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diff --git a/77769-0.txt b/77769-0.txt new file mode 100644 index 0000000..8cdffba --- /dev/null +++ b/77769-0.txt @@ -0,0 +1,19163 @@ +*** START OF THE PROJECT GUTENBERG EBOOK 77769 *** +TRANSCRIBER’S NOTE + +Italic text is denoted by _underscores_. + +Footnotes have been renumbered to be unique throughout the book. +References to notes have been updated to the new numbers. Footnote +anchors are denoted by [number], and the footnotes have been placed at +the end of the paragraph and after quotations. + +A superscript is denoted by ^x, for example und^r. + +Some minor changes to the text are noted at the end of the book. + + + + + FREEDOM _of_ SPEECH + + BY + ZECHARIAH CHAFEE, JR. + PROFESSOR OF LAW IN HARVARD UNIVERSITY + + + “GIVE YOUR MIND SEA ROOM” + + [Illustration: Colophon] + + NEW YORK + HARCOURT, BRACE AND HOWE + 1920 + + + + + COPYRIGHT, 1920, BY + HARCOURT, BRACE AND HOWE, INC. + + THE QUINN & BODEN COMPANY + RAHWAY, N. J. + + + + + TO + + LEARNED HAND + + UNITED STATES DISTRICT JUDGE + FOR THE SOUTHERN DISTRICT OF NEW YORK + WHO DURING THE TURMOIL OF WAR + COURAGEOUSLY MAINTAINED + THE TRADITION OF ENGLISH-SPEAKING FREEDOM + AND GAVE IT NEW CLEARNESS AND STRENGTH + FOR THE WISER YEARS TO COME + + + + + CONTENTS + + + CHAPTER PAGE + + I. FREEDOM OF SPEECH IN WAR TIME 1 + + II. OPPOSITION TO THE WAR WITH GERMANY 40 + + I. The Espionage Acts of 1917 and 1918 42 + II. Masses Publishing Co. _v._ Patten 46 + III. The District Court Cases 56 + IV. The Human Machinery of the Espionage Acts 66 + V. The Supreme Court Decisions 87 + VI. Censorship and Exile 106 + VII. State Espionage Acts 110 + VIII. Reflections During a Technical State of War 113 + + III. A CONTEMPORARY STATE TRIAL—THE UNITED STATES _v._ JACOB + ABRAMS _et al._ 120 + + I. The District Court 125 + II. The Supreme Court 148 + + IV. LEGISLATION AGAINST SEDITION AND ANARCHY 161 + + I. The Normal Law Against Violence and Revolution 165 + II. The Normal Criminal Law of Words 169 + III. The Difference Between the Normal Law and the New + Legislation 173 + IV. Radical Meetings and the Red Flag 180 + V. Criminal Anarchy and Criminal Syndicalism 187 + VI. The Federal Sedition Bills 194 + VII. The Constitutionality of a Federal Sedition Law 199 + VIII. The Wisdom and Expediency of a Federal Sedition Law 207 + + + V. THE DEPORTATIONS 229 + + I. The Statute as to Deportable Radicals 230 + II. The Administrative Machinery for Deporting Radicals 232 + III. The Raids of January, 1920 241 + IV. The Arrest of American Citizens for Deportation 252 + V. A Review of the Actual Cases of Radicals Held for + Deportation 256 + (1) Communists—Guilt by Association and Government + Spies 256 + (2) Industrial Workers of the World 272 + (3) Anarchists 275 + VI. The Deportations and the Bill of Rights 280 + VII. Suggested Changes in Our Deportation Policy 291 + + VI. JOHN WILKES, VICTOR BERGER, AND THE FIVE MEMBERS 294 + + I. John Wilkes 295 + II. The Raids of 1763 and the Raids of 1919 296 + III. The Exclusion of Wilkes from the House of Commons 311 + IV. The Exclusion of Victor L. Berger from the House of + Representatives 315 + V. The Five Socialist Members of the New York Assembly 332 + + VII. FREEDOM AND INITIATIVE IN THE SCHOOLS 365 + + + APPENDICES + + APPENDIX + + I. Bibliography on Freedom of Speech 377 + _A._ General and Historical; _B._ The War; + _C._ Radical Activities in the United States + and Peace-time Restrictions upon Freedom of + Speech; _D._ Power of a Legislature to Exclude + or Expel for Opinions; _E._ Schools. + + II. Index of Reported Cases under the Espionage Acts of 1917 + and 1918 387 + + III. Text and Construction of the Espionage Act of 1918 395 + + IV. Normal Law of Four Jurisdictions Against Actual or Threatened + Violence 398 + + V. State War and Peace Statutes Affecting Freedom of Speech 399 + + Index of Cases 407 + + General Index 411 + + + + + FREEDOM OF SPEECH + + + + + 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 armistice +by a widespread legislative consideration of bills punishing the +advocacy of extreme radicalism. It is becoming increasingly important +to determine the true limits of freedom of expression, so that speakers +and writers may know how much they can properly say, and governments +may be sure how much they can lawfully and wisely suppress. The United +States Supreme Court has recently handed down several decisions upon +the Espionage Act, which put us in a much better position than formerly +to discuss the war-time aspects of the general problem of liberty of +speech. Therefore, instead of beginning with an abstract treatment of +that problem, I shall take the concrete situation of opposition to war, +and from it endeavor to work out the fundamental principles of the +whole subject. These can afterwards be tested by their application to +radical agitation in peace. + +It is already plain, I hope, that this book is an inquiry into the +proper limitations upon freedom of speech, and is in no way an argument +that any one should be allowed to say whatever he wants anywhere and +at any time. We can all agree from the very start that there must be +some point where the government may step in, and my main purpose is to +make clear from many different angles just where I believe that point +to lie. We ought also to agree that a man may believe that certain +persons have a right to speak or other constitutional rights, without +at all identifying himself with the position and views of such persons. +In a country where John Adams defended the British soldiers involved +in the Boston Massacre and Alexander Hamilton represented British +Loyalists and General Grant insisted upon amnesty for Robert E. Lee, +it is surprising how in the last three years it has been impossible +for any one to uphold the rights of a minority without subjecting +himself to the accusation that he shared their opinions. If he urged +milder treatment of conscientious objectors, he was a pacifist. If +he held that the treaty with Germany should not violate the terms of +the armistice, he was a pro-German. This popular argument reached its +climax when an opponent of the disqualified Socialist assemblymen +informed the world that he had always suspected Governor Hughes of +being disloyal. + +I am not an atheist, but I would not roast one at the stake as in the +sixteenth century, or even exclude him from the witness-stand as in the +nineteenth. Neither am I a pacifist or an anarchist or a Socialist or +a Bolshevik. I have no sympathy myself with the views of most of the +men who have been imprisoned since the war began for speaking out. The +only one, I suppose, of all that number with whom I could sit down for +half an hour’s conversation without losing my temper is Mr. Bertrand +Russell. My only interest is to find whether or not the treatment which +they have received accords with freedom of speech. That principle may +be invoked just as eagerly in future years by conservatives. Whatever +political or economic opinion falls within the scope of the First +Amendment ought to be safeguarded from governmental interference by +every man who has sworn to uphold the Constitution of the United +States, no matter how much he disagrees with those who are entitled to +its protection or how lofty the patriotism of those who would whittle +away the Bill of Rights into insignificance. + +A friend of Lovejoy, the Abolitionist printer killed in the Alton +riots, said at the time that we are more especially called upon to +maintain the principles of free discussion in case of unpopular +sentiments or persons, as in no other case will any effort to maintain +them be needed.[1] + +[1] Edward Beecher, _Alton Riots_, Alton, Ill., 1838 (Widener Library). +A bibliographical note to this and other chapters will be found in +Appendix I. + +The free speech clauses of the American constitutions are not merely +expressions of political faith without binding legal force. Their +history shows that they limit legislative action as much as any +other part of the Bills of Rights. The United States Constitution as +originally drafted contained no guaranty of religious or intellectual +liberty, except that it forbade any religious test oath and gave +immunity to members of Congress for anything said in debates. Pinckney, +of South Carolina, had sought to insert a free speech clause, +grouping liberty of the press with trial by jury and habeas corpus +as “essentials in free governments.” His suggestion was rejected +by a slight majority as unnecessary, in that the power of Congress +did not extend to the press, a natural belief before Hamilton and +Marshall had developed the doctrine of incidental and implied powers. +Hamilton himself defended the omission on the ground that liberty of +the press was indefinable and depended only on public opinion and the +general spirit of the people and government for its security, little +thinking that he himself would frame a definition now embodied in the +constitutions of half the states.[2] The citizens of the states were +not satisfied, and the absence of the guaranty of freedom of speech +was repeatedly condemned in the state conventions and in outside +discussion. Virginia, New York, and Rhode Island embodied a declaration +of this right in their ratifications of the federal Constitution. +Virginia expressly demanded an amendment and Maryland drafted one in +its convention, basing it on a very significant reason, to be mentioned +shortly. At the first session of Congress a Bill of Rights, including +the present First Amendment, was proposed for adoption by the states, +and became part of the Constitution November 3, 1791. Massachusetts, +Virginia, and Pennsylvania already had similar provisions, and such +a clause was eventually inserted in the constitutions of all other +states. Thus the guaranty of freedom of speech was almost a condition +of the entry of four original states into the Union, and is now +declared by every state to be as much a part of its fundamental law as +trial by jury or compensation for property taken by eminent domain. +Such a widely recognized right must mean something, and have behind it +the obligation of the courts to refuse to enforce any legislation which +violates freedom of speech. + +[2] The various types of free speech clauses are given in _Index +Digest of State Constitutions_, N. Y. State Cons. Conv. Comm., 1915, +pp. 700–702, 956–958. Twenty-three state constitutions follow Hamilton +(note 330, _infra_) in making truth a defense to criminal libel if +published with good motives. The first was _New York Constitution_, +1821, Art. 7, § 8. See _Reports of New York Constitutional Convention +of 1821_, pp. 167, 487. All but five states have a clause resembling +another sentence of the New York section: “Every citizen may freely +speak, write, and publish his sentiments, on all subjects, being +responsible for the abuse of that right; and no law shall be passed, +to restrain, or abridge the liberty of speech, or of the press.” +Massachusetts, Mississippi, New Hampshire, Vermont, and South Carolina +retain a short clause much like the federal Constitution. The express +exception of “abuse” was first made by Pennsylvania in 1790 (note 36, +_infra_); but since I regard such an exception as implied in the United +States form, I have assumed in this book that there is no difference +in legal effect. The effect of the Hamiltonian clause is discussed by +Henry Schofield, “Freedom of the Press in the United States,” 9 _Proc. +Am. Sociolog. Soc._ 88 ff., cited hereafter as Schofield. + +We shall not, however, confine ourselves to the question whether a +given form of federal or state action against pacifist and similar +utterances is void under the constitutions. It is often assumed that so +long as a statute is held valid under the Bill of Rights, that document +ceases to be of any importance in the matter, and may be henceforth +disregarded. On the contrary, a provision like the First Amendment to +the federal Constitution, + + Congress shall make no law respecting an establishment of + religion, or prohibiting the free exercise thereof; or abridging + the freedom of speech, or of the press; or the right of the + people peaceably to assemble, and to petition the Government for + a redress of grievances, + +is much more than an order to Congress not to cross the boundary +which marks the extreme limits of lawful suppression. It is also +an exhortation and a guide for the action of Congress inside that +boundary. It is a declaration of national policy in favor of the public +discussion of all public questions. Such a declaration should make +Congress reluctant and careful in the enactment of all restrictions +upon utterance, even though the courts will not refuse to enforce +them as unconstitutional. It should influence the judges in their +construction of valid speech statutes, and the prosecuting attorneys +who control their enforcement. The Bill of Rights in a European +constitution is a declaration of policies and nothing more, for the +courts cannot disregard the legislative will though it violates the +Constitution.[3] Our Bills of Rights perform a double function. They +fix a certain point to halt the government abruptly with a “Thus far +and no farther”; but long before that point is reached they urge upon +every official of the three branches of the state a constant regard for +certain declared fundamental policies of American life.[4] + +[3] A. V. Dicey, _Law of the Constitution_, 8 ed., 130: “This curious +result therefore ensues. The restrictions placed on the action of the +legislature under the French constitution are not in reality laws, +since they are not rules which in the last resort will be enforced +by the Courts. Their true character is that of maxims of political +morality, which derive whatever strength they possess from being +formally inscribed in the constitution and from the resulting support +of public opinion. What is true of the constitution of France applies +with more or less force to other polities which have been formed under +the influence of French ideas.” + +Probably some Americans anticipated only the same effect from our bills +of rights, not realizing that an unconstitutional statute would be +held unenforceable. Spencer said in the North Carolina Convention: “If +a boundary were set up, when the boundary is passed, the people would +take notice of it immediately.” 4 _Elliot’s Debates_ (2 ed.) 175. + +[4] “No doubt our doctrine of constitutional law has had a tendency +to drive out questions of justice and right, and to fill the mind of +legislators with thoughts of mere legality, of what the constitution +allows.”—J. B. Thayer, _Legal Essays_, 38. See his quotation from 1 +Bryce, _American Commonwealth_, 1 ed., 377. + +Our main task, therefore, is to ascertain the nature and scope of +the policy which finds expression in the First Amendment to the +United States Constitution and the similar clauses of all the state +constitutions, and then to determine the place of that policy in +the conduct of war, and particularly the war with Germany. The free +speech controversy of the last two years has chiefly gathered about +the federal Espionage Act. This Act contains a variety of provisions +on different subjects, such as the protection of ships in harbors, +spy activities, unlawful military expeditions, etc., but the portion +which concerns us, Title I, section 3, discussed at length in the next +chapter, as it has been interpreted by the courts, makes criminal +several kinds of spoken or written opposition to this or any future +war, and imposes a maximum penalty of $10,000 fine or twenty years’ +imprisonment, or both. Any material violating this section may, under +Title XII of the Act, be excluded from the mails. This statute has been +enacted and vigorously enforced under a constitution which provides: +“Congress shall make no law ... abridging the freedom of speech, or of +the press.” + +Clearly, the problem of the limits of freedom of speech in war time is +no academic question. On the one side, thoughtful men and journals are +asking how scores of citizens can be imprisoned under this constitution +only for their open disapproval of the war as irreligious, unwise, or +unjust. On the other, federal and state officials point to the great +activities of German agents in our midst and to the unprecedented +extension of the business of war over the whole nation, so that in the +familiar remark of Ludendorff, wars are no longer won by armies in the +field, but by the _morale_ of the whole people. The widespread Liberty +Bond campaigns, and the shipyards, munition factories, government +offices, training camps, in all parts of the country, are felt to make +the entire United States a theater of war, in which attacks upon our +cause are as dangerous and unjustified as if made among the soldiers +in the rear trenches. The government regards it as inconceivable that +the Constitution should cripple its efforts to maintain public safety. +Abstaining from countercharges of disloyalty and tyranny, let us +recognize the issue as a conflict between two vital principles, and +endeavor to find the basis of reconciliation between order and freedom. + +At the outset, we can reject two extreme views in the controversy. +First, there is the view that the Bill of Rights is a peace-time +document and consequently freedom of speech may be ignored in war. +This view has been officially repudiated.[5] At the opposite pole +is the belief of many agitators that the First Amendment renders +unconstitutional any Act of Congress without exception “abridging the +freedom of speech, or of the press,” that all speech is free, and only +action can be restrained and punished. This view is equally untenable. +The provisions of the Bill of Rights can not be applied with absolute +literalness, but are subject to exceptions.[6] For instance, the +prohibition of involuntary servitude in the Thirteenth Amendment does +not prevent military conscription, or the enforcement of a “work or +fight” statute. The difficulty, of course, is to define the principle +on which the implied exceptions are based, and an effort to that end +will be made subsequently. + +[5] Report of the Attorney General of the United States (1918), 20: +“This department throughout the war has proceeded upon the general +principle that the constitutional right of free speech, free assembly, +and petition exist in war time as in peace-time, and that the right of +discussion of governmental policy and the right of political agitation +are most fundamental rights in a democracy.” + +[6] Robertson _v._ Baldwin, 165 U. S. 275, 281 (1897); Selective Draft +Law Cases, 245 U. S. 366, 390 (1918); Claudius _v._ Davie, 175 Cal. 208 +(1917); State _v._ McClure, 105 Atl. 712 (Del. Gen. Sess., 1919). + +Since it is plain that the true solution lies between these two extreme +views, and that even in war time freedom of speech exists subject to +a problematical limit, it is necessary to determine where the line +runs between utterances which are protected by the Constitution from +governmental control and those which are not. Many attempts at a legal +definition of that line have been made, but two mutually inconsistent +theories have been especially successful in winning judicial +acceptance, and frequently appear in the Espionage Act cases. + +One theory construes the First Amendment as enacting Blackstone’s +statement that “the liberty of the press ... consists in laying no +_previous_ restraints upon publications and not in freedom from censure +for criminal matter when published.”[7] The line where legitimate +suppression begins is fixed chronologically at the time of publication. +The government cannot interfere by a censorship or injunction _before_ +the words are spoken or printed, but can punish them as much as it +pleases _after_ publication, no matter how harmless or essential to +the public welfare the discussion may be. This Blackstonian definition +found favor with Lord Mansfield,[8] and is sometimes urged as a +reason why civil libels should not be enjoined,[9] so that on this +theory liberty of the press means opportunity for blackmailers and no +protection for political criticism. The same definition was adopted by +a few American judges in early contempt proceedings and prosecutions +for libel.[10] The Federalist judges of that time were so notorious +for their slavish adherence to English authorities in disregard of our +own constitutions and statutes,[11] that their Blackstonian statements +should have little weight in the construction of constitutional +guaranties. However, one of these cases was in Massachusetts, whence +Justice Holmes carried the Blackstonian definition into the United +States Supreme Court.[12] Fortunately he has now repudiated this +interpretation of freedom of speech,[13] but not until his dictum had +had considerable influence, particularly in Espionage Act cases.[14] +Of course, if the First Amendment does not prevent prosecution +and punishment of utterances, the Espionage Act is unquestionably +constitutional. + +[7] 4 Blackstone, _Commentaries_, 151. + +[8] King _v._ Dean of St. Asaph, 3 T. R. 428, 431 (1784): “The liberty +of the press consists in printing without any previous license, subject +to the consequence of law.” + +[9] See Roscoe Pound, “Equitable Relief Against Defamation and Injuries +to Personality,” 29 _Harv. L. Rev._ 651, and recent federal cases in +32 _ibid._ 938 n. Dean Pound discusses two views besides Blackstone’s. +The view mentioned as Story’s is really that of St. George Tucker, whom +Story was criticising. 2 Story, _Constitution_, § 1886. + +[10] McKean in Respublica _v._ Oswald, 1 Dall. 319 (Pa., 1788), and +Trial of William Cobbett, Wharton’s State Trials, 322 (Pa., 1797), +Yeates in Respublica _v._ Dennie, 4 Yeates 267 (Pa., 1805); Parker in +Comm. _v._ Blanding, 3 Pick. 304 (Mass., 1825). See Schofield in 9 +_Proc. Am. Sociolog. Soc._ 69. + +[11] Beveridge’s _Marshall_, III, 23 ff. See page 22, _infra_. + +[12] Patterson _v._ Colorado, 205 U. S. 454, 462 (1907). + +[13] Schenck _v._ U. S., 249 U. S. 47 (1919); Abrams _v._ U. S., 250 U. +S. 616 (1919). + +[14] Masses Pub. Co. _v._ Patten, 246 Fed. 24 (1917); U. S. _v._ +Coldwell, Bull. Dept. Just., No. 158, page 4. + +This Blackstonian theory dies hard, but it ought to be knocked on the +head once for all. In the first place, Blackstone was not interpreting +a constitution, but trying to state the English law of his time, which +had no censorship and did have extensive libel prosecutions. Whether +or not he stated that law correctly, an entirely different view of the +liberty of the press was soon afterwards enacted in Fox’s Libel Act, +so that Blackstone’s view does not even correspond to the English law +of the last hundred and twenty-five years. Furthermore, Blackstone is +notoriously unfitted to be an authority on the liberties of American +colonists, since he upheld the right of Parliament to tax them, and was +pronounced by one of his own colleagues to have been “we all know, an +anti-republican lawyer.”[15] + +[15] 1 Blackstone, _Commentaries_, 109; Willes, J., in Dean of St. +Asaph’s Case, 4 Doug. 73, 172 (1784). + +Not only is the Blackstonian interpretation of our free speech clauses +inconsistent with eighteenth-century history, soon to be considered, +but it is contrary to modern decisions, thoroughly artificial, and +wholly out of accord with a common-sense view of the relations of state +and citizen. In some respects this theory goes altogether too far in +restricting state action. The prohibition of previous restraint would +not allow the government to prevent a newspaper from publishing the +sailing dates of transports or the number of troops in a sector. It +would render illegal removal of an indecent poster from a billboard or +the censorship of moving pictures before exhibition, which has been +held valid under a free speech clause.[16] And whatever else may be +thought of the decision under the Espionage Act with the unfortunate +title, United States _v._ The Spirit of ’76,[17] it was clearly +previous restraint for a federal court to direct the seizure of a film +which depicted the Wyoming Massacre and Paul Revere’s Ride, because it +was “calculated reasonably so to excite or inflame the passions of our +people or some of them as that they will be deterred from giving that +full measure of co-operation, sympathy, assistance, and sacrifice which +is due to Great Britain, as an ally of ours,” and “to make us a little +bit slack in our loyalty to Great Britain in this great catastrophe.” + +[16] Mutual Film Corporation _v._ Industrial Commission of Ohio, 236 U. +S. 230, 241 (1915). + +[17] 252 Fed. 946 (D. C. S. D. Cal., 1917), Bledsoe, J. See also +Goldstein _v._ U. S., 258 Fed. 908 (C. C. A. 9th, 1919). + +On the other hand, it is hardly necessary to argue that the +Blackstonian definition gives very inadequate protection to the freedom +of expression. A death penalty for writing about socialism would be +as effective suppression as a censorship. The government which holds +twenty years in prison before a speaker and calls him free to talk +resembles the peasant described by Galsworthy:[18] + + The other day in Russia an Englishman came on a street-meeting + shortly after the first revolution had begun. An extremist was + addressing the gathering and telling them that they were fools + to go on fighting, that they ought to refuse and go home, and so + forth. The crowd grew angry, and some soldiers were for making a + rush at him; but the chairman, a big burly peasant, stopped them + with these words: “Brothers, you know that our country is now + a country of free speech. We must listen to this man, we must + let him say anything he will. But, brothers, when he’s finished, + we’ll bash his head in!” + +[18] John Galsworthy, “American and Briton,” 8 _Yale Rev._ 27 (October, +1918). _Cf._ Boswell’s Johnson, ed. G. B. Hill, IV, 12. + +Cooley’s comment on Blackstone is unanswerable:[19] + + ... The mere exemption from previous restraints cannot be all + that is secured by the constitutional provisions, inasmuch as of + words to be uttered orally there can be no previous censorship, + and the liberty of the press might be rendered a mockery and a + delusion, and the phrase itself a byword, if, while every man was + at liberty to publish what he pleased, the public authorities + might nevertheless punish him for harmless publications, ... + Their purpose [of the free speech clauses] has evidently been + to protect parties in the free publication of matters of public + concern, to secure their right to a free discussion of public + events and public measures, and to enable every citizen at any + time to bring the government and any person in authority to the + bar of public opinion by any just criticism upon their conduct + in the exercise of the authority which the people have conferred + upon them.... The evils to be prevented were not the censorship + of the press merely, but any action of the government by means of + which it might prevent such free and general discussion of public + matters as seems absolutely essential to prepare the people for + an intelligent exercise of their rights as citizens. + +[19] Cooley, _Constitutional Limitations_, 7 ed., 603, 604. + +If we turn from principles to precedents, we find several decisions +which declare the constitutional guarantee of free speech to be +violated by statutes and other governmental action which imposed +no previous restraint, but penalized publications after they were +made.[20] And most of the decisions in which a particular statute +punishing for talking or writing is sustained do not rest upon the +Blackstonian interpretation of liberty of speech,[21] but upon another +theory, now to be considered. Therefore, it is possible that the +severe punishments imposed by Title I, section 3, of the Espionage +Act, violate the First Amendment, although they do not interfere with +utterances before publication.[22] + +[20] Louthan _v._ Commonwealth, 79 Va. 196 (1884)—statute punishing +school superintendent for political speeches; Atchison, etc. Ry. _v._ +Brown, 80 Kans. 312 (1909)—service-letter statute, making employer +liable to civil action if he failed to furnish a discharged employee a +written statement for the true reason for discharge. St. Louis, etc. +Ry. Co. _v._ Griffin, 106 Texas 477 (1914), same; Wallace _v._ Georgia +Ry. Co., 94 Ga. 732 (1894), same; _Ex parte_ Harrison, 212 Mo. 88 +(1908),—statute punishing voters’ leagues for commenting on candidates +for office without disclosing the names of all persons furnishing +the information; State _ex rel._ Metcalf _v._ District Court, 52 +Mont. 46 (1916)—contempt proceedings for criticism of judge for past +decision; State _ex rel._ Ragan _v._ Junkin, 85 Neb. 1 (1909),—statute +invalidating nomination of candidates by conventions or any other +method except primaries; State _v._ Pierce, 163 Wis. 615 (1916)—corrupt +practices act punishing political disbursements outside one’s own +county except through a campaign committee; State _v._ Printing Co., +177 Pac. 751 (N. M., 1918)—contempt. Some of these decisions are open +to dispute on the desirability of the statutes, and some are opposed +by other cases for that reason, but in their repudiation of the +Blackstonian test they furnish unquestioned authority. + +[21] Examples in such cases of express repudiation of the Blackstonian +doctrine are found in Schenck _v._ United States, 249 U. S. 47 (1919); +State _v._ McKee, 73 Conn. 18 (1900); State _v._ Pioneer Press Co., 100 +Minn. 173 (1907); Cowan _v._ Fairbrother, 118 N. C. 406, 418 (1896). + +[22] Title XII of the Espionage Act does impose previous restraint +on publications which violate the Act by authorizing the Postmaster +General to exclude them from the mails. See page 108, _infra_. + +A second interpretation of the freedom of speech clauses limits them +to the protection of the use of utterance and not to its “abuse.” It +draws the line between “liberty” and “license.” Chief Justice White[23] +rejects: + + the contention that the freedom of the press is the freedom + to do wrong with impunity and implies the right to frustrate + and defeat the discharge of those governmental duties upon the + performance of which the freedom of all, including that of the + press, depends.... However complete is the right of the press to + state public things and discuss them, that right, as every other + right, enjoyed in human society, is subject to the restraints + which separate right from wrong-doing. + +[23] Toledo Newspaper Co. _v._ United States, 247 U. S. 402, 419 (1918). + +A statement of the same view in another peace case is made by Judge +Hamersley of Connecticut:[24] + + Every citizen has an equal right to use his mental endowments, as + well as his property, in any harmless occupation or manner; but + he has no right to use them so as to injure his fellow-citizens + or to endanger the vital interests of society. Immunity in + the mischievous use is as inconsistent with civil liberty as + prohibition of the harmless use.... The liberty protected is + not the right to perpetrate acts of licentiousness, or any act + inconsistent with the peace or safety of the State. Freedom of + speech and press does not include the abuse of the power of + tongue or pen, any more than freedom of other action includes an + injurious use of one’s occupation, business, or property. + +[24] State _v._ McKee, 73 Conn. 18, 28 (1900). + +The decisions in the war are full of similar language,[25] of which a +few specimens will suffice: + + In this country it is one of our foundation stones of liberty + that we may freely discuss anything we please, provided that + that discussion is in conformity with law, or at least not in + violation of it. + + No American worthy of the name believes in anything else than + free speech; but free speech means, not license, not counseling + disobedience of the law. Free speech means that frank, free, + full, and orderly expression which every man or woman in the + land, citizen or alien, may engage in, in lawful and orderly + fashion. + + No one is permitted under the constitutional guaranties to commit + a wrong or violate the law. + +[25] Mayer, J., in United States _v._ Phillips, Bull. Dept. Just., No. +14 (S. D. N. Y., 1917), 5; and United States _v._ Goldman, Bull. Dept. +Just., No. 41 (S. D. N. Y., 1917), 2; Van Valkenburgh, J., in United +States _v._ Stokes, Bull. Dept. Just., No. 106 (W. D. Mo., 1918), 12. +See also United States _v._ Pierce, Bull. Dept. Just., No. 52 +(S. D. N. Y., 1917), 22, Ray, J.; United States _v._ Nearing, Bull. +Dept. Just., No. 192 (S. D. N. Y., 1917), 4, Mayer, J.; United States +_v._ Wallace, Bull. Dept. Just. 4 (Ia., 1917), 4, Wade, J. + +Just the same sort of distinction was made by Lord Kenyon during the +French revolution: + + The liberty of the press is dear to England. The licentiousness + of the press is odious to England. The liberty of it can never be + so well protected as by beating down the licentiousness. + +This exasperated Sir James Fitzjames Stephen into the comment, “Hobbes +is nearly the only writer who seems to me capable of using the word +‘liberty’ without talking nonsense.”[26] + +[26] 2 _Hist. Crim. Law_ 348 n. + +A slightly more satisfactory view is adopted by Cooley,[27] that the +clauses guard against repressive measures by the several departments +of government, but not against utterances which are a public offense, +or which injure the reputation of individuals. + +[27] Cooley, _Constitutional Limitations_, 7 ed., 605; quoted by Hough, +J., in Fraina _v._ United States, 255 Fed. 28, 35 (C. C. A. 2d, 1918). + + We understand liberty of speech and of the press to imply not + only liberty to publish, but complete immunity from legal censure + and punishment for the publication, so long as it is not harmful + in its character, when tested by such standards as the law + affords. + +To a judge obliged to decide whether honest and able opposition to the +continuation of a war is punishable, these generalizations furnish as +much help as a woman forced, like Isabella in _Measure for Measure_, +to choose between her brother’s death and loss of honor, might obtain +from the pious maxim, “Do right.” What is abuse? What is license? What +standards does the law afford? To argue that the federal Constitution +does not prevent punishment for criminal utterances begs the whole +question, for utterances within its protection are not crimes. If it +only safeguarded lawful speech, Congress could escape its operation at +any time by making any class of speech unlawful. Suppose, for example, +that Congress declared any criticism of the particular administration +in office to be a felony, punishable by ten years’ imprisonment. +Clearly, the Constitution must limit the power of Congress to create +crimes. But how far does that limitation go? Cooley suggests that the +constitutional guaranties must be interpreted in the light of the +contemporary common law of blasphemy, obscenity, and defamation, but +flatly denies that they enact the common law of sedition and libels +against the government.[28] Conditions in 1791 must be considered, but +they do not arbitrarily fix the division between lawful and unlawful +speech for all time. + +[28] _Ibid._ 604, 612 ff. + +Clearly, we must look further and find a rational test of what is use +and what is abuse. Saying that the line lies between them gets us +nowhere. And “license” is too often “liberty” to the speaker, and what +happens to be anathema to the judge. + +We can, of course, be sure that certain forms of utterance, which have +always been crimes or torts at common law, are not within the scope +of the free speech clauses. The courts in construing such clauses +have, for the most part, done little more than place obvious cases on +this or that side of the line. They tell us, for instance, that libel +and slander are actionable, or even punishable, that indecent books +are criminal, that it is contempt to interfere with pending judicial +proceedings, and that a permit can be required for street meetings; +and on the other hand, that some criticism of the government must be +allowed, that a temperate examination of a judge’s opinion is not +contempt, and that honest discussion of the merits of a painting causes +no liability for damages. But when we ask where the line actually runs +and how they know on which side of it a given utterance belongs, we +find little answer in their opinions. + +We do have two very able judicial statements which take us far toward +the ultimate solution of the problem of the limits of free speech, but +they unfortunately lack the weight of binding adjudications, for one +is a decision by Judge Learned Hand which was subsequently reversed on +appeal and the other a dissenting opinion by Justice Holmes. Therefore, +it is regrettable that when Justice Holmes spoke for all members of the +United States Supreme Court in the earlier Espionage Act decisions, he +did not feel at liberty to go beyond the particular facts before him +into a fuller exposition of fundamental principles, and make articulate +for us that major premise, under which judges ought to classify words +as inside or outside the scope of the First Amendment. He, we then +hoped, would concentrate his great abilities on fixing the line. +Instead, like other judges, he told us that certain plainly unlawful +utterances are, to be sure, unlawful. + + The First Amendment ... obviously was not intended to give + immunity for every possible use of language.... We venture + to believe that neither Hamilton nor Madison, nor any other + competent person then or later, ever supposed that to make + criminal the counselling of a murder ... would be an + unconstitutional interference with free speech.[29] + + The most stringent protection of free speech would not protect a + man in falsely shouting fire in a theater and causing a panic.[30] + +[29] Frohwerk _v._ United States, 249 U. S. 204 (1919). + +[30] Schenck _v._ United States, 249 U. S. 47 (1919). + +How about the man who gets up in a theater between the acts and informs +the audience honestly, but perhaps mistakenly, that the fire exits are +too few or locked? He is a much closer parallel to Frohwerk or Debs. +How about James Russell Lowell when he counseled, not murder, but +the cessation of murder, his name for war? The question whether such +perplexing cases are within the First Amendment or not cannot be solved +by the multiplication of obvious examples, but only by the development +of a rational principle to mark the limits of constitutional protection. + +“The gradual process of judicial inclusion and exclusion,”[31] which +has served so well to define other clauses in the federal Constitution +by blocking out concrete situations on each side of the line until +the line itself becomes increasingly plain, has as yet been of very +little use for the First Amendment. The cases are too few, too varied +in their character, and often too easily solved, to develop any +definite boundary between lawful and unlawful speech. Even if some +boundary between the precedents could be attained, we could have +little confidence in it unless we knew better than now the fundamental +principle on which the classification was based. Indeed, many of the +decisions in which statutes have been held to violate free speech seem +to ignore so seriously the economic and political facts of our time, +that they are precedents of very dubious value for the inclusion and +exclusion process.[32] Nearly every free speech decision, outside such +hotly litigated portions as privilege and fair comment in defamation, +appears to have been decided largely by intuition. + +[31] Miller, J., in Davidson _v._ New Orleans, 96 U. S. 97, 104 (1877). + +[32] See note 20, _supra_. + +In the next chapter I shall return to the opinions of Justice Holmes +and Judge Hand. For the moment, however, it may be worth while to +forsake the purely judicial discussion of free speech, and obtain light +upon its meaning from the history of the constitutional clauses and +from the purpose free speech serves in social and political life. + +The framers of the First Amendment make it plain that they regarded +freedom of speech as very important—“absolutely necessary” is Luther +Martin’s phrase. But they say very little about its exact meaning. That +should not surprise us if we recall our own vagueness about freedom of +the seas. Men rarely define their inspirations until they are forced +into doing so by sharp antagonism. Therefore, it is not until the +Sedition Law of 1798 made the limits of liberty of the press a concrete +and burning issue that we get much helpful expression of opinion on our +problem.[33] Before that time, however, we have a few important pieces +of evidence to show that the words were used in the Constitution in a +wide and liberal sense. + +[33] See Appendix I for references on the Law of 1798. + +On October 26, 1774, the Continental Congress issued an address to the +inhabitants of Quebec, declaring that the English colonists had five +invaluable rights, representative government, trial by jury, liberty of +the person, easy tenure of land, and freedom of the press:[34] + + The last right we shall mention regards the freedom of the press. + The importance of this consists, besides the advancement of + truth, science, morality and arts in general, in its diffusion of + liberal sentiment on the administration of government, its ready + communication of thoughts between subjects, and its consequential + promotion of union among them, whereby oppressive officials are + shamed or intimidated into more honorable and just modes of + conducting affairs. + +[34] Journal of the Continental Congress, Vol. I (ed. 1800), p. 57. + +In 1785 Virginia, which was the first state to insert a clause +protecting the liberty of the press in its constitution (1776), enacted +a statute drawn by Jefferson for Establishing Religious Freedom.[35] +This opened with a very broad principle of toleration: “Whereas, +Almighty God hath created the mind free; that all attempts to influence +it by temporal punishments or burthens, or by civil incapacitations, +tend only to beget habits of hypocrisy and meanness——” While this +relates specifically to religion, it shows the trend of men’s thoughts, +and the meaning which “liberty” had to Jefferson long before the bitter +controversy of 1798. + +[35] See note 66, _infra_. + +One other framer of our government has stated his views on this matter +in less solemn language, Benjamin Franklin.[36] In discussing the brief +“freedom of speech” clause in the Pennsylvania Constitution of 1776, he +said in 1789, that if by the liberty of the press were to be understood +merely the liberty of discussing the propriety of public measures and +political opinions, let us have as much of it as you please. On the +other hand, if it means liberty to calumniate another there ought to +be some limit; but he has been at a loss to imagine any that may not +be construed an infringement of the sacred _liberty of the press_. At +length, however, he thinks he has found one that instead of diminishing +general liberty shall augment it; he means _the liberty of the cudgel_. +If, however, it should be thought that this proposal of his may disturb +the public peace, he would humbly recommend to our legislators to take +up the consideration of both liberties, that of the _press_, and that +of the _cudgel_, and by an explicit law mark their extent and limits. +Thus Franklin construed this clause so widely as even to grant immunity +from private libel actions. Next year the Pennsylvania Constitution was +amended to impose responsibility for the abuse of the liberty, but no +such exception was thought necessary in the United States Constitution, +probably because private libels were not within the purview of the +federal law. + +[36] _Works_, ed. A. H. Smyth, X, 36 ff. See Pa. Cons. (1776), c. I, +sect. 12; Pa. Cons. (1790), Art. IX, sect. 7. + +The most significant evidence of the meaning of the First Amendment +is the reason given by the Maryland convention of 1788 to the people +for including such a clause in the proposed federal Bill of Rights:[37] +“In prosecutions in the federal courts, for libels, the constitutional +preservation of this great and fundamental right may prove invaluable.” +This is, of course, absolutely inconsistent with any Blackstonian +limitation of the right to absence of a censorship. + +[37] 2 Elliot’s Deb. (2 ed.) 511; see the same argument in newspaper +letters given in _Pennsylvania and the Federal Constitution_, ed. J. +B. McMaster and F. D. Stone, 151, 181. The second letter suggests the +possibility of a prohibitive stamp tax as in Massachusetts to crush the +press. + +If we apply Coke’s test of statutory construction, and consider what +mischief in the existing law the framers of the First Amendment +wished to remedy by a new safeguard, we can be sure that it was not +the censorship. This had expired in England in 1695, and in the +colonies by 1725.