. 

Flag,  red,   180-187. 

Fletcher,  Henry  J.,  on  war  pow- 
ers, 33  to. 

Flogging,    in    army,   criticism   of, 

27,  28,   68. 

Flynn,  E.  G.,  I.  W.  W.,  189  to. 

"  Force  and  Violence,"  legisla- 
tion punishing  advocacy  of,  139, 
140,  194;  constitutionality,  198- 
207;  wisdom,  207-228,  231;  in 
deportation  statute,  257-262. 

Ford,  an   I.  W.  W.,  163. 

Foreign  language  press,  in  war, 
90,  94  f.,  10o  to.,  110  to.;  in  peace, 
195,  199. 

Forty-eight,  Committee  of,  184, 
267. 

Four-minute  men,  64,  74. 

Fourteenth  Amendment,  35,  38, 
323-328. 

Fourth  Amendment.  See  Search- 
es and  Seizures. 

Fox,  Charles  James,  23,  174. 

Fox's  Libel  Act,  9,  23,  25,  27,  29, 
39,  69. 

France,  threatened  war  of  1798, 
29;  Rhine  policy,  64;  Restora- 
tion sedition  laws,  175;  attacks 
on,  suppressed  in  U.  S.,  108; 
Dreyfus  affair,  115,  136; 
teachers,  375.  See  French 
Revolution. 

Frank,  Peter,  citizen  arrested  for 
deportation,  252-254. 

Franklin,   Benjamin,   18,  21. 

Freedom.  See  sub  Assembly, 
Person,  Press,  Seas,  Speech, 
etc. 

Freeman's  Journal  and  Catholic 
Register,  excluded  from  mails, 
108. 

French  Revolution,  109,  221; 
French  trials,  26;  effect  on 
English    sedition    trials,    13,    27, 

28,  77,    87,    118,    157,    158,    175, 
263,  264;  effect  in  U.  S.,  29,  162. 

Freund,    Ernst,    92,    175  ro.,    206, 

207,  211  w.,  263  w.,  267. 
Frohwerk,     prosecution,     15,     16 

and  to.,  88  to.,  90. 


Fugitive  slave  law,  114,  209,  210. 
Fuller,  M.  W.,  Chief  Justice,  277, 

283  passim. 
Furneaux,      Philip,     Letters     to 

Blackstone,  31  to. 

Gaelic  American,  excluded  from 
mails,  108. 

Galsworthy,  John,  10. 

Garrison,  W.  L.,  209,  210. 

Garvan,  Assistant  Attorney  Gen- 
eral, 261,  262. 

Gaynor,  Wm.  J.,  on  searches, 
304  w. 

Geiger,  Judge,  48  to. 

George  III.,  sedition  under,  312. 
See  Great  Britain. 

George,  Lloyd,  117. 

German  Opera,  prohibited,  110  to., 
183  to. 

Germany,  treaty  with,  2;  opposi- 
tion to  war  with,  6,  40-119, 
317  f.;  propaganda  by,  42,  70; 
submarine  warfare,  57,  60;  in- 
vasion of  Belgium,  63;  spies,  6, 
exaggerated  reports,  70-72;  con- 
nection with  Russian  Revolu- 
tion, 132  and  chapter  III 
passim;  laws  against  associa- 
tions,   263.      See    Pro-Germans. 

Gilbert,  W.  S.,  quoted  by  Judge 
Clayton,  134. 

Gilman,  President,  372,  373. 

Gitlow,  Benjamin,  prosecution, 
188. 

Goethe,  52. 

Goldman,  Emma,  13  to.,  41  to.,  47, 
56,  126,  177,  200,  256,  287. 

Goldstein,  prosecution,  10  to.,  60, 
61. 

Gompers,  Samuel,  108. 

Graham  Bill,  197,   198,  203,  268. 

Grant,  U.  S.,  2. 

Gray,  Horace,  Justice,  234. 

Gray,  John  Chipman,  on  rights 
and  interests,  36  n. 

Great  Britain,  sedition  trials,  22, 
23,  26-29,  118,  146  to.,  157,  175, 
210,  211,  216;  informers  and 
anti-sedition  associations,  72; 
Defense  of  the  Realm  Act  in 
World  War,  42  and  w.,  58, 
118  n.;  other  wars,  104,  117; 
Combination  Acts,  192;  treason, 
201-203;  Reform  Bill,  260;  laws 
against     seditious     associations, 


418 


GENERAL  INDEX 


263,  264;  expulsion  of  aliens, 
263  to.;  spies,  269-271;  Wilkes, 
295-299,  311-315;  other  Parlia- 
mentary cases,  344;  effect  of 
English  law  on  Federalist 
judges,  8,  9,  21,  22;  criticism  of 
England  suppressed  under  Es- 
pionage Act,  10,  60,  61,  108; 
British  Secret  Service  and  Lusk 
Committee,  306. 

Gregory,  Thomas  W.,  Attorney 
General,  on  war  laws,  40,  43,  44, 
54,  65;  on  propaganda,  176;  re- 
quests amendment  of  Espionage 
Act,  43,  44;  on  baseless  spy  ru- 
mors, 72;  circulars  to  district 
attorneys,  74-76;  on  slacker 
round-up,  107,  108.  See  At- 
torney General. 

Grenville,  George,  296,  298,  311, 
313. 

Guests,  prosecute  host  for  sedi- 
tion, 59. 

Guilt  by  Association.  See  Asso- 
ciation. 

Gyori,  Louis,  philosophical  an- 
archist deported,  280. 

Habeas  corpus,  right  to,  3,  69,  95 
and  to.,  238,  239,  240,  253,  255. 
See  Colyer  Case. 

Hale,  Swinburne,  270  to. 

Halevy,  D.,  on  American  political 
parties,  363. 

Halifax,  Lord,  296,  297,  302. 

Hamersley,  Judge,  12. 

Hamilton,  Alexander,  2,  15;  defi- 
nition of  free  speech,  3  and  to., 
4  to.,  30  and  to.,  372;  rejected 
for  Espionage  Act,  44. 

Hamilton,  Andrew,  19,  23  to.  See 
Zenoer. 

Hand,  Augustus,  Judge,  86,  126. 

Hand,  Learned,  Judge,  15,  17,  125, 
128  to.,  194,  324  to.;  interpreta- 
tion of  freedom  of  speech  in 
Masses  case,  46-56,  63,  69,  76  to., 
88,  89,  107,  174,  216. 

Hanson,  Ole,  115  to.,  193  to. 

Harper,  Saml.  N.,  186  to. 

Harrison,  Benjamin,  284. 

Hartford,  deportations,  246. 

Hartford  Convention,  97. 

Harvard,  red  flag,  187;  dismissal 
of  Loring,  209;  Russian  library, 
221;  academic  freedom,  368. 


Harvard  .Law  Review,  unsigned 
notes,  42  to.,  51  to.,  54  to.,  57  to., 
76«.,  82  to.,  83  to.,  128  to.,  150  to., 
156  to.,  202  to.,  214  to. 

Harvard  Liberal  Club,  194  to., 
226  to. 

Haywood,  W.  D.,  prosecution, 
85  to.,  87  to.,  163. 

Hazel,  Judge,  167,  168  and  to. 

Hearst,  W.  R.,  52;  newspapers 
in  the  war,  110  to. 

Henry,  Patrick,  60,  205. 

Higgins,  Henry  B.,  on  concilia- 
tion courts,  192  to. 

Hobbes,  Thomas,  13. 

Holmes,  O.  W.,  Justice,  on  free- 
dom of  speech,  9,  15,  16,  22,  88- 
93,  94,  101,  120,  148  to.,  148-159, 
188,  194,  197,  226;  on  socialism, 
82;  on  searches,  300;  32,  37,  53. 

Holt,  Judge,  236,  237,  238. 

Holt,  Lord,  211. 

Hough,  Judge,  13  to.,  54  to.,  55, 
108  to.,  119. 

Hoxie,  267  to. 

Hughes,  Charles  E.,  2,  189,  332, 
333,  336-339. 

Human  machinery,  for  enforc- 
ing statutes:  Espionage  Act,  66- 
87;  peace-time  sedition  laws, 
207-219;  deportations,  231-240, 
291-293. 

Hunt,  Governor,  190. 

Hunt,  Leigh,  prosecution,  27,  28, 
68. 

Hutchinson,  Chief  Justice,  on 
freedom  of  speech,  23  to.;  on 
witches,  356  to. 

Hyde,  C.  C,  on  Czecho-Slovaks, 
131  TO. 

Hylan,  Mayor,  110  to.,  183  to., 
190,  191. 

Hymns,  military  imagery  in,  140. 

Idaho,  syndicalism  law,  190. 