[38] For years the government here and in England +had substituted for the censorship rigorous and repeated prosecutions +for criminal libel or seditious libel, as it was often called, which +were directed against political discussion, and for years these +prosecutions were opposed by liberal opinion and popular agitation. +Primarily the controversy raged around two legal contentions of the +great advocates for the defense, such as Erskine and Andrew Hamilton. +They argued, first, that the jury and not the judge ought to decide +the libellous nature of the writing, and secondly, that the truth of +the charge ought to prevent conviction. The real issue, however, lay +much deeper. Two different views of the relation of rulers and people +were in conflict. According to one view, the rulers were the superiors +of the people, and therefore must not be subjected to any censure that +would tend to diminish their authority. The people could not make +adverse criticism in newspapers or pamphlets, but only through their +lawful representatives in the legislature, who might be petitioned in +an orderly manner. According to the other view, the rulers are agents +and servants of the people, who may therefore find fault with their +servants and discuss questions of their punishment or dismissal, and of +governmental policy. + +[38] Macaulay, _History of England_, Chap. XXI; C. A. Duniway, _Freedom +of Speech in Massachusetts_, 89 note. + +Under the first view, which was officially accepted until the close +of the eighteenth century, developed the law of seditious libel. This +is defined as “the intentional publication, without lawful excuse or +justification, of written blame of any public man, or of the law, or +of any institution established by law.” There was no need to prove +any intention on the part of the defendant to produce disaffection or +excite an insurrection. It was enough if he intended to publish the +blame, because it was unlawful in him merely to find fault with his +masters and betters. Such, in the opinion of the best authorities, was +the common law of sedition.[39] + +[39] Madison, Report on the Virginia Resolutions, 1799, 4 Ell. Deb. +(2 ed.) 596 ff.; 2 Stephen, _History of the Criminal Law_, 299, 353, +and Chap. XXIV., _passim_; Schofield, in _9 Proc. Am. Sociol. Soc._ 70 +ff., gives an excellent summary with especial reference to American +conditions. + +It is obvious that under this law liberty of the press was nothing +more than absence of the censorship, as Blackstone said. All through +the eighteenth century, however, there existed beside this definite +legal meaning of liberty of the press, a definite popular meaning: +the right of unrestricted discussion of public affairs. There can be +no doubt that this was in a general way what freedom of speech meant +to the framers of the Constitution. Thus Madison in 1799 bases his +explanation of the First Amendment on “the essential difference between +the British Government and the American constitutions.” In England, he +says, Parliament is omnipotent and all the ramparts for protecting the +rights of the people are reared only against the royal prerogative. +Therefore, exemption from the censorship of the king’s appointees is +the only freedom secured to the press. In the United States, however, +the people and not the government possess the absolute sovereignty, and +the legislature as well as the executive is under limitations of power. +The effective security of the press requires that it should be exempt +not only from previous restraint by the executive as in England, but +from legislative restraint also through the subsequent penalty of laws. +After this repudiation of the Blackstonian doctrine, Madison goes on to +reject the theory that the legislature is free to punish anything which +was criminal at English common law. Here again, he says, the different +natures of the two governments must have its effect and contemplate a +different degree of liberty in the use of the press. A government which +is “elective, limited and responsible” in all its branches may well be +supposed to require “a greater freedom of animadversion” than might +be tolerated by one that is composed of an irresponsible hereditary +king and upper house, and an omnipotent legislature. This inference is +favored, he continues, by the actual English practice. “Notwithstanding +the general doctrine of the common law, on the subject of the press, +and the occasional punishment of those who use it with a freedom +offensive to the Government, it is well known that with respect to the +responsible measures of the Government, where the reasons operating +here become applicable there, the freedom exercised by the press and +protected by public opinion far exceeds the limits prescribed by the +ordinary rules of law.”[40] + +[40] Madison’s Report on the Virginia Resolutions, 4 Ell. Deb. (2 ed.) +596–598. The same distinction was made by Erastus Root, _Report of the +New York Constitutional Convention of 1821_, p. 489. See also _Speeches +of Charles Pinckney_, 1800, p. 116 ff. + +This contemporary testimony corroborates the conclusion of Professor +Schofield: + + One of the objects of the Revolution was to get rid of the + English common law on liberty of speech and of the press.... + Liberty of the press as declared in the First Amendment, and the + English common-law crime of sedition, cannot co-exist.[41] + +[41] Schofield, 76, 87. + +The few early judicial decisions[42] to the contrary ought not to +weigh against the statements of Franklin, Jefferson, and Madison, +and the general temper of the time. These judges were surely wrong in +holding as they did that sedition was a common-law crime in the federal +courts, and in other respects they drew their inspiration from British +precedents and the British bench instead of being in close contact +with the new ideas of this country. “Indeed,” as Senator Beveridge +says, “some of them were more British than they were American.” “Let a +stranger go into our courts,” wrote one observer, “and he would almost +believe himself in the Court of the King’s Bench.”[43] Great as was the +service of these judges in establishing the common law as to private +rights, their testimony as to its place in public affairs is of much +less value than the other contemporary evidence of the men who sat in +the conventions and argued over the adoption of the Constitution. The +judges forgot the truth emphasized by Maitland: “The law of a nation +can only be studied in relation to the whole national life.” I must +therefore strongly dissent, with Justice Holmes,[44] from the position +sometimes taken in arguments on the Espionage Act, that the founders of +our government left the common law as to seditious libel in force and +merely intended by the First Amendment “to limit the new government’s +statutory powers to penalize utterances as seditious, to those which +were seditious under the then accepted common-law rule.”[45] The +founders had seen seventy English prosecutions for libel since 1760, +and fifty convictions under that common-law rule, which made conviction +easy.[46] That rule had been detested in this country ever since it was +repudiated by jury and populace in the famous trial of Peter Zenger, +the New York printer, the account of which went through fourteen +editions before 1791.[47] The close relation between the Zenger trial +and the prosecutions under George III in England and America is shown +by the quotations on reprints of the trial and the dedication of the +1784 London edition to Erskine, as well as by reference to Zenger in +the discussions preceding the First Amendment.[48] Nor was this the +only colonial sedition prosecution under the common law, and many +more were threatened.[49] All the American cases before 1791 prove +that our common law of sedition was exactly like that of England, and +it would be extraordinary if the First Amendment enacted the English +sedition law of that time, which was repudiated by every American and +every liberal Englishman,[50] and altered through Fox’s Libel Act by +Parliament itself in the very next year, 1792. We might well fling +at the advocates of this common law view the challenge of Randolph +of Roanoke, “whether the common law of libels which attaches to this +Constitution be the doctrine laid down by Lord Mansfield, or that +which has immortalized Mr. Fox?”[51] The First Amendment was written +by men to whom Wilkes and Junius were household words, who intended to +wipe out the common law of sedition, and make further prosecutions for +criticism of the government, without any incitement to law-breaking, +forever impossible in the United States of America. + +[42] Cases in note 10; Charge to the Grand Jury of Judge Addison (who +was born and educated in the United Kingdom), Addison Ch. (Pa.) 270. +Marshall’s Minority Report in opposition to Madison’s is chiefly +devoted to establishing an implied power of the government to protect +itself against libels. His discussion of the First Amendment, while +undoubtedly opposed to my view, is little more than a repetition of +Blackstone. _The Address of the Minority in the Virginia Legislature_, +etc. (Library of Congress, Class E 327, Book A 22; extracts in U. S. +reply brief in Debs _v._ U. S.) + +[43] Beveridge’s _Marshall_, III, 23–29. + +[44] Abrams _v._ U. S., 250 U. S. 616 (1919). + +[45] W. R. Vance, in “Freedom of Speech and the Press,” 2 _Minn. L. +Rev._ 239, 259. + +[46] 2 May, _Constitutional History of England_, 2 ed., 9 note. + +[47] 17 How. St. Tr. 675 (1735). The fullest account of Zenger and the +trial is given by Livingston Rutherford, _John Peter Zenger_, New York, +1904. Rutherford’s bibliography lists thirteen editions of the account +of the trial before 1791. The Harvard Law School Library contains four +of these (London, 1738; London, 1752; London, 1765; New York, 1770), +and also an undated copy without specified place, differing from any +listed by Rutherford. See also the life of Zenger’s counsel, Andrew +Hamilton, by William Henry Loyd, in 1 _Great American Lawyers_ 1. + +[48] Newspaper letter, reprinted in _Penn. and the Fed. Cons._, 151. + +[49] C. A. Duniway, _Freedom of the Press in Massachusetts_, 91, 93, +115, 123, 130, and note. In 1767 Chief Justice Hutchinson charged the +grand jury on Blackstonian lines, “This Liberty means no more than a +Freedom for every Thing to pass from the Press without a License.” +_Ibid._, 125. + +[50] 2 May, _Constitutional History of England_, Chap. IX; 2 Stephen, +_History of the Criminal Law_, Chap. XXIV. + +[51] 3 Beveridge’s _Marshall_ 85. + +It must not be forgotten that the controversy over liberty of the +press was a conflict between two views of government, that the law of +sedition was a product of the view that the government was master, and +that the American Revolution transformed into a working reality the +second view that the government was servant, and therefore subjected to +blame from its master, the people. Consequently, the words of Sir James +Fitzjames Stephen about this second view have a vital application to +American law.[52] + + To those who hold this view fully and carry it out to all its + consequences there can be no such offense as sedition. There may + indeed be breaches of the peace which may destroy or endanger + life, limb, or property, and there may be incitements to such + offenses, but no imaginable censure of the government, _short + of a censure which has an immediate tendency to produce such a + breach of the peace_, ought to be regarded as criminal. + +[52] 2 Stephen, _History of the Criminal Law_, 300. The italics are +mine. See also Schofield, 9 _Proc. Am. Sociol. Soc._, 75. + +The repudiation by the constitutions of the English common law of +sedition, which was also the common law of the American colonies, has +been somewhat obscured by judicial 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 popular 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 lessens the evils of suppression. These changes help +to substitute the modern view of rulers for the old view, but they are +not essential. Sedition prosecutions went on with shameful 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. + +[53] Duniway, _supra_, Chap. IX; Commonwealth _v._ Clap, 4 Mass. 163 +(1808); Commonwealth _v._ Blanding, 3 Pick. (Mass.) 304 (1825). + +[54] 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. + +[55] 32 Geo. III, c. 60 (1792). + +[56] 3 Woodrow Wilson, _History of the American People_, 153. + +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 intention 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 indirect 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 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 consequences of his acts. When rulers are allowed to +possess these weapons, they can by the imposition of severe sentences +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 sentiment, 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 objectionable 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 Russian Revolution. This, however, is perhaps a problem for the +psychologist rather than the lawyer. + +[57] 1 Stephen, _History of the Criminal Law_, 569. + +Another significant fact in sedition prosecutions is the well-known +probability that juries will acquit, after the excitement is over, for +words used during the excitement, which are as bad in their tendency as +other writings prosecuted 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] + +[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). + +The manner in which juries in time of excitement may be used to +suppress writings in opposition to the government, 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 +shameful amount of flogging in the army, under a charge in which Baron +Wood emphasized the formidable foe with whom England 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 discuss the acts of our legislature. That would be a large + permission 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. + +[59] 31 How. St. Tr. 495, 535 (1811). + +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] + +[60] 31 How. St. Tr. 367, 408, 413 (1811). + +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. + +[61] 2 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 +sedition imposed in Scotland during the French wars. Four years was the +longest in England. See note 157 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. + +American sentiment about sedition trials was decisively shown by +an expedition to New South Wales to rescue Muir, a sort of reverse +deportation. + +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. + +[62] That they may not have wholly disappeared even yet is indicated 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. + +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 impending war with France, the +spread of revolutionary doctrines by foreigners in our midst, and the +spectacle of the disastrous 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 machinations against our government. The Sedition +Law punished false, scandalous, and malicious writings against the +government, either House of Congress, or the President, if published +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 reformers had contended, and the +requirement of an actual intention to cause overt injury, the Sedition +Act was bitterly resented as invading the liberty of the press. Its +constitutionality 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 reduced the test of intent to a fiction by +inferring the bad intent from this bad tendency. + +[63] Act of June 25, 1798, 1 Stat. at L., 570; Act of July 14, 1798, 1 +Stat. at L., 596. See Bibliography for other references on these Acts. + +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 demonstrates,[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 powers +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 Democrats got into power, a common-law prosecution for seditious +libel was brought in New York against a Federalist who had attacked +Jefferson. Hamilton conducted the defense in the name of the liberty of +the press.[65] This testimony from Jefferson and Hamilton, the leaders +of both parties, 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. + +[64] Schofield, _op. cit._, 91, and 92 note. + +[65] 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 +definition 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 Hamilton. + +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. + +[66] 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. + +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 previous 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 conflict. 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 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 +liberty of the press, and ought not to exist in this country unless +made necessary by extraordinary perils. + +[67] 1 Kohler, _Lehrbuch des Bürgerlichen Rechts_, I, § 38. + +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 confined to the speech they thought permissible than +“commerce” 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 prosecutions before 1791, but also the +subsequent development of the law of fair comment in civil defamation, +and the philosophical speculations of John Stuart Mill. Justice Holmes +phrases the thought with even more than his habitual felicity.[68] “The +provisions of the Constitution are not mathematical formulas having +their essence in their form; they are organic living institutions +transplanted from English soil.” + +[68] Gompers _v._ United States, 233 U. S. 604, 610 (1914). + +It is now clear that the First Amendment fixes limits upon the +power of Congress to restrict speech either by a censorship or by a +criminal statute, and if the Espionage Act exceeds 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 provision of the Constitution cannot be used to break +down another provision, and consequently freedom of speech cannot +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 accurate to say that the war clauses +cannot be invoked to break down freedom of speech. The truth is that +all provisions of the Constitution must be construed together so as +to limit each other. In a war as in peace, this process of mutual +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 prevented Congress from exercising the war +power under the particular circumstances of that case. If the First +Amendment 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 conduct of war. + +[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. + +[71] 4 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 cannot +have recourse to extraordinary procedure until there are extraordinary +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 Congress 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 questions 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. + +[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). + +The true meaning of freedom of speech seems to be this. One of the +most important purposes of society and government 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. Nevertheless, there are +other purposes of government, such as order, the training of the young, +protection against external aggression. Unlimited discussion sometimes +interferes with these purposes, which must then be balanced against +freedom 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 deadlock. Each side takes the position of the man who +was arrested 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 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 regard 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 language, there are individual interests and social +interests, which must be balanced against each other, if they 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 forgotten 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. + +[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. + +The rights and powers of the Constitution, aside from the portions +which create the machinery of the federal system, are largely means +of protecting important individual and social interests, and because +of this necessity of balancing such interests the clauses cannot be +construed with absolute literalness. The Fourteenth Amendment and +the obligation of contracts clause, maintaining important individual +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 exceptions, 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 +national 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 does not constitute it +an exception to the Thirteenth Amendment; 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 +locomotion and choice of occupation. Even treaties providing for +the apprehension in our ports of deserting foreign seamen 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] + +[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). + +The First Amendment protects two kinds of interests in 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 attainment 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 vigorously and constantly cross-examined, so that +the fundamental 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. Consequently 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 +its supporters have been too busy to unearth. If a free canvassing +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] + +[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. + +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 +argument for the existence of this social interest becomes unnecessary +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 recognize their duty of +weighing considerations of social advantage. The duty is inevitable, +and the result of the often proclaimed judicial aversion to deal with +such considerations 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 of the Espionage Act without any +well-considered standard of criminality, but has allowed some of them +to impose standards 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 + unthinkingly, 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] + +[76] Oliver Wendell Holmes, “The Path of the Law,” 10 _Harv. L. Rev._ +457, 467. + +[77] United States _v._ “The Spirit of ’76,” 252 Fed. 946. Another good +example is United States _v._ Schoberg, Bull. Dept. Just., No. 149. + +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 important 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 unrestricted by the censorship or by punishment, +unless it is clearly liable to cause direct and dangerous interference +with the conduct of the war. + +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 Perpetuities 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 classification in this method of balancing and this +broad test of certain danger. There is a similar balancing in the +determination of what is “due process of law.” We can insist upon +various procedural safeguards which make it more probable that a +tribunal will give the value of open discussion 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 Amendment 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 + preservation 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 majority, believed conscription to +be a necessary and just method of waging an unavoidable war, and +the machinery for enforcing the draft by civilian aid was admirably +planned. “The result,” says Attorney General Gregory,[78] “was that +the ultimate opposition to the draft by those liable was surprisingly +small, considering the persistent propaganda carried on against +the policy of the law and against its constitutionality.” 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[79] merely fulfilled the general +expectation. + +[78] 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. + +[79] Selective Draft Law Cases, 245 U. S. 366 (1918). + +Besides the military and civilian organization for reaching the men +who were liable to registration and subsequently called into service, +the government had at its disposal several criminal statutes enacted +during the Civil War, which it could and did use to punish conspiracies +to resist recruiting and conscription by riots[80] and other forcible +means, or seeking by speeches and publications to induce men to evade +the draft.[81] 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,[82] 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. + +[80] Bryant _v._ U. S., 257 Fed. 378 (C. C. A., 1919); Orear _v._ U. +S., 261 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. + +[81] 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 General, _supra_. + +[82] 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. + +If the government had been content to limit itself to meeting the +tangible needs just mentioned, the effect on discussion 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 protection 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 opposition during the Civil War, +which was handled under martial 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 introduced a bill which made +the whole United States “a part of the zone of operations conducted by +the enemy,” and declared any person who endangered or interfered with +the successful operation of our forces by publishing anything 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 constitutionality and advisability of the law.[83] +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 Britain[84] +and Canada.[85] Although we did not adopt the British administrative +control, which combined flexibility with possibilities 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. + +[83] “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. + +[84] 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 114. The practical effect has been to establish an administrative +censorship. H. J. Laski, _Authority in the Modern State_, 101. + +[85] Carroll, 17 _Mich. L. Rev._ 621 note. + + + I. _The Espionage Acts of 1917 and 1918_ + +The result of these various influences was the third section of Title +I of the Espionage Act. As originally enacted on June 15, 1917, this +section established three new offenses:[86] + + (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 + 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. + +[86] Act of June 15, 1917, c. 30, Title I, § 3. The numerals are +inserted by me. + +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’ +imprisonment 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 ’76_ case, and raids were made on the offices of anti-war +organizations. Finally, Title XII made non-mailable any matter +violating the Act, or advocating treason, insurrection, or forcible +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 individual casual or impulsive +disloyal utterances. Also some District Courts gave what he considered +a narrow construction 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.”[87] + + 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.[88] + +[87] 4 _Am. Bar Assoc. Journ._ 306. + +[88] 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. + +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 interfering with the flotation of war loans. The +Senate Committee on the Judiciary, being thus stirred up, took the bit +in its teeth, and decided to stamp on all utterances of a disloyal +character. It went for a model of legislation affecting 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 provision 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 traitorous 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, 1918,[89] 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 intent to obstruct the sale of +United States bonds, except by way of bona fide and not disloyal +advice; (5) uttering, printing, 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 +government 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 prosecution; (11) advocating, teaching, defending, or suggesting +the doing of any of these acts; and (12) words or acts supporting 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. + +[89] The full text of this Amendment is in Appendix III. + +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 evidence satisfactory to _him_” he +thinks anything mailed constitutes 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 Attorneys 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.[90] +Congress responded to this outcry by the passage of the Sedition Law. +Doubtless some governmental 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 convicted under the Espionage Act remained out +on bail for months, often until the war was over, so that all the +preventive purposes of the statute were defeated, and then were sent to +prison for years.[91] + +[90] See note 88. 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, +254 Fed. 611 (1918). State prosecutions are now pending. + +[91] O’Brian, 311. + +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 meaning of the three original offenses of the 1917 Act or +on “attempts 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. + +The Espionage Act of 1917 seems on its face constitutional 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, freedom of speech is not only a limit on Congressional +power, but a policy to be observed by the courts in applying +constitutional statutes to utterance. The scope of that policy is +determined by the same method of balancing social interests. 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[92] Judge Hand was asked to enjoin +the postmaster of New York from excluding from the mails the August +issue of _The Masses_, a monthly revolutionary journal, which contained +several articles, poems, and cartoons attacking the war. When notified +of the exclusion, the publisher had offered to delete any passages +pointed out by the postmaster, but was refused such information. +After suit was started, the postmaster, while objecting generally +that the whole purport of the number was unlawful, since it tended to +encourage the enemies of the United States and hamper the government +in the conduct of the war, specified four cartoons, entitled “Liberty +Bell,” “Conscription,” “Making the World Safe for Capitalism,” and +“Congress and Big Business”; 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 “sacrifice” of +conscientious objectors, and praising Goldman and Berkman as “friends +of American freedom.” + +[92] 244, Fed. 535 (S. D. N. Y., 1917). + +The Espionage Act, it will be remembered, made non-mailable any +publication which violated the criminal provisions 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 interference with the conduct of military +affairs,[93] into a prohibition of all kinds of propaganda and a means +for suppressing 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.[94] The +normal test for the suppression of speech in a democratic government, +Judge Hand insists, is neither the justice of its substance nor the +decency and propriety of its temper, but the strong danger that it +will cause injurious acts. The Espionage 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. + +[93] 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 construed +strictly. + +[94] Cooley, _Constitutional Limitations_, 7 ed., 613. + +Congress had shown no such intention. Moreover, whether 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 Masses_ 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 interpretation 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 existing 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 purpose 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 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 Congressional power as I +have construed them. Under some circumstances 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.[95] +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 interference 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 interference with the attainment and dissemination +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 dangerous interference with the war. + +[95] Mill, _Liberty_, opening of c. 3. + +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. 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 incitement to violent resistance, is to + disregard the tolerance of all methods of political agitation + which in normal times is a safeguard 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[96] 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 beyond 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 attempts to interfere, which would probably include +incitement.[97] The tests of criminal attempt and incitement are well +settled.[98] 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 intention. 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 +Francisco 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. Attempts and incitement to be +punishable must come dangerously near success, and bad intention is +merely one modifying factor in determining whether the actual conduct +is thus dangerous. A speaker is guilty of solicitation or incitement to +a crime only if he would have been indictable for the crime itself, had +it been committed, either as accessory or principal.[99] 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 President McKinley may have been +influenced by the denunciatory cartoons of “Willy and his Papa” in the +Hearst newspapers, but the artist was not an accessory to the murder. + +[96] See page 42, _supra_, for text of the Act. + +[97] 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. + +[98] Joseph H. Beale, “Criminal Attempts,” 16 _Harv. L. Rev._ 491; U. +S. _v._ Stephens, 12 Fed. 52. See also 32 _Harv. L. Rev._ 417. + +[99] See Beale, _supra_, 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). + +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 + responsibility, to defend, in prosecutions for soliciting crime, + the publishers of Byron’s _Don Juan_, of Rousseau’s _Émile_, 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 adjudication, + 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.[100] + +[100] Wharton, _Criminal Law_, I (9 ed.), § 179. + +On the contrary, the rule has always been that, to establish criminal +responsibility, the words uttered must constitute dangerous progress +toward the consummation of the independent offense attempted and +amount to procurement, counsel, or command to commit the forbidden +acts.[101] This standard can be applied, not only to attempts to cause +insubordination and obstruction of the draft, where the ultimate 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 market, in a manner analogous to picketing and boycotting in +private business, which often constitute civil wrongs, compensated by +damages.[102] 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.[103] + +[101] 4 Blackstone’s _Commentaries_ 36. + +[102] Gompers _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). + +[103] 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. + +Consequently, no one should have been held under clauses (2) and (3) of +the Espionage Act of 1917 who did not satisfy these tests of criminal +attempt and incitement. As Justice Holmes said in Commonwealth _v._ +Peaslee,[104] “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 +incitement under the ordinary standards of statutory construction +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.[105] In other words, the ordinary tests +punish 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 incitement to overt acts. Every word used, “cause,” “attempt,” +“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 construed strictly. Attorney General Gregory’s charge +that judges like Learned Hand “took the teeth” out of the 1917 Act[106] +is absurd, for the teeth the government wanted were never there until +other judges in an excess of patriotism put in false ones. + +[104] 177 Mass. 267, 272 (1901). See also his opinion in Swift _v._ +U. S., 196 U. S. 375, 396 (1905). + +[105] See the quotation from Justice Brandeis, page 99, _infra_. + +[106] See note 87, _supra_. + +Nevertheless, Judge Hand was reversed[107] on a point of administrative +law, that the postmaster’s decision must stand unless clearly +wrong,[108] but the Circuit Court of Appeals thought it desirable to +reject his construction of the Espionage 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 objective +test of the nature of the words was considered unsound. Advice in +direct language was repudiated as a requisite 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 incitement to action than to hold up to admiration those who do +act.... The Beatitudes have for some centuries been considered highly +hortatory, though they do not contain the injunction: ‘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 instance, as having counseled violence while it expressly +discountenanced 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,[109] 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 “freedom of +speech” in the First Amendment. + +[107] 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, JJ., reversed the order granting the +injunction. + +[108] See for authorities against this proposition, 32 _Harv. L. Rev._ +417, 420. See page 106, _infra_, VI. Censorship; also Chapter V. + +[109] 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. + +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 approach 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, 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 opposition 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.[110] 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 saying[111] 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. + +[110] 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 +willfully to obstruct recruiting.” + +[111] _Ibid._ 29. + + + 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 constructive 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 condemned them +as false because they differed from the President’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 +insubordination 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.”[112] +It was in no way necessary that these expressions of opinion should +be addressed to soldiers or men on the point of enlisting or being +drafted. Most judges held it enough if the words might conceivably +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 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. + +[112] 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_. + +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 indicted +only for writing a letter, the judge admitted her speeches to show her +intent, and then denounced the opinions 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,[113] 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. + +[113] Rex. _v._ Cuthell, 27 How. St. Tr. 642, 674 (1799). + +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 statement, known to be false and intended +and calculated to interfere 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 possible, if not probable effect on our troops.” + +A case in the Second Circuit makes it equally perilous 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.[114] + +[114] Fraina _v._ United States, 255 Fed. 28 (C. C. A. 2d, 1918), for +conspiracy and not under the Espionage Act; Rex _v._ Bertrand Russell, +Littell’s _Living Age_, Feb. 15, 1919, p. 385. + +Many men have been imprisoned for arguments or profanity used in the +heat of private altercation, on a railroad train, in a hotel lobby, +or at that battle-ground of disputation, a boarding-house table.[115] +In one case,[116] 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 who asked his reasons +and received a courteous reply that he did not wish either side to +win the war and could not conscientiously give it his aid. He was +thereupon arrested and held in confinement until released by a district +court.[117] + +[115] 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.” + +[116] U. S. _v._ Harshfield, 260 Fed. 659 (C. C. A., 8th, 1919), +reversing 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. + +[117] United States _v._ Pape, 253 Fed. 270 (1918). State _v._ +Ludemann, 172 N. W. (Minn.) 887 (1919), _acc._ + +A few concrete cases of convictions that have been upheld will show how +the Espionage Act operates to punish expressions of opinion. + +J. P. Doe, son of the great Chief Justice of New Hampshire, while +living in Colorado because of bad health, mailed an “endless chain” +letter, to be sent “to friends of immediate peace,” which stated that +although the President and Secretary of State had said Germany had +broken her promise 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 recruiting 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 convey the idea +that the United States was wrong in relying on the alleged promise +as a cause of war; “such an argument would have a direct tendency to +obstruct the recruiting and enlistment service.” Doe was sentenced to +eighteen 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 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 +antagonism, hatred and enmity between the American people, particularly +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 attempting +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.[118] + +[118] 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 +before officials. If they had no right to censor by previous restraint +any way (cf. Dailey _v._ Superior Court, 112 Cal. 94), this fact +seems immaterial. 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. + +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 +statements 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. + + 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.[119] + +[119] He was pardoned after a year in prison. + +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 conscription, and reprinting an argument +of Thomas E. Watson, 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 government 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 +necessary 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 + 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 insubordination +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 satisfies 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 +opinion, is that it is only by absence of penalties for such utterances +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 deprive it of the benefit of what is said. +Opposition to governmental 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 motives, it +might as well shut up the courts. In the same way, truth is truth, +and just as valuable to the public, whether it comes from the most +enthusiastic supporter of the war or from a pro-German, and in order +to get the truth, conflicting views must be allowed. What a pacifist +says about the extravagance of Congress or bad camp conditions during +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 popular will unless it is preceded by discussion of the merits +of beginning and continuing the war. Once more, that discussion 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 vigorously 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 opposed +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 repudiation of war debts. As an alternative they +threatened defeat to the officers, their party, and the nation. Foolish +as this petition was, it stated a grievance which deserved inquiry. +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 deterrents against the spread of hostile propaganda, and +particularly 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 erroneous.[120] + +[120] Baltzer 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. + +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 government 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 assumption, which +I shall soon show to be questionable, that all the 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 Human 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 + suspicions 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 utterances 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 +desirable 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 human 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,[121] “not merely the goodness 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.” + +[121] 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. + +Jefferson pointed out in the Virginia Toleration Statute, quoted in the +first chapter,[122] 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.[123] The trouble with the District Court test is, that in making +intention the crucial fact in criminality, it exposes all who discuss +heated questions 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 intention 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 themselves, 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 disregard such prior language except as evidence of intention, +there can be no doubt that it is human nature to lump together all +the utterances, inside and outside the indictment, 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. + +[122] See page 31, _supra_. + +[123] “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 government dare go.”—Walter Lippmann, Bull. League of Free Nations +Assn., Mar., 1920. + +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 supporters of a war to class all its opponents as traitors, +forgetting 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 possessed +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 harmfulness of the language can be easily tested +by common-sense standards, and its counterbalancing benefit to the +public, 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 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.”[124] It is only necessary 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 +compelled 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 nothing but speculation upon the remote +political and economic effect of words and the probable condition of +mind of a person 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.[125] + +[124] _Early Law and Custom_, 389. + +[125] Jeremiah Black, arguing in _Ex parte_ Milligan, 4 Wall. 2, 75 +(1866). + +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. + +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 possible 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 hysterical 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 propaganda, but it certainly looks like it.” + +Mr. John Lord O’Brian, Assistant to the Attorney General in the +prosecution of the most important Espionage Act cases, gives a vivid +account of the false stories of enemy activities within the United +States, put forth through the medium of press dispatches, pamphlets +of patriotic societies, and occasionally speeches on the floor of +Congress:[126] + + 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 aeroplanes + floated over Kansas at night, etc. Then there were the alleged + spies themselves,—Spoermann, alleged intimate of Bernstorff, + 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, 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 instances are + cited, not to make light of the danger of hostile activities, + 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. + +[126] 52 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. + +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 support. 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 Protective +League act as auxiliary to the Department of Justice, but as the same +authority says:[127] + + 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 payment of a dollar membership fee. These associations + did much good in awakening the public to the danger of insidious + propaganda, but no other one cause contributed so much to the + oppression of innocent men as the systematic and indiscriminate + agitation against what was claimed to be an all-pervasive system + of German espionage. + +[127] O’Brian, 279, 292, 297. On the I.W.W., 299. + +It is obvious that the presence of members of these societies 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 parallelism with the experiences of England during the +French Revolution:[128] + + 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 rewarded for their activity. They + became, as it were, public prosecutors, 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. + +[128] May, _Constitutional History_, II, 36. + +Attorney General Gregory corroborates Mr. O’Brian’s statement:[129] + + The department has also been hampered by the circulation of + unfounded reports, running into the hundreds, of supposed + unpunished 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. + +[129] Report, 1918, 23. + +It was with the country in the atmosphere above described that the +laws affecting free speech received the severest test thus far placed +upon them in our history.[130] 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,[131] 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. + +[130] O’Brian, 299. + +[131] See page 52, _supra_. + +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 result of which the sentences imposed +by the judges were in many instances commuted by the President to a +small fraction of their original length.[132] Unfortunately, it was +very hard for these officials in Washington to impress their ideas of +fairness and open discussion upon some of their subordinates 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 safeguard of fair and impartial trials. In addition to the + causes already recited there were the patriotic agitations + continually 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 anyone even under suspicion for disloyalty. + +[132] Report of the Atty. Gen., 1919, Exhibit 21. + +The situation became particularly serious after the passage 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 disloyal 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 assume. 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 increasing the amount of suspicion and complaints + throughout the country. 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.[133] + +[133] O’Brian, 304, 305, 309. See the facts of some of the local cases +in _War-time Prosecutions_, 27 ff., listing 126 convictions under local +laws (a few under state sedition statutes). + +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 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, +legitimate criticism of the administration or discussion of government +policies, or for personal feuds or persecution.[134] It is obvious that +this circular simply transferred the strain from the judge and jury +to another portion of the human machinery, the district attorney, who +is a government official, and naturally less impartial. Opinions may +differ as to the wisdom of enacting a very broad criminal statute which +enables the government to deal with persons who are really dangerous +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 circular “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 committing 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 realized +this, wide divergencies appearing in the theories entertained 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, without 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.[135] “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 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 practically at the mercy of the local district attorneys, and +under the District Court test of the 1917 Act or the express language +of the 1918 Act prosecution almost invariably resulted in conviction. + +[134] Rep. Atty. Gen., 1918, 674. + +[135] _Ibid._; O’Brian, 306. + +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.[136] +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 indignation that freedom of speech becomes +important as an institution, and it is precisely in those times that +the protection of the jury proves illusory. As the Assistant to the +Attorney General admits, “There has been little difficulty in securing +convictions from juries.” + +[136] _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, +unlawful 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. + +Judge Amidon, who has had much experience in Espionage Act cases, says: + + Only those who have administered the Espionage Act can understand + the danger of such legislation. When crimes are defined by such + generic terms, instead of by specific acts, the jury becomes 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 circumstances which resemble the +situation in England during the French Revolution, when the juries +were chosen largely from men much opposed to the prisoners.[137] Mr. +O’Brian tells[138] 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 personal 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 members 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 single member of the League, but consisted of men +from sections of the county which League organizers and speakers were +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.[139] + +[137] May, II, 36, 87. + +[138] O’Brian, 295. + +[139] See Bibliography on Townley trial. + +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 condemnation because of the men from whom +and by whom the jury were chosen. Mr. Beveridge says,[140] “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 manner of thinking as that of the marshals and +judges themselves. So it was that the juries were nothing more than +machines that registered the will, opinion, or even inclination 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.” + +[140] 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 exclusively, +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. + +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 +officials. 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 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 economic reasons. On the other hand, +federal jurors in New York City are said by a member of the Department +of Justice to be inferior to those in the state courts. The government +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 interested in this field. + +Max Eastman in his account of the Debs case speaks from the point of +view, obviously partisan but worth attention, of one who has himself +been on trial under the Espionage Act:[141] + + 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 + merchant, 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. + + +[141] “The Trial of Eugene Debs,” 1 _Liberator_, No. 9 (Nov., 1918), 9. +The charge of Mayer, J., in United States _v._ Phillips, was so +favorable to the defendant that, I am informed by an eyewitness, an +acquittal was generally expected in the court-room, but the defendants +were convicted. + +Berger’s counsel made the following statement to the Committee of the +House of Representatives:[142] + + 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 marshal’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. + +[142] Victor L. Berger: Hearings before the Special Committee, I, 636. +See John Wurts, “The Jury System under Changing Social Conditions,” 47 +_Am. L. Rev._ 67; Mamaux _v._ U. S., 264 Fed. 816. + +Whether or not these accusations are just, they certainly present a +problem in the trial of persons of radical inclinations, 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 features 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 political 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 because the jury should have been +prevented by a direction of acquittal from passing on the cases at +all.[143] + +[143] Beveridge’s _Marshall_, III, 30 note; II, 421; and III, 29–49 +_passim_; F. M. Anderson, _op. cit._, 126. + +Some Espionage Act charges which merit a similar criticism have already +been mentioned, and make it plain that in contrast to the Civil War +judges who stood rock-ribbed for legality,[144] 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. + +[144] _E.g._, Taney’s decision in _Ex parte_ Merryman, Taney, 246 +(1861); and the release of the Copperhead Milligan, 4 Wall. 2 (1866). + +Judge Aldrich in a New Hampshire case charged:[145] + + These are not times for fooling. The times are serious. Nobody + 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. + +[145] 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.” + +Besides this attitude toward opposition to the war in general, 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 +represented 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 Industrial Workers of the World. +Sympathy with the Russian 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 affected 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 naturally 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 essential that the +judge hearing such cases shall have a scholarly and dispassionate +attitude and an ability to discriminate between different schools +of revolutionary thought. The warning of Justice Holmes deserves +reprinting:[146] + + When twenty years ago a vague terror went over the earth and the + word socialism began to be 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 Mephistopheles. We + too need education in the obvious—to learn to transcend 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. + +[146] Speeches by Oliver Wendell Holmes, 101; quoted in 29 _Harv. L. +Rev._ 691. + +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 particular case he made a very good +decision:[147] + + 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 + 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? + +[147] U. S. _v._ Zimmerman, Nelles, 10–12. + +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:[148] + + 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. + +[148] Nelles, 47. + +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:[149] + + The I.W.W. is a disloyal and unpatriotic organization. Adherents + thereof owe no allegiance to any organized government, and so + far as the government is concerned the organization itself is + thoroughly bad. + +[149] 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. + +Contrast with this language the words of Judge Amidon in trying a +member of the Non-Partisan League:[150] + + 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 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. + +[150] U. S. _v._ Brinton, Bull. Dept. Just., No. 132. + +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 +whatever 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,[151] 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 General + 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 recommends to the + President the one selected by him, and usually his recommendation + 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. + +[151] N. 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. + +If these charges are not proved untrue, a very serious danger in all +sedition legislation is revealed, for there is no branch of the +criminal law where convictions may on occasion 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[152] +for giving great latitude to the defendant’s proof[153] and urging +upon the jury the necessity 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.[154] +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 guidance 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 defendant as an undesirable citizen, who, taken all +in all, ought to be shut up.[155] Furthermore, whenever a charge does +mention freedom of speech, it is almost sure to say or imply that 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:[156] + + Every citizen has a right, without intent to obstruct the + recruiting 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 participation 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 undemocratic; 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 administration; and even though the + expression of such opinion may unintentionally or indirectly + discourage recruiting and enlistment. + +[152] O’Brian, 310. + +[153] 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. + +[154] 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.” + +[155] 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. + +[156] 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. + +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 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 sentences 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.[157] Judge Van Valkenburgh summed +up the facts with appalling correctness in view of the virtual life +terms imposed 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.”[158] + +[157] 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. + +[158] United States _v._ Rose Pastor Stokes, p. 14. + + + 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 + imprisonment 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 opportunity 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 in a confession of error by +the government,[159] but at last four cases were heard and decided +against the accused.[160] 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 dangerous interference with the power of +Congress to raise armies, 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. + +[159] Baltzer and Head cases, 249 U. S. 593. + +[160] 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 are mine. + +Although “the substantive evils” are not specifically defined, 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. +Besides punishing overt acts of interference with the war, it can +prevent such acts from occurring by penalizing unsuccessful 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.[161] 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 administrative 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 authoritative judicial interpretation in +accord with the purpose of the framers of the Constitution. + +[161] 177 Mass. 267, 272 (1901). See page 53, _supra_. + +The Sugarman decision, written by Justice Brandeis, was much like +the Schenck case, as there was evidence 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 Justice 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 inserted several articles in the _Missouri Staats-Zeitung_ on the +constitutionality and merits of the draft and on the purposes 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 regrettable +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 +reasonably probable effect” of his speech, and gave a fairly wide scope +to the doctrines of indirect causation and constructive intent, so that +the defendant could have been and probably was[162] 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. + +[162] United States _v._ Debs, Bull. Dept. Just., No. 155 (N. D. Oh., +1918). See especially the last paragraphs on page 8, and page 15: “In +deciding what the defendant’s intention was, permit me to suggest to +you these questions: Ought he not to have reasonably foreseen that the +natural and probable consequences of such words and utterances would or +_might_ be to cause insubordination, etc.?” + +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 Supreme 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 construction of +the Espionage Act, which rejected the objective standard of the +meaning of the words used. Debs was convicted 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 reversed. 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, glittering 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 +obstruct 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 circumstances 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,[163] “to over-emphasize 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 principles. 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 condition of political +liberty; to be permitted to agitate at your own peril, subject to a +jury’s guessing at motive, tendency and possible effect, makes the +right of free speech a precarious gift.” + +[163] Ernst Freund, “The Debs Case and Freedom of Speech,” 19 _New +Republic_ 13 (May 3, 1919); and the correspondence in 19 _ibid._ 151 +(May 31, 1919). + +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.”[164] 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. + +[164] Oliver Wendell Holmes, “Natural Law,” 32 _Harv. L. Rev._ 40 +(1918). + +After all, whatever we may think about such a close case as the +Debs decision, it can best be regarded as a reason for repealing +the Espionage Act, if it must be so construed. 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 decisions 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 convictions,[165] and it ought to make impossible hereafter a +repetition of some of the worst decisions under the Espionage Act. + +[165] Kammann _v._ U. S., 259 Fed. 192; Harshfield _v._ U. S., 260 Fed. +659. + +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,[166] and the other, Abrams _v._ United States, +has been reserved for a separate chapter, because it involves the +special element 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 Espionage Act, are liable to +be tried. Justice Holmes and Justice Brandeis have now and henceforth +parted company with the rest of the court. + +[166] Stilson _v._ U. S., 250 U. S. 583 (1919). + +In the opening of 1920 came a third group of two decisions,[167] which +were chiefly concerned with the first clause of the Espionage Act of +1917, punishing willfully published “false reports and 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.” 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 influence of profiteers. + +[167] Schaefer _v._ U. S., 251 U. S. 468; Pierce _v._ U. S., 40 Sup. +Ct. 205. + +Conspicuous among such cases was the conviction of five officers of the +corporation issuing the _Philadelphia Tageblatt_, 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 Supreme 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 +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 articles 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 instance, the +news editor quoted an Amsterdam dispatch about the shortage of food in +Holland because of our seizure of ships, and was convicted for adding +a sentence of comment that our proposal for sending food would be +rejected, although this sentence was not made part of the quotation, +but was clearly indicated for what it was.[168] 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, predicting +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 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.” + +[168] U. S. _v._ Werner, 247 Fed. 708. + +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 District 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 conflict 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,[169] 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 tendency than +seems absolutely necessary if we are to have any discussion about a war +at all. Again, it makes all the difference 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 +definition,” 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 administering the law. + +[169] “Not one of these safeguards [in the Bill of Rights] can the +President, or Congress, or the Judiciary disturb, except the one +concerning the writ of _habeas corpus_.”—Field, J., in _Ex parte_ +Milligan, 2 Wall. 125. + +Justice McKenna approaches the problem from the side of the war power, +and entrusts freedom of speech to the jury’s sense of fairness rather +than to any guiding principles. 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 admonishes +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 surprised 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 undermine freedom of +speech, for if it does not protect criticism hostile to the government +it has little value, and such criticism in the times when it is most +needed is invariably denounced 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 Sumner, 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 obstructing enlistment by a reprint from a Berlin paper, entitled +“Yankee Bluff,” which ridiculed the possibility of our giving any aid +to the Entente, so slow were our war preparations, that the article +might seem to its readers truly descriptive 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 observations 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 unnecessary. The tendency of the articles and their efficacy were +enough for offense, and this is all that “intent” and “attempt” mean. +To require more would make the law useless, 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 +bragging 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 statute, 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 embarrass + 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 Press in War Time,” War College Publication, + 1916]; or willfully untrue statements or reports which might + mislead officials in the execution of the law, or military + authorities in the disposition 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 publications 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:[170] + + 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 remotely 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. + +[170] Page 54, _supra_. + +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 unbiased, were authorized to convict for +any words which would lessen “our will to win, or, as it is generally +expressed, 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 +evidence, 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: + + 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 meaning. + +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 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 circulating it until +after a prosecution of other persons in Maryland, based on the same +pamphlet but under the conspiracy statutes for obstruction of the +draft, had terminated 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.[171] Pierce and +his associates were then arrested and convicted. Seven judges through +Justice Pitney sustained the conviction, while Justice Brandeis +dissented with the concurrence of Justice Holmes. + +[171] U. S. _v._ Baker, 247 Fed. 124 (1917). + +The principal ground of conviction was the false statements 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 opinion is not capable of being +proved false in fact, a statement 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 sending + 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” 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 volunteer service. The prediction that older and younger +persons 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.[172] + +[172] 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. + +Justice Pitney held that these passages satisfied the three +requirements laid down by Justice Brandeis. + +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 wonders 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 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 falsity 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 +conclusion. Neither by sight nor by hearing can the jury investigate +this “question of fact.” It is a matter of inference 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 Supreme 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 statement of fact about the Morgan loans is, +he says, merely a conclusion or deduction from facts. True, it is +not a conclusion of law, but it is not an evidentiary fact. In its +essence it is the expression of a judgment, like the statements of +many so-called historical facts. There is no exact standard of absolute +truth by which to prove the assertion false.[173] 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 minimizes + 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 + qualitative and quantitative analysis so as to weigh and value + the various elements, the historians differ necessarily in their + judgments. One finds the determining cause of war in a great man, + another in an idea, a belief, an economic necessity, a trade + advantage, 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. + +[173] Citing American School of Magnetic Healing _v._ McAnnulty, 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 +treatment, since the claim was not subject to proof as to its falsity. + +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 + 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 ascribing + 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,[174] 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 interests 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. + +[174] U. S. _v._ U. S. Steel Corp., 251 U. S. 417 (1920); Eisner _v._ +Macomber, 40 Sup. Ct. 189 (1920). + + The fundamental right of free men to strive for better conditions + 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 intemperate in language.[175] + +[175] Brandeis, J., in Pierce _v._ U. S., _supra_. + + + VI. _Censorship and Exile_ + +The Federal Government has restricted speech in two ways besides +punishment. It possesses a virtual censorship in 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 mandamus 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 General 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 violate 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 urging 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, which Mr. O’Brian +states to have been in contravention of specific instructions from +the Attorney General and a mistake which could not be condoned,[176] +or more probably for attacking Mr. Gompers. He censored any adverse +comment on the affairs of the British Empire. He censored a pamphlet by +Lajpat 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 +saying, “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 expectation 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 materialism. 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 Information as containing damaging data about Germany, and +then excluded by Mr. Burleson from the mails. + +[176] O’Brian, 292. + +This is clearly previous restraint and might seem forbidden by the +Blackstonian definition, which, however, is held not to apply to the +postal power.[177] 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.[178] Although +the post-office may not be strictly a common carrier,[179] it is in +the nature of a public service company. Its functions have 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.[180] According to the political theories of Leon Duguit,[181] +the government in furnishing public service must be judged by ordinary +standards of public callings. If the United States owned the railroads, +it ought not to make unreasonable discrimination among passengers 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 government 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,[182] recalls the +remark of the Bourbon princess when the Paris mob shouted for bread, +“Why don’t they eat cake?” + +[177] 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, §3115½ j. + +[178] _Ex parte_ Jackson, 96 U. S. 727 (1877); Public Clearing House +_v._ Coyne, 194 U. S. 497, 507 (1904). + +[179] Masses Pub. Co. _v._ Patten, 245 Fed. 102, 106 (1917), Hough, J. + +[180] Something like this happened when the Western Union Telegraph Co. +recently tried to carry “night-letters” by messengers on trains. + +[181] _Law in the Modern 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. + +[182] This alternative is even less valuable when the government +controls 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. + +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 because 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 +renunciation in 1882 with a mental reservation as to the country of his +birth. He may therefore be deported as an enemy alien.[183] + +[183] 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); Schurmann _v._ U. S., 264 Fed. 917 (C. C. A., 9th, 1920). + + + VII. _State Espionage Acts_ + + Him that escapeth the sword of Hazael shall Jehu slay.—_The First + Book 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.[184] 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 statutes, 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 residents of that state should not aid the United +States in carrying on war with the public enemies.[185] There have been +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. + +[184] 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 +Prosecutions_, 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 reviewed, Samson _v._ Columbia, 101 N. Y. Misc. 146, 167 +N. Y. Supp. 202 (1917). + +[185] Minn. Laws, 1917, c. 463. This was superseded in 1919 by a still +more drastic act, to take care of future wars. Laws, 1919, c. 93. See +cases in Appendix V and Bibliography on Townley Trial. + +Although these statutes have been held in several cases[186] 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 cannot be prosecuted +by the states[187] 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 prosecuted 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. + +[186] State _v._ Holm, 139 Minn. 267 (1918); State _v._ Tachin, 106 +Atl. 145, 108 Atl. 318, two JJ. dissenting (N. J., 1919); State +_v._ Gibson, 174 N. W. 34 (Ia. 1919). But see _Ex parte_ Meckel, +220 S. W. 81 (Tex. 1920), the only case holding a sedition statute +unconstitutional. + +[187] People _v._ Lynch, 11 Johns. (N. Y.) 549 (1814); _Ex parte_ +Quarrier, 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. + +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.[188] The same principle applies to regulations as to +interference with the raising of armies. + +[188] 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. + +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 extremely 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 prosecutions 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 unfortunate that their policy should be +hampered by bitter prosecutions based on an entirely different policy +and growing 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 personal and that no class of individuals will +be proscribed as a class, with the sweeping and severe action of +Minnesota:[189] + + The result of its adoption increased discontent and the most + serious cases of alleged interference with civil liberty were + reported 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 teachings + and arguments of persuasion necessary to deal with movements + of this character were not at any time in evidence in these + disturbed districts of the country. + +[189] O’Brian, 296. + +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 suppressed 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.[190] + +[190] O’Brian, 299; Report to the President of the President’s +Mediation Commission. For a very harsh case of a ten-year sentence for +the victim of a flag-kissing mob, _Ex parte_ Starr, 263 Fed. 145 (1920). + + + 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 Supreme 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. + +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 national 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 imprison 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 +III’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 impossible to speak +respectfully of that portion of our Constitution 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. +Particularly dangerous are the 1918 clauses about defamation of the +army and navy. They would surely be invoked by advocates 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 required by +the statute), and raise the army and navy into a privileged position +beyond the range of ordinary outspoken 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.[191] Secondly, 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.”[192] +Thirdly, fourteen months after all fighting had stopped three men were +tried in Syracuse for distributing circulars in the autumn of 1919, +describing ill-treatment of political prisoners, calling an amnesty +meeting, and requesting 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 government and the military forces, language +designed to bring them and the Constitution into contempt, inciting +resistance to the United States, and obstruction of recruiting.[193] + +[191] 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. + +[192] 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. + +[193] 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. + +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 Espionage 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 powerful 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 revocation from Lincoln. The +irritation produced by such acts was in his opinion “likely to do more +harm than the publication would do.”[194] Undoubtedly he permitted a +very large number of arbitrary arrests by Seward and Stanton, or 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 dangerous 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 Presidential 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. + +[194] 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 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. III, 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, +Jefferson Davis, p. 316. As late as May 19, 1864, a resolution was +introduced in the Confederate Congress to inquire if legislation was +necessary to prevent press disclosures of military information. 4 +Journ. C. S. A. Cong., p. 60. + +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 untouched. Even in this war, while +the terms of the Defense 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.[195] + +[195] 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. + +Undoubtedly some utterances had to be suppressed. We have passed +through a period of danger, and have reasonably 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 regarded 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 imprisoned, but their words have not ceased +to spread.[196] 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 Government 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 Beatitudes,[197] 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.”[198] + +[196] _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. + +[197] See page 55, _supra_. + +[198] Ronnfeldt _v._ Phillips, 35 T. L. R. 46 (1918, C. A.). + +Those who gave their lives for freedom would be the last to thank us +for throwing aside so lightly the great traditions 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 difficult 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 threshing out of fundamentals which might +to-day have saved us from a victory without peace. + + + + + 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,[199] +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 falling—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 circulars 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. + +[199] The sources for this case are in the Bibliography. + +There has been so much misapprehension about the wording of these +two leaflets that their text ought to be given in full.[200] 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. + + 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 militarism 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 OF 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 tyrants. We have + more reasons for denouncing German militarism than has the coward + of the White House. + +[200] The English pamphlet is Government’s Exhibit No. 1, _Record_, p. +245. Errors of punctuation, etc., are preserved. The translation of the +Yiddish pamphlet is Government’s Exhibit No. 2, _Record_, p. 247. Both +measure 12×4½ inches, one page, printed on one side. + +The Yiddish leaflet has been translated. This translation 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 + 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 factory 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 prisoners +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 mattress 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 apparently 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 prisoners in the presence of +several army sergeants, and obtained 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 delivered 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.[201] The case promised to be decisive for two reasons. It was the +only important prosecution 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 constitutionality of +this Sedition Act of 1918 would very probably be called in question. +In the second place, the defendants were not prosecuted for pacifist +or pro-German utterances, 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 prosecutions 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 contemporaneous 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, however, +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.[202] + +[201] The conspiracy section of the Espionage Act is Act of June 15, +1917, c. 30, Title I, § 4; U. S. Comp. Stat., 1918, § 10212d, § 3 and +the cases thereunder are in Appendix III. See page 44, _supra_. + +[202] Testimony of Alfred Bettman, Hearings before the Committee on +Rules, 126.—_N. Y. Times_, Sept. 24, 1918. + + + 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 Northern 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 Goldman and +Phillips for opposing the draft. Judge Augustus N. Hand had presided +at the trial of Max Eastman. 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 defendants could hardly be understood without +some acquaintance with the immigrant population of a great city, some +knowledge 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 +conspicuous 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. Caffey, 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 +defendants. 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 decided to protest against the attack on the Russian +Revolution, 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. Lachowsky and Molly Steimer had distributed about nine +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[203] 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. + +[203] The indictment is in _Record_, 2–19. + + 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 Government], + 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 + imprisonment for not more than twenty years or both. + +As to the first crime charged, the publication of “disloyal, ... +scurrilous, or abusive language” about our form of government, the +Espionage Act by its terms punishes the act of publication, without +any mention of intent. Although some district judges have considered +that there must be an evil or wicked intention,[204] it has been +contended with much force and on high authority[205] 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 +government is punishable by twenty years in prison if only those truths +are sufficiently damaging to be considered abusive or disloyal. + +[204] United States _v._ Buessel, Bull. 131; United States _v._ Martin, +Bull. 157; United States _v._ Equi, Bull. 172. + +[205] 33 _Harv. L. Rev._ 442, 443, citing Learned Hand, J., in United +States _v._ Curran, Bull. 140. + +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 constitutional, there was no +attack in the pamphlets on our form of government, but only upon those +who were administering that government. Surely the phrase “capitalistic +nation” does not constitute defamation of our political structure, +which is compatible with other types of economic organization, such as +national ownership of all industries. Although the heavy fines imposed +on the defendants under these two counts called for some decision on +their constitutionality or construction, the Supreme Court refused to +make it, and Justice Clarke contented himself with suggesting 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.”[206] If so, these sections +of the Espionage Act must have been more frequently violated in Wall +Street than in Harlem. + +[206] Abrams _v._ United States, 250 U. S. 616, 623. + +The controversy about this case must be limited to the third and fourth +counts of the indictment. Aside from questions 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 publish 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 government undoubtedly +did. (2) Under the fourth count it had to prove intention to produce +curtailment of munitions, 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 incidental portion of a general protest +which is not shown to have come dangerously near success really +constitutes criminal 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 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 available 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,[207] and by writers[208] 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 conviction. 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. + +[207] Page 35 ff. + +[208] Mr. Wigmore is a possible exception and may regard all Bolshevism +as within the Espionage Act. + +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 Revolution, but a few undisputed facts +must be recalled.[209] On 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 independent 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 negotiations, 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 military intervention in Russia would only add to +the confusion there and dissipate our forces on the western front. +Consequently, we would not interfere with the political sovereignty of +Russia or intervene in her local affairs, but would merely send a few +thousand men to Vladivostok in co-operation 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. + +[209] 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; 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). + +A few days later Abrams and his friends wrote and printed the leaflet +headed, “The Hypocrisy of the United States and her Allies.” + +The Soviet government failed to distinguish between military +intervention and the arrival of foreign troops on Russian soil. The +diplomatic breach was complete. Soon afterwards the newspapers were +filled with accounts of Bolshevist atrocities. In September the United +States recognized the Czechoslovaks as a belligerent government +warring against Germany and Austria, with their capital in Washington +and their chief army in Siberia, so that the seacoast of Bohemia +was evidently the Pacific Ocean. On September 15 the United States +Committee on Public Information published nation-wide in the press +the documents[210] 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 prejudice against the defendants as sympathizers with the Russian +Revolution, which could only be overcome by an exposition of the +Russian situation from sources which had as yet found no expression in +the newspapers. + +[210] 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 +(September 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 Étienne Antonelli, _La Russie +Bolcheviste_, Paris, 1919. + +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 subpœna, and the United States 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 examination.[211] + +[211] The summary of the Robins incident is taken from _Record_, +110–138; _New York Call_, October 19, 1918; conversation with Mr. +Weinberger. + +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 evidence +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 summoned to prove that the +Bolshevist and Czechoslovak situation 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 remark, “The flowers that bloom in the spring, tra la, have +nothing to do with the case.”