Ihering,  von,  on  rights  and  in- 
terests, 35  to. 

Illegal  Practices  of  the  United 
States  Department  of  Justice, 
pamphlet,  243  to.,  270  to. 

Illinois,  Alton  riots,  3;  Haymar- 
ket  murders,  165;  sedition  stat- 
ute, 191. 

Immigration  officials,  hearings. 
See  Deportations. 

Incitement.    See  Solicitation. 


GENERAL  INDEX 


419 


Indecent  publications.  See  Ob- 
scenity. 

India,  discussion  of,  suppressed 
in  U.  S.,  108;  sedition  in,  66, 
212,  241,  249. 

Industrial  Workers  of  the 
World  (I.  W.  W.),  Bisbee  de- 
portations, 45;  Chicago  trial, 
85  n.,  87  to.,  163;  Sacramento 
trial,  87  to.;  other  federal  prose- 
cutions, 77,  83;  attitude  toward 
war,  81,  162,  163;  state  war 
prosecutions,  110,  113;  peace 
prosecutions,  189  to.,  190-193; 
Centralia,  164,  212;  economic 
causes,  193;  injunction  against, 
193;  raids  upon,  212,  242  n.,  260, 
271;  deportations,  242  to.,  272- 
275;  denaturalization,  272,  273; 
constructive  measures  sug- 
gested, 274,  275. 

Injunction,  of  libels,  8;  against 
exclusion  from  mails,  47,  48; 
against  coal  strike,  82,  260. 

Intention,  doctrine  of  construc- 
tive, 26,  28-30,  54-56,  67,  97, 
134-136;  in  Sedition  Law  of 
1798,  29;  in  Espionage  Act,  see 
same. 

Interests,  principle  of  social  and 
individual,  34-38,  170,  179,  180, 
284,  366  f . 

International,  Communist,  259, 
260,  334,  360. 

Iowa,  war  sedition  act,  111  to. 

Ireland,  186,  287;  discussion  of, 
in  war,  suppressed  in  U.  S.,  108, 
134,  154;  suppression  in,  212, 
264,  265;  status  under  our 
deportation  statute,  287,  288. 

Irish  World,  excluded  from  mails, 
108. 

Isaiah,  prosecution  for  quoting, 
218. 

I.  W.  W.  See  Industrial  Work- 
ers or  the  World. 

Jefferson,  Thomas,  17,  18,  21,  30, 
31,  56,  66,  67,  108,  161,  162,  217, 
227,  336;  on  revolution,  323,  372. 

Jeffreys,  Judge,  213. 

Jenkins,  cause  of  war,  114. 

Jesus,  362,  370;  a  crime  to  quote 
against  war,  57,  61,  62;  called 
anarchist,  146  and  n.;  Sermon 
on  the  Mount,  55,  119. 


Jews,  82,  83,  108,  126,  281,  284, 
289  to.,  290. 

Johnson,  Reverdy,  Senator,  on 
legislative  exclusion,  347  ».,  351  to. 

Johnson,  Samuel,  10  to.,  118  to., 
172  n.,  175  to.,  289,  311. 

Ju  Toy,  deportation,  238  to.,  255 
and  to. 

Judges,  effect  of  free  speech 
clauses  on,  5;  Federalist,  8,  9, 
21,  22,  31,  78,  80,  81;  function 
in  libel  and  petition  prosecu- 
tions, 19,  22-28,  29,  85,  86;  in- 
terpretation of  Espionage  Act, 
in  Masses  case,  46-56;  in  other 
cases,  56-66,  81,  87,  91,  96,  100; 
under  Sedition  Act  of  1798,  80, 
81;  attitude  toward  radicals,  81- 
84,  146-148,  158,  159,  185;  su- 
pervision by  Department  of 
Justice,  84,  85;  sentences,  86,  87; 
Abrams  case,  125  f.;  jesting 
with  prisoners,  146-148;  unfit- 
ness to  determine  bad  intention 
and  bad  tendency,  213-219. 

Junius,  23,  312,  314. 

Jury,  right  to,  grouped  with  free- 
dom of  speech,  3,  4,  17;  function 
in  libel  and  sedition  prosecu- 
tions, 19,  22-28,  29,  85,  86,  91-93, 
96-100;  not  a  sure  guarantee  of 
free  speech  because  of  unfitness 
to  determine  bad  tendency  and 
bad  intention,  24-28,  49,  52,  66- 
69,  76,  92,  93,  158,  213-219;  and 
affected  by  popular  hysteria, 
voluntary  informers,  and  anti- 
sedition  societies,  70-72;  in  Es- 
pionage Act  trials,  73,  76-80,  91, 
98,  99,  103  f.,  132-136  and  f.; 
importance  of  methods  of  selec- 
tion, 26,  77-79;  under  Sedition 
Act  of  1798,  78  and  to.;  age  and 
occupation,  79,  80;  divergent 
opinions  of  same  writing,  26,  27; 
denied  in  post-office  exclusion 
proceedings,  158,  199;  in  de- 
portation proceedings,  158,  232- 
240. 

Justice,  Department  of,  202,  309; 
administration  of  Espionage 
Act,  73-76,  90,  112,  113,  124-126, 
229,  261,  262,  302;  recommenda- 
tions for  reduction  of  sentences, 
73,  87  n.;  policy  toward  radicals, 
164,    195-197,    229;    enforcement 


420 


GENERAL  INDEX 


of  state  sedition  laws,  229,  249; 
of  deportation  statute,  229, 
240  n.,  241-252,  272-274,  293,  338, 
339;  Illegal  Activities  pamphlet, 
243  n.;  Silverthorne  raid,  300, 
301;  civil  liability,  302;  instruc- 
tions to  agents,  243-247,  249, 
257;  employment  of  spies,  268- 
272. 

Kansas,  red  flag  law,  181  n.; 
schools,  369. 

Kansas  City  Star,  118. 

Kenyon,  Lord,  13,  58,  213. 

Kimball,  Day,  on  Abrams  case, 
156-158. 

Knitting,  discouragement  of, 
criminal,  57. 

Knox,  Judge,  278  n. 

Knox,  P.  C.,  Senator,  on  legisla- 
tive exclusion,  347  n.,  353. 

Kohler,  on  construction  of  funda- 
mental statutes,  31,  32  n. 

Kropotkin,  276,  279,  287. 

Labor,  Department  of,  exclusion 
and  deportation  of  aliens,  232- 
293;  no  other  Department  has 
control  of  deportations,  242,  252. 
See  Deportations;  Wilson,  W. 
B.;  Post. 

Labor,  Secretary  of,  232-293 
passim;  conclusiveness  of  de- 
cisions in  deportation  cases, 
232-240,  254-256,  291,  292. 

Labor  unions,  11  n.,  53,  192,  193, 
263,  267,  268,  273  and  n.,  274, 
308.  See  Strikes;  Industrial 
Workers  of  the  World. 

Lachowsky,  H.,  prosecution,  124, 
126,  143  n.,  1*4,  147  n.,  148.  See 
Abrams. 

La  Follette,  R.  M.,  Senator,  36, 
95,  98. 

Langtry,  Secretary,  261. 

Lansing,  Robert,  60. 

Larkin,  James,  287. 

Laski,  F.,  109  n. 

Laski,  H.  J.,  42  n.,  109  n.,  375  n. 

Latzko,  Men  in  War,  excluded 
from  the  mails,  107. 

Leavitt,  Judge,  324  n. 

Legislative  debates,  freedom  of 
speech  in,  3. 

Legislative  exclusions,  311-364; 
Russia,     176;    Wilkes,    311-315; 


Berger,  315-332;  eligibility  of 
next  highest  candidate,  319,  320; 
grounds  of  disqualification, 
321  f.;  in  U.  S.  Constitution, 
321,      Fourteenth      Amendment, 

323  f.,    348,    guilt    of    treason, 

324  jf.,  opposition  to  war  as  dis- 
qualification, 328  f.;  N.  Y.  So- 
cialists, 332-364;  original  pro- 
ceedings, 332  f.;  protests,  335  f.; 
Judiciary  Committee  sits,  339  f.; 
power  to  suspend,  339,  340; 
power  to  disqualify  on  grounds 
not  stated  in  the  constitution, 
321,  322,  328-332,  340  f.,  347  f., 
judicial  precedents,  340-343;  leg- 
islative precedents,  343-354,  in 
England,  344,  expulsions  from 
Congress,  345  f.,  disqualifica- 
tions in  Congress,  349  f.,  under 
Test  Oath  Act,  328,  330,  349- 
351,  353,  Mormons,  348,  351  f., 
in  New  York,  354;  disqualifica- 
tion for  probability  of  breach 
of  oath,  354  n.;  charges  against 
Socialists,  355;  testimony,  356- 
361;  the  vote,  361;  conclusions, 
362-364. 