[212] + +[212] _Record_, pp. 120, 132. + +This phase of the trial is very important for its demonstration 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 background becomes, whether we +admit witnesses or not, an issue in the case. The rules of evidence +for the trial of overt criminal 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 operations 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 promoter of sedition to bring in a mass of +evidence from Russia 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 proceeding like the hearings +about Bolshevism before the Overman Committee of the Senate. As Judge +Clayton pointed out in the Abrams trial, the admission of Raymond +Robins’s testimony would open up a Pandora’s box. The district attorney +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.[213] + +[213] _Record_, 130, 131. For Pierce _v._ U. S., see page 101, _supra_. + +On the other hand, if for the sake of speed and convenience 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 purpose +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 presuppositions 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 intention from the case, +such evidence in favor of a bad tendency and a bad intention is often +automatically admitted the moment that the jury enter the box, and no +system of challenges 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 the tribunal out of the +fabric of public sentiment, a conviction 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 character 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 +themselves fully and unhindered. Strange as it seems to us, the results +are said to be very satisfactory.[214] Consequently, if we are going +to continue to prosecute men for the bad political tendency of their +disloyal or anarchistic utterances, we may have to adopt a similar +wide-open policy in justice to the defendants. + +[214] 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. + +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 testimony 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 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 munition 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 Russian 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 proclaimed 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:[215] + + 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 + ‘Revolutionists,’ 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. + +[215] _Record_, pp. 117, 118. + +The court did tell the jury that this statement was not part of the +evidence and should be disregarded in passing on 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 +questions had been asked.[216] Lipman was testifying in response to his +counsel that he had written the English pamphlet because the President +after sending the telegram of sympathy to the Soviets had a few weeks +later despatched a military expedition to Russia. Judge Clayton took +over the witness:[217] + + “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 + Government—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.” + + “You had the specific intention to make public opinion and arouse + public opinion against intervention in Russia?” “Yes.” + +[216] 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. + +[217] _Record_, pp. 201–203. + +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,[218] 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. + +[218] _Record_, pp. 115–121, 130–138, 167, 172, 173. See also +Stenographer’s Notes of Testimony, _passim_. + +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 ‘workers’ of this +country to arise and put down by force the Government of the United +States.”[219] + +[219] 250 U. S. @ 620 (1919). + +If this be so, practically every Socialistic book or pamphlet violates +the Espionage Act, and the belief of American Socialists that the Act +was directed against their political existence as a party under the +pretext of war finds ample justification. Military imagery ought not +to be taken literally 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 general 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 +exuberance criminal. Very likely, as Justice Clarke says, “This is +not an attempt to bring about a change of administration by candid +discussion,”[220]—but how much political discussion is candid? If +nothing but candid discussion is protected by the First Amendment, its +value for safeguarding 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. + +[220] _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 +encourage on the other side violence, calumny, and bigotry.”—_Works_, +Longmans’ ed., X, 127. + +The second group of evidence consists of two manuscripts which were +seized at the time of the arrests without a search-warrant.[221] 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.[222] The other, some typewritten sheets found +in 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.”[223] 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 + occasion 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 + strategic 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 embarrassing and if possible defeating the military plans of + the Government in Europe.[224] + +[221] A contest could have been made on this point. See Chapter VI. + +[222] 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 preventing and stopping protest meetings. + +[223] 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 +passages as forming part of the Yiddish pamphlet. 14 _Ill. L. Rev._ 544. + +[224] 250 U. S. @ 623 (1919). + +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 purpose 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 evidence that such language +did not express the actual intention 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 country 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 refused.[225] 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.[226] 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 Germany 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 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.”[227] + +[225] _Record_, pp. 197. + +[226] _Record_, pp. 163, 164, 196. + +[227] _Record_, pp. 182, 183; and see also 168, 180, 190. + +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 munition factories +ought to stop producing munitions which are used for the killing of +Russians. I care nothing about interfering 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 intervention in Russia.[228] + +[228] Lipman, page 138, _supra_, _Record_, pp. 77, 200, 203, 206; +Lachowsky, _Record_, pp. 223; Steimer, _Record_, pp. 82, 216, 221, 222. + +It is hard to see how the jury could have convicted on this evidence +if they had been instructed that a specific intent 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 +comment 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.”[229] +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 afterward 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.[230] + +[229] _Record_, pp. 237, 238. + +[230] _Record_, pp. 159–161. + +Plainly these rulings of Judge Clayton ignore absolutely the specific +intent to oppose or hinder the war with Germany, as demanded by the +statute, and authorize the jury to convict the defendants for intention +to publish the pamphlets and a generally bad mind. + +The verdict against Abrams, Lipman, Lachowsky, Rosansky, and Molly +Steimer was guilty on all four counts. The sixth prisoner, Prober, was +acquitted, for insufficient evidence 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 Lipman, who were subject to the draft as citizens of a nation +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 defendants 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, important 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 conflicting evidence. The +army sergeants deny threats and force.[231] The assistant district +attorney, who showed much consideration 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 +disquietingly specific and sincere.[232] The defendants and their +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.”[233] + +[231] _Record_, pp. 70, 75, 85. Stenographer’s Notes, 742 ff., 752 ff. + +[232] Stenographer’s Notes, 471 ff., 587, 613, 660 ff., 709 ff., 716 +ff., 722; and the pamphlet, _Sentenced to Twenty Years Prison_, passim. + +[233] Stenographer’s notes, 665. + +Legal historians have always taken interest in the criminal judge who +jests with the lives of men.[234] + + “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....”[235] + +[234] 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 +deserves the thanks of the city and of the country for the way in which +he conducted the trial,” and praised his “half-humorous” methods. + +[235] Braxfield replied to a similar comparison, “Muckle he made o’ +that; he was hanget.” See the account of how he tried Muir for sedition +in R. L. Stevenson, _Some Portraits by Raeburn_, and Philip A. Brown, +_The French Revolution in English History_, London, 1918, 95–99. + +At another point the witness began some remarks about John D. +Rockefeller. + + “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....” + + “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 + Washington 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.”[236] + +[236] Abrams’ reply is in _Record_, p. 194. + +The day after conviction the prisoners were called before Judge Clayton +for sentence. The court said:[237] + + “I am not going to permit anybody to start anything to-day. The + only matter before this court is the sentencing of these persons. + 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’t 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 produced, 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.[238] + 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 about that + now. I might get mad. I will now sentence the prisoners.” + +[237] _New York Times_, October 26, 1918. + +[238] Abrams and Lachowsky bound books, Lipman produced furs, +Rosansky produced hats, Molly Steimer produced shirtwaists. + +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.[239] + + “I did not expect anything better,” said Lipman. + + “And may I add,” replied the judge, “that you do not deserve + anything better.”[240] + +[239] 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., +§3115⅛ i. + +[240] _New York Times_, supra. _Record_, p. 243, says, “I do not think +you deserve anything less. Now, the next one.” + + + 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 occurred at the trial. It could not revise the sentences.[241] +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 intent to hinder the war, since no objection on this +ground is noted in the bill of exceptions,[242] 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 difficult +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 requisite evidence of specific intent under the +third and fourth counts, the other two being disregarded, and whether +the Espionage Act could constitutionally be interpreted to apply to +this case. + +[241] That excessive sentences may possibly constitute “cruel and +unusual punishment” under the Eighth Amendment, see Weems _v._ United +States, 217 U. S. 349 (1910), per McKenna, J., White and Holmes, JJ., +dissenting. + +[242] The Supreme Court has granted a new trial for unexcepted +misdirection 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. + +The required specific intent to hinder the war with Germany 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 program +of the United States. Therefore, the defendants intended such an +interference with the war, since “men must be held to have intended, +and to be accountable for, the effects which their acts were likely to +produce.”[243] + +[243] 250 U. S. @ 621. + +The “unfortunate maxim” propounded by the Justice is a pure +fiction.[244] Obviously our acts result in many probable 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 those crimes the defendant must actually have the defined +state of mind.[245] 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.[246] It is needless to multiply examples. +Even recklessness does not take the place of the state of mind demanded +by the statute.[247] 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,[248] +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. + +[244] Jeremiah Smith, “Surviving Fictions,” 27 _Yale L. J._ 147, 156 +(1917). + +[245] 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). + +[246] Dobbs’ Case, 2 East P. C. 513 (1770). + +[247] United States _v._ Moore, 2 Lowell (U. S.) 232 (1873). + +[248] Jeremiah Smith, _op. cit._; People _v._ Scott, 6 Mich. 287, 296 +(1859). + +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 curtailment of production in order +to accomplish that object; that it is immaterial which intent was +principal and which subordinate, so long as both existed.[249] 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.[250] When a man was +indicted for assault on another with intent to disfigure him by biting +off his ear, it was useless for him to argue that he only intended to +injure but not to disfigure, since the disfigurement was a necessary +and obviously a known consequence of the intended act.[251] + +[249] 1 Bishop, _New Criminal Law_, 8 ed., § 339; Rex _v._ Gillow, 1 +Moody C. C. 85 (1825). + +[250] _Cf._ Rex _v._ Pembliton, 12 Cox C. C. 607 (1874). A shooting +analogy is given in 33 _Harv. L. Rev._ 444 note. + +[251] State _v._ Clark, 69 Iowa 196 (1886). + +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 entirely +beyond the capacity of a jury to decide. The argument supposes (1) +that the hindrance of the war is inevitable, (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.”[252] 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 defendants 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 +fortnight after the conviction of Abrams and his friends. + +[252] 250 U. S. @ 628 (1919). + +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 the Espionage Act take pains +to limit the crime to “curtailment ... _with intent ... to cripple or +hinder the United States in the prosecution of the war_”?[253] 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 conjured 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 incidental, undesired, and at the most a vaguely considered +consequence of his utterances.[254] 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. + +[253] 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. + +[254] _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. + +This is not, as has been charged, a confusion of intent and +motive.[255] 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 “primary intent” was to help +Russia.[256] The defendants intended to produce certain tangible +results, notably protest meetings, which in turn were intended to +produce another tangible result, the end of intervention. Their motive +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 +Russia. It is wholly unsound to label the conjectural war consequence +intent and the absorbing Russian consequence motive. + +[255] “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. + +[256] 250 U. S. @ 621. + +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.[257] 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.[258] + +[257] See these two cases in Report of the Activities of the War +Department in the Field of Industrial Relations During the War +(Washington, 1919), 32–35. + +[258] 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 hint at resistance to the United +States as I construe the phrase.” 250 U. S. @ 629 (1919). + +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 understand, 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 +discussion 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 government, 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 opposition that might paralyze the war, and therefore +easily suppressed under this Act. + +The majority opinion dismisses this matter of constitutionality in two +sentences, citing decisions on the Espionage Act of 1917 to establish +the validity of the far more objectionable provisions of the Act of +1918.[259] 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 accordance with the First Amendment. It is the same situation +that Judge Hand pointed out in Masses _v._ Patten:[260] 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 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 determined purpose in itself dangerous to +cause actual obstruction 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 decision 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. + +[259] 250 U. S. @ 619. + +[260] 244 Fed. 535, 538 (1917). See p. 48, _supra_. + +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 reaffirmed 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 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 experiment is part of our system I think + that we should be eternally vigilant against attempts to check + the expression of opinions that we loathe and believe to be + fraught with death, unless they so imminently threaten immediate + interference with the lawful 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[261] 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 ratification of the Federal +Constitution, and is as definitely a prohibition 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 +protection when the majority are on the side of the government 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 repaying to them +the fines imposed. These were none the less injurious to the cause of +truth because they had the sanction of the majority. + +[261] “The Espionage Act and the Limits of Legal Toleration,” 33 _Harv. +L. Rev._ 442 (January, 1920), by Day Kimball. + +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 opinion 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.[262] + +[262] Mill, _Liberty_, c. II. + +The vote of the majority of the electorate or the legislature 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 +revolution, violence, and nothing else, although such utterances are +usually in large part the exposition of political and economic 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,” inevitably +substitutes jail for argument, since the determination 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 violence, since there is no +other method, but against opinions, agitation, bombastic threats, it +has another weapon,—language. 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 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 +consider 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 Headquarters are very sinister. The +trial judge ignored the fundamental 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 circulars 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,[263] +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 injustice[264] 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 intemperate +criticism of questionable official action[265] shall never again occur +in these United States. + +[263] 250 U. S. @ 629 (1919). + +[264] See Morley’s indignation at the “thundering sentences” for +sedition in India. 2 _Recollections_ 269. + +[265] On armed intervention without Congressional authority, see +the state papers of Seward and Fish in J. B. Moore, _Digest of +International 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 government 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 difficulties by the unaccustomed +prevalence and outspoken expression of radical ideas. Despite my own +adherence to traditional 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 inevitably 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^g + the agonis^d spasms of infuriat^d 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 y^s sh^d be more felt & fear^d by some, & + less by others, & sh^d divide opinions as to measures of safety. + +Much of this radicalism had identified itself with the opposition to +the war, and thereby been involved in prosecutions under the Espionage +Act and the state laws. A few members 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 petitions, and all other means within our +power.” The Industrial 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 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 Commission had +striven with much success to bring these irreconcilables 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. +Haywood 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 legislation. The amended +Espionage Act of 1918 included the clauses about defamation of our +form of government and curtailment 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 military phrases. In the legislative sessions which followed the +armistice, emergency laws against anarchy and criminal syndicalism were +adopted by state after state with a coincidence of time and phraseology +which proved either a uniform 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 officials and judges were seized +in the mails, and the houses of 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 Bolshevism 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 resources 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 disruption 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 emergency really exists, it behooves +us all to keep cool, and consider 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 vigorous enforcement of the ordinary criminal +law will meet most, if not all, of the present danger? + + + 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 legislation against +anarchy, enables the police and the courts to deal vigorously with +actual or threatened insurrection, explosions, or assassination.[266] +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 government, although this is a question +which requires subsequent consideration. If such a statute can be +constitutionally 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.[267] + +[266] For purposes of illustration I have added in Appendix IV +references 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. + +[267] Section 332 of the U. S. Criminal Code punishes one who “aids, +abets, counsels, commands, induces or procures” a crime; but this +section has only been applied to men who have aided in a crime which +has actually been committed. It probably can not be used against +unsuccessful 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. + +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 sections of the Federal Criminal Code +suffices to prove this.[268] 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 execution 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.”[269] + +[268] U. S. Comp. Stat, 1918, §§ 10165–10172. + +[269] _Ibid._, § 10201. + +Section 6 of the Criminal Code was enacted during the Civil War and was +thought adequate to meet the real dangers of the Reconstruction Period +in the South. However, Attorney General Palmer, in asking Congress for +a new sedition law, alleges two defects in this section, which in his +opinion destroy its usefulness in dealing with the present radical +situation.[270] First, the section is limited to conspiracies 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:[271] + + 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. Nobody 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. + +[270] Investigation Activities of the Department of Justice, 6. + +[271] 21 _New Republic_ 314 (February 11, 1920). + +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. The case cited does not justify +any such conclusion.[272] (1) The defendants were not proved to have +any substantial 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 expressly found that the +manifesto does not advocate the overthrow 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 violence, 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.” + +[272] 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. + +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 conviction under this section for a conspiracy +to circulate pamphlets advocating resistance to the execution by +conscription of the war resolution of Congress.[273] On the other +hand, a statute applying to the Ariete manifesto would necessarily +make it criminal to express economic views and aims different from +those which now prevail. Whether such legislation 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. + +[273] Wells _v._ U. S., 257 Fed. 605 (C. C. A., 1919). See Chapter II, +note 81. + +One other feature of the existing federal law deserves attention. The +chief danger from anarchists arises through 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 +elaborate 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 regulations which +include a requirement for a government license 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 +license.[274] 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. + +[274] U. S. Comp. Stat., 1918, §§ 3115¼ a, ff.; Inspector Thomas J. +Tunney, in _Bolshevik Propaganda_, 28. + +With these suggested amendments to the federal statutes to protect +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 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 defamed, 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 constitutionality, 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 guaranties, 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 who hear +and see. Words of this type offer little opportunity 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 violence. 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 threatening 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 emblem. It is altogether different from sedition. + +The absurd and unjust holdings in some of these prosecutions for +the use of indecent or otherwise objectionable language 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 +absolutely nothing to the profiteers in vice, but put Stead in prison +for a year for writing about an indecent subject.[275] When the law +supplies no definite standard of criminality, a judge in deciding +what is indecent or profane may consciously disregard the sound test +of present injury, and proceeding 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 promulgation of pantheistic ideas, on the ground that +to attack religion is to loosen the bonds of society and endanger +the state.[276] 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 newspaper article tending to defame +George Washington is a serious restriction on historical writing.[277] +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 +absurdum_ 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 +shutting him up.[278] 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 provocation to violence.[279] 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. + +[275] 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. + +[276] Austin W. Scott, “The Legality of Atheism,” 31 _Harv. L. Rev._ +289 (1917). + +[277] People _v._ Haffer, 94 Wash. 136 (1916), under statute. Even such +a conservative as Dr. Johnson opposed liability for defamation of the +dead. + +[278] Clara E. Sears, _Bronson Alcott’s Fruitlands_, c. IV. + +[279] See the subsequent discussion of the right of assembly. + +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 attainment 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 language 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 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 sensitiveness 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,[280] 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 operation 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 a +difference of degree, but it is a difference which the normal criminal +law regards as all-important. + +[280] See p. 50, _supra_. + +There are always men who want the law to go much farther and nip +opinions in the bud before they become dangerous 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, fearing that the distresses of Henry VI would put +weak people too much in mind of James II, also exiled in France.[281] +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 III’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 Duc 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 constitutional institutions.” +It was only with the disappearance of these _procès 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.[282] + +[281] 3 Johnson’s _Lives of the Poets_ (ed. G. B. Hill), 292 note. + +[282] A. Esmein, _Éléments 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). + +Abolition of slavery could never be mentioned in the antebellum South +because it might cause a negro uprising. A similar sensitiveness +to possible bad results led to the prohibition of “Mrs. Warren’s +Profession” and “September Morn.” Since almost any opinion has some +dangerous tendencies, it is obvious that its suppression on that +account puts an end to thorough discussion. Writings which do not +actually 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 argument 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 Espionage Act on the ground +that propaganda is especially dangerous in a country governed by public +opinion.[283] 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. + +[283] Report of the Attorney General, 1918, 21. + +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 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 experiment 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 refrains from punishing words for their bad political tendency, +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 because there was no chance +for a row.[284] 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 +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.[285] + +[284] J. F. Rhodes, _History of the United States_, VIII, 41. + +[285] Arthur Woods, _Policeman and Public_, 73–78. Equally typical of +American methods is his account of the meeting in Bowling Green Park. + +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 tremendous demand for labor we shall throw +overboard the American 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 widespread +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 radicalism 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 endeavored 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 substantive + 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 because 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 government +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 conclusions. 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. Consequently, in +peace governmental interference should be delayed as in the New York +meeting of 1877 until the last possible 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 plays and books for the young. +Street meetings may interfere with the public traffic besides causing +a greater probability of violence than do books. Once more, it is a +question 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 directly +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 +tendency 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.[286] The simplest is the +red flag law, recently adopted by twenty-five states. The New York +statute[287] 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 furtherance 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 adoption of a green flag[288] by punishing the use of any +emblem of any hue if it is “distinctive of bolshevism, anarchism, +or radical socialism”;[289] 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 constitution or its mandates”;[290] 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 sympathy or support +of ideals, institutions, or forms of government, hostile, inimical, +or antagonistic to the form or spirit of the constitution, laws, +ideals, and institutions of this state or of the United States.”[291] +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-examination 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. + +[286] All the state legislation mentioned in this chapter is listed in +Appendix V. + +[287] N. Y., Laws, 1919, c. 409. + +[288] Testimony of Inspector Tunney and Raymond Robins, in _Bolshevik +Propaganda_, 11, 838. + +[289] Kans., Laws, 1919, c. 184. + +[290] Wash., Laws, 1919, c. 181. + +[291] W. Va., Laws, 1919, c. 24. + +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:[292] + + 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. + + 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. + +[292] _Bolshevik Propaganda_, 10, 11. + +The Roxbury Riot of last May[293] is a practical demonstration 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 different hall. +If this was a parade, it was illegal, for they had no permit, but +no red flag law was in force. The account 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 Russian was attacked. It was useless +for them to offer excuses for none were listened to.... As soon as it +became generally 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.” + +[293] _Boston Herald_, May 2, 1919; trials in _ibid._, May 6, 8, 14; +letter of adverse comment, _ibid._, May 16. Convictions upheld, Comm. +_v._ Frishman, 126 N. E. (Mass.) 838 (1920). + +Either just before the attack on the marchers began or soon afterwards, +it is hard to tell which from the tumultuous 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 +radicals, 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 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.[294] 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 processions, 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 collegians to +march from the stadium to the yard after a football victory with a red +flag at their head? These are questions of fact for the jury. However, +even if this gathering of Roxbury radicals had not been held illegal +by the Massachusetts 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. + +[294] See Dicey, _Law of the Constitution_, c. VII, “The Right of +Public Meeting,” also my 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). + +(1) Since any gathering of radicals is likely to be attacked, the +easiest way to preserve the peace is to forbid and break up such +gatherings. Therefore, it may be contended 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. Apart from the question +of permits, and special regulation by ordinances and statutes, the +police cannot treat a meeting as unlawful simply because it may +probably or naturally 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 because a small +gang of hoodlums threatened to invade the hall. The proper remedy for +these emergencies is police protection, 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 carried 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 Roxbury marchers +were not violating the law because of the red 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 unpopular meetings are not illegal +meetings. Where a meeting 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 condemned 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 policemen, +and remaining in the parade after the order to disperse. 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 limiting 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 prisoners, 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 revolution, 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,[295] and others, the brotherhood of workingmen +throughout the world.[296] 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 suggestion 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 law prohibiting +a red or black flag. This was declared constitutional,[297] 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. + +[295] Besides quotation above, see Rugg, C. J., in Comm. _v._ Karvonen, +219 Mass. 30 (1914). + +[296] 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.” + +[297] Comm. _v._ Karvonen, _supra_. + +The man who insists on waving the red flag on all occasions has just +as little common sense. Those who want to remake society on a basis +of fellowship and mutual agreement 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 thoroughly 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.[298] Criminal anarchy is +there defined as “the doctrine that organized government should be +overthrown by force or violence, 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 teaching 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,[299] but there have been several prosecutions in the last few +months. Especially significant is the sentence of Benjamin Gitlow, a +former Socialist member 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.[300] 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 legislation are +proved by the conviction of one Fox for encouraging 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.”[301] +The first danger to be avoided in legislation against anarchy is the +imposition of heavy penalties for slight offenses. Such penalties +create that very hatred of our system of laws which it is our object to +avoid. + +[298] N. Y. Penal Law, 1918, §§ 160–166. + +[299] 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). + +[300] _Boston Transcript_, February 17, 1920. House Judiciary Hearings, +155. + +[301] Wash. Laws, 1909, c. 249, § 312; State _v._ Fox, 71 Wash. 185 +(1912); Fox _v._ Washington, 236 U. S. 273 (1915). + +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.[302] The recent Massachusetts anti-anarchy +act of 1919 is very similar; it specifically penalizes the advocacy +of killing, destruction of property, or violent revolution.[303] +This Massachusetts act was reduced to its present form by repeated +protests from liberals. Instead of legislating against anarchy and +other radical doctrines as opinions, the Massachusetts and New Jersey +statutes prohibit incitement to definite serious criminal 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,”[304] 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 of this type necessary ought to turn to these two statutes +as model anti-anarchy acts. + +[302] 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. + +[303] Mass. Laws, 1919, c. 191. + +[304] Brief for N. Y. Socialist Assemblymen, p. 41 (see Chapter VI). + +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 punishable 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.”[305] 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 resistance to any duly +constituted state authority.”[306] West Virginia 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.”[307] + +[305] Ariz. Laws, 1918, sp., c. 13. + +[306] Mont. Laws, 1919, c. 77. + +[307] See note 291. + +These are but brief extracts from the legislation which has been +enacted or invoked in almost every state during the last few +years.[308] In addition, Mayor Hylan of New York wanted an ordinance +to punish owners of buildings permitting an assemblage advocating +“policies tending to incite the 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 +immorality 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.” + +[308] For harsh applications of these statutes, see Clare Shipman, +“The Conviction of Anita Whitney,” 110 _Nation_ 365 (March 20, +1920), California; “The Most Brainiest Man,” _ibid._ 510 (April 17), +Connecticut. + +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 without 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. Furthermore, 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.[309] Since state +governors under the Constitution cannot be compelled to permit +extradition,[310] it is to be hoped that in future they will follow the +wise policy of the national government. + +[309] See the state papers in 4 _Moore’s Digest of International +Law_ 332 ff. The possible exception of anarchists who actually +cause explosions (_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 clearly be political crimes +and unextraditable. + +[310] Kentucky _v._ Dennison, 24 How. (U. S.) 66 (1860). + +The state anarchy acts are constitutional under the test laid down +by the United States Supreme Court in the Schenck case, insofar as +they are employed to meet a “clear and present danger” of unlawful +conduct. It is probable that the open advocacy of sabotage and the +doctrines of revolutionary syndicalism, against which most of these +statutes are directed, does present a sufficient danger to bring +such speech within the range of legislative discretion, and a few +decisions have already so held.[311] On the other hand, the clauses +of these statutes which make it criminal _ipso facto_ to belong to +organizations like the Industrial Workers of the World, although the +accused has never expressed any agreement with the violent portions of +its economic theory, raise serious difficulties. This is not punishing +a man for what he does, or even for what he says, but for what some +one else says, which he may possibly not approve. There are so many +reasons why a workman is led to join the labor union to which his +fellows belong, that the law should hesitate to attribute to him an +active support of every plank in its platform. Apart from questions of +constitutionality, it is dubious policy to make membership in a labor +union a crime no matter how much we may disagree as I do with its aims +and methods. That was the policy of the English Combination Acts of +the early nineteenth century. The attempt to break up trade unions by +imprisonment was defended because of the violence which had accompanied +some of their activities, but the imposition of severe penalties on +men who had taken no part in that violence simply strengthened the +unions and increased their bitterness. My own hope is that eventually +the state may provide an impartial tribunal for the settlement of +industrial disputes,[312] just as it formerly brought blood-feuds and +quarrels over boundaries into the King’s courts. Until that time comes, +although my own sympathies and direct interests are on the side of the +employers, I believe it to be a grave error for the state to intervene +against the workingmen until immediate violence is threatened. The +parties should be left to contend by economic methods. I know that many +who would believe in such a policy as regards the American Federation +of Labor will not approve its extension to the revolutionary unions. +Nevertheless, those who investigated the I.W.W. on behalf of the +government during the war found that the causes for its existence were +deep-rooted economic factors,[313] and not any widespread desire for +political changes or violence for its own sake. Until those factors +are dealt with directly, the use of the tremendous power of the state +on behalf of the employers and the conservative unions, while it may +produce a superficial weakening of revolutionary unionism, is sure to +intensify its hostility to the state and the belief that government is +only the organ of capital. For instance, the men who have been enjoined +by a judge at Spokane “from continuing as members of the I.W.W.”[314] +will not thereby be turned into enthusiastic supporters of the +country’s laws or alter their economic views. Indeed, careful observers +already report a rapid shift of members of the I.W.W. into the A. F. of +L., where they are safe from prosecution, and can do infinitely more +damage than when they were in the open.[315] + +[311] State _v._ Boyd, 86 N. J. L. 75; State _v._ Moilen, 140 Minn. +112. But see 20 _Colum. L. Rev._ 232 (February, 1920); _Ex parte_ +Meckel, 220 S. W. 81 (Tex. 1920); dissent in State _v._ Tachin, 108 +Atl. 318 (N. J. 1919). + +[312] Henry B. Higgins, “A New Province for Law and Order,” 29 _Harv. +L. Rev._ 13, 32, _ibid._ 189, summarizes the Australian experience. + +[313] The Bibliography lists material on the I.W.W. + +[314] 109 _Nation_ 843 (January 3, 1920). + +[315] John Graham Brooks, _Labor’s Challenge to the Social Order_, c. +XX; Roger Baldwin, conversations; from a different angle, Ole Hanson, +_Americanism versus Bolshevism_, c. XII. + +When the anarchy acts go still farther and punish discussions of the +general strike, or condemn words and symbols, which are inoffensive in +themselves, for their bad social, economic, or political tendencies, +they clearly infringe the danger-test and ought to be declared void. +But I do not think we ought to let the discussion of the state and +federal sedition laws turn on the controversy whether they are +unconstitutional. The free speech clauses, as I said at the outset of +this book, are a declaration of American policy as well as an extreme +limit upon legislative power. The most difficult questions are raised +by the application of the anarchy acts to the advocacy of “force +and violence,” when no immediate violence is liable to take place. +Although I do not feel sure that such speech can constitutionally be +punished when there is no danger of immediate violence, still both +Justice Holmes and Judge Learned Hand would agree that the nature of +the words used is an essential factor, apart from the surrounding +circumstances, in deciding whether the danger does exist, and the +common law cases on solicitation support this view. But even if the +statute is constitutional, the most important questions still remain, +whether it is expedient and in accord with American traditions, and how +it shall be construed. On these points what I have already said of the +syndicalism statutes has bearing, but it is upon this ground of sound +policy that every thoughtful American ought to consider the proposed +federal Sedition Law. + + + VI. _The Federal Sedition Bills_ + +Nothing less than a very great national danger should lead us to +abandon the American policy of courage and tolerance and re-enact the +first Sedition Act in time of peace since the disaster of 1798. The +burden of proof rests fairly on those who advocate such a doubtful +step. It has already been shown that it is not called for by any +immediate danger of revolution, since the Criminal Code will deal with +that, and indeed what has been said of the enormously exaggerated +accounts of pro-German plots during the war ought to show that “the Red +menace” is probably a similar panic.