Lenine,  N.,  107,  135,  147,  286,  311. 

Letters,  prosecutions  based  on, 
57-60  passim,  118. 

Lever  Act,  148  n.;  coal-strike  in- 
junction, 82,  153. 

Libel,  criminal  and  seditious,  4  n., 
8,  9,  14,  15,  19-32,  52,  170-172; 
truth  as  defense,  4>n.,  19,  22-25, 
29,  30 n.;  functions  of  judge  and 
jury,  same;  injunction  of,  8; 
civil  actions,  12-18,  32;  privilege 
and  fair  comment,  15,  32,  104; 
libel  in  war  controversy,  110  n.; 
on  the  dead,  172.  See  Sedition; 
Fox. 

Liberator,  79  n. 

Liberty,  of  the  person,  press, 
speech,  etc.  See  Person,  Press, 
Speech,  etc. 

Liberty  Bonds,  effect  of  cam- 
paigns on  discussion,  7,  74;  in- 
terference with  sales,  44,  45, 
53  n.,  57,  64,  65,  81,  107.  169; 
refusal  to  buy  prosecuted,  59, 
60. 

License  and  liberty,  theory  of 
freedom  of  speech,  12-16,  *  210, 
211. 


GENERAL  INDEX 


421 


Lincoln,  Abraham,  46,  116,  117, 
224,  329;  on  revolution,  223. 

Lipman,  S.,  prosecution,  123,  126, 
138,  140,  141,  142,  143  to.,  145, 
147,  147  to.,  148.    See  Abrams. 

Lippmann,  Walter,  67  n. 

Littlefield,  Charles,  Representa- 
tive, 347  to.,  352  and  to. 

Loans,  as  cause  of  war  with  Ger- 
many, 102-106.  See  Morgan; 
Liberty  Bonds. 

Lopez,  F.  R.,  philosophical  an- 
archist deported,  278-280,  286. 

Lorimer,  Wm.,  Senator,  exclusion 
case,  339,  343,  347. 

Lovejoy,  E.  P.,  3. 

Lowell,  A.  L.,  on  academic  free- 
dom, 368. 

Lowell,  James  Russell,  16,  97, 
104,  116,  202,  366,  372. 

Loyalists,  British,  2,  302  and  to. 

Loyd,  W.  H.,  23  n. 

LuDENDORFF,   6. 

Lusk  Committee,  203,  204,  270, 
302-310,  334,  337,  358,  361- 
364. 

Lyon,  Matthew,  expulsion  case, 
329,  345. 

McKellar,  Senator,  198. 
McKenna,  Justice,  94-98,  148  to. 
McKinley,  William,  52,  165,  187, 

205,  230. 
McMaster,  J.  B.,  19  to. 
Macaulay,  T.  B.,  19  to.,  66  and  to., 

203,  250,  294. 
Madison,    James,    15,    19-22,    211, 

240,  361. 
Magna  Charta,  abandoned  in  war, 

119. 
Maine,  Sir  Henry,  69. 
Mails.     See  Post-office. 
Maitland,  F.  W.,  22. 
Mann,  J.   R.,  Representative,  on 

Berger,  320,  324. 
Mansfield,  Lord,  8,  23,  310. 
Marshall,    John,    3,    22  to.,    34  to., 

200,  201,  211  to.,  265,  325. 
Marshals,  United  States,  78,  80. 
Martens,   L.   C.   A.   K.,  287,  SOS- 
SOS. 
Martial    law,    for    opponents    of 

war,  33  to.,  41,  42,  116,  117;  for 

discussion  in  army,  50. 
Martin,  Luther,  17. 
Marx,  221,  223,  279,  365^. 


Maryland,  demands  federal  free 
speech  clause,  4,  19. 

Massachusetts,  283,  315;  constitu- 
tion, free  speech  clause,  4  and 
to.;  Blackstonian  decision,  8; 
restriction  of  press  by  stamp 
tax,  19  to.;  colonial  sedition  law, 
23 ».;  libel  statute,  24  to.;  Rox- 
bury  Riots,  182-186,  212;  red 
flag  law,  186,  187;  anarchy  act, 
189,  190,  204,  212,  269;  Boston 
ordinance,  191 ;  deportations, 
248  to.,  see  Colyer  case  ;  Secre- 
tary Langtry,  261;  raids,  310, 
311. 

Masses,  exclusion  from  mails,  9  to., 
46-56,  107,  108  to.,  118,  119,  125, 
154,  174,  175  to.,  194,  205  to.,  207, 
214,  216.     See  Eastman. 

Masters,  Edgar  L.,  275. 

May,  J.  W.,  on  intent,  150  to. 

May,  T.  E.,  on  English  sedition, 
22«.,  23  to.,  28  to.,  72  and  w.,  77, 
263  to.,  264  to.,  265  to.,  269  to., 
271  to.,  297  to.;  on  exclusion  from 
Parliament,  312,  344  to.,  345  to., 
356. 

May  Day  Riots.     See  Riots. 

Mayer,  J.  M.,  Judge,  13  to.,  27  to., 
40,  54  to.,  79  to.,  125. 

Mazzini,  286. 

Meehan,  John,  I.  W.  W.,  275. 

Meetings.     See  Assembly. 

Merchant  vessels,  sinking  of,  57, 
60. 

Merivale,  on  Tiberius,  268  to. 

Mexico,  possible  war  with,  114, 
133;  opposition  in  U.  S.,  in 
1846,  16,  64,  104,  116,  330;  possi- 
ble deportation  of  Americans, 
288. 

Mikado,  quoted  by  Judge  Clayton, 
134. 

Military  Intelligence  Police, 
123,  124,  145,  146,  159. 

Militia,  compulsory  training  con- 
stitutional, 35;  state  and  fed- 
eral control,  111  and  to. 

Mill,  John  Stuart,  32,  50,  157, 
197,  205,  219  w.,  365,  375. 

Miller,  Justice,  16  to. 

Miller,  S.  L.,  Asst.  U.  S.  At- 
torney, 126. 

Milligan,  33  and  to.,  42  to.,  69  to., 
81  to.,  96  to.,  113,  116,  117  to.,  325. 

Milton,  John,  1,  32,  197,  375. 


422 


GENERAL  INDEX 


Milwaukee  Leader,  64;  exclusion 
from  mails,  107,  315-317,  323, 
331. 

Minnesota,  safety  commission,  33; 
war  sedition  act,  57,  77,  85  to., 
110-113,  162. 

Minorities,  legal  rights  should  be 
upheld,  2,  3,  156,  157,  294. 

Misdirection,  unexcepted,  149  to. 

Mississippi,  constitution,  free 
speech  clause,  4  to. 

Mor  violence,  44,  45,  46,  212;  in- 
citement to,  50,  260,  261. 

Montana,  war  sedition  law,  44, 
113  to.;  peace  sedition  law,  190, 
191. 

Mooney,  Thomas,  163. 

Moore,  J.  B.,  Digest  of  Interna- 
tional Law,  cited,  160  n.,  191  to., 
284  to.,  288  to.;  Digest  of  Interna- 
tional Arbitrations,  288  to. 

Morgan,  J.  P.,  81  n.,  102,  104. 

Morley,  John,  66,  117,  159  n.,  212, 
241,  264,  265  n. 

Mormons,  exclusion  from  Con- 
gress, 348,  351-353. 

Morton,  Chief  Justice,  165. 

Most,  Johann,  205,  206. 

Mothers,  discouragement  of,  in 
war,  criminal,  58,  103. 

Moving  pictures,  censorship  and 
prosecutions,  10,  43,  60,  61  and 
to.,  179,  203  to. 

Muir,  prosecution,  28,  146  to. 

Municipal  corporations,  censor- 
ship of  press,  110  to.;  prohibition 
of  German  opera,  110  to.,  183  to.; 
of  meetings,  182-186,  190,  191. 

Munition  factories,  limiting  war- 
time discussion,  7,  58. 

Munitions,  curtailment  of  produc- 
tion, 45,  65,  127-153  passim, 
152  n.,  163;  see  Espionage  Act; 
criticism  of  defective  munitions 
prosecuted,  62. 

Myerson,  A.,  289,  290. 

Napoleon,  propaganda  in  Eng- 
land, 27. 

Nation,  excluded  from  mails,  107; 
editorials,  132  to.,  190  to.,  193  to., 
338. 

National  Founders'  Association, 
240  to. 

National  guard.     See  Militia. 


National  Popular  Government 
League,  243  to. 

National  Security  League,  338. 

Naturalization,  compulsory  un- 
desirable, 235,  236;  forbidden  to 
anarchists,  278,  280;  limits  on 
power,  281.  See  Denaturaliza- 
tion. 