[316] It is of course impossible +for a private citizen to assert that no danger exists to justify the +officials in their statement that this legislation is necessary, but +he may properly assume that the documents in which they set forth that +statement embody the principal facts on which it is based. If they +have not yet supplied the vital facts, they ought to do so, and not +ask this country to reverse its policy of six-score years at a mere +trumpet-blast of danger. + +[316] See page 70, _supra_, and the speech of George W. Anderson at the +Harvard Liberal Club, reported in “The Red Hysteria,” 21 _New Republic_ +250 (January 28, 1920); and _Boston Herald_, January 13, 1920. + +The main documents in the case are furnished by the most distinguished +supporter of sedition legislation, Mr. A. Mitchell Palmer. In an +official Report,[317] he has asked Congress not only to enact an +unprecedented statute, but for fear this may not be enough he has also +suggested that Congress recommend the passage of similar legislation +by all the states. The seditious writer will then be run to earth by +the five hundred agents of the Department of Justice, with the aid +of twelve thousand policemen and fifty prosecuting attorneys in New +York City, and a multitude of others throughout the land. Thus, we can +meet “the present intolerable situation.” Why is it intolerable? The +Attorney General says that he needs the legislation because of four +facts: (1) the presence of “60,000 radically inclined individuals” +whose histories have been compiled by his agents; (2) the circulation +of 471 “radical newspapers” besides other publications, all of which +are “one of the most potent and far-reaching influences in stirring +up discontent, race prejudice, and class hatred in this country” and +“more than any other one thing, perhaps, are responsible for the spread +of the Bolshevik, revolutionary, and extreme radical doctrines”; (3) +the fact that the Trading with the Enemy Act, which requires that the +local postmaster shall receive a translation of every publication in +a foreign language criticising the policies of any government before +distribution of any sort expires with the war, and the lapse of this +censorship will create a difficult problem in dealing with “radical +propaganda of a more violent character”; (4) “practically all of the +radical organizations have endeavored to enlist negroes on their side.” + +[317] Investigation Activities of the Dept. of Justice, Sen. Doc. No. +53 (66th Cong., 1st Sess.), Wash., 1919. See also his evidence in House +Judiciary Hearings and Palmer Deportations Testimony. + +If the Attorney General had limited himself to a statute punishing +successful and unsuccessful attacks upon federal officials and +property, he would have performed a real service in filling gaps in +the federal law against violence. Legislation against his hypothetical +man who approaches the Chief Justice with a bomb in his hand would not +affect freedom of speech. But it should be clearly understood that Mr. +Palmer asked much more than this when he sought to legislate out of +existence the four kinds of propaganda just mentioned on the ground +that these theories and doctrines might conceivably lead to future +assaults and revolutions. + +In a circular letter sent to the editors of leading magazines,[318] Mr. +Palmer shows even more plainly that he is seeking to use the power of +the government, not against actual or threatened violence, but against +bad ideas. After submitting copies of various publications of the +Soviet Government, he states that these documents alone demonstrate: +(1) “that the present aim of the Russian Government and its officers is +to foment and incite discontent, aiming towards a revolution in this +country; (2) that the entire movement is a dishonest and criminal one, +in other words, an organized campaign to acquire the wealth and power +of all countries for the few agitators and their criminal associates.” +Among other qualities of Bolshevism: “It advocates the destruction of +all ownership in property, the destruction of all religion and belief +in God.... The sabotizing of public thought is an essential of this +movement.” + +[318] Reprinted in 110 _Nation_ 190 (February 14, 1920). See also +Palmer Deportations Testimony, for emphasis on the atheism of prominent +radicals as an argument for their deportation. + + The Department, as far as existing laws allow, intends to keep up + an unflinching war against this movement no matter how cloaked + or dissembled. We are determined that this movement will not be + permitted to go far enough in this country to disturb our peace + or create any widespread distrust of the people’s government. + + There is a menace in this country. It may not be the menace of + revolution.... My one desire is to acquaint people like you with + the real menace of evil-thinking which is the foundation of the + Red movement. + +That a Quaker should employ prison and exile to counteract +evil-thinking is one of the saddest ironies of our time, and +particularly that he should justify this by the religious heresy of his +opponents. After all that Milton and Bagehot and Mill have said of the +unwisdom of influencing the mind by temporal punishments and burdens, +after Justice Holmes’s warning against attempts to check by force +“the expression of opinions that we loathe and believe to be fraught +with death,” even those who disagree with Bolshevism, anarchism, and +revolutionary syndicalism as strongly as I do myself will need no +further argument to realize that as theories they must be defeated in +some other way. To conduct arguments by violence, even if that violence +is employed by government officials under the guise of law, is contrary +to sound political policy and to the constitutional guaranties of +freedom of speech. + +Besides the draft Sedition Act recommended by the Attorney General, +which goes so far as to punish writings which “tend to indicate +sedition,” Congress has under consideration about seventy similar +bills, of which three have attracted public notice.[319] These are +the Overman Bill, a peace-time replica of the sedition section of the +Espionage Act of 1918, reported in 1919 by the Senate sub-committee +to investigate Bolshevism, as the fruit of its labors; the Sterling +Bill, the best drawn of the four, passed by the Senate in January, +1920; and the Graham Bill, a very drastic measure with a death penalty +and a sweeping postal censorship, which the House Judiciary Committee +substituted for the Sterling Bill and recommended for immediate +enactment. Its reasons were the attack on Mr. Palmer’s house, the +shooting of soldiers at Centralia, “numerous other instances of outrage +aimed at the existence of our institutions,” and the vigor and extent +of anarchistic teachings as revealed by recent investigations. The +Committee does not show why the existing law is not adequate to deal +with all these facts except the presence of pernicious and dangerous +ideas. Attorney General Palmer refused to support the Graham Bill, and +the House Rules Committee decided after several hearings that it was +too unsatisfactory to be given any priority in the order of business. +Some of these bills impose a maximum sentence of twenty years for +unlawful discussion, and in addition aliens are to be deported and +naturalized citizens are to be denaturalized and turned loose on the +world as men without a country. Indeed, Senator McKellar of Tennessee +wanted to go one step farther and deport native-born Americans to a +penal colony in Guam, so that we also might have our Devil’s Island or +Siberia.[320] + +[319] S. 1686; S. 3317; H. R. 11430; Investigation Activities of the +Dept. of Justice, 14; see also Report No. 542, H. R. (66th Cong., 2d +Sess.). Congress adjourned, June, 1920, without any enactment. + +[320] Amendment offered to S. 3317, December 4, 1919. + +Energetic opposition to all four bills by the American Federation +of Labor and many kinds of other organizations and by the most +conservative newspapers and periodicals, makes it improbable that any +of them will become law. At all events the kaleidoscopic state of +sedition legislation in Congress induces me to avoid going into the +details of any pending bill. Instead, I am going to assume for purposes +of discussion that Congress may eventually have before it a very +simple measure, from which all the obviously objectionable features of +the four bills mentioned will be eliminated. This hypothetical bill +is limited by its terms to the advocacy of assassination of federal +officials, and the use of “force or violence” for the overthrow of our +government or all governments, or the attainment of changes in our +Constitution and laws. It punishes the individual who urges such “force +or violence” orally or in writing, and also any one who imports from +abroad or transports from state to state any book or other printed +matter which advocates such “force or violence.” + +It is improbable that power will be given to the Postmaster General +to exclude such material from the mails, for the strongest hostility +to the pending bills was directed to such a power. Even if it be said +that the Blackstonian test does not forbid the government to control +the use of its own machinery, the post-office, it is clear to every +newspaper that its exclusion from the mails is equivalent to an +absolute censorship. If Mr. Burleson or his successor can exercise the +same power in peace that he had during the war to suppress political +discussion which he deems objectionable, he has at hand a much more +powerful weapon than the Sedition Act of 1798. A newspaper editor +fears being put out of business by the administrative denial of the +second-class mailing privilege much more than the prospect of prison +subject to a jury trial. Even if the periodical is given the right +of judicial review, this is of little practical value because of the +ruin of circulation during the delay before a court hearing. The same +considerations apply to a censorship of the foreign language press, +although this presents special problems and dangers. Consequently, the +bill before us for discussion imposes no previous restraint, but makes +the advocacy of “force or violence” a crime, punishable by a long term +in prison and a heavy fine. + +Two questions are raised. (A) How far is such a measure constitutional? +(B) How far is it wise and expedient? + + + VII. _The Constitutionality of a Federal Sedition Law_ + +The constitutional problem involves three points, affirmative power to +punish, the treason clause, and the free speech clause.[321] + +[321] For a full discussion with citation of cases, see H. W. Biklé, +“The Jurisdiction of the United States over Seditious Libel,” 41 _Am. +L. Reg._ (N. S.) 1 (1902). His conclusions as to the First Amendment +differ very much from mine. + +1. What clause in the Constitution gives the United States power to +punish seditious utterances? The states face no such difficulty, for +they possess all power that is not expressly denied to them by their +constitutions, and can reach objectionable writings under their general +police power and criminal jurisdiction. The United States Government, +on the other hand, has only the powers which are expressly granted to +it by its organic document. Most of the discussion in 1787–88 over the +need of a free speech clause in the federal Constitution and most of +the controversy over the constitutionality of the Sedition Act of 1798 +turned on this point. Much has happened since, however, to indicate +that the United States has this power to punish verbal opposition +unless prohibited by some negative clause in the Constitution. The +epoch-making decisions of Marshall show that the government does not +have to rely on any one specific grant of power. The Constitution +as a whole creates a nation with officers and functions and in +Article I, Section 8, gives to Congress the right “to make all laws +which shall be necessary and proper for carrying into execution the +foregoing powers, and all other powers vested by this Constitution in +the government of the United States, or in any department or officer +thereof.” Consequently, no express provision is required to enable +the government to operate one or more national banks, or exclude +aliens from its shores. Its courts can punish contempts committed +against them. The United States Supreme Court has already decided in +the Neagle case that the Federal Government has power to protect the +lives of its judges engaged in the discharge of judicial duties and in +other decisions that it can safeguard even prisoners in its custody. +The same principle applies to the President or any other official +and it seems immaterial whether they are at the moment occupied with +business. Their work may be hindered by threats and other utterances +as well as by acts. Similarly words which interfere with express +functions of the government like the war power fall within its criminal +jurisdiction. The conviction of Emma Goldman for issuing pamphlets +urging disobedience to the draft, and all the Espionage Act cases +prove this beyond question. It is of course true that revolutionary +speeches do not affect any specific function of the government, but +they do affect its existence, the most important result of the +Constitution. Therefore, on this point I conclude that the United +States has affirmative power to protect its own life and the lives of +its officers, not only from revolution and assassination, but also from +attempts and solicitation directed toward these ends, and even from +discussion which might have a remote tendency to produce such evils, +unless that power is restricted by either the treason clause or the +First Amendment. + +2. Section 3 of Article III, which relates to the judicial power of +the United States, provides: “Treason against the United States shall +consist only in levying war against them, or in adhering to their +enemies, giving them aid and comfort. No person shall be convicted of +treason unless on the testimony of two witnesses to the same overt +act, or on confession in open court. The Congress shall have power to +declare the punishment of treason, but no attainder of treason shall +work corruption of blood, or forfeiture except during the life of the +person attainted.” + +We shall in discussing the Berger case return to the question of what +is treason in war when there are “enemies,” but in peace, treason is +narrowly limited in this country to “levying war,” and Chief Justice +Marshall decided in the case of Aaron Burr that that crime requires an +actual assemblage of forces. Consequently, the conduct we have in mind +is not punishable as treason under our Constitution. Does this prevent +it from being punishable otherwise? Under the English treason statute +of 25 Edw. III, c. 2, very many kinds of action which interfered with +the state were defined as treason. The courts construed these clauses +very widely to reach as “constructive treasons,” conduct very remote +from the defined crimes.[322] This practice became so notorious that +the framers of the Constitution wisely prevented it by rejecting +most of the English categories and narrowly restricting the evidence +on which conviction can be secured. Can Congress accomplish these +undesired results by calling the same conduct, not treason but sedition +or something else? + +[322] 2 Stephen, _History of the Criminal Law_, c. 23 on High Treason. + +For example, under the English statute it was treason to “compass +or imagine the death of our lord the king.” This was interpreted +to include threats against him. By analogy, it would be treason +to threaten the life of the President, if our Constitution had +not definitely provided otherwise. Congress in 1917 created the +crime of threats against the President.[323] Is such a statute an +unconstitutional evasion of the treason clause? + +[323] U. S. _Comp. Stat._, § 10200 a, Act of February 14, 1917, c. 64. +See 32 _Harv. L. Rev._ 724. + +Again, if the _Biglow Papers_ were not “aid and comfort to the enemy”—a +problem to which I shall return in the sixth chapter—could Congress +treat them as severely as if they were treasonable by creating the +crime of seditious libel with a punishment of death? A similar question +was put to the counsel for the United States in the Abrams case by +Justice Brandeis, who got the reply, “Of course, we wouldn’t go that +far.” But if Congress and the Department of Justice have power to go +that far, the value of the treason clause is considerably weakened. All +the acts which were constructive treasons under the English law could +be made criminal without even the security of two witnesses or the +provisions against corruption of the blood and forfeiture. + +On the other hand, it is argued that the treason clause is not placed +among the restrictions on Congress. It simply prevents the courts +from construing the word “treason” in a statute to extend beyond +the constitutional definition, even if the statute gives it a wider +definition. Congress is not prohibited from punishing on other grounds +and under other names crimes which were treason in England, if these +are within the federal criminal jurisdiction. The same act might be +both treason and something else. Thus killing the king was treason +and murder. Congress can punish the murder of the President but not +the treason. Or rather, it can punish it not as murder, but as an +interference with an express function of the government. It is settled +that the United States can prevent assaults on federal judges though +that is analogous to treason in England. Counterfeiting money was +treason there and is expressly punishable under the Constitution. + +This argument seems to me more satisfactory when applied to active +interferences with specific functions of the government, than when +extended to utterances which have a tendency to weaken the sovereignty +of the state as a whole. Are they treason in England plus something +else? Was it not this tendency to weaken which made them constructive +treason, and when they cannot be criminal on that account, does not all +ground of jurisdiction fail? + +This is a problem somewhat foreign to my province, so that I prefer not +to state a definite conclusion, which can only be reached after more +judicial interpretation of the treason clause. + +3. The First Amendment seems clearly to be violated by many clauses in +pending federal sedition bills, which punish words merely for their +assumed tendency to produce bad consequences in the remote future, for +instance, that section of the Graham Bill which excludes from the mails +under heavy penalty “printed matter ... whereby the use of force ... is +... defended ... as a means towards the accomplishment of industrial, +economic, social, or political change, or whereby an appeal is made to +racial prejudice the intended or probable result of which appeal is to +cause rioting or the resort to force and violence within the United +States....” The first clause would affect every history of the American +Revolution, Macaulay’s _History of England_, and W. R. Thayer’s _Life +of Cavour_. The second would suppress all but the most carefully +guarded presentations of the wrongs of the negro.[324] This attempt to +enlist popular support for attacks on radicalism by uniting fear of +the blacks to fear of the reds has become a favorite device of late. +Attorney General Palmer hints that negroes must not be allowed to join +radical organizations. The Lusk Committee seizes an unanswered letter +to the Rand School suggesting the spread of socialism among the negroes +(without a word about violence) and presents it as a menacing scheme +adopted _by_ the School “for the spreading of Bolshevist propaganda +among negroes in the South,” so that the _New York Times_ runs +front-page headlines: “Moves to Close the Rand School—District Attorney +Takes Steps Toward Revoking Radical Institution’s Charter—Planned Negro +Uprising.”[325] + +[324] Ho. Cal. No. 129, § 6. For restrictions of race-irritation in +moving-picture films, see W. Va. Laws, 1919, c. 117. + +[325] _New York Times_, June 28, 1919; see also July 9. + +The Sedition Act of 1798 was also a violation of the First Amendment, +especially as it included criticism of the President and Congress, +which was very remotely injurious to the United States.[326] + +[326] See page 29, _supra_. Biklé admits it was probably invalid for +the reason stated above. + +If, however, we consider a federal bill such as I have suggested, +which, like the Massachusetts and New Jersey Anti-Anarchy Acts, +eliminates all clauses obviously punishing bad tendency and penalizes +only the advocacy of force and violence, much more difficult questions +of constitutionality arise. It may be helpful to examine various +kinds of utterances successively. If one directly incites another to +murder an official and the murder takes place, the speaker is, of +course, punishable. The same holds good, even if the incitement proves +unsuccessful. If the speaker does not solicit any particular person, +but eloquently appeals to a large audience for some new Charlotte +Corday, or if naming no specific victim he urges the assassination of +an indefinite number of men from some hated group, the case is not +altered. Even if he alleges the loftiest motives, the social interest +in truth and progress is far outweighed by the interest in order, and +there is a direct interference with the safety of life. When he does +not ask for any future killing, but merely glorifies such an event +in the past, the danger lessens and the power to punish becomes more +uncertain.[327] The time elapsed is perhaps an element. A distinction +might be drawn between praise of the assassin of McKinley, and “Cæsar +had his Brutus, Charles I. his Cromwell.” Yet even Patrick Henry’s +speech might be held advocacy of force and within the hypothetical +Sedition Law. A further step is the discussion of tyrannicide as an +abstract proposition of morality. Mill was willing to allow the fullest +liberty even for this,[328] but it is probable that assassination is +so easily carried out that there is always a sufficiently clear and +present danger of its occurrence to bring such discussions within the +range of legislative discretion. + +[327] For opposing views on the question whether praise of a criminal +can be considered incitement to crime, see Masses Pub. Co. _v._ Patten, +244 Fed. 535; 245 Fed. 102. + +[328] Mill, _Liberty_, note at opening of c. II. + +Advocacy of revolution is much less dangerous except in extraordinary +times of great tension. The chances of success are so infinitesimal +that the probability of any serious attempt following the utterances +seems too slight to make them punishable by the Federal Government. +This is especially true if the speaker urges revolution at some future +day, so that no immediate check is required to save the country. Even +if several men talk like this with very bad intentions, they should +not be held guilty of conspiracy under section 6 of the United States +Criminal Code unless the danger-test is satisfied. There is no “clear +and present danger” in a revolution announced for 1948. + +The Federal Government has nothing to do with the question whether +such discussion is a public nuisance or a breach of the peace under +state law. Johann Most was convicted on both sides of the Atlantic +for advocacy of assassination,[329] but those decisions are based on +present injury to the peace and not on danger to the rulers. When, +however, the audience joins in the speaker’s inflammatory utterances +the assembly becomes unlawful, and may possibly constitute a conspiracy +under the federal Criminal Code. Thus, Most at a New York meeting +on the morrow of the Spies executions doomed to an early death the +prosecuting attorney; the trial judge; the Supreme Court of Illinois; +“the highest murderers in the land, the Supreme Court of the United +States”; and the Governor of Illinois. His hearers exhibited warm +approval, and when he said, “The day of revolution is not far distant,” +one of the audience rose and said excitedly: “Why not to-night, for +we are ready and prepared?” The address by itself appears to have +been deemed insufficient to support a criminal prosecution, but he +was convicted of participating in an unlawful assembly.[330] Possibly +there was also a conspiracy within the United States Criminal Code, but +the absence of any real danger to the Federal Government makes this +improbable. + +[329] Reg. _v._ Most, 7 Q. B. D. 244 (1881); P. _v._ Most, 171 N. Y. +423 (1902). + +[330] P. _v._ Most, 128 N. Y. 108 (1891); see Freund on the Police +Power, § 477. + +This case shows how much the danger of utterances is affected by +surrounding circumstances as well as by the words used. A soap-box +orator on a street-corner shouting to casual passers-by is far less +perilous than if he delivers the same address in a hall overcrowded +with sympathetic listeners. A pamphlet is less dangerous than any +speech, a book than a pamphlet. A threat of revolution over the family +tea-table is innocuous. Every one will admit that these considerations +affect the wise drafting and enforcement of sedition legislation, and +some at least hold that they may decrease the danger from objectionable +utterances until they sink below the minimum limit of Congressional +power. Thus, Freund says:[331] + + The doctrine that crime may under given conditions become + justifiable or that it may have a tendency to arouse the public + conscience should not in itself be held to constitute a crime. It + is clear that an exposition of social wrong or injustice must be + allowed, nor can the necessary liberty of agitation be said to be + overstepped by appeals to sentiment rather than to reason; and + if it is said that appeal to sentiment is appeal to passion and + must lead to disorder and violence, it must be answered that this + was always the plea upon which political agitation was formerly + suppressed. Not even the fact that an adherent of the doctrine + commits a crime is conclusive that the teaching of the doctrine + amounts to incitement; for the crime may as well have been + induced by a morbid brooding over conditions which are the cause + of social discontent.... The constitutional guaranty of freedom + of speech and press and assembly demands the right to oppose all + government and to argue that the overthrow of government cannot + be accomplished otherwise than by force.... It is probably true + to say ... that it is impossible to strike at anarchism as a + doctrine without jeopardizing valuable constitutional rights. + +[331] _Op. cit._, §§ 476, 478. + +Nevertheless, the Abrams and Schaefer decisions in the Supreme Court +should deter any one from predicting unconstitutionality under the +First Amendment for the Threats against the President Act, or the +Sterling Bill, or the hypothetical statute I have been considering, +which is carefully limited to “force and violence.” The “nature of +the words used” may be held to create sufficient danger to support +the restriction on freedom of speech. Moreover, the real issues of +constitutional law, as in Masses _v._ Patten and the Abrams trial, are +likely to arise from a loose construction of the statute, even if its +wording is valid. Therefore, I consider it a much more fertile subject +of discussion to turn to the wisdom and policy of a federal sedition +law against the advocacy of “force and violence.” + + + VIII. _The Wisdom and Expediency of a Federal Sedition Law_ + + No one knows what blasphemy is or what sedition is, but all know + that they are vague words which can be fitted to any meaning that + shall please the ruling powers.—WALTER BAGEHOT. + +“No man,” says Attorney General Palmer, “can go further than I will +go in his earnestness to protect the people in the guaranty of free +speech.” Nevertheless, he insists that there must be a dead-line, and +this he finds it easy to draw at the place where there is a threat +or promise or necessary implication of the use of physical force or +violence.[332] So long as Congress does no more than punish this sort +of language, how can any one reasonably object? The public seems at +first sight to get no benefit from such talk, and clearly the speaker +has no claim to encouragement. Men may well inquire how the interest of +society in the attainment of truth and progress is served by threats to +kill officials, blow up buildings, and bring in the dictatorship of the +proletariat with a holocaust of vengeance. Consequently, the question +whether a law against the advocacy of force and violence is wise may be +thought to admit only of an affirmative answer. + +[332] Testimony before House Judiciary Committee, _New York Times_, +February 5, 1920. House Judiciary Hearings, 21. + +I believe, however, that the problem is far less simple than it seems. +Although the opponent of the proposed legislation apparently occupies +a very bad position, that of standing up for force and violence, yet +it may be possible to show that such legislation is dangerous, far +more dangerous than the agitation it expects to suppress. If a federal +law against violent talk and writings which create no immediate danger +of injurious action is not only constitutional but highly desirable +and necessary, why is it that we have had only one such law in the +past, and that one a stupendous failure? Even the state laws against +inflammatory utterances as breaches of the peace have been used very +sparingly against soap-box orators and revolutionary literature. We +have refused to make arrests unless there was a real danger that the +lawlessness which was advocated would immediately take place. Surely, +there is nothing to be ashamed of in urging a continuance of this +traditional American policy. + +Most of us believe that our Constitution makes it possible to change +all bad laws through political action. We ought to disagree vehemently +with those who urge violent methods, and whenever necessary take +energetic steps to prevent them from putting such methods into +execution. This is a very different matter from holding that all +discussion of the desirability of resorting to violence for political +purposes should be ruthlessly stamped out. There is not one among us +who would not join a revolution if the reason for it be made strong +enough. Californians would take up arms against an amendment passed by +Congress and the other state legislatures for the cession of California +to an Oriental power. And talk about violence is far more common. +Tobacco will not follow alcohol into oblivion without some murmurs of a +fight from the most peaceable citizens. + +The United States is the last place on earth where mere talk about +resistance and revolution ought to be treated as inherently vicious and +intolerable. The founders of the colonies broke the religious laws of +England before they came here and some of them engaged in a large-sized +rebellion. The founders of the United States urged the destruction +of property by the destruction of tea and the burning of stamped +paper. They went further. They advocated the overthrow of this or any +other government by force and violence when they adopted a well-known +document which reads, “That whenever any form of government becomes +destructive of these ends, it is the right of the people to alter and +abolish it.” + +If a federal statute against the advocacy of force and violence had +been enacted in the Abolition period, several distinguished citizens +of Massachusetts would have been criminals. Wendell Phillips advocated +opposition to the Fugitive Slave Law, and his statue is in the Public +Gardens of Boston. William Lloyd Garrison did so, and his statue is on +Commonwealth Avenue. The Overseers of Harvard College dismissed a law +teacher, Edward G. Loring, because he carried out his oath of office +as United States Commissioner by enforcing that law, and for the same +reason both houses of the Massachusetts legislature requested the +Governor to remove him from a probate judgeship, and he was removed. +Theodore Parker, George L. Stearns, Thomas Wentworth Higginson, and +Frank B. Sanborn contributed funds to send John Brown to Harper’s +Ferry to use force and violence. + +These men believed that some bad laws are so powerfully supported +that the only way to obtain their repeal is to violate them. They +believed that no decent man could sit silent and inactive while the +Fugitive Slave Law was enforced. Perhaps they were all of them wrong. +Some of them were clearly liable as accessories to criminal acts. I +insist that such acts must be punished, however noble the motive. But +we cannot honor and praise these men for their courageous onslaughts +on established evils, and at the same time pronounce it a heinous +crime for any one to-day to urge the removal of wrongs by force. +Above all, we cannot draw a distinction between those days and ours +on the ground that the government was bad then and is now good. I +believe that to be true, but time alone will prove which is right, the +left-wing Socialist or I. We must not forget how Braxfield justified +his ferocious sentences by saying that the British Constitution of 1794 +was the best in the world. The law and order men of 1774 and 1854 did +not consider their governments and laws bad. They would have been glad +to incarcerate Otis and Adams, Garrison and Sumner, if they had had Mr. +Palmer’s bill in force. Yet the advocates of repression in those days +were not a race of tyrants. They were respectable citizens just like +ourselves. They were merely mistaken. Can we be any more sure of our +infallibility than of theirs? And how do we know that we are infallible +until we hear the men on the other side, however excitable and given to +threats? + +This is not indifferentism. We must take our stand for private property +if we believe in it, put our backs to the wall, and fight for it with +all our strength. Nevertheless, there are many ways of fighting. The +American policy is to meet force by force, and talk by talk. + +Furthermore, as soon as the danger-test is abandoned, bad tendency +inevitably becomes the standard of criminality. Any attempt to +distinguish between liberty and license will break down in +administration for sheer vagueness, and sooner or later officials will +swing toward the view of Lord Holt in 1704:[333] + + If men should not be called to account for possessing the people + with an ill opinion of the government, no government can subsist; + for it is very necessary for every government, that the people + should have a good opinion of it. And nothing can be worse to any + government, than to endeavor to produce animosities as to the + management of it. This has always been looked upon as a crime, + and no government can be safe unless it be punished. + +[333] Tuchin’s Case, Holt 424 (1704). + +England in the eighteenth century and Russia in the nineteenth[334] +applied this test of bad tendency. The United States has hitherto +preferred to follow the principle of Madison:[335] + + Some degree of abuse is inseparable from the proper use of + everything; and in no instance is this more true, than in that of + the press. + +[334] See the summary of Russian law in Freund, _op. cit._, § 471 note. + +[335] Report on the Virginia Resolutions, 4 Elliot’s Deb. (2 ed.), 598. +Marshall told Talleyrand the same truth, Beveridge, II, 329. + +Consequently, the President’s Message is attempting the impossible +when it supports Mr. Palmer’s sedition bill on this high ground:[336] +“With the free expression of opinion and with the advocacy of political +change, however fundamental, there must be no interference, but toward +passion and malevolence tending to incite crime and insurrection under +guise of political evolution there should be no leniency.” No one has +yet invented a gun which will kill a wolf in sheep’s clothing and will +not hit a sheep. We should all be glad to have a law, “Bad men shall +be imprisoned,” if it would work, but we know that it would not. A law +against “passion and malevolence” is just as bad. Far wiser is the +statement of the former Democratic President, just quoted, far wiser +the language in a later part of Mr. Wilson’s own Message, which seems +so inconsistent with the endorsement of the Sedition Bill that it might +almost be the work of another man: + + The only way to keep men from agitating against grievances is to + remove the grievances. An unwillingness even to discuss these + matters produces only dissatisfaction and gives comfort to + the extreme elements in our country which endeavor to stir up + disturbances in order to provoke Governments to embark upon a + course of retaliation and repression. The seed of revolution is + repression. + +[336] _New York Times_, December 3, 1919. + +Most acts of violence urged as a reason for sedition legislation, the +Gimbel bombs, the May explosions, the Centralia shooting, followed +immediately on some act of suppression,—the Debs decision, the Roxbury +Riot sentences, the Massachusetts Anti-Anarchy Act, raids on I.W.W. +offices and statutes against Syndicalism. The men responsible for these +outbreaks should be tried and severely punished if found guilty, as +much as the Southern lynchers and the Omaha mob that nearly hanged the +mayor. It is an altogether different matter to make these affairs the +basis of further suppression. The advocates of such a policy are doing +their best to get this country into the vicious circle of outrages, +coercion,—coercion, outrages, from which John Morley spent his whole +official career vainly trying to extricate Ireland and India.[337] + +[337] See especially the fine letter on the Phœnix Park murders, in his +_Recollections_, I, 178. + +Contrast the American policy of punishing acts and letting talk run to +waste. We have stuck by the schoolboy maxim, “Sticks and stones will +break my bones, but words will never hurt me.” Recent riots which have +nothing to do with radicalism show that our criminal machinery is very +unsuccessfully dealing with acts of violence. That is its absorbing +task. It has no more time than it ever had to bother with the men +who merely talk. If there is any immediate danger of revolution, the +Attorney General should be employing the Criminal Code instead of +asking for a sedition law. If there is not, as he himself admits, then, +much as every one of us dislikes the advocate of force and violence, we +shall be wise if we seek remedial and not punitive methods to make his +talk of no effect. In particular, let me mention three concrete reasons +why a sedition law will fail to accomplish its purpose of getting the +really bad man and leaving valuable discussion untouched. + +In the first place, simple as a law against incitement to force and +violence appears on its face, it will be a very difficult statute to +construe, unless the courts adhere closely to the ordinary rules of +criminal attempt. Of course, the man who shouts, “We want to kill the +President and blow up the Capitol,” presents no difficulties, and he is +the man whom most people who discuss the proposed statute suppose it is +meant to reach. These few plain cases, which are almost labeled “force +and violence,” will form only a very small part of the prosecutions. +For instance, the Attorney General wants to imprison the editors of +radical newspapers who have, he says, “a subtle way” of placing their +propaganda for the overthrow of the government before their readers, +but the reader understands what is meant.[338] The question is whether +he or any one else can draft a statute which makes it possible for +fallible human beings to distinguish good attacks on the government +from bad attacks which sound as if they were good. Jeffreys, Braxfield, +and Kenyon, thought they were punishing “passion and malevolence,” but +posterity has condemned them for interfering with the “advocacy of +orderly political change.” + +[338] Investigation Activities of the Dept. of Justice, 11. + +Whatever law is passed will be used to prosecute speeches and books +full of general language. The question whether such language is +advocacy of force and violence must of course be determined by a judge +and jury. Such men are trained to decide about overt acts, but problems +of “subtle” propaganda are an entirely different matter. The normal +law of criminal attempt offers to this tribunal a considerable amount +of tangible fact. There is, of course, a mental element, the intention +of the defendant to bring about the criminal act, but in addition the +jury must find a clear and present danger to society in view of the +nature of the words _and the surrounding circumstances_. Now, unless +the proposed sedition law practically codifies the ordinary rules of +attempt, the most tangible factor of the crime disappears; the jury can +disregard the absence of danger in the external situation, and look +merely at the intention of the prisoner and the nature of his words. +This must be so, for the federal act is expressly intended to prevent +the remote possibility of revolution and punish violent language for +its own sake. Consequently, the jury are cut loose entirely from overt +acts and the world of the five senses. They are adrift on a sea of +speculation. + +At the very outset the same controversy will arise as in Masses _v._ +Patten. It is the old question of Mark Antony’s funeral oration. Does +a man advocate force and violence when he uses comparatively innocent +words with the intention of producing assassination and revolution? Or +must the statute be confined to words which taken by themselves are +directly provocative of assassination and revolution? + +Even this latter and narrower view involves great difficulties of +application. This is evident from the experience of the courts with +existing federal legislation based on the same “force and violence” +principle. The statute making “matter of a character tending to incite +arson, murder, or assassination” indecent and non-mailable, has not +yet been much construed,[339] but abundant litigation has been caused +by the statute which imposes imprisonment of five years maximum upon +any one who knowingly and willfully makes a threat to take the life of +the President or inflict bodily harm upon him.[340] The threat need +not be communicated to the President, and if in a letter it need not +be seen by any one except officials, so that the element of dangerous +circumstances is eliminated. Already it has proved very hard to decide +what words constitute a threat, and some of the practical effects of +the statute should discourage imitation. A Syracuse woman of German +descent, exasperated by her fellow employees who continually picked +on her and called her the Kaiser, finally burst out that she would +poison the President if she had him there. She pleaded guilty before +Judge Ray, and was fined $300, “not because the court regarded her as +a dangerous person, but to show all quick-tempered or alien-minded +persons that they must not threaten to do the President bodily harm or +utter unpatriotic sentiments in such times as these.”[341] In another +case, the words were, “I wish Wilson was in hell, and if I had the +power I would put him there.” The judges held this revolting language +to be a threat to kill the President, because how could he be in hell +unless he were dead?[342] + +[339] U. S. Comp. Stat., 1918, § 10381; Magon _v._ U. S., 248 Fed. 201 +(C. C. A., 1918). + +[340] U. S. Comp. Stat., 1918, § 10200 a; see 32 _Harv. L. Rev._ 724. + +[341] A Memorandum concerning Political Prisoners within the +Jurisdiction of the Dept. of Justice in 1919, 22, (in Harv. Law School +Library). + +[342] U. S. _v._ Clark, Bull. Dept. Just., No. 101; affd., 250 Fed. 449 +(C. C. A., 1918). + +The kind of language which will be held to advocate force and violence +under a peace-time Sedition Law may be clearly foreshadowed by the +construction which the Supreme Court in the Abrams decision put upon +the exhortation: + + Workers of the World! Awake! Rise! Put down your enemy and mine! + Yes, friends, there is only one enemy of the workers of the world + and that is Capitalism. + +Here is not a word to indicate violence or negative the use of +political and economic pressure, but Justice Clarke declares: + + This is clearly an appeal to the workers of this country to arise + and put down by force the Government of the United States. + +If he is right, the traditional language of socialism becomes advocacy +of “force or violence,” as has already been held of the general strike +under the similar terms of the New York Anarchy Act. If Justice Clarke +is wrong, lesser judges may err. In either case, the Sedition Law will +become a drag-net for every form of radicalism. + +So far I have assumed that the nature of the words will determine +criminality, and that if a man uses the ordinary language of political +agitation with intent to produce a revolution, he will not be +punishable. I doubt very much if the Act will receive any such narrow +construction. When Judge Hand held in Masses _v._ Patten that the +equally simple terms of the Espionage Act of 1917 would not be violated +if the speaker stopped short of urging upon others that it was their +duty or their interest to resist the law, he was reversed, and the +upper court said that if the defendant is endeavoring to persuade to +resistance, it is not necessary that the incitement to crime shall be +direct. Enough “if the natural and reasonable effect of what is said is +to encourage resistance.”