Navy,  abuse  of,  crime,  45,  114,  115. 
See  Sims. 

Nearing,  Scott,  prosecution,  27, 
53  to.,  55  to.,  85  to.,   125,  308,  356. 

Negroes,  freedom  of  speech  and, 
175,  184,  195,  203,  204. 

Nelles,  Walter,  Espionage  Act 
cases,  82  to.,  83  to.,  86  to.,  110  to. 

New  Hampshire,  constitution,  free 
speech  clause,  4  to. 

New  Jersey,  war  sedition  law, 
111  to.,  112  ro.;  Plainfield  regula- 
tion of  meetings,  184;  anarchy- 
act,  189  and  to.,  190,  204;  Berger, 
321. 

New  Republic,  editorials,  116  to., 
132  to.,  272  w.,  278  to.,  280  to.,  338. 

New  York: 

State.  Constitution  on  free 
speech,  4  to.,  21  n.,  24  to.,  30  n., 
374;  demands  U.  S.  clause,  4; 
libel  statute,  24  to.;  Croswell 
case,  30  and  to.;  red  flag  law, 
180;  criminal  anarchy  statute, 
187,  188,  216;  Loyalist  investiga- 
tion, 302  and  w.;  law  of  searches 
and  seizures,  303-310.  See  Lusk 
Committee  ;  Legislative  Ex- 
clusions (N.  Y.  Socialists). 

City.  Slacker  round-up,  107, 
108;  federal  juries,  79;  radical 
meetings,  177-179;  Hylan  ordi- 
nances, 110  to.,  183  to.,  190,  191; 
Socialist  aldermen,  338;  school 
situation,  365  f. 

New  York  Bar  Association,  of 
City,  189  n.,  338-340. 

New  York  Call,  excluded  from 
mails,  115,  229. 

New  York  Times,  Current  History 
of  the  War,  130  to.;  editorial  on 
Abrams  case,  146  to.;  article  on 
anarchistic  press,  222;  editorial 
on  I.  W.  W.,  272  to.;  on  N.  Y. 
Socialist  assemblymen,  362. 

New  York  Tribune,  on  Socialist 
assemblymen,  338. 


GENERAL  INDEX 


423 


New  York  World,  telegrams  cen- 
sored, 109  to. 

Newberry,  T.  H.,  Senator,  337, 
338. 

Newspapers,  restraint  in  war,  10, 
46-59,  90,  94^.,  106-109,  110  to., 
116;  effect  of  exclusion  from 
mail,  107,  199,  234;  effect  of 
publication  of  facts  of  sedition 
trials,  119,  222;  revolutionary 
press,  164,  195,  213,  222;  con- 
spiracy to  compel  handling  of 
distasteful  newspaper,  110  to.; 
opposition  to  sedition  bills,  198, 
338.  See  Foreign-language 
press;  Milwaukee  Leader. 

Newton,  Attorney  General  of  N. 
Y.,  309,  334,  337,  355,  357,  361. 

Non-Partisan  League,  77,  78,  81, 
83,  85 to.,  110-113,  162,  267,  369. 

North  Carolina,  discussion  of 
federal   free   speech   clause,  5n. 

Notice,  constructive,   103,   104. 

Nude  and  the  Prudes,  188. 

Nuisances,  relation  to  freedom  of 
speech,  52,  171,  205. 

Oates,  Titus,  357. 

O'Brian,  J.  L.,  40,  41,  44  to.,  46  to., 

70-77  passim,  107,  108,  112,  113, 

231  to.,  319  to. 
O'Brien,  Judge,  343. 
Obscenity,  10,  14,  15,  52,  170-172, 

188,  214,  234,  311. 
Officials.      See     United     States 

Officials. 
O'Hare,  Kate  R.,  prosecution,  83, 

162. 
Official  Record   of   the   Rebellion, 

cited,  117  to. 
Opera.     See  German  Opera. 
Opper,  cartoonist,  52. 
Order,    social    interest    in,    limits 

freedom  of  speech,  34,  170,  179, 

284,  366,  368. 
Orr,   Samuel,  N.  Y.   Socialist  as- 
semblyman, 333,  356. 
Otis,  James,  210,  299,  311. 
Overman,  Senator,  181,  182;  Bill, 

197;  Committee,  134,  135,  197. 

Pacifists,  2,  26,  37,  46,  64,  68,  70, 
73,  102  f.,  106,  224,  296,  317, 
329;  expulsion  from  college, 
110  TO. 


Palestine,  108. 

Palfrey,  J.  G.,  on  Salem  witches, 
357  to. 

Palmer,  A.  Mitchell,  U.  S.  At- 
torney General,  enforcement  of 
Espionage  Act  after  armistice, 
115,  229,  302;  house  bombed, 
163,  197;  recommends  federal 
sedition  bill,  167,  195-198,  203, 
207  f.,  335;  on  federal  con- 
spiracy statute,  167-169;  does 
not  fear  revolution,  196,  251; 
recommends  and  enforces  state 
sedition  laws,  195,  229,  249;  en- 
forces deportation  statute,  196, 
229,  230,  241-252,  257,  274,  283, 
293,  302;  controversy  with  Post, 
250-252;  on  spies,  270-272;  on  in- 
dependent labor  unions,  273  to. 

Palmer,  Joseph,  172. 

Palmer,  T.  Fyshe,  prosecution,  28. 

Pardons,  in  Espionage  Act  cases, 
61,  62  w.,  73;  impossible  in  de- 
portation cases,  292.  See  Com- 
mutations; Amnesty. 

Parker,  Carleton,  162,  163. 

Parliament.     See  Great  Britain. 

Parnell,  C.  S.,  264. 

Parties,  in  America,  267,  363. 

Peck,  Jared,  65  to. 

Pennsylvania,  constitution,  free 
speech  clause,  4  and  n.,  18,  24  to.; 
discussion  of  federal  free  speech 
clause,   19  to. 

Pennsylvania  and  the  Federal  Con- 
stitution, 19  to.,  23  to. 

Persecution,  Justice  Holmes  on, 
155,  156.     See  Religion. 

Person,  liberty  of,  17;  searches  of, 
242  to.,  301.    See  Arrests. 

Petition,  right  of,  5,  7  to.;  Baltzer 
case,  64,  65,  116. 

Philadelphia  Tageblatt,  94,  101. 
See  Schaefer. 

Phillips,  prosecution,  13  to.,  41  to., 
79  to.,  126. 

Phillips,  Wendell,  209. 

Pierce,  prosecution,  13  to.,  94  and 
to.,   101-106,   134,   135  to.,  285  to. 

"Pillars  of  Fire,"  184. 

Pinckney,  Charles,  3,  21  to. 

Pitney,  Justice,  101-104. 

Place,  Francis,  260,  271  to. 

Platforms,  party,  not  be  taken  too 
seriously,  267. 


424 


GENERAL  INDEX 


Political  discussion,  doctrine  that 
it  should  be  confined  to  the  leg- 
islature, 27,  28;  punishment  of 
criticism  of  government,  chap- 
ter 1. 1  forbidden  to  superin- 
tendent of  schools,  11  n.;  con- 
ventions prohibited,  11  n.;  cam- 
paign expenses  limited,  11  n.;  in 
war,  48,  49,  62,  63.  See  Sedi- 
tion. 

Political  trials,  85  n.,  94,  116,  132- 
137.     See  Sedition. 

Pollard,  E.  A.,  on  confederate 
censorship,  117  n. 

Post,  Louis  F.,  Assistant  Secretary 
of  Labor,  233  n.,  239  n.,  243, 
272  n.,  291  and  n.,  292;  con- 
troversy with  Palmer,  250- 
252. 

Post-office,  subject  to  First 
Amendment,  34,  108,  109,  218; 
conclusiveness  of  administrative 
decisions,  45,  54,  106-109,  199, 
233,  234;  powers  under  Es- 
pionage Act,  6,  12  n.,  43,  45,  46- 
56,  106-109,  115,  229,  335;  in 
peace-time  sedition  bills,  197- 
199;  control  of  express  and  tele- 
graph, 109  n.;  no  jury,  158,  199; 
powers  to  exclude  matter  incit- 
ing to  murder,  etc.,  214,  229; 
opening  mail,  241  n. 

Pound,  Roscoe,  on  freedom  of 
speech,  8  n.;  on  rights  and  in- 
terests, 35  n. 

Preis,  Engelbert,  deportation,  256- 
261,  268. 

President,  252;  powers  under 
Alien  Law  of  1798,  29;  criticism 
of,  punished  under  Sedition  Act 
of  1798,  29,  204,  under  Espionage 
Act,  129,  138;  protection  of  life, 
see  United  States  Officials; 
threats  against,  202,  207,  214, 
215.  See  Jefferson;  Lincoln; 
Wilson. 

President's     Mediation     Commis- 
sion,   report    of,     113  n.,     163, 
272  n.,  292. 

Press,  freedom  of,  5,  17,  18,  21. 
See  Censorship;  Speech,  free- 
dom of. 

Previous  restraint,  8-32;  defini- 
tion of  freedom  of  speech.  See 
Speech,  freedom  of. 


Price  We  Pay,  pamphlet,  101-106. 

See  Pierce. 
Primaries,  political,  11  n. 
Prober,     prosecution,     144.       See 

Abrams. 
Procedural        safeguards.         See 

Speech,  freedom  of. 
Proces  de  tendance,  175  and  n. 
Profanity,  170 /f. 
Profiteers,  discussion  of  criminal, 

50,  58,  59,  68,  95,  102,  103,  119, 

225;  possible  raids  on,  308. 
Pro-Germans,     2,     59  n.,     64,     70 

andn.,   73,   94  #\,   107,   194,  224, 

296. 
Prohibition,  66  n.,   114,  209. 
Property,  judicial  protection,  106. 
Prosecuting  attorneys,  effect  of 

free  speech  clause  on,  5;  in  the 

war  with  Germany,  73-76;  under 

Sedition    Act    of    1798,    78;    in 

Abrams  case,  126,  144,  145. 
Proudhon,  221. 
Public,   excluded    from  the  mails, 

107. 
Public    Information,    Committee 

on,  108,  132. 
Pulling,    Defense    of    the   Realm 

Manual,  42  n. 

Quakers,  197,  277. 
Quebec,  address  to  people  of,  17, 
170. 

Radicals,  freedom  of  speech  for, 
1,  2,  52;  duty  of  restraint,  187; 
mob  violence  against,  44,  45,  46; 
under  Espionage  Act,  77,  81  f., 
162;  on  juries,  78-80;  attitude  of 
judges  toward,  81-84,  85  n.;  in 
Abrams  case,  120-160  passim; 
prevalent  after  the  War,  161, 
162;  relation  to  the  criminal  law 
in  peace,  chapter  IV.,  161-228 
passim;  see  Sedition  and  suc- 
ceeding headings;  deportation  of, 
229-293;  exclusion  from  legisla- 
tures, 329,  332  f. 

Rai,  La j pat,  book  on  India  ex- 
cluded from  mails,  108. 

Raids,  on  Communists,  230.  241- 
254,  292.  293;  on  I.  W.  W.,  212, 
242  n.,  260,  274;  time  of  Wilkes, 
296-299;  in  war,  115,  229,  302; 
by  Lusk  Committee,  302-310;  in 


GENERAL  INDEX 


425 


Massachusetts,  310,  311.  See 
Seakches  and  Seizures. 

Rand  School,  204,  257  to.,  308-310, 
356,  361. 

Randolph,  John,  23. 

Ray,  Judge,  13  n.,  214. 

Reading,  Lord,  325. 

Recht,  Charles,  272  to.,  275  to., 
278  n. 

Red  Cross,  criticism  of,  punished, 
57;  refusal  of  contributions, 
punished,  109,  110. 

Red  flag  laws,  180-187. 

Referendum,  before  war,  discus- 
sion criminal,  57,  64,  65. 

Religion,  toleration,  2,  3,  172,  176, 
177,  196,  197,  276,  277,  370;  Vir- 
ginia statute,  see  Virginia;  fed- 
eral control  prohibited,  5,  170; 
Christianity  called  inconsistent 
with  war,  6,  57,  61,  62;  religious 
meetings,  183,  184;  Catholic  As- 
sociation, in  Ireland,  264.  See 
Mormons. 

Representative  government,  right 
of,  17,  296.  See  Legislative  ex- 
clusions. 

Review  (now,  Weekly  Review),  on 
Abrams  case,  152  n.;  on  Social- 
ist assemblymen,  338;  on  Lusk 
bills,  362  to. 

Revolution,  97,  139-142,  164-169, 
173-179,  199-201,  205-207,  212, 
219, 257-262.  See  Sedition  Bills  ; 
Palmer;  Russia;  American  and 
French  Revolution. 

Rhode  Island,  demands  federal 
free  speech  clause,  4;  soul  lib- 
erty, 177,  276,  283;  Berger,  321; 
property  qualification,  372. 

Rhodes,  J.  F.,  116  to.,  117  to.,  177  to., 
290  to.,  330  to. 

Rights,  and  interests,  34-38, 
366  f. 

Riots,  164,  177,  178,  182-186,  203, 
212. 

Roberts,  Brigham  H.,  exclusion 
case,  345  to.,  347  to.,  350  to.,  352 
and  to. 

Robins,   Raymond,   132-137,   181  to. 

Rodenberg,  Representative,  on 
Berger  case,  331. 

Rockefeller,  John  D.,  146. 

Rogers,  H.  W.,  Judge,  54  to.,  56 
and  to.,  108  to.,  278-280. 


Rolland,  Romain,  367. 

Roman  Catholics,  abuse  of,  184; 
legislation  against,  264,  265,  281, 
283. 

Roosevelt,  Theodore,  316,  325; 
(the  younger),  361. 

Root,  Elihu,  86,  355,  359. 

Root,  Erastus,  21  to. 

Rosansky,  H.,  prosecution,  123, 
127,  144,  147  to.,  148.  See 
Abrams. 

Rousseau,  J.  J.,  52. 

Roxbury  Riot,  182-186,  212. 

Rugg,  186  TO. 

Russell,  Bertrand,  prosecution, 
242  to.,  59  and  to.,  295;  Proposed 
Roads  to  Freedom,  222,  223,  276, 
284. 

Russell,  Lord  John,  227. 

Russell,  G.  W.  E.,  227  to. 

Russell,  Pastor,  sect,  prosecu- 
tions, 83  to.,  101. 

Russia,  10,  290;  Russians  in  U.  S., 
82,  120-160  passim,  230,  235,  256; 
Czarist  policy  toward  discussion, 
176,  178,  191,  211  and  to.,  269, 
294  to.;  effect  of  Russian  Revolu- 
tion in  U.  S.,  26,  58,  81,  82,  86, 
95,  120-160  passim,  162,  178,  196, 
289,  293,  334,  360  f.,  371;  truth 
needed,  158;  Harvard  library  on 
Revolution,  221;  documents  cen- 
sored in  U.  S.,  107,  221,  311; 
German  participation,  132  and 
to.,  135,  147;  Soviet  Government 
Bureau  in  N.  Y.,  287,  305-308; 
American  intervention,  94,  129- 
132;  criminality  of  opposition, 
130,  137  f.,  160;  questionable  ef- 
fect of  our  deportations  policy 
upon  Russia,  286,  287. 

Russian-American  Relations,  cited, 
131  TO. 

Rutherford,  Livingston,  John 
Peter  Zenger,  23  ro. 

Ryan,  J.  M.,  Asst.  U.  S.  Attorney, 
126,  145. 

Sabotage,  163;  Federal  statute, 
152  to.,  163;  state  statutes,  163, 
274,  276;  advocacy  of,  190-194; 
deportations,  231  to.,  272-275. 

Salvation  Army,  rioting  against, 
183  and  w. 

San  ford,  Chancellor,  342,  354. 


426 


GENERAL  INDEX 


Scandella,  American  deported 
from  Venezuela,  288  to. 

Schaefer,  Tageblatt  prosecution, 
85,  87,  94-101,  106,  207,  216,  218, 
265. 

Schenck,  prosecution,  9  to.,  16 to., 
88-93,  98,  99,  102,  155,  178,  179, 
191,  192,  285. 

Schofield,  Henry,  Freedom  of  the 
Press  in  the  United  States,  4  n., 
8  to.,  20  to.,  21,  24  to.,  30  and  «., 
31  to.,  56. 

Schools,  political  speeches  by  su- 
perintendent, 11  to.;  freedom  for 
teachers,  365-376. 

Schwartz,  prosecution,  124,  125, 
126,  146.     See  Abrams. 

Science,  promoted  by  freedom  of 
speech,  17,  31,  32,  170,  370,  374. 

Scotland,  sedition  trials  in,  28. 

Scott,  Austin  W.,  on  atheism, 
172  to. 

Scrutton,  Lord  Justice,  119. 

Searches  and  seizures,  warrants 
authorized  by  Espionage  Act,  43, 
45,  302;  raids  in  the  war,  115, 
229,  302;  Russia,  176;  impor- 
tance of  warrants,  140,  159;  in 
deportation  proceedings,  241  and 
to.,  242  to.,  244-247,  302;  at  time 
of  Wilkes,  295-298;  Supreme 
Court  decisions  on  Fourth 
Amendment,  299-301 ;  conse- 
quences of  '  illegality,  300-302; 
when  legal,  242  n.,  301,  310  n.; 
Lusk  Committee  raids,  302-310; 
N.  Y.  law,  303-310;  Massachu- 
setts raids,  310,  311. 