[343] The majority of the Supreme Court took +the same position in the Schaefer case. In short, of the three elements +of criminal attempt, (1) bad intention, (2) dangerous words, and (3) +dangerous external circumstances, the third vanishes entirely, the +second is whittled down to require only words of a bad tendency, and +the first alone remains intact. And since the judges who construed the +Espionage Act of 1917 will also construe the Sedition Law, they will +probably interpret it in much the same way. We have traveled very far +from the realm of overt acts. + +[343] 244 Fed. @ 540; 246 Fed. @ 38. + +It is unnecessary to repeat the argument of the first chapter and the +experience of the eighteenth century in England, that the risk of the +suppression of opinion is very great when the bad political tendency +of words and the bad intention of the defendant become the only tests +of criminality. Furthermore, we must not forget that we can never be +sure that the tendency is bad or the intention evil. These are not +visible facts. We have to depend on the opinions of the judge and +jury as to the merits of the tendency and the morality of what they +can guess about the inside of a man’s head. Of course, one evidence +and often the main evidence of bad intention will be the supposed bad +tendency of the language he employs. In short, any peace-time Sedition +Law is open to exactly the objections which Jefferson stated in the +Virginia Toleration Act,[344] that when the expression of opinion is +made criminal, the tribunal will acquit or convict accordingly as the +sentiments of the prisoner square with or differ from its own. + +[344] Page 31, _supra_. + +To recapitulate, we began to discuss the Sedition Law with the +assumption that it would punish only the man who talks out-and-out +revolution and whom we know to intend out-and-out revolution. Such +a man seems entitled to no protection. Now we see that we are not +dealing with such a man at all. We must encounter much vaguer language +and we can never be sure that a man’s mind is bad. In its actual +application the law must necessarily convict any man whom the judge +and jury consider to be using language of bad political tendency +with a bad intention, whether or not the judge and jury are right. +The desirability of the statute ought to depend very largely on the +question whether human beings are likely to be right in forming such a +judgment. The answer is that history shows they are very liable to be +wrong. + +Without the slightest imputation of corruption or malice, we can all +agree that a juryman’s judgment of the remote political and economic +effects of a book or speech is inevitably warped by his own views to +a much greater degree than if he is determining the path of a bullet +or the value of a house or even the effect of a lie on a woman’s +reputation. And the moral quality of another’s mind is even more +difficult to determine fairly when there is no criminal act, as in +ordinary crimes, to check it up by. A bad intention is easily inferred +from what we consider bad opinions. The consequence of such vague +standards is that objectionable men and doctrines are easily decided +to be advocating violence. Thus, a Winnipeg strike leader has just +been prosecuted for sedition, solely on the ground in one count of +the indictment that he “seditiously” published two verses of Isaiah, +beginning, “Woe unto them that decree unrighteous decrees.”[345] +Intention, that is, presumed intention, becomes the essence of the +crime, and the thing actually done immaterial. Once more, the prisoner +is convicted, not for what he does but for what he thinks. + +[345] “Quoting Isaiah in Winnipeg,” A. V. Thomas, 109 _Nation_ 850 +(January 3, 1920). The case was afterwards dropped. 110 _ibid._ 292. + +Whether we believe that the Espionage Act decisions were necessary in +time of war or not, we ought to hesitate to enact in peace a statute +which is sure to be construed as widely as the simple words of the 1917 +Act, and to subject all adverse criticism of the government to the risk +of suppression so forcibly presented by Justice Brandeis in a recent +Espionage Act case:[346] + + The jury which found men guilty for publishing news items or + editorials like those here in question must have supposed it to + be within their province to condemn men not merely for disloyal + acts but for a disloyal heart; provided only that the disloyal + heart was evidenced by some utterance. To prosecute men for + such publications reminds of the days when men were hanged for + constructive treason. To hold that such harmless additions to + or omissions from news items, and such impotent expressions of + editorial opinion, as were shown here, can afford the basis + even of a prosecution will doubtless discourage criticism of + the policies of the Government. To hold that such publications + can be suppressed as false reports, subjects to new perils the + constitutional liberty of the press, already seriously curtailed + in practice under powers assumed to have been conferred upon + the postal authorities. Nor will this grave danger end with the + passing of the war. The constitutional right of free speech has + been declared to be the same in peace and in war. In peace, too, + men may differ widely as to what loyalty to our country demands; + and an intolerant majority, swayed by passion or by fear, may be + prone in the future, as it has often been in the past, to stamp + as disloyal opinions with which it disagrees. Convictions such as + these, besides abridging freedom of speech, threaten freedom of + thought and of belief. + +[346] Schaefer _v._ U. S., 251 U. S. 466, 493 (1920), dissenting +opinion. + +Secondly, men who use revolutionary language should not be suppressed +in the absence of very serious and pressing danger, because they almost +always have a grievance. Very few people want to smash things for the +fun of it like small boys breaking windows. Whether the grievance is +well founded or not, the defenders of the existing order ought to know +about it so that they may correct it or show by counter-argument that +it does not exist. The agitator would be much wiser and more effective +if he expressed his case calmly without threats, but we ought not to +punish him for this mistake. He is not an educated man, he is not a +lawyer, he is not accustomed to weighing his words carefully, and he is +only too apt in a heated argument to let himself go. And on the whole, +society gains if he is free to do so. The worse the grievance, the +more likely the victim is to get angry and urge violent measures. Yet +that is the grievance which most needs removal.[347] Reformers who get +excited are pretty sure to take the position that force is justifiable +if peaceful methods fail to gain what they consider right. Even the +supporters of existing institutions have been known to lose their +tempers and suggest lamp-posts and ropes. In the past we have felt it +wiser to let the opponents of the government talk than to cause much +greater bitterness in them and in their friends by throwing them into +prison. Nor will this treatment silence those who are really dangerous. +A friend of mine wants all “Bolshevists” shut up till the jails are +so crowded that their feet hang out of the windows, but the daily +letters from political prisoners in the radical newspapers show that +their tongues hang out too. Putting radicals to death is the only way +to get rid of them, and for that we have lost our nerve. Anything less +only increases their power for harm. If they can say, “This government +of capitalists denies us a decent life and now it won’t even let us +tell our wrongs,” the natural conclusion is, “If it will not let us +talk, our only resort is to fight.” The passage last quoted from the +President’s Message hammers this truth home. + +[347] See the thoughtful statement by Judge Cooley in his +_Constitutional Limitations_ (7 ed.) 613, of the great danger of a rule +against intemperate discussion, ending: “If they exceed all the proper +bounds of moderation, the consolation must be, that the evil likely +to spring from the violent discussion will probably be less, and its +correction by public sentiment more speedy, than if the terrors of the +law were brought to bear to prevent the discussion.” Mill adds very +strong arguments against the same rule at the close of c. 2 of his +_Liberty_. + +Thirdly, a Sedition Act will suppress much discussion which is not +within its terms. Men assume that such a law affects only a speech or +a book which devotes itself entirely to the advocacy of violence. This +is not so. For instance, any small conservative group in the community +which wants to prevent radical agitators from bringing disagreeable +facts to public attention will be enabled by such a statute to go +through their speeches and pamphlets with a fine-tooth comb and +probably find a sentence here or there which can be interpreted (in the +light of the Abrams decision) as advocating revolution. Thus, it will +be possible to imprison almost any radical agitator in the absence of +any real danger of revolution. Of course, trivial offenses will not +be punished in ordinary times, but during the excitement of a great +strike or some other widespread unrest the partisans of law and order +will hardly be able to resist the temptation to make use of this law to +bottle up labor leaders and other agitators whom they fear and dislike. +Witness the sentences of ten, fifteen, twenty years imposed upon +leading Socialists under the Espionage Act, so that further activity on +their part is conveniently prevented during the time they are likely to +live. And in a government of laws and not of men, no one human being +ought to be entrusted with the power to give or withhold the heavy +sentences of a Sedition Law for the light offenses included within its +provisions. + +The effect of a Sedition Law upon books is even more injurious. An +_ex post facto_ censorship of the press is created by the provision +that a book which advocates force and violence must not be sold or +imported from abroad or transported from state to state. It may be +asked, why should any one honestly want to possess a book which urges +revolution or even the violation of law? Why should we allow such books +to come into the country or be put on sale? It must be remembered that +a book falls under the penalties of the law if only a part of it is +revolutionary. There are many books and pamphlets which for the most +part contain elaborate discussions of social and economic questions, +which it is very desirable to read. Here and there the writer is so +impressed with the hopelessness of legal change in the present system +that he advocates resort to force if nothing else serves. That alone +will render circulation of the whole book a heinous crime under this +Act. Many of the classics of modern economics will be put on this +new Index Expurgatorius. The law will prevent a loyal citizen from +obtaining from abroad or another state the works of Marx, Proudhon, +Bakunin, or Stirner, and will make it criminal for a loyal bookseller +to buy these books for him. + +One particular instance will show the evil of such a statute. Harvard +University is now planning to collect in its library all books, +pamphlets, posters, and other material relating to the Russian +Revolution. After the French Revolution nothing of the sort was +attempted for many years, and in consequence all collections of +documents of that period are very imperfect. It is the intention of +the Harvard Library to avoid such a loss in the case of the Russian +Revolution, which everybody, no matter what his opinion of it may be, +recognizes as one of the great events in the history of the world. Most +of the pending sedition bills would make it a crime to import a large +part of this material from Russia or even transport it from New York to +Cambridge. + +Furthermore, if any one who obtains this revolutionary material runs +the risk of long imprisonment, sober men who would read and refute +it will leave it alone, and it will still fall into the hands of +agitators who are willing to take chances. The bulk of the people +will be virtually ignorant of what the left-wing radicals are really +planning. One of the most effective weapons against anarchy was an +exhaustive article in the _New York Times_[348] translating anarchistic +passages from the foreign language press. It warned the American people +of the thought which we ought to seek to counteract by education, +Americanization, constructive propaganda, and the cure of grievances. +Such an article would be criminal under most of the proposed +legislation. The Attorney General’s Report to the Senate could not +be distributed because of its extracts from the revolutionary press. +Prosecutions of radical newspaper editors cannot be fully reported in +the daily press, so that the public cannot know what men are convicted +for, and it will be possible for the government under cover of such +a practice to withhold from the people knowledge of punishment for +legitimate political discussion. Even officials cannot lawfully import +revolutionary literature under these bills, and an exception in their +favor would be an insult to the citizens of the United States. This law +is a kindergarten measure which assumes that the American people are so +stupid and so untrustworthy that it is unsafe to let them read anything +about anarchy and criminal syndicalism because they would immediately +become converted. Above all, we shall not be able to meet this great +danger of lawlessness if we refuse to look the enemy in the face. The +habits of the ostrich are instinctive in many human beings, but they +have not been conspicuous for success. + +[348] June 8, 1919. + +Even if we could wisely dispense with these left-wing books, much less +radical publications will become criminal if advocacy of revolution +by force and violence is punished. For example, one of the sanest +discussions of contemporary thought, which has had a large sale in this +country, is Bertrand Russell’s _Proposed Roads to Freedom_. Further +distribution will become a crime because of its extracts from the +Communist Manifesto of 1848: “The Communists disdain to conceal their +views and aims. They openly declare that their ends can be attained +only by the forcible overthrow of all existing social conditions. Let +the ruling classes tremble at a Communistic revolution.” + +Or take his quotation from an anarchist song: + + Si tu veux être heureux, + Nom de Dieu! + Pends ton propriétaire.[349] + +[349] Russell, _op. cit._, 17, 53. + +Of course, any anti-socialistic book which gives an adequate historical +account of its opponents will fall under the same condemnation. + +And we shall have some surprises nearer home. It is advocacy of +revolution by force and violence to write: “I hold a little rebellion +now and then is a good thing, and as necessary in the political world +as storms in the physical.”[350] Out go the works of Thomas Jefferson. +It is advocacy of change of government by assassination to say, “The +right of a nation to kill a tyrant in cases of necessity can no more +be doubted than to hang a robber, or kill a flea.”[351] Jefferson +is followed by his old antagonist, John Adams, the author of the +Sedition Law of 1798. The Declaration of Independence will be barred +in this country as it was once upon a time in the Philippines, since +it is a most eloquent advocate of change in the form of government by +force without stint or limit. And the censorship can hardly overlook +Lincoln’s First Inaugural: + + This country with its institutions belongs to the people who + inhabit it. Whenever they shall grow weary of the existing + government, they can exercise their constitutional right of + amending it, or their revolutionary right to dismember or + overthrow it. + +[350] Writings of Jefferson, ed. P. L. Ford, IV, 362; see also 370 and +467. + +[351] Works of John Adams, ed. C. F. Adams, VI, 130. + +It may be objected that of course no one will be prosecuted for +selling such books. Perhaps not, but do we as a fair-minded people +want a statute under which the very ideas which will be immune when +cloth-bound in a respectable book store will constitute a penitentiary +offense in a Yiddish hand-bill? + +If this legislation is to be enforced with any impartiality, it must +necessarily cut us off from our own revolutionary heritage and from +the economic and political thought of Europe in our own time. During +the last five years this nation has entered into the affairs of the +world for the realization of noble aims. It cannot do this and at the +same time propose to pass its existence for the next score of years +like some Lady of Shalott, shut off from the turbulent life of European +mankind. + +Much more could be said, but I hope it is now clear that the really bad +man is only an incidental victim of any federal Sedition Law in time of +peace. Indeed, it is only too probable that he will be ingenious enough +to hide his tracks and escape. Meanwhile, the law will suppress the +discussion of public questions at point after point. + +During the war the advocates of strong measures assured those who +thought our traditional freedom of speech in peril, that suppression +would disappear when the fighting stopped, and remarked with Lincoln +that a man could not contract so strong an appetite for emetics +during temporary illness as to persist in feeding upon them during +the remainder of his healthful life.[352] The war is over, actually +if not technically, the Espionage Act has suspended any widespread +operation till the next conflict, but nearly every state in the Union +has proceeded to make the expression of certain opinions criminal, and +Congress is now considering a much more rigorous Espionage Act for +times of peace. The truth is that persecution of unpopular doctrines is +not an emetic at all, but a drug. A nation cannot indulge in an orgy +of intolerance and console itself like Rip Van Winkle with the thought +that “This time doesn’t count!” Nobody enjoyed gasless Sundays or +sugarless coffee so much that we are likely to continue them in peace, +but the pleasure of being able to silence the pro-Germans and pacifists +and Socialists who had irritated us in 1915 and 1916 was so agreeable +in 1917 and 1918 that it will be abandoned with extreme reluctance, and +we long for more suppression to satisfy the appetite which has been +created contrary to our former national tradition of open political +discussion. + +[352] Letter to Erastus Corning and others (June 12, 1863), _Works of +Lincoln_, ed. Nicolay and Hay, VIII, 309. + +Consequently we ought to cross-question acutely our present conviction +that the repression of ideas is essential to the public safety, and +ask ourselves how far that conviction results from the mood of the +moment. Indeed, it may be conjectured that just as some soldiers were +given ether to make them go “over the top” better, so a nation cannot +enter whole-heartedly into the horrors of a war without some benumbing +of its reasoning powers, from which it may not yet have recovered. Is +it not psychologically probable that our minds have been so shaken by +excitement, fear, and hatred, so stretched to one absorbing purpose, +that they are slow to return to normal, and that we still crave +something to fear and hate, some exceptional cause for which we can +continue to evoke enthusiasm? + +A very serious situation confronts us. For three years the government +has pursued the policy advocated by Judge Van Valkenburgh when he tried +Rose Pastor Stokes for her denunciation of profiteering:[353] “The +President could not stop in the face of the enemy and effect domestic +reforms. We do not ordinarily clean house and hang out the bedding +when there is a thunderstorm on. We wait until it is over, go dirty a +little longer.” A good deal of soiled linen has accumulated, and the +consequences are far from agreeable. The discussion of the radicals is +bound to be doubly violent because it was postponed, and now it can be +postponed no longer unless we mean to suppress it altogether. By doing +that we shall not end it, but only drive it underground. + +[353] Bull. Dept. Just., No. 106, p. 18. + +A Sedition Law is not the proper way to deal with anarchy. Outside of +a few intellectuals, anarchy is the creation of discontent, and this +law will increase discontent. Nothing adds more to men’s hatred for +government than its refusal to let them talk, especially if they are +the type of person anarchists are, to whom talking a little wildly is +the greatest joy of life. Besides, suppression of their mere words +shows a fear of them, which only encourages them to greater activity in +secret. A widespread belief is aroused that the government would not +be so anxious to silence its critics unless what they have been saying +is true. A wise and salutary neglect of talk, coupled with vigorous +measures against plans for actual violence and a general endeavor to +end discontent, is the best legal policy toward anarchy and criminal +syndicalism. + +To quote from an extra-judicial decision of Justice Holmes:[354] + + With effervescing opinions, as with the not yet forgotten + champagnes, the quickest way to let them get flat is to let them + get exposed to the air. + +[354] Letter to the Harvard Liberal Club, reprinted in 21 _New +Republic_ 250, and _Boston Herald_, January 13, 1920. + +Undoubtedly, there are elements in our population, small in number, +but reckless and aggressive, who are ready to act on incitement to +revolution, but the real danger lies in the existence of large masses +of unthinking radicals. This danger cannot be met directly by clubbing +such men into loyalty. We must first understand the causes of their +discontent, studying with open minds all the existing information, and +then take constructive steps to end that discontent and substitute +positive ideals for those we want to drive out. To modernize an old +illustration from Herbert Spencer, any one who has watched a tinsmith +mend a crumpled mud-guard on an automobile will observe that he never +pounds the protuberant spot. To do so would either be ineffective or +would simply raise a hump at some other place. Instead, he begins at a +distance and hammers all around the critical point, gradually drawing +the metal away from it until all is symmetrical as before. + +If we have taken reasonable precautions against violence, we should +not be disappointed at not securing absolute unanimity among our +population on political and economic matters. If Americanism means +anything concrete, it certainly means tolerance for opinions widely +different from our own, however objectionable they seem to us. Such is +the tradition handed down to us by Roger Williams and Thomas Jefferson. +In the past we have been proud to believe that the arguments for law +and order, the common sense of the American people, including those +who have come from Europe to help build our industries, and the noble +qualities of our institutions, would win out over any revolutionary +talk or writing. The proposed Sedition Bills show a serious distrust +in these three great stabilizing forces of American life. Not for the +sake of the radicals, but for our own sake, should we oppose this +unprecedented legislation, whose enforcement will let loose a horde +of spies and informers, official and unofficial, swarming into our +private life, stirring up suspicion without end, making all attacks on +government either impotent or unsafe. The supporters of this gag-law +assume that our patriotism and our institutions are so weak as to +crumble away at any talk of revolution. Surely that time has not come, +will never come. Let us put an end once for all to this cowardice, and +take to heart the words of a great English Liberal:[355] + + We talk much—and think a great deal too much—of the wisdom of our + ancestors. I wish we could imitate the courage of our ancestors. + They were not ready to lay their liberties at the feet of the + Government upon every vain or imaginary alarm. + +[355] Lord John Russell, quoted in G. W. E. Russell, _Prime Ministers_, +N. Y., 1919, 21. + +There should be no legislation against sedition and anarchy. We must +legislate and enforce the laws against the use of force, but protect +ourselves against bad thinking and speaking by the strength of argument +and a confidence in American common sense and American institutions, +including that most characteristic of all, which stands at the head of +the Bill of Rights, freedom of thought. + + + + + 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 determined 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 precedent 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,”[356] 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 General 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. + +[356] Investigation Activities of the Department of Justice, 6. + +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 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 sedition 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.[357] + +[357] Nishimura Ekiu _v._ U. S., 142 U. S. 651, 659 (1892); see other +cases in 1 Willoughby on the Constitution, 251 ff. + + + 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 disbelieving in +or opposed to all organized government or belonging to organizations +teaching such disbelief or opposition.[358] Other types of extreme +radicals were added by subsequent legislation.[359] The present +statute, enacted toward the close of the war, specifies the following +proscribed classes:[360] + + 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 organized government, or that advocates the duty, + necessity, or propriety 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. + +[358] Act, March 3, 1903, e. 1012, §§ 2, 38. + +[359] Act, February 20, 1907, c. 1134, §§ 2, 38; Act, February 5, 1917, +c. 29, in U. S. Comp. Stat., 1918, §§ 4289¼ b and jj. + +[360] Act of October 16, 1918, c. 186; U. S. Comp. Stat., 1919 Supp., +§ 4289¼ b. This has been amended since the events narrated in this +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. + +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 country, they are to be +deported without any time limit, no matter 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 +argument with respect to the future, for the deportation laws have been +in existence long enough to provide us with abundant data from past +experience, upon which we may base our decision as to the wisdom and +justice of this national course of action. + + + 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 sentence:[361] + + 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_. + +[361] U. S. Comp. Stat., 1918, § 4289¼ jj. Italics mine. + +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 officials to any court, not even to the +Supreme Court of the United States. The law takes the position that +deportation is not a criminal proceeding and involves no punishment. +It is simply an exercise of the right of every sovereign 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 cherished possessions behind him, is not deprived of life, +liberty, or property without due process of law. + +Such wide powers have not been acquired by the executive branch of our +government all at once or without a struggle.[362] The doctrine that +administrative decisions on questions of fact may be made conclusive +without any judicial review originated in our law in controversies +growing out of the distribution of public property. When the government +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 delegate to anybody it selects the +power to say how and where those gifts shall go. The recipients of +its generosity cannot complain if they must dispense with judicial +proceedings and abide by the decision of some administrative body like +the Land Department. If they are denied relief by such officials, they +lose nothing which they had before. + +[362] 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. + +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 carried by the disgruntled taxpayer +into the courts. The complexity 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 governmental machinery, he pays for what he gets, and in substance +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 General 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 analogy 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 +accustomed to settle, besides being far-reaching in their consequences +to the community as well as to the prohibited periodical. The cases +I have already discussed of exclusion from the mails for alleged +indecency or disloyalty show the possibilities of danger when the +attainment and dissemination of truth are regulated by the arbitrary +will of one man. + +All these considerations apply _à 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 expulsion after long residence is another affair. The matter +at stake here is not a gift from the government, or the payment 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 removing him +to his own country because he has not complied with the conditions for +residence imposed by our government,[363] nevertheless, practically it +is nothing but a punishment, which, as Justice Field pointed out, is +“beyond all reason in its severity.” + +[363] Fong Yue Ting _v._ U. S., 149 U. S. 698, 730 (1892). + + 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 + business.[364] + +[364] Dissenting opinion in same case, 759. + +This power to tear a man up by the roots is now conferred 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 +government, it ought not to deprive a man of liberty and happiness +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 cannot 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 foreigner 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 here with +the hope that a tyranny at home will be overthrown. 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 +foreigners in this country as worse than crime, for even criminals +would not receive such harsh and summary treatment? We have no business +to act and talk as if we owed absolutely nothing to our unnaturalized +immigrants. Most of them were brought in at the earnest desire of the +very persons 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 confidence in our own institution? Every alien +must expect to be expelled, if he furnishes legal cause, just as he +must expect 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:[365] + + There are a number of officers called inspectors of immigration, + 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 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 entire 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 inspector 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 inspector’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 proceeded against + or the witnesses. + +[365] Bosny _v._ Williams, 185 Fed. 598 (1911); see also Immigration +Rules of May 1, 1917, Rule 22. + +The proceedings are in secret. The public is excluded, so is the press, +so are the alien’s wife and children. His inability to speak English +and the inspector’s frequent inability to speak anything else make the +record unsatisfactory, but the Secretary of Labor sees nothing else. +Furthermore, this record is often made by the inspector himself, and he +may stop it whenever he wishes, after a good case is 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.[366] 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 +criminal, entitled to receive counsel at the expense of the government. +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 counsel, 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. + +[366] Low Wah Suey _v._ Backus, 225 U. S. 460 (1912), holds valid the +rule denying counsel until after the preliminary hearing. + +“If this,” said Justice Brewer,[367] “be not a star chamber proceeding +of the most stringent sort, what more is necessary to make it one?” + +[367] U. S. _v._ Ju Toy, 198 U. S. 253, 268 (1905). + +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 inadequate, because the Secretary never sees +the alien or the witnesses, 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 government 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 writ 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 the executive officers was +such as to prevent a fair investigation, or that there was a manifest +abuse of the discretion committed to them by the statute;”[368] 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 complete absence of +evidence to justify it. So long as there is any evidence at all in +its support, no matter how overwhelmingly this is outweighed by the +testimony on behalf of the alien, a court cannot interfere. + +[368] Low Wah Suey _v._ Backus, _supra_, 468; Gegiow _v._ Uhl, 239 U. +S. 3. + +The risks of grave injustice under this system are shown by a recent +case.[369] 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, beside having well-to-do relatives, was ordered to be +deported as a person “likely to become a public charge.” The evidence +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 without 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 without any corruption on the part of the +inspector if he is zealous in enforcing the deportation law and anxious +to gratify the eagerness of his superior officers and satisfy the +incessant demand of influential newspapers and organizations[370] for a +high record of expulsions. + +[369] _Ex parte_ Mitchell, 256 Fed. 229 (1919). See Post, Deportations +Testimony, 80, 247, for other framed-up cases. + +[370] 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. + + “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 + finding pledges or sureties for his legal conduct sufficient in + the judgment 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.[371] 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 banishment of this +sort be not a punishment, and among the severest 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, confinement, and expulsion, without notice, or opportunity +to close up one’s affairs and embark freely. Even if such procedure +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.” + +[371] Act of June 25, 1798, c. 63; Madison’s Report on the Virginia +Resolutions, 4 Ell. Deb. (2 ed.) 581, 582. + + + 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 machinery 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.[372] (2) A house or a meeting-hall cannot 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 proceedings.[373] (3) The alien must be given a +fair administrative trial, in accordance with the Rules. (4) The +deportation laws apply only to aliens. + +[372] 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 +substantial supporting evidence.... If based upon statements of persons +not sworn officers of the Government ... the application should be +accompanied by the affidavit of the person.... Telegraph application +may be resorted to only in case of necessity, or when some substantial +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 contained....” + +[373] 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-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_ only 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 proceedings 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 proceedings. +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 government, +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 I.W.W. in _Ex parte_ Jackson, 263 Fed. +110 (1920), and of Communists in the Colyer case. + +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 “to foster, promote, and develop the +welfare of the wage earners of the United States,” and is daily +concerned with aiding millions of human beings, many of them poor, +comparatively helpless, and unacquainted with our language and +institutions. 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 extent 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 sworn officials of the +United States, and so far as possible upon the testimony of Attorney +General Palmer.[374] + +[374] 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. + +“Appreciating,” he says, “that the criminal laws of the United States +were not adequate to properly handle the radical situation, the +Department of Justice held several conferences with the officials of +the Department of Labor and came to an agreeable arrangement for the +carrying out of the ‘deportation 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 occupied, 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 Department 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 Instructions issued +by Mr. Palmer’s Bureau of Investigation to his 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 + organizations, known as the Communist Party of America and the + Communist Labor Party of America, also known as Communists. + + The strike will be made 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 + recording 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 + apprehended 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 will + take all the evidence you have obtained from his person and place + it in an envelope, which will be furnished you, placing 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 exception. + + 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 organization 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 + 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 applied 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 jail; +for their coming to inquire was _prima facie_ evidence of affiliation +with the Communist Party.[375] + +[375] Palmer Deportations Testimony, 69, 76, 115. + +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 Secretary 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 commissioner.” 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, warrants 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 obtained 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 evidence that the agents paused before ransacking halls and houses +for documentary evidence connected with Communism. + +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 deportation 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 +hearings. 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 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 +deprive 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 underwent 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.[376] 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. Instead, they were, Mr. Palmer assures us,[377] +“looked after by the most prominent charitable organization of their +own creed in their locality. It is no part of the Attorney General’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.[378] 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. + +[376] Palmer Deportations Testimony, 115. On Detroit, Barkley, _infra_, +note 382. On Boston, Colyer opinion. + +[377] See his circular letter in 110 _Nation_ 190 (February 14, 1920). + +[378] _E.g._, Fong Yue Ting _v._ U. S., 149 U. S. 730 (1893). + +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 harmless +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 including 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 American +citizens for prosecution under the harsh state anti-anarchy acts. + +That the President of the United States can have authorized 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 advantage 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 conflict between Mr. Palmer and the +Department of Labor soon developed. Secretary Wilson released all the +aliens imprisoned 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 membership 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 decision is affirmed by +the Supreme Court, nobody can be deported merely because of membership +in either party. Consequently 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 immigration inspectors and Mr. Caminetti for +the deportation of 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 looking 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 General 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 deporting 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 Department of Justice. Now this +same agitation has taken a 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 chapter, how far violent acts can wisely +be prevented by the suppression 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 during +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 requiring 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 warrants, 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 naturalized citizens or native-born +citizens, arresting them whenever and wherever found, and holding +them in custody until the question of citizenship is decided by the +immigration authorities. 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 citizenship. Experience in the Chinese cases +shows that these proceedings frequently last for many months. “It +follows that on the theory now urged the right of native-born citizens +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.[379] + +[379] Peter Frank _v._ Henry J. Skeffington, Commissioner, unreported +opinion of G. W. Anderson, J., (D. Mass., January 27, 1920). + +The case of Peter Frank, an American citizen of Swampscott, +Massachusetts, is typical. The warrant of arrest, which he never saw, +began, “Whereas from evidence submitted to me, it appears that the +alien, Peter Frank, who landed at an unknown port on or about the +1st day of January, 1919,” and went on to charge membership in the +stereotyped words of the statute in six kinds of violent organizations, +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 +identification 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 verified by the evidence, +Frank states that he was born in Ohio and was always a citizen; that +four days previously immigration officers broke into his house at one +o’clock in the morning, arrested him, searched his house and carried +off 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, Commissioner Skeffington still contended +that Frank was an alien, and that the burden of proof was on him to +establish citizenship. The only evidence which was offered to justify +his confinement was a questionnaire, on which Frank had answered that +he was born in Cincinnati and was not a member 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 discharged 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 Secretary 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 +administrative official to deport any one but an alien without judicial +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.[380] 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 returning from a trip to China. +On citizenship as on other questions, 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.[381] It may +be that the Ju Toy case will be limited not to apply to deportation +after entry, but this cannot be predicted with any confidence. Enough +has been said to indicate the possibility, under the present statutory +and administrative machinery of deportation, of prolonged vexations for +American citizens and even permanent exile. + +[380] 198 U. S. 253 (1905). + +[381] _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). + +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.[382] +Moreover, 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 Secretary 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. + +[382] F. R. Barkley, “Jailing Radicals in Detroit,” 110 _Nation_ 136 +(January 31, 1920); Palmer Deportations Testimony, 109, 111; Colyer +opinion. + + + 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 Goldman, 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 Workers 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.[383] +Mr. Gordon Watkins, of the University of Illinois, reports the +following estimates of the size of the three parties: Socialist +Party after the secession, 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 facto_ liable to deportation under the +Act of 1918, as members 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.”