Sears,  Clara  E.,  172  to. 

Seas,  Freedom  of  the,  17. 

Seattle  Union-Record,  raided,  115, 
229,  302. 

Sedition,  common  law  of,  and  free 
speech,  8,  9,  11,  14,  19-32,  170; 
not  federal  common  law  crime; 
British  trials,  22,  23,  26-29,  118, 
146  to.,  157,  175,  296  f.;  colonial 
trials,  19,  22,  23;  societies  to 
suppress,  71,  72,  357;  in  war,  see 
War,  Espionage  Act;  punish- 
ment in  peace,  chapter  IV.,  161- 
228;  normal  criminal  law  suffi- 
cient, 161-169;  criminal  law  of 
obscenity,  breaches  of  peace,  etc., 
distinguished,   169-173;   criminal 


law  of  violence  distinguished, 
173-180,  196;  suppression  of  agi- 
tation by  law  unwise,  219^".; 
distinguished  from  treason,  325- 
328.     See  Spies. 

Sedition  Act  of  1798,  1,  17,  25, 
65  n.,  109,  116,  157,  162,  194,  199, 
208,  223,  229,  329,  345;  summary 
of  text,  29,  30;  constitutionality, 
20-22  and  nn.,  30,  200,  204;  com- 
parison with  Espionage  Act,  569 
128;  juries,  78  and  n.j  judges, 
80,  81. 

Sedition  Act  of  1918,  44.  See 
Espionage  Act. 

Sedition  bills,  federal,  81,  140, 
194-228,  229,  230,  231;  summary, 
194-199;  constitutionality,  af- 
firmative federal  power,  199- 
201,  treason  clause,  201-203,  first 
amendment,  203-207 ;  wisdom, 
207-228,  268. 

Sedition  statutes  of  states,  in 
war,  57,  74  to.,  110-113,  163;  in 
peace,  163,  169,  173-194,  204,  212, 
216,  224,  246;  red  flag  laws,  180- 
187;  anarchy  syndicalism,  and 
sedition,  187-194,  261,  265,  268; 
constitutionality,  191-194;  rec- 
ommended by  Palmer,  195;  en- 
forced by  Palmer,  229,  249. 

Self-incrimination,  rule  against, 
69,  303  and  to.,  307. 

Sentenced  to  Twenty  Years  Prison, 
145  to. 

Sentences,  English  and  Scotch  se- 
dition trials,  28  and  to.,  87  n.;  De- 
fense of  the  Realm  Act  trials, 
118  w.;  India,  159  to.;  Espionage 
Act  trials,  58-62,  87  and  to.,  147, 
148,  159,  160,  220;  long  sentences 
as  cruel  and  unusual  punish- 
ment, 148  to. 

September  Morn,  suppression  of, 
175. 

Sermon  on  the  Mount,  and  war, 
55,  119. 

Service-letter  statutes,  3  to. 

Servitude,  involuntary,  sometimes 
constitutional,  7,  35,  36. 

Seward,  W.  F.,  arbitrary  arrests, 
116;  on  intervention,  160  to. 

Sex,  discussion,  171,  172. 

Shakespeare,  William,  14,  55; 
censored,  175,  214. 


GENERAL  INDEX 


427 


Shaw,  Bernard,  32;  censored,  175, 
283. 

Shaw,  Lord,  42  n. 

Shay's  Rebellion,  164. 

Shelley,  172. 

Sherman  Anti-trust  Law,  53  n., 
106. 

Shiplacoff,  A.,  prosecution,  125. 

Shipman,  Clare,  190  n. 

Ships,  discussion  of  sinking  of,  57, 
60;  parables  of,  276,  286. 

Shipyards,  limiting  war-time  dis- 
cussion, 7,  58. 

Sidis,  W.,  186  n. 

Sims,  Admiral,  64. 

Sisson,  Edgar,  Russian  documents, 
132  and  n.;  in  Abrams  case, 
133. 

Sisters,  discouragement  of,  in  war, 
criminal,  103. 

Slander,  no  previous  restraint  pos- 
sible, 14;  not  immune,  15.  See 
Libel. 

Smith,  Alfred,  Governor,  362  and 
n. 

Smith,  F.  E.  (now. Lord  Birken- 
head), criticism  of,  excluded 
from  mails,  108. 

Smith,  Jeremiah,  on  intent,  149  n., 
150  n. 

Smith  and  Wesson  Co.,  153. 

Smoot,  Reed,  Senator,  exclusion 
case,  347  n.,  352,  353. 

Socialist  Review,  319  n.,  331  n. 

Socialists,  2,  10,  27,  260;  need  for 
judicial  comprehension,  82-84, 
86;  in  the  War,  81,  83,  162;  St. 
Louis  Platform,  162,  315,  316, 
334;  peace-time  prosecutions, 
188,  210,  216,  224;  secession  of 
left-wing,  256,  262;  exclusion  as 
a  party  from  legislature,  306, 
329-338,  355-364;  in  schools, 
365  f.;  in  Germany,  262.  See 
Debs;  Pierce;  Stokes;  Syra- 
cuse; Berger;  Rand  School; 
Lipman;  Legislative  exclusion; 
Communists. 

Societies,  to  suppress  sedition,  71, 
72. 

Socrates,  367,  370. 

Solicitation,  criminal,  relation  to 
freedom  of  speech,  25,  165,  166, 
173,  and  to  Espionage  Act,  49, 


51-53,  88,  89,  155;  to  non-crim- 
inal interference  with  the  gov- 
ernment's war  activities,  53,  169; 
in  federal  crimes,  166  and  n., 
201. 

Solomon,  Charles,  N.  Y.  Socialist 
assemblyman,  333,  356,  357. 

South  Carolina,  constitution,  free 
speech  clause,  4». 

Soviet  Government.     See  Russia. 

Speech,  freedom  of. 

Constitutions:  guaranty  in  U. 
S.  Constitution,  3-5,  18,  200,  de- 
manded by  states,  3,  4,  19,  156; 
in  Congressional  debates,  3;  in 
state  constitutions,  3  and  n.,  4 
and  n.,  17,  18,  21  n.,  30  n.,  374; 
exception  of  "  abuse  "  implied  if 
not  expressed,  4  to.;  clauses  a 
guide  to  interpretation  of  con- 
stitutional statutes,  5,  6,  46,  48, 
193,  194,  207;  and  also  invalidate 
statutes,  3,  4,  11  and  n.,  16, 
llln.,  156,  192  n. 

Meaning:  1-39,  155-158,  366- 
372;  subject  to  limits,  2,  7;  nec- 
essarily extends  to  unpopular 
persons  and  causes,  3,  156,  157, 
294,  366;  Blackstonian  censorship 
view,  8-12,  19,  21-23,  31,  32,  38, 
108,  199;  liberty  and  license  view, 
12-16,  210,  211,  368;  history  of 
principle,  17-32;  inconsistent 
with  common  law  of  sedition,  14, 
22-24,  170;  social  and  political 
function,  34-36;  conclusions  on 
meaning,  34-39,  156  #\,  368  f.; 
view  of  Judge  Hand,  50,  51;  of 
Justice  Holmes,  88,  155,  156;  an 
issue  between  two  tests  of  crim- 
inality, danger  v.  bad  tendency, 
24-31,  37-39,  49-52,  154-159,  173- 
180,  213-219,  and  elsewhere;  not 
secured  by  juries,  24-28,  see 
Jury  trial;  meaning  not  fixed  in 
1791,  14,  32,  35,  36;  does  not  ex- 
clude intemperate  and  foolish 
discussion,  48,  83,  114,  140  «■., 
173,  206,  219,  220;  applies  to  po- 
litical research,  370,  371;  but  not 
limited  to  political  discussion, 
156,  170;  does  not  depend  on 
merits  of  existing  government, 
210;  suppression  ineffectual,  118, 
119,  219,  220,  226,  227. 


428 


GENERAL  INDEX 


Procedural  safeguards :  39,  49, 
66-69,  92,  93;  Fox's  Libel  Act, 
etc.,  24,  39,  69;  precise  offense 
must  be  specified,  49,  92,  93;  ob- 
jective test  of  criminality  of 
words,  49-51,  54  #\,  216  f.;  ex- 
clusion of  psychological  ques- 
tions and  disputes  of  opinion, 
52,  66-69,  73,  103-106;  judicial 
guidance  of  jury,  85,  86,  94-100; 
evils  of  bad  intention  as  test  of 
guilt,  63-68,  86,  see  Intention; 
culling  sentences,  100,  102,  220; 
right  to  counsel,  236  f.,  247  #\; 
narrow  range  of  administrative 
power  in  criminal  law,  75.  See 
Human  machinery. 

Relation  to  other  branches  of 
the  law  and  concrete  applica- 
tions: libel,  see  same;  nuisance, 
52,  171,  205;  breaches  of  the 
peace,  24,  25,  74  and  n.,  102  n., 
llOn.,  Ill,  171,  172,  205,  208; 
war,  6,  7  and  n.,  25,  26,  32-38, 
46-56,  63-66,  88-90,  96,  104-106, 
176,  179,  369  f.;  obscenity,  blas- 
phemy, etc.,  169-173,  and  see 
same;  peace-time  sedition  laws, 
173-180,  191-194,  199-228;  depor- 
tations, 280-291;  legislative  ex- 
clusion, 328-332,  362-364;  schools, 
368-376.  See  Attempt;  Solici- 
tation; Espionage  Act;  Post- 
office;  Assembly. 

Summary  of  recent  events  in 
U.  S.,  296,  336-339. 

Spencer,  Herbert,  226,  276. 

Spies,  German,  6,  70-72;  opponents 
of  war  as,  41,  42;  government 
spies  and  informers  59,  71,  72, 
227,  268-272,  302,  357. 

Spies,  August,  anarchist,  165,  205, 
206. 

Spirit  of  '76,  moving  picture  case, 
10,  38  to.,  43,  60,  61. 

Stamp  tax,  restraint  of  press  by, 
19  n.,  32. 

Stanchfield,  J.  B.,  on  guilt  by 
association,  360. 

Stanton,  E.  M.,  arbitrary  ar- 
rests, 116. 

Stab  Chamber,  32,  232,  238. 

Star-Spangled  Banner,  alleged 
prosecutions  for  not  standing  up, 
102  and  to.,  103. 


State  Sedition  Laws,  in  war  and 
peace.  See  Sedition  Statutes 
of  states. 

State    war    cases,    miscellaneous, 
.  110  to. 

Stead,  W.  T.,  "  The  Maiden  Trib- 
ute," 171. 

Steimer,  Molly,  prosecution,  123, 
126,  143  and  n.,  144,  145,  147  n., 
148.     See  Abrams. 

Stephen,  James  Fitzjames,  13, 
20  n.,  23  n.,  24,  26  n.,  29  n.,  56, 
201  n.,  263  n. 

Sterling  Bill,  197,  207. 

Stevenson,  J.  A.,  269  n. 

Stevenson,  R.  L.,  on  Braxfield, 
146  n. 

Stirner,  221. 

Stokes,  Rose  Pastor,  prosecution, 
13  n,,  28  n.,  58,  59,  67,  87  to.,  92, 
118,  119,  225. 

Stone,  F.  D.,  19  to. 

Storey,  Moorfield,  on  intervention, 
160  w. 

Story,  Joseph,  8  n.,  341,  345  to. 

Street  meetings.     See    Assembly. 

Strikes,  53,  164,  218,  220;  under 
Espionage  Act  of  1918,  74,  269, 
273,  274;  coal  strike,  82,  260; 
advocacy  of  general  strike,  122, 
125,  139,  140,  149-153,  163,  188, 
216,  257-261,  271.  See  Labor 
Unions. 

Strong,  A.  L.,  115  to. 

Submarine  warfare,  discussion  of 
criminal,  57,  60. 

Sugarman,  prosecution,  88  to.,  89, 
90. 

Suhr,  an  I.  W.  W.,  163. 

Sumner,  Charles,  210,  330. 

Sumner,  William  G.,  97,  362. 

Sunday,  Rev.  Wm.,  260. 

Supreme  Court  of  the  United 
States,  Espionage  Act  cases,  15, 
16,  87-106,  116,  120-160  passim, 
178,  191,  207,  285;  other  free 
speech  cases,  9,  12;  on  conscrip- 
tion, 7,  35,  40,  57;  on  postal 
power,  108;  protection  of  lives  of 
judges,  197,  200,  206;  on  power 
over  aliens,  230  f.;  on  anarchist 
exclusions,  275  ft.;  on  guilt  by 
association,  265;  on  searches  and 
seizures,  299-301,  335;  on  federal 
peace-time  sedition  bill,  207. 


GENERAL  INDEX 


429 


Sweden,  free  speech  in,  286. 
Sweet,     Thaddeus      C,      N.      Y. 

Speaker,  333-339,  357,  361  f. 
Sweethearts,    discouragement    of, 

in  war  criminal,  58,  103. 
Switzerland,  free  speech  in,  286. 
Syndicalism,  statutes  against,  163, 

190-194,  197,  212,  265. 
Syracuse    Socialists,    prosecution, 

115. 

Tacitus,  quoted,  118  n. 

Tageblatt,  Philadelphia.  See 
Schaefer. 

Taney,  Chief  Justice,  34  n.; 
against  lawlessness  in  war,  81  n. 

Tarde,  163. 

Taxation,  106,  233;  restraint  of 
free  speech  by,  19  n.,  32,  282; 
discussion  of  war  taxation  sup- 
pressed, 57,  64,  65,  95,  107. 

Telegraph,  censorship  of,  109  n. 

Tendency,  bad,  as  test  of  crimi- 
nality of  words,  fatal  to  free- 
dom of  speech,  see  Speech, 
freedom  of;  social  and  economic 
tendency  unsuitable  for  decision 
by  judges  and  juries,  49,  52,  68, 
69,  104,  132-136,  158. 

Test  oath,  restricted  by  U.  S. 
Constitution,  3;  in  R.  I.,  77;  in 
N.  Y.,  333,  342,  343,  354  n. 

Test  Oath  Act,  328,  330,  349-351, 
353. 

Texas,  war  sedition  law,  llln. 

Thaw,  H.  K.,  trial,  136  n.,  163. 

Thayer,  J.  B.,  6  n. 

Thayer,  W.  R.,  203. 

Theater,  shouting  fire  in,  16;  cen- 
sorship of,  172,  175. 

Third  Amendment,  33. 

Thirteenth  Amendment,  7,  35, 
36. 

Thomas,  A.  V.,  218  n. 

Threats.    See  President. 

Tiberius,  Emperor,  censorship, 
118  n.,  268. 

Tiohe,  Ambrose,  on  war  powers, 
33  n.,  117  ro. 

Tildsley,  John  L.,  365  f. 

Tobacco,  209. 

Toledo,  191. 

Tolstoy,  276,  279,  294  n. 

Torts,  outside  free  speech  clauses, 
14,  15.    See  Libel. 


Townley,  prosecution,  78  n.,  85  n., 
Ill  and  n. 

Trachtenberg,  A.,  257  n. 

Trade  unions.    See  Labor  unions. 

Trading  with  the  Enemy  Act, 
108  n.,  195. 

Training  camps,  limiting  war- 
time discussion,  7,  57,  119;  sani- 
tary conditions,  64. 

Treason,  97;  levying  war,  166,  201, 
265;  aid  and  comfort  to  ene- 
mies, 148  w.,  202,  324-328;  in 
war  with  Germany,  41  and  n., 
50,  74,  91,  325  ».;  against  U.  S., 
states  cannot  prosecute,  111;  ef- 
fect of  clause  on  federal  sedi- 
tion statutes,  201-203,  218;  Ber- 
ger  and  relation  of  treason  to 
Espionage  Act,  325-328. 

Treaties,  36,  233;  with  Germany, 
1,  119;  secret,  36,  37  and  n. 

Trevelyan,  G.  O.,  295,  312. 

Trotsky,  Leon,  135,  144,  147,  311. 

Trumbull,  Lyman,  Senator,  on  ex- 
pulsion, 346,  347. 

Truth,  social  interest  in,  34-39, 
155-160,  176,  368  f.;  importance 
in  war,  36,  37,  46,  63,  65,  66,  96; 
not  concerned  in  mere  advocacy 
of  violence  and  lawlessness,  49, 
50,  63,  173,  204;  not  a  defense 
under  Espionage  Act,  except 
false  statements  clause,  56,  115; 
relation  to  criminal  law  of  ob- 
scenity, profanity,  etc.,  169-173. 
See  Libel. 

Tucker,  St.  George,  8n. 

Tucker,  St.  John,  101. 

Tunney,  T.  J.,  Inspector,  123, 
169  n.,  181  and  n.,  182. 

Turner,  John,  anarchist  ex- 
cluded, 275-283  passim. 

Tyler,  Moses  C,  276  n. 

Under-cover  informants,  269-272. 