[384] 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.” Nevertheless, Secretary Wilson took a different view of the +Communist 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. + +[383] Gordon S. Watkins, “The Present Status of Socialism in the United +States,” 124 _Atlantic Monthly_ 821 (December, 1919). + +[384] _In re_ Engelbert Preis, January 24, 1920, House Judiciary +Hearings, 17. All the important administrative decisions are reprinted +in House Immigration Hearings. + +These various decisions raise two questions: (_a_) When does an +organization advocate force and violence? (_b_) 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 Program of the Communist Party +affords a practical illustration thereof. Although this Program, which +is reprinted in the _American Labor Year-Book_ for 1919–20,[385] +plainly intends that the proletariat shall “conquer and destroy +the bourgeois parliamentary state” and substitute a very different +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 purpose 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, “Participation in parliamentary campaigns, which in the general +struggle of the proletariat is of secondary importance, 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 + proposals and reform palliatives as evasions of the issue and as + of no fundamental significance to the working class. + +[385] 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. + +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 Program 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 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 Communist 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 reprinted 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 + Communist 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 passages 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 position that it will give way to a new kind +of government. He lays too much emphasis on the exact wording of the +International Manifesto, for although applicants for membership in the +Communist Party declare their adherence to the principles and tactics +of the Communist International, they are not required to read its +manifesto and so cannot be supposed 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,” “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 purposes 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 purposes are not within the Deportation Act of 1918, for they +are altogether compatible with the absence of force and violence. 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 revolution which the vote of the electorate had +failed to accomplish, 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 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 Bolsheviks; +“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 violence. + +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 imaginable. 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 justified 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 establishment 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.”[386] 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 the two Communist parties violate the +Espionage Act because they are “pledged to fight any suggestion of +military action by America against the Soviet Russians,”[387] the +widest construction of that convenient statute has never before +extended it to prohibit opposition to war before war is declared. + +[386] _Ibid._, 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. + +[387] _New York Times_, January 4, 1920. + +(_b_) 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 members are supporters of violence. +It is true that persons joining 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 persons are affiliated with +this party for various innocent reasons. 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 headquarters (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 Communist, and their year’s Socialist membership had not +yet expired. Many such men fall within Secretary Wilson’s ruling 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 appearance bore out the statements of operatives that not a +man had tried to put up a fight.”[388] + +[388] Quoted in 21 _New Republic_ 232 (January 21, 1920). + +The idea that guilt is not necessarily personal, but can result from +mere association is absolutely abhorrent to every American tradition +or conception of criminal justice.[389] Therein it differs from +the law of Germany. In 1878, after two attempts had been made upon +the Emperor’s life, Bismarck 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 government or society. The party thrived and prospered under +this law as never before. When it was repealed, the party became +conservative.[390] Similar legislative measures were adopted in England +during the hysteria of the French Revolution against associations which +advocated universal manhood 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 suppressing 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 combination +and confederacy and upon conviction might be transported for seven +years.[391] 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.[392] + +[389] Alfred Bettman in Hearings before the Committee on Rules, 66th +Cong., 2d Sess., on H. Res. 438, Wash., 1920, pp. 125–128. + +[390] Ernst Freund, _The Police Power_, 513 note; 2 Stephen’s _History +of the Criminal Law_ 395. Alfred Bettman, _supra_. + +[391] 39 Geo. III, c. 79 (1799). + +[392] 37 Geo. III, c. 123 (1797); 20 _Columbia L. Rev._ 234 note +(February, 1920). + +May’s description of England in 1792 applies to this country in 1920, +and should stand as a warning.[393] + + In ordinary times the insignificance of these societies would + have caused contempt, rather than alarm; but as clubs and + demagogues originally not very formidable had obtained a + terrible ascendancy in France, they aroused apprehensions out + of proportion 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. + +[393] 2 May’s _Constitutional History of England_, 32, 33. Aliens are +specifically discussed on 156 ff. + +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 suppressed 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.[394] 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 Ireland +and to strengthen the malign influence of the instigators to violence +who had to some real extent been held in check by the imprisoned +leaders.”[395] + +[394] 6 Geo. IV, c. 4 (1825); 10 Geo. IV, c. 1 (1829); 2 May, _ibid._, +88–93. + +[395] 44 Vic., c. 4 (1881); 3 May, _ibid._, 160; Morley’s +_Recollections_, II, 818. + +It is this policy of guilt by association which our government 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.[396] 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 conspiracies. +The Supreme Court has just handed down a decision squarely in +point.[397] It held unanimously that the president 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 publications complained of. The same principle applies to the rank +and file of the Communist parties. + +[396] Beveridge’s _Marshall_, III, c. 9. + +[397] Schaefer _v._ U. S., 251 U. S. 468; see p. 94, _supra_. + +The deportation statutes introduce the European principle that a man +is known by the company he keeps and that guilt is not personal. This +is an unprecedented and obnoxious 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 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 freedom of speech, nevertheless the clauses are drastic +and dangerous. + +It would be like some of the obnoxious statutes just mentioned for the +Secretary of Labor to rule that the Communist 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 without 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 deportation 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 Republicans and Democrats who shout for +the deportation or imprisonment 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 Congressmen, party leaders, and +Presidents have been known to disregard some such principles. Let us +deport men for the injuries 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 indifference, so +long as the men who suffer are Communists, like the Spanish woman who +did not object to watching autos-da-fé because only heretics were +burned.[398] 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 Western 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.[399] +Suppose not only that the law punishes individual 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. + +[398] Ernst Freund in 21 _New Republic_ 266 (January 28, 1920). + +[399] Hoxie, _Trade-unionism in the United States_, passim. + +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 organization, 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 +members may face prosecution under a state syndicalism statute or +perhaps under a future federal sedition statute like section 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 organization 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 Espionage Act. Informers have +been the inseparable accompaniment of government action against the +expression of opinion since the delators of Tiberius.[400] 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 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.[401] 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 +disbursements could be made without audit. When the Anti-Anarchy Bill +was made less sweeping, the Secret Police Bill became unnecessary and +was dropped. + +[400] Merivale, _The Romans under the Empire_, c. 44. + +[401] Mass. Senate Bill No. 184 (January, 1919). This did not become +law. + +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 +invents 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 convicting one of the Winnipeg strike leaders +on a charge of seditious conspiracy.[402] This dirty business is the +price a government must pay for the suppression of political crime. Are +we willing to pay that price? + +[402] J. A. Stevenson, “A Set-back for Reaction in Canada,” 110 +_Nation_ 292 (March 6, 1920). + +“The freedom of a country,” writes the historian already quoted, “may +be measured by its immunity from this baleful agency.”[403] 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 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:[404] + + 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. + +[403] 2 May, _ibid._, 150. + +[404] Investigation Activities of the Department of Justice, 34. + +Who these “cover informants” were is disclosed by the _New York +Times_[405] in its account of the raids on the Communists 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 + opportunity 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. + +[405] 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 389; Colyer +opinion; Palmer Deportations Testimony, 48, 87 ff., 199; Report upon +Illegal Practices. + +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 Department, 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, 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 informants + to have meetings of the Communist Party and the Communist 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:[406] + + 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 + accomplices, 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 encouragement 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. + +[406] 2 May, _ibid._, 151–2. See Graham Wallas, _Francis Place_, N. Y., +1919, 121. + +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 deporting the conspicuously dangerous men to go through all this +enormous expense, all this spying, arresting, and herding, to save the +country from men who in ordinary peace-time conditions were advocating +a revolution at some distant 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 Department of Justice and +the Secretary of Labor have taken the position, contrary to some +state decisions,[407] 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 teaching either anarchy or sabotage.” Consequently, mere +membership is not a ground for deportation.[408] 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 principles.[409] The leaders, +organizers, and distributers of literature, 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.[410] One judge has +cancelled the naturalization of an I.W.W. organizer, who at the time +he became a citizen approved of sabotage and indorsed the preamble and +constitution of the organization.[411] 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 demoralization +and degradation thereof,” its adherents must _ipso facto_ be guilty +of fraud in declaring that they are attached 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. + +[407] State _v._ Moilen, 140 Minn. 122 (1918); and the injunction +mentioned on p. 193, _supra_; also State _v._ Lowery, 104 Wash. +520 (1918), which refused to admit in evidence the Report of the +President’s Mediation Commission. + +[408] Investigation Activities, etc., 33; letter of W. B. Wilson to +John E. Milholland, 110 _Nation_ 327 (March 13, 1920). + +[409] _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. + +[410] _Ex parte_ Bernat and Dixon, 255 Fed. 429 (1918); Guiney _v._ +Bonham, 261 Fed. 582 (C. C. A., 1919); and see administrative decisions +in “The Anarchist Deportations,” 21 _New Republic_ 96 (December 21, +1919); and Charles Recht, _American Deportation and Exclusion Laws_. +_Cf._ U. S. _ex rel._ Grau _v._ Uhl, 262 Fed. 532 (1919). + +[411] U. S. _v._ Swelgin, 254 Fed. 884 (1918). + +It is unnecessary to repeat here what was said in the preceding 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 +Department 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 deportation.[412] The facts of another case +are given in the decision of 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 federal + 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 protests, + 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. + +[412] _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. + +This opens up dangerous possibilities of influence not only by +employers but also by rival conservative unions to secure the +annihilation of radical labor organizations 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 drastic 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 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.[413] +Such a conference might evolve a new and more satisfactory policy. + +[413] See Bibliography, on I.W.W. + +For example, deportation does not seem quite the right way to handle +the case of John Meehan,[414] 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. + +[414] Charles Recht (counsel for Meehan), _American Deportation and +Exclusion Laws_, p. 9. + + +(3) Anarchists + +Anarchists have long been subject to exclusion and expulsion. 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[415] in sustaining the +exclusion of an Englishman 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 indicated +possibilities of improvement in American life. + +[415] Turner _v._ Williams, 194 U. S. 279 (1904). + +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 abolition of all coercion over +the individual by the community.[416] Philosophical anarchists argue +that most governmental 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 person 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 millennium, 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 government 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 discussion and education. + +[416] Bertrand Russell, _Proposed Roads to Freedom_, 32. + +These philosophical anarchists caused much perplexity in the early +days in this country, even to such a strong champion of soul-liberty +as Roger Williams, who argued for their suppression in his celebrated +letter of 1655 to the people of Providence:[417] + + 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, Protestants, Jews, + or Turks, be forced to come to the ship’s prayers or worship, + nor compelled from their own particular prayers or 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 transgressors, 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. + +[417] Moses Coit Tyler, _History of American Literature_, II, 261. + +However, when government became stronger in this country 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 +government 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 settlements 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 innocent 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 +determine 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.”[418] + +[418] 194 U. S. 294, 296; italics mine. + +The public does not realize that it is men of this type as well as +violent anarchists whom the government is now sending 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 because 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[419] 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. + + 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 newspapers + explain it, assassinating women and children, dropping bombs, + or anything like that, I don’t believe in that. But I believe + 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 construct. + + 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 conferences, 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. + +[419] 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 _American Deportation and Exclusion Laws_, Boston, 1919, p. 9. The +testimony 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 +anarchism and denies any advocacy of violence. + +Unless the Supreme Court declares this construction of the statute +unconstitutional, Lopez will be deported to Spain. The expulsion of +other men with just the same views has been sustained.[420] 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,[421] although it seems just as consistent 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 because 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:[422] + + Very careful and steady questioning was necessary to bring out + the alien’s beliefs, political and industrial. + +[420] _Ex parte_ Pettine, 259 Fed. 733 (1919); see also 21 _New +Republic_ 98. + +[421] U. S. _v._ Stuppiello, 260 Fed. 483 (1919). + +[422] “The Anarchist Deportations,” 21 _New Republic_ 98 (December 24, +1919). + + + 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 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.”[423] 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. + +[423] _Ex parte_ Pettine, _supra_. + +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 wandering 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 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 arbitrarily without reasonable relation to the +facts and the needs of society.[424] The discretion of Congress to +determine the basis of classification must be very wide, but it is +not unbounded. 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 Congress 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. + +[424] Gulf, etc., Ry. _v._ Ellis, 165 U. S. 150, 165 (1897); Connolly +_v._ Union Sewer Pipe Co., 184 U. S. 540, 560 (1902). + +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 dangerous 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 according to the principles laid down in the first chapter. + +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[425] 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 + exclusion 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. + +[425] See note 415. + +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. Although 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. Furthermore, 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 unwilling 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 immigrants of that faith. +Therefore, freedom of speech is necessarily affected by the exclusion +of aliens for their opinions, and such exclusion is unconstitutional +unless the social interest 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 utterances. 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.[426] +Although there are many precedents in history for the wholesale +expulsion of Communists, they are not precedents which we should be +proud to follow. + +[426] Moore’s _Digest of International Law_, VI, 358; this has +reference to Russian subjects. On American Jews expelled from Russia, +see _ibid._, IV, 111 ff. + +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 constitutionality to future judicial discussion, and +simply outline 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 population 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 endeavored 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, liable 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 +Congress has the right to prevent” is in this problem the presence 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 persons 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 determining who are undesirable we must be ever on our guard +against applying the test of conjectural and remote tendencies. It +is not at all the same provable question of fact as heart trouble or +insanity.[427] For instance, much of the reasoning in the philosophical +anarchist cases, which stigmatize 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 undesirable +associates, carries the logic of national integrity one step beyond the +standard of individual suitability for residence in America. + +[427] 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_. + +The record of philosophical anarchists shows that they are no more +prone to disorder than any religious sect, and whatever 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 reasoning of Roger Williams with another ship-parable (ships being +rather appropriate in this chapter):[428] + +“A sailor related to me,” writes Benjamin Constant, “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.” + +[428] _Letters on England_, Louis Blanc, London, 1866, I, 438. + +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 nations, 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 advocates +of “mass action.” We shall soon be in the shameful 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 very serious. +Not only are we erecting a Chinese wall to keep out ideas, but we are +helping to increase the very unrest in Europe that we fear. Every +one of sense, no matter what his opinion of the present government +of Russia, believes that the restoration of order in that country is +essential 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 +irritation she is creating in Russia, where she has already organized +the “Friends of American Freedom.” A nuisance here, she is a heroine +over there and one more element of instability 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,[429] a job which seems +more within the duties of the Secretary of State. Soon some one will +suggest that the attempted assassination of Viscount 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 propriety 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. + +[429] “Martens and Our Foreign Policy,” Lincoln Colcord, 110 _Nation_ +324 (March 13, 1920). Palmer Deportations Testimony, 180, gives the +case for deportation. + +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.[430] 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 this country +last winter to the citizens of a government that was too weak to hit +back. + +[430] _Cf._ 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 +arrested 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. + +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 citizens 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 +suspect, 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.[431] 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 going through the +old Know Nothing affair over again. + +[431] “The Nervousness of the Jew,” Dr. A. Myerson, 4 _Mental Hygiene_ +65 (January, 1920); Bagehot elaborates the point in his essay on “The +Metaphysical Basis of Toleration.” + +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 muscles. 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 +forcible return to the secret police from whom he fled? Doubtless, 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.[432] 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 American life. The radical shows the same change +under a fostering environment as the Jew, who is rapidly becoming +assimilated to his neighbors. “What persecution could not do through +the centuries, toleration does in a generation.”[433] 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:[434] + + 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 fallacy + of the philosophy of force as applied to democratic institutions. + 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. + +[432] See account of the Molly Maguires in Rhodes, _History of the +United States_, VIII. + +[433] Myerson, _op. cit._ + +[434] Letter to John E. Milholland, reprinted in 110 _Nation_ 326 +(March 13, 1920). + + + VII. _Suggested Changes in 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:[435] + + 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. + +[435] _Ibid._ + +The Assistant Secretary made the same recommendation four years +ago:[436] + + 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. + Determinations 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 scrupulously guarded in immigration cases than is + possible through administrative decisions made in the course of + executive routine. + +[436] “Administrative Decisions in Connection with Immigration,” Louis +F. Post, 10 _Am. Pol. Sci. Rev._ 260, 261 (1916). See Post Deportations +Testimony, 239, 246 ff. An alternative method would be an independent +administrative tribunal of three experts to sit in a purely judicial +capacity upon all deportation cases, like the Commissioner of Patents +in his field. + +Thirdly, a conference might be held to include immigration 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 scholars like Brissenden who have studied revolutionary +organizations. 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[437] 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. + +[437] _Ibid._ + +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 members 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 certain groups of aliens at the present +time. It has been accentuated by the excitement of the Russian +Revolution, which must eventually subside. We are not likely to +decrease this discontent by dragging men away from their families and +either shipping them abroad or releasing them 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 agitators, who speak to men and women who now have a real +reason for wanting to get rid of the existing form of government. 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 sufficient 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 +persons injured by a censorship or a sedition law, and conclude 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.[438] 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 unwise +and often illegal suppression, are not indeed political prisoners whose +ideals I can share, as I might those of Silvio Pellico or Grotius, and +it may be that even after due allowance has been made for the natural +blindness 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 persecution 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. + +[438] Tolstoy once wrote: “You would not believe how, from the very +commencement of my activity, that horrible Censor question has +tormented 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 +involuntarily I had to abandon the work. I abandoned, and went on +abandoning, and meanwhile the years passed away.”—GRAHAM WALLAS, _The +Great Society_, 196. + + + 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 any 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 freedom: the +immunity of political criticism from prosecution; the publicity of +legislative debates; the abolition of outlawry, which condemned a man +in his absence; the protection 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 disqualified by +law, no matter what personal objections his colleagues may have to his +opinions and writings or to his previous convictions for sedition. So +great were his achievements 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 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 citizens 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, freedom 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 newspaper 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. + + No one having been charged, or even suspected—no evidence + of crime having been offered—no one was named in this dread + instrument. 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.[439] + +[439] 2 May’s _Constitutional History_, 125. + +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 messengers 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 warrant. +Chief Justice Pratt, afterwards Lord Chancellor Camden, said of the +warrant:[440] + + 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 subversive + of the liberty of the subject. + +[440] Wilkes _v._ Wood, 19 How. St. Tr. 1167 (1763). + +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 associates 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, issued the previous year because of alleged +libels in the _Monitor_, 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:[441] + + ... If this point should be determined in favor of the + jurisdiction, 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 + considerable damages in that respect. Where is the law that gives + any magistrate such a power? I can safely answer, there is none; + and therefore it is too much for us without such authority to + pronounce 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? + +[441] Entinck _v._ Carrington, _ibid._, 1029 (1765). + +The law of this case that search must be by warrant describing the +property to be seized is embodied in the Constitution of the United +States. “Can we doubt,” asks Justice Bradley,[442] “that when the +Fourth and Fifth Amendments were penned and adopted, the language +of Lord Camden 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 officers who +were searching for smuggled goods under general warrants. “Then and +there,” said John Adams, “the child Independence was born.” + +[442] See the full discussion of the historical background of the +Fourth Amendment in Boyd _v._ U. S., _infra_. + +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 + probable cause, supported by oath or affirmation and particularly + describing 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[443] 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. + +[443] 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). + +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 + government. 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 + atmosphere 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 obtained 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 Department 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 documents found there.” Photographs and copies were made and the +originals returned. Justice Holmes held that the seizure 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 +participating 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:[444] + + 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 exposed 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 enactment of such laws is to incline to + the side of safety. In principle they are objectionable; in the + mode of execution they are necessarily odious; and they tend to + invite abuse and to cover the commission of crime. + +[444] _Constitutional Limitations_, 7 ed., 432. + +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.[445] Since the armistice, the Espionage Act was used to +close the _Seattle Union-Record_, until a court declared the action +to be invalid.[446] 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 Justice, including Attorney General +Palmer, to the same kind of civil actions which Wilkes sustained +against Lord Halifax, the Secretary of State. + +[445] Act of June 15, 1917, c. 30, Title XI. For a list of raids, see +_War-time Prosecutions_, 38–40. + +[446] Chapter II, note 191. + +The best known instance of searches and seizures, is, however, 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 Loyalists.[447] On March 26, 1919, the legislature +adopted a joint resolution, which, after reciting that a large number +of persons within the state were circulating propaganda calculated +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 appropriate laws, appointed a committee +of six “to investigate the scope, tendencies, and ramifications of such +seditious activities, 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 papers,” and was in general +a legislative committee. In no sense was it a body for the prosecution +of crime.[448] + +[447] Minutes of the Commissioners for Detecting and Defeating +Conspiracies 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_. + +[448] Concurrent Resolution, March 26, 1919. + +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 _subpœna 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 constitutional 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 person can be compelled in any criminal case to give evidence +against himself.[449] It is possible that the federal rule against the +use of illegally seized evidence does not prevail in New York,[450] +but the test of what is illegal remains the same and renders liable to +civil and criminal penalties and to the condemnation of all law-abiding +persons any officials who conduct lawless and disorderly searches and +seizures, especially when they act in the name of law and order. + +[449] I 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. + +[450] P. _v._ McDonald, 177 N. Y. App. Div. 806 (1917). + +It is true that the Lusk Committee obtained search-warrants for its +raids, but this does not render the proceedings valid unless the +warrants complied with the definite requirements 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.[451] A man’s privacy must not be invaded for the sole +purpose of obtaining evidence against him, but only to obtain a +dangerous instrument of past or future crimes. (2) The warrant is to +be issued by a judicial officer, after a showing made before him under +oath that there is probable cause for suspicion 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.[452] (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 determine by investigation the truth of the complaint made. The +property must be delivered in conformity with the warrant, together +with a detailed written inventory.[453] A hearing 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 severity.[454] + +[451] Cooley, _op. cit._, 431, doubts the validity of warrants for +preventive purposes. However, the _N. Y. Code of Crim. Proc._, § 792, +is explicit. In some cases, preparation of the dangerous object might +amount to a criminal attempt. + +[452] Cooley, _op. cit._, 429; _Code Cr. Proc._, §§ 793 ff.; Gaynor, +J. (afterwards 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_. + +[453] Cooley, 431; _Code Cr. Proc._, §§ 797, 805 ff. + +[454] Notes 12, 13, 15, 16, 19–20; Sanford _v._ Richardson, 176 N. Y. +App. Div. 199 (1916). + +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,[455] 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 document 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, Revolutionary, 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 construed +as documentary evidence in the place.” These were 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 American 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 examined +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 obtained. 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. Letters 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 criminal proceedings. The seized papers and books were merely +used as the basis for the Committee’s subsequent examination of Martens +and his associates, in order to prepare a report to the legislature and +provide fire-eating material for the newspapers. + +[455] For a description of the Bureau’s work, see _American Labor +Year-Book_, 1919–20, 383–386. The raid is narrated in _New York Times_, +June 13, 1919, and following days. See Bibliography. + +The Appellate Division of the New York Supreme Court has declared:[456] + + Under the broad provisions of the Fourth Amendment to the Federal + Constitution and of our Bill of Rights, which is substantially + 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 + seizures extends as well to letters and sealed packages, and + prohibits searches for property other than those to aid in the + administration of the criminal law. + +[456] Matter of Ehrich _v._ Root, 134 N. Y. App. Div. 432, 438 (1909). + +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 different ways by which a man’s immunity from giving evidence +against himself may be violated.”[457] + + 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 investigation, to give evidence which may tend to + imperil his constitutional 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. + +[457] Matter of Foster, 139 N. Y. App. Div. 769 (1910). See also _Ex +parte_ Clarke, 126 Cal. 235 (1899). + +If any business man will consider what it would mean to have a number +of men breaking into his office with such 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 +lawlessness of this kind. We are disposed to pardon raids of this sort +because they are against radicals. We ought to remember that the same +methods may be used by any other investigating 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 institution of higher education, and its work is +stated by its Director to fall into two parts, “that which offers +opportunities for the general public to study Socialism and related +subjects, that which gives Socialists such systematic instruction and +training as may render them more efficient workers in and for the +Socialist Party, the Trade Unions and the Co-operatives.”[458] 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 +pamphlets 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_,[459] it had never come in +conflict with the law. + +[458] _American Labor Year-Book_ 1919–20, pp. 206–8, 109–112. The raid +is narrated in _New York Times_, June 22, 1919, and following days. See +Bibliography. + +[459] See Appendix II and page 27, _supra_. + +On June 21, agents of the Committee appeared with ten state troopers +and forty ex-members of the American Protective League (now disbanded +by the Department of Justice), 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 pertaining to the +activities or business carried on in said offices, and all circulars +and letters of any sort, kind, or character.” 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 Society. 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 prejudicial 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. + +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, + revolutionary changes in government, and the like. You have + deliberately 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 justification 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 articles 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 proceeding, but was half legislative investigation +and half advertising. + +Massachusetts has a constitutional provision in its Bill of +Rights[460] like the federal Fourth Amendment, requiring the same +particular description of the articles to be seized. Nevertheless, +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,[461] but as the _Boston Herald_ naïvely put +it, “they had accurate information which made it possible 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 silverware. 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 fundamental principles +of law, that ever was found in an English law book,” since they placed +“the liberty of every man in the hands of every petty officer.” + +[460] 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. + +[461] _Boston Herald_, December 18, 1919; italics mine. Gun warrants +are authorized by Mass. Laws, 1919, c. 179. + + + 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 for seditious libel on account +of what would now be considered an ordinary political editorial. He +was a member of the House of Commons. The House ordered the newspaper +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 +punishment.[462] Later he was convicted in his absence, and outlawed +for contumacy. + +[462] 1 May, _Constitutional History_, 312. + +Four years went by, the general election of 1768 was approaching, and +he returned from exile to stand for Parliament. 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!” Convict and outlaw +as Wilkes was, his vote was overwhelming. + +After his election, Wilkes surrendered himself into custody, and +went to jail. Lord Mansfield reversed the outlawry, 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 unwarranted, and its remission would have relegated him, +as Trevelyan puts it, “to an obscurity whence, but for the infatuation +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 eloquence 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 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 Commons 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 confuted 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 majority expelled the +minority and was itself expelled in turn, until the House of Commons +was reduced to forty-six members. Luttrell’s election was confirmed, +against the petition of the Middlesex electors, and the King prorogued +Parliament. + +Burke expounded the principle involved in Wilkes’s exclusion 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 independence carried to some degree of enthusiasm, +an inquisitive character to discover, and a bold one to display, +every corruption 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 members 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, abrogate, 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 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 Espionage 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 Congress, 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 European War, he +gave vigorous expression to the orthodox Socialist views about war, +and employed many of the arguments 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 +Convention 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 committee of the Socialist Convention at St. Louis and +signed the Proclamation and War Program of April 14, 1917, which has +already been mentioned.[463] It branded the declaration 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.”[464] 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 immediate 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.[465] + +[463] P. 162, _supra_. + +[464] _Berger Hearings_, I, 72. + +[465] _Ibid._, II, 460; I, 323; I, 166. + +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.[466] The +newspaper thus lost a daily circulation 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 them, + appellant sought to hinder and embarrass the government in the + prosecution of the war. + +[466] 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. + +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 military +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 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 publications in various places. The overt acts which +Berger himself 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 considered 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 treasonable. + +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, democratic, 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; confiscation +of war profits; and safeguards to prevent panic or unemployment when +demobilization should take place. War would ruin the country and could +be ended by electing men pledged to end it.[467] He was defeated, but +in spite of the charges pending against him received over 100,000 votes. + +[467] _Berger Hearings_, I, 340. + +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 +several 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.[468] + +[468] 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 dignity and fairness” which characterized the work of the court. +52 Rep. N. Y. Bar Assn. 310 (1919). + +When Berger presented himself to the House of Representatives to be +sworn in, it was charged that he was ineligible, and the question +was referred to a special committee, which reported[469] for reasons +hereafter stated that he was not entitled to take the oath of office or +hold a seat as Representative. 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.”[470] Although this is the English law, +and a Wisconsin decision had reached the same result where the leading +candidate was known at the time of the election to be dead,[471] the +Congressional practice is otherwise, and holds that electors ought not +to be disfranchised in such a fashion, especially when they supposed +the leading candidate to be eligible.[472] It would be absurdly harsh +to presume that those who voted for Berger in November knew that he was +disqualified, just because a jury convicted him the following January. +Consequently, Carney gained nothing by his contest, but on November 11, +1919, the House of Representatives with only one dissenting member, +Voigt of Wisconsin, declared Berger’s seat vacant.