United  States,  inciting  resistance 
to,  opposing  cause,  see  Es- 
pionage Act;  division  of  state 
and  federal  jurisdiction  over 
crimes,  113  f.,  171;  political  par- 
ties, see  Parties;  absence  of 
intellectual  divergencies,  289, 
363. 

United  States  Constitution,  ab- 
sence of  free  speech  clause  and 


430 


GENERAL  INDEX 


ratification,  3,  4,  156;  affirmative 
power  over  speech  and  sedition, 
3,  34  and  n.,  199-201;  abuse  of, 
crime,  45,  114.  See  various  top- 
ics, e.g.,  Speech,  freedom  of; 
Treason  ;  Deportations  ;  Bills 
of  rights;  also  the  various 
amendments  by  number. 

United  States  courts,  no  common 
law  crimes,  22.  See  Supreme 
Court;  District  courts;  Judges; 
Federalist  judges. 

United  States  officials,  protec- 
tion of,  from  violence,  163-169, 
196-207,  213-215,  251.  See  Presi- 
dent; Prosecuting  officials; 
Justice,  department  of. 

United  States  statutes,  adequacy 
against  utterances  in  war,  40-42, 
46,  50;  against  revolution  and 
attacks  on  officials,  165-169,  194, 
196;  accessories,  52  and  n.,  53, 
166  n.;  attempts  and  incitement, 
166  and  n.;  judicial  code,  269, 
149  n.;  Explosives  Act,  169. 

Untermeyer,  Samuel,  on  Rand 
School,  309,  310. 

Vallandigham,  97,  117  and  n., 
325,  330. 

Vance,  W.  R.,  on  freedom  of 
speech,  22  n.,  76  n. 

Van  Valkenburgh,  Judge,  13  n., 
28  n.,  58,  59,  87,  225. 

Veblen,  Thorstein,  book  on  Ger- 
many excluded  from  mails, 
108. 

Venezuela,  deportation  of  Amer*- 
ican,  288  n. 

Vermont,  constitution,  free  speech 
clause,  4  n. 

Vessels,  merchant,  sinking  of,  57, 
60.    See  Ships. 

Violence,  draft  riots,  40,  50;  mobs 
in  war,  44-46;  law  against,  165- 
169;  advocacy  of,  by  radicals, 
chapters  IV.,  V.,  passim;  by 
conservatives,  260,  261;  suppres- 
sion of  opinion  by,  196,  197,  219, 
260,  264.  See  "  Force  and  Vio- 
lence"; Solicitation;  Riots. 

Virginia,  demands  federal  free 
speech  clause,  4;  constitution, 
free  speech  clause,  4;  religious 
toleration  statute,  17,  18,  31,  66, 


67,  170;  217;   Resolutions,  20  n., 
211 ».,  240  n. 
Voters'    Leagues,    restrictions    on, 
11  n. 

Wade,  Judge,  13  n.,  62,  63,  64, 
83. 

Waite,  Chief  Justice,  325  n. 

Waldman,  Louis,  N.  Y.  Socialist 
assemblyman,  333,  356. 

Waldron,  C.  H.,  prosecution,  61, 
62. 

Wallace,  D.  H.,  prosecution,  13  n., 
62. 

Wallas,  Graham,  271  n.,  294  n. 

War,  extended  scope  to-day,  6,  7; 
criticism  of  flogging  in  army, 
27,  28,  68;  of  general  by  troops, 
50;  trial  of  civilians  by  military 
courts,  33  n.,  42;  censorship  on 
military  news,  10,  98,  99;  Bills 
of  Rights  in,  32-34;  importance 
of  the  truth  in,  36,  37,  46,  63-66, 
114;  psychological  effects,  225; 
mob  violence,  44-46;  causes  of 
war  not  subject  to  judicial 
proof,  104-106;  state  war  cases, 
110  n.;  effect  on  legislative  ex- 
clusion, 328-332;  on  schools, 
366  ;f.;  technical  war,  113-119; 
future  wars  and  free  speech,  46, 
64,  113  #\;  federal  war  powers, 
88,  200.  See  Speech,  freedom 
of,  Concrete  applications;  Con- 
scription; Espionage  Act; 
Army;  Navy;  Sedition  statutes 
of  states;  Assembly;  names  of 
various  wars. 

War  Department,  Report  of  Ac- 
tivities in  Field  of  Industrial 
Relations,  cited,  153  n. 

War  of  1812,  opposition  to,  64, 
330  n. 

War  College  Publications,  cited, 
98,  99. 

War-time  Prosecutions  and  Mob 
Violence,  cited,  45  n.,  57  n.,  74  to., 
102  to.,  110  to.,  302  n. 

Ward,  Judge,  54  to. 

Warrants,  general,  296,  297,  299, 
311.  See  Arrests;  Searches  ani 
Seizures  ;  Deportations. 

Warren,  Charles,  on  treason, 
325  n.,  326  n.,  327  to. 

Washington,  prosecution  for  libel 


GENERAL  INDEX 


431 


on  the  dead,  172;  red  flag  law, 

181  to.;  anarchy  act,  188. 
Washington,  George,  147 ;  libel  on, 

172. 
Watkins,  Gordon  S.,  256. 
Webster,  Daniel,  330. 
Weinbergeh,     Harry,     126,     132, 

133  to.,  146. 
West  Virginia,  red  flag  law,  181; 

sedition  law,  190 ;  moving  picture 

law,  203  to. 
Westenhaver,  Judge,  91. 
Western    Federation    op   Miners, 

267. 
Western    Union    Telegraph    Co., 

109  to. 
Wharton,  Francis,  quoted,  52,  73. 
White,  E.  D.,  Chief  Justice,  12, 

148  to. 
White    slave    traffic,    discussion 

punished,  171. 
Whitney,  Anita,  190  to. 

WlCKERSHAM,    G.    W.,    133. 

Wigmore,  J.  H.,  Evidence,  85  to.; 
on  Abrams  case,  130  to.,  141  to. 

Wilcox,  E.  H.,  Russia's  Ruin,  132. 

Wilkes,  John,  23,  295;  searches 
and  seizures,  295-298,  301;  ex- 
clusion from  House  of  Com- 
mons, 250,  295,  296,  311-315,  321, 
328,  329,  338,  343,  349,  355,  356. 

Willes,  Justice,  9  to. 

Williams,  A.  R.,  called  in  Abrams 
case,  133. 

Williams,  Roger,  176,  227,  276, 
277,  286,  321,  372. 

Willoughby,  W.  W.,  230  to.,  233  TO. 

Willy  and  his  Papa,  cartoons,  52. 

Wilson,  William  B.,  Secretary  of 
Labor,  243,  247,  248,  250,  252; 
decisions  on  Communist  Labor 
•  Party  and  Communist  Party, 
256-262,  268;  on  I.  W.  W.,  272, 
273;  Martens  case,  287,  288;  on 
deportation  policy,  290,  291. 

Wilson,  Woodrow,  President,  on 
Sedition    Act   of   1798,   25;    ig- 


norance of  secret  treaties,  37  to.; 
opposes  court  martial  for  paci- 
fists, 62;  speeches  as  evidence  in 
Espionage  Act  cases,  57,  103- 
106;  exercise  of  pardoning 
power,  60,  61,  62  to.,  73,  87  to., 
117;  war  aims  hindered  by  pol- 
icy of  suppression,  113,  119;  at- 
tacked in  Abrams  case,  120-122, 
138;  Russian  policy,  131,  132, 
151;  message  on  Federal  Sedi- 
tion Bill,  211-213,  220;  threats 
to  kill,  215;  responsibility  for 
deportations,  249;  on  economic 
nature  of  the  War,  321;  free 
speech  record,  336;  miscellane- 
ous, 60,  225,  315,  363. 

Witches,  Salem,  356,  351. 

Wolverton,  Judge,  83. 

Women,  discouragement  of,  in 
war,  criminal,  57,  58,  103;  na- 
tionalization of,  154. 

Wood,  Baron,  27,  28. 

Woods,  Arthur,  177,  178  and  to. 

Words,  and  acts,  relation  to  free- 
dom of  speech,  49-51,  164-180; 
criminal  law  of  language,  169- 
173. 

Works,  John  D.,  on  federal  judges, 
84. 

"  Work  or  fight  "  statute,  con- 
stitutional, 7. 

Wursterbarth,  denaturalized,  109, 
110  w. 

Wurts,  John,  on  federal  juries, 
80  to. 

Young  Men's  Christian  Associa- 
tion, criticism  of,  criminal,  57, 
70;  refusal  of  contributions, 
punished,  109,  110. 

Youth,  social  interest  in  training 
of,  limits  freedom  of  speech,  34, 
170,  179,  180,  368,  374  f. 

Zenger,  Peter,  trial,  23  and  to. 


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