[473] + +[469] House of Representatives, 66th Cong., 1st Sess., Ho. Cal. No. 91, +Rep. No. 413, hereafter called Berger Report. + +[470] Lord Campbell, C. J., in Regina _v._ Coaks, 3 E. & B. 249, 254 +(1854). + +[471] 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 +court seated the highest male candidate. State _ex rel._ Bancroft _v._ +Frear, 144 Wis. 79 (1910). + +[472] Smith _v._ Brown, 1 Hinds’ Precedents 448; _Re_ Abbott, 1 _ibid._ +478. _Accord_, P. _ex rel._ Furman _v._ Clute, 50 N. Y. 451 (1872). + +[473] The debates on the two exclusions are in _New York Times_, +November 12, 1919, January 11, 1920. + +The Governor of Wisconsin ordered a special election on December 19, +1919. The Republicans and Democrats nominated 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 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, including that founded by Roger Williams, and Jersey City +forcibly ran him out of town. Whatever the legal merits of his case in +the courts and Congress, his enemies like those of Wilkes have adopted +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 during 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 Constitution,[474] “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 problem is less +simple than that. Each house is to act as “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. + +[474] 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_. + +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 contains 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 expulsion by a +two-thirds vote. The second view holds that additional tests may be +imposed by statute or possibly in accordance with established usage +to cover obvious cases of unfitness, 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:[475] + + 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. + +[475] U. S. Cons., Art. I, § 2. + +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 review all the evidence at +that trial, the proceedings about the exclusion of the _Leader_ from +the mails, and the fresh testimony introduced at the hearings. The +conclusions of fact were as follows:[476] + + 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. + +[476] _Berger Report_, 7. + +Even if Berger’s guilt under the Espionage Act be considered as +established, three replies are conceivable to the 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, forbidding 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 emancipated 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 disability imposed by section three ... heretofore incurred is +hereby removed.”[477] 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 legislative justice that every one involved in the Berger +case, except Representative Mann, overlooked it completely and assumed +that “aid and comfort to the enemy” was synonymous with guilt under +the Espionage Act. Of course, this phrase is often employed loosely +in conversation and Congressional 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.[478] Therefore, the 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. + +[477] Act, June 6, 1898, c. 389. + +[478] Art. III, § 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 adherence +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 captured property to +reclaim its value from the United States, on proof 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 allegiance to the United States.” + +Was Berger guilty of treason? In answering this question, we must not +be misled by colloquial usage. Mr. Roosevelt denounced the St. Louis +Socialist platform as “treason,” and “traitor” is a heart-warming +conversational epithet 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[479] that +treason should not be extended by construction to doubtful cases, and +there has never been a decision that talking against a war is treason. +If it were, Vallandigham, Milligan, and the other Copperheads would +surely have been prosecuted for this crime. The few writers[480] who +assert that the Espionage Act of 1917 created no new crimes, but that +causing insubordination in the armed forces and obstructing enlistment +are also treason,[481] 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.[482] So broad a statement would if taken +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 proclamation to Irish prisoners in +Germany urging them to form a regiment in the German army.[483] The use +of words in an attempt to gain recruits for the enemy is absolutely +different 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 consists 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. + +[479] _Ex parte_ Bollman and Swartwout, 4 Cranch 77, 127 (1807). + +[480] 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). + +[481] 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_. + +[482] 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 element in acts of direct aid. These judges are not speaking of +expressions of opinion about the injustice of a war, even if intended +to deter men from enlisting in one’s own army. _Cf._ note 49. + +[483] It is doubtful if even this would be treason in this country, +inasmuch 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 +unsuccessful 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. + +This distinction is clearly brought out by the kind of conduct which +has been held to be “giving aid and comfort to the enemy,”[484] for +example, furnishing money, troops or arms, saltpeter for gunpowder, +steamers for blockade running, 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 tangible or measurable way. +The result is indirect and purely mental. It is true that words do +sometimes constitute treason, as when a letter is sent to the enemy +containing military information, or even a wireless message.[485] +Here language 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.[486] It is interesting to note that even in +the excitement of the Civil War, when Congress was passing 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 +Amendment but to the law of treason. Therefore, Berger did not in any +legal sense give aid and comfort to the enemy, and he was not barred +from the House of Representatives by the Fourteenth Amendment. + +[484] 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. + +[485] U. S. _v._ Robinson, 259 Fed. 685 (1919) (invisible ink); U. S. +_v._ Werner, 247 Fed. 708. See Warren, _op. cit._ + +[486] 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 +definition of the crime”; _accord_, 1 Bond 609, 612 (1861); 2 Sprague +292, 294 (1863). + +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 additional 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 +applies 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 examined 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 legislature should not be allowed to occupy his seat, +but that there is a sharp disagreement whether he should be excluded +or expelled.[487] 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 considered guilt under the Espionage Act no disqualification +for their representative in Congress. The Wilkes case established +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 American +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.[488] 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 election of such a +criminal is in effect an approval of these views by the voters of his +district, so that the legislature by excluding or expelling him denies +expression to a political, economic, 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 emergency of war. If an +additional penalty not included in the law is imposed by one branch of +the legislature after hostilities 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. + +[487] 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. + +[488] 2 Hinds’ Precedents 850. + +Lincoln’s principle[489] that the nation must be able to protect 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 disqualifications when the emergency had passed. Berger’s +utterances were far less dangerous in their tendency than those +expressed by many persons who took office unmolested during the Civil +War. A large number of Democrats were elected to Congress in 1864 +on a platform drafted by the notorious Vallandigham, which declared +the war a failure.[490] 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 Berger, 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 +identified themselves with the South. The Mexican War affords 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 +unjustifiable war.” Henry Clay asked: “Must we blindly continue the +conflict, without any visible object, or any prospect 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 Mexican +War is an enormity born of slavery.... Base in object, 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.”[491] The additional 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 without interference. It is +significant that all the Entente powers, except Japan, have admitted +to their legislatures without any hesitation Socialists who opposed +the war as vigorously 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.[492] + +[489] P. 117, _supra_. + +[490] J. F. Rhodes, _History of the United States_, IV, 522 ff. + +[491] _Berger Hearings_, I, 712, 713. On the War of 1812, see +Beveridge’s _Marshall_, IV, c. I. + +[492] _Socialist Review_, February, 1920, p. 159. + +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, nevertheless 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, however, 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 minority +member of the committee, Mr. Rodenberg, and suspend legislative action +until the final result of the prosecution had been reached by the +Circuit Court of Appeals. The great evil of the case is that the House +of Representatives and its committee assumed the power to go behind 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 1911 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 conspiracy + to hinder, obstruct, and embarrass the Government in its fight + for existence, should be admitted to membership in this 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 exclusion 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 judicial 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 investigation +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. Furthermore, the conduct for which Berger was convicted and +excluded was said by him and regarded by many of his opponents 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 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 Legislature opened its session. Among the members of the Assembly +or lower house were five Socialists, Claessens, Solomon, Waldman, De +Witt, and Orr. The Socialist Party of New York was a legally recognized +party under the Election Law,[493] so that its candidates had as much +right on the ballot as Democrats or Republicans. All these Socialists +except De Witt had previously served in the Assembly. 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, swearing +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:[494] + + No other oath, declaration or test shall be required as a + qualification for any office of public trust. + +[493] 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. + +[494] N. Y. Const., Art. XIII, § 1. + +They occupied their seats and entered into all the business of the day, +participating in the organization of the House and voting for Speaker +and other officers. These proceedings occupied upwards of two hours. + +Suddenly the newly-elected Speaker, without notice or motion, directed +the Sergeant-at-Arms to present the five Socialist members before the +bar of the House.[495] The surprised men were paraded down into the +well of the Assembly chamber 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 opening 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. + +[495] _Briefs_, and _New York Times_, January 8, 1920. + +He then declared that the Socialist Party was not truly a political +party, but a subversive and unpatriotic organization, 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[496] 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 principles of +the Communist International of Moscow, and this was pledged to the +forcible and violent overthrow of all organized 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 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 connected 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 qualifications and +eligibility to their respective seats”; and the investigation of +their qualifications and eligibility was referred 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 session, to the +disfranchisement of sixty thousand voters of the City of New York. + +[496] _Record_, p. 367. + +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.[497] 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 liberals was more than fulfilled. The Espionage +Act was only to punish interference with recruiting and military +discipline. 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 establish 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 measure. +The states prolonged it into peace, and the Attorney 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 protest—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 fundamental 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. + +[497] Boyd _v._ U. S., 116 U. S. 616, 635 (1885). + +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 without 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 representation to the minority +through the men who had been elected by a ballot lawfully cast.[498] + + If there was anything against these men as individuals, if they + were deemed to be guilty of criminal offenses, they should have + 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. + +[498] _New York Times_, January 10, 1920; Sweet’s reply, January 11. + +Speaker Sweet, after consultation with the Lusk Committee, 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 legislature +advocated methods and employed tactics to overthrow our form of +government, which would justify their exclusion from participating +in legislative proceedings. He thus characterized the proceeding, as +did the Attorney General of New York,[499] 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 knowledge of the facts +gave aid and comfort to those elements of our society which seek the +destruction of our institutions. + +[499] _Ibid._, January 9. + +Nevertheless, criticism poured in, not only from Socialists 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 Republic_ 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, opposing 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.[500] No +action could have done more to strengthen the confidence of workingmen +in the public spirit of the bar. + +[500] _New York Post_, January 14. + +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 Assembly 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 terror became ridiculous +on the lips of Speaker Sweet. A legislature trembling before five +men—the long lost American 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 return. 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 +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 deportation 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 January 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 participate +in the proceedings. Before withdrawing it filed a brief and these +recommendations:[501] + + 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 + disqualification, 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 formulated, 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 recognition of their own rights and + of the rights of their constituencies. + +[501] _Record_, p. 6; _Socialist Brief_, p. 7. + +This position is conclusively established by the Bar Association in +its brief.[502] After the respondents had taken the constitutional +oath of office, and in the absence of any personal 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, Senator +Lorimer participated in all the proceedings of the Senate until he was +finally disqualified, and Senator Truman 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 question whether +there was any legal cause to deprive them of their seats by any method +whatever. + +[502] Pages 8–20. + +The opening clause of the New York Constitution provides 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,”[503] but it imposes the restriction +already mentioned that no declaration, test or oath shall be imposed +except that specified. Certain offices are a disqualification,[504] but +even the right to vote is not a requisite for eligibility.[505] The +power to expel is conferred by statute.[506] 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. + +[503] Art. III, § 10. + +[504] Art. III, § 8. + +[505] Barker _v._ People, 3 Cow. 686, 703 (1824); Cooley, +_Constitutional Limitations_, 7th ed., 894 note. + +[506] 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.” + +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.[507] The house in making decisions +on qualifications and in other election cases acts in a judicial +capacity, in spite of the doctrine of the separation of powers, and +such controversies do not fall within the general judicial power vested +in the courts, since the constitutions expressly confer jurisdiction +upon the legislative chamber in question. However, judges have +sometimes been called upon to discuss whether anybody has power to add +to the constitutional requirements 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:[508] + + 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. + +[507] Hiss _v._ Bartlett, 3 Gray (Mass.) 468 (1855); French _v._ +Senate, 146 Cal. 604 (1905); P. _ex rel._ Hatzel _v._ Hall, 80 N. Y. +117, 122 (1880); P. _v._ Mahaney, 13 Mich. 482, 492 (1865). + +[508] I Story on the Constitution, § 625; Congress has always refused +to recognize these state limitations as valid. 1 Hinds’ Prec. 381, 384, +387. + +There is much force in his position, that the power to judge +“qualifications” means only constitutional qualifications, but it does +present difficulties, especially when the constitutional requirements +for eligibility are so meagerly stated as in New York. Can insanity 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?[509] 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 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.[510] (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 Chancellor Sanford:[511] + + 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 + exclusions 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 particular 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._ + +[509] “Eligibility of Women for Public Office,” 33 _Harv. L. Rev._ 295 +(1919). + +[510] Barker _v._ People, 3 Cow. 686, 707 (1824); P. _ex rel._ Bush +_v._ Thornton, 25 Hun 456, 463 (1881). + +[511] Barker _v._ People, 3 Cow. 686, 703, 704, 707. The italics are +mine. + +(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.[512] It has also invalidated a statute which made all persons +except members of the two leading political parties ineligible for the +Albany police commission. Judge O’Brien declared:[513] + + 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. + +[512] 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. Constitution. Cummings _v._ Missouri, 4 Wall. 277 (1866); _Ex +parte_ Garland, 4 Wall. 333. + +[513] Rathbone _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). + +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 +proscribed 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 subsequent cases after the manner of court decisions. A +legislature 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 subsequently tried and convicted for the same offense. Moreover, +the basis of a legislative discussion is often obscure because of 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 Parliament to delegate the trial of controverted +elections to a tribunal of judges.[514] The Berger and Socialist cases +might well lead us to consider establishing a preliminary investigation +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.[515] + +[514] May, _Parliamentary Practice_, 12 ed., 581. + +[515] 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. + +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 agnostic +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 +business. They have been expelled for crimes and other disgraceful 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 Wilkes and Bradlaugh, no person has +been expelled in modern times for conduct involving the expression of +opinions, and both these expulsions were officially declared to be +wrong and expunged.[516] + +[516] May, _op. cit._, 59–62, 153–156, 187. He does not discuss the +question whether a member can be expelled for an offense committed +before his election. I 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. + +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 opinions 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 settled 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 contention +that the New York Socialists had violated the Espionage Act during the +war.[517] + +[517] _Berger 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 Hinds’ 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. + +At the outbreak of the Civil War several Southern Senators and +Representatives were expelled for their treasonable conduct in +remaining permanently absent from their Congressional duties and +either taking up arms against the government or entering the +Confederate lines and actively participating in the rebellion.[518] +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.[519] 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 refusing to furnish troops +to subjugate the South and forbidding 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 member, +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 +Washington; “and no man is to be expelled from this body because he +disagrees with others in opinion.” The resolution of expulsion was +overwhelmingly defeated. + +[518] 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. + +[519] 2 _ibid._ 803, 827. + +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 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.[520] 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. + +[520] 2 _ibid._ 821; see extracts from debates omitted by Hinds in +_Assembly Outline_, 83, and _Socialist Brief_, 110. + +The Congressional precedents on the unseating of members 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 ineligibility 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.[521] 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 connected 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,[522] is not a disqualification +for 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 convicted 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 profiteering as well. There is no line to be drawn, once it is +allowed to cross the constitutional limits. It can turn our democracy +into an oligarchy by imposing high property qualifications, or into a +dictatorship of the proletariat by declaring ineligible all persons +deriving income from rents and invested capital. + +[521] 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 Committee, 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. + +[522] Webb and Pierce, Senate Election Cases, 1002. But see P. _ex +rel._ Bush _v._ Thornton, 25 Hun 456 (1881). + +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 Fourteenth 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 necessary 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 notwithstanding the ability of the men who have +taken this position, 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.[523] 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. + +[523] See p. 342, _supra_. + +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.[524] +The House also refused to inquire into a charge of seduction, and +the Senate into one of embezzlement.[525] All the exclusions which +have occurred were for offenses which had expressly been made a +disqualification by Act of Congress.[526] + +[524] Grafton _v._ Connor, 1 Hinds’ Prec. 488. + +[525] Acklen, 1 _ibid._ 489; Roach, 1 _ibid._ 570. + +[526] 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. + +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 might +take of his moral, intellectual, or political capacity.[527] It was +not until the passage of the Test Oath Act,[528] obliging men to swear +before admission to office that they had never borne arms against the +United States, given aid, countenance, counsel, or encouragement to the +enemy, or yielded a voluntary support to any pretended government, that +persons were excluded for disloyal conduct. Such an Act is of course +impossible under the New York Constitutional prohibition 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 members 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.[529] 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.[530] 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.[531] This is the only instance of disqualification from Congress +for utterances without overt acts. Thus, even in the heat of the 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. + +[527] 1 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. + +[528] Act of July 2, 1862, c. 128, 12 Stat, at L. 502. + +[529] Kentucky Members, 1 Hinds’ Prec., 441; Symes _v._ Trimble, 1 +_ibid._ 459. + +[530] McKee _v._ Young, Rowell Dig. Election Cases H. R., 222. Hinds +does not state the facts fully. Senator Thomas of Maryland was +disqualified for aiding his son to enter the Confederate army. 1 Hinds’ +Prec. 466. + +[531] Smith _v._ Brown, 1 Hinds’ Prec. 444. + +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,[532] on which rightly or wrongly the exclusion of Berger was +based. + +[532] P. 323, _supra_. See Reverdy Johnson in 1 Hinds’ Prec. 469. + +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 because +each house was held to have complete control over the eligibility of +Delegates, who were distinguished from Representatives. Nevertheless, +the decisions at that time make the distinction which I have emphasized +between overt acts and mere opinions.[533] 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 antagonistic to the United States but had +never organized rebellion or sedition against the supreme authority +of the Union, or committed treason by any overt act. Hooper was +accordingly 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 arbitrary 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. + +[533] McGrorty _v._ Hooper, 1 Hinds’ Prec. 490; Maxwell _v._ Cannon, 1 +_ibid._ 493; Campbell _v._ Cannon, 1 _ibid._ 500. + +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.[534] Brigham H. Roberts, +a convicted polygamist, who was still living with three wives, was +elected Representative 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.[535] 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 Missouri, +which has been approved by Chief Justice Cullen of New York,[536] +contended that Congress could not add any qualification to the +Constitution, especially if it did not satisfy the test of Chancellor +Sanford[537] 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 continuing +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 affiliations. + +[534] 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. + +[535] 1 Hinds’ Prec. 518–560. + +[536] 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.” + +[537] P. 342, _supra_. + +This distinction is clearly brought out by the refusal of the Senate +in 1904 to exclude or expel Reed Smoot.[538] 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 political 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.”[539] 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 qualities 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 constitutional +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 following the Civil War. + +[538] 1 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. + +[539] 1 _ibid._ 587. + +And finally the precedents in the New York Assembly itself are +inconsistent with its recent action.[540] 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 circumstances 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 disqualified +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. + +[540] _Socialist Brief_, 104–109. + +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.[541] The action of the +Assembly must be characterized as a flagrant usurpation of power, only +to be found in that government of which Senator Root,[542] who had +good reason to know, said that for forty years it had been about as +representative and responsible as the government of Venezuela. + +[541] _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 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 551. + +[542] Quoted in 40 Rep. Am. Bar. Assn. 365 (1915). + +The conduct of the investigation was thoroughly in harmony 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 characteristics of an accumulative crime as described +by Burke in the Wilkes case.[543] 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 Committee, to find as many objectionable +opinions of the Socialist Party as possible, on the theory that +twenty-seven bad grounds[544] for exclusion might be rolled together +and make one good ground. Inasmuch as there was no demarcation 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;[545] another because he considered Socialism +threatened the family; a third to protect the church; a fourth, because +Socialists sought to set up a Soviet in the United States; some one +else, because he disliked 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:[546] + + 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. + +[543] P. 314, _supra_. + +[544] See a list of these charges in _Socialist Brief_, 10; also the +report of the Committee, _New York Times_, March 31. + +[545] 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. + +[546] May’s _Constitutional History_, I, 316. + +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 significant 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 institution 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 leading 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 or cause a yellow bird to sit on the +minister’s hat where it hung on a peg in the pulpit.[547] 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.[548] A detachment of soldiers 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. + +[547] Palfrey, _History of New England_, IV, 102; Hutchinson, _History +of the Province of Massachusetts Bay_, II, 27. + +[548] _Assembly Outline_, 71; _Record_, 705–723, for Chivers’ testimony. + +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 incidents 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 without question the testimony of +Ellen Chivers. + +Another group of charges was presented to appeal to Assemblymen +who were not entirely convinced by Miss Chivers and to attack the +Socialists who could not be accused 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 +inconsistent with their constitutional oath as to make it false. +First, the National Socialist Constitution provides that Socialist +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 Legislature to maintain a minimum militia +of 10,000 men. Therefore they have disqualified themselves to take +the oath to support this Constitution. Even if this oath were not +obligatory, 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 destruction 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 paramount. +Inconsistent party pledges were rejected by virtue of their oath as +Assemblymen. The National Party platform naturally failed to consider +the militia requirement of a particular state, and they were ready +to carry out whatever duty that requirement imposed. However, until +some one knew better what it meant, other members of the Assembly had +no right to define this duty for them[549] or say 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 +conscript boys. + +[549] That constitutional duties must be interpreted by the person +obligated under the sanction of his official oath, Ops. of the +Justices, 56 N. H. 576 (1875); Andrew Jackson, in United States Bank +veto, quoted by W. M. Evarts, _Arguments and Speeches_, I, 445. + +Still more flimsy is the charge that the Socialist legislators 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.”[550] 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”:[551] + + It makes no difference what name you give, whether you call it + Fenton or Conkling or Cornell or Arthur or Platt, 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 constitution or by the law. + +[550] _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. + +[551] Elihu Root, _Addresses on Government and Citizenship_, p. 202 (at +the N. Y. Const. Conv. of 1915). + +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 destroying 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:[552] + + The whole theory of this investigation rests upon the proposition + 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 principles, 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. + +[552] _Record_, 335. + +No person who has followed with any intelligence the proceedings of +the Socialist Party at the conventions of September, 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 contributed +to the _American Socialist_, for everything that was said by speakers +at meetings at which one of the assemblymen was present as well as +for statements made in a letter 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 +reside. + +When such testimony and arguments were admitted, the result was a +foregone conclusion. The Committee recommended expulsion, the Assembly +characteristically waited until April 1st, which was too late for +a re-election, and then disregarding the maiden speech of Theodore +Roosevelt, who, with all his inherited abhorrence of Socialism and +pacifism, refused to condemn the Socialist Party as a conspiracy for a +state of mind, expelled the five members by an overwhelming vote.[553] +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 organization +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 + York, and of the rights, privileges and institutions secured + under such constitutions.[554] + +[553] _New York Times_, April 1st and 2nd. + +[554] 2 _Review_, 422. Governor Smith vetoed all the Lusk bills in a +stinging message. + +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.[555] + +[555] _Folkways_, p. 177. + +The absurdity to which our greatest state has descended in its frantic +desire to suppress disloyalty cannot be entirely 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 +unmolested. Nor is it entirely due to the activities of organizations +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 demonstrably a measure of national defense as +the declaration of war again Germany.[556] 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.[557] +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? Halévy explains that the +Republican and Democratic parties are like two great department stores, +such as the _Bon Marché_ and the _Louvre_. Both sell very much the same +things. Some people go entirely to one, some go entirely to the other, +some go first to one and then to the other. They are there because +they have always been there.[558] 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. + +[556] Editorial of April 2nd. + +[557] See Bryce’s _American Commonwealth_, II, c. CXII. + +[558] Daniel Halévy, _Le Président Wilson_, Paris, 1918, p. 109. + +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 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 repudiated government by representation and substituted +government 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 textbook 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 doctrines by +force except in times of clear and present danger is not helpless, for +besides abolishing some causes of discontent, 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 reasons +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,[559] “that men or women who are _Marxian Socialists_, who +believe in 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 comparative 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 following 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 language the main conclusions +of this book. + +[559] The Public and the Schools, May 17, 1919, Public Education Assn., +N. Y. + +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 government 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.” + +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 anything that is wrong, anything +which interferes with the social 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 freedom of +speech is itself a social interest; that one of the purposes for which +society exists just as much as for the maintenance 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 subject 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 +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 Socialism. Under a populist régime 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.[560] 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 +according 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 +eventually be that they will again become the majority and will put an +end to that particular measure. + +[560] “A Case of Federal Propaganda in our Public Schools,” Natl. +Industrial Conference Board, Feb., 1919. + +If the majority of Congress declares war, the minority must realize +that we are at war, but they are not necessarily 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 ourselves 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 +because it differs from our views. In the old days they used to get +rid of objectionable persons on the ground that they would overthrow +society. They got rid of Socrates by saying 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 +something. 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 political system from ours? She had a different +political system under the Czar, and we were perfectly willing to +discuss his system. Is it because the people have a tremendous 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 +inherited 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 attacked 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 rebellion 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 tremendous 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 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 Gildersleeve 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 independence. 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 government. 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 government, 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 government? Not at all! 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, “Investigate 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 economics 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 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. + +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.[561] +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 republic.” 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 +affiliated with the middle class rather than the working class, have +formed a revolutionary trade-union and affiliated themselves with the +syndicalist organizations of France. + +[561] H. J. Laski, _Authority in the Modern State_, c. V. + +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 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 cannot 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. Democracy is not a water-tight compartment. +It is a great adventure, and in order to prepare people for that +adventure we have to teach them to think for themselves on the problems +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 elsewhere. 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 determined +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 (December 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 Communication,” +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. Biklé, 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, +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 Defined,” 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 English History_, London, 1918; G. O. Trevelyan, _The Early History +of Charles James Fox_, relates Wilkes and Junius controversies. See +bibliography 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 (1917). 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 Sedition +Laws,” Ann. Rep. Am. Hist. Assn. (1912) 115; same, “Contemporary +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); Callender, 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 unconstitutionality; VII, +283, “The alien and sedition laws are working hard;” 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 dismissal +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 reports. + +_New York Times Index_, issued quarterly, is very valuable for finding +press accounts of prosecutions, etc. + + + B. THE WAR (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 +prosecutions can be found. Supreme Court records and briefs are in +the Harvard Law School Library. The cases before July, 1918, are +collected 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 assemblage (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 officially +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-General 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., narrates +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 (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 +_Yale 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 481½ 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._, Plaintiffs-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 references to the _Record_ except for significant passages. +Some information 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 _Ill. 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 14 _Ill. +L. Rev._ 601; and articles “The Call to Toleration,” 20 _New Republic_ +360 (November 20, 1919), “What Is Left of Free Speech,” Gerard C. +Henderson, 21 _New Republic_ 50 (December 10, 1919). + + +_Berger_ (see under Legislative Exclusion). + + +_Debs_: + +David Karnsner, _Debs, his Authorized Life and Letters from Woodstock +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’ addresses +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 defendant’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 Politics,” +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 RESTRICTIONS + 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 +Syndicalism_, 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 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 Report +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 +Subcommittee 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 +Investigation 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 +Investigation 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; 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); Swinburne 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 (January 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 Intellectuals 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., 1920. 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. Haywood +[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 “Ol’ 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_); +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 +articles: 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 Overthrow +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 Deportations,” +21 _New Republic_, 96 (December 24, 1919). The whole procedure 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 Year-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,” “Communist +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_. + +Popular articles on the “Buford” 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, “Burning +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. III, for Bradlaugh. + +For Congress, Asher Hinds, _Precedents of the House of Representatives +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 prosecution 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 +trial from the side of the defense, _American Labor Year-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 Evidence +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 +Programme,” 2 _Review_ 193 (February 28); “Governor Smith’s +Opportunity,” 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 Assemblymen’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, +abbreviated 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 Appeals, +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 General +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 undesirable 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 convicted 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 +President, 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. + + +I. PROSECUTIONS UNDER TITLE I, SECTIONS 3 AND 4, AND TITLE XII + +Abrams, J. N. Y. 250 U. S. 616 C. 20 yrs., aff. + +Albers, H. Oregon B. 191; 263 F. 27 C. Aff. + +American N. Y. B. 129, 252 F. 223; C. Fine $3,000 + Socialist B. 192; B. 198 + Society + +Anderson, O. S. D. 264 F. 75 C. Aff. + +Ault, E. B. Wash. 263 F. 798, 800 Ind. bad + +Baer, Elizabeth Pa. B. 43; B. 194, 249 U. C. Aff. + S. 47 + +Balbas, _sub_ + Capo + +Baltzer, E., and S. D. B. 3; 248 U. S. 593 C. 1–2 yrs. Rev. on + 26 others confession of + error + +Bentall, J. O. Minn. B. 180, 262 F. 744 C. 5 yrs. Rev. + +Berger, V. L. Illinois B. 186 C. 20 yrs. + +Binder, L. N. Y. B. 117, B. 126 C. + +Blodgett, D. T. Iowa N. 48 C. 20 yrs. + +Bold, F. W. Oregon B. 183 + +Bosco, P. W. Vir. B. 71 C. 10 yrs. (*2 yrs.) + +Bouldin, G. W. Texas 261 F. 674 C. Aff. + (negro) + +Boutin, A. N. Y. 251 F. 313 Ind. good + +Brackett, W. A. Mo. B. 170 C. $150 + +Brenne, R. Ohio B. 199 Acq. d. + +Brinton, J. W. N. D. B. 132 + +Buessel, T. Conn. B. 131 C. 10 yrs. (*4/1/19) + +Bunyard, C. D. Mo. B. 168 C. $200 + +Capers, H. Okla. B. 74 + +Capo, V. Balbas Porto Rico B. 30, B. 37, 257 C. 8 yrs. $4,000. + F. 17 Rev. + +Carlson, J. A. Wash. B. 185 + +Casey, J. E. Wash. B. 78 C. 5 yrs. Rev. + +Caughman, J. M. S. C. 258 F. 434 C. Rev. + +Cecca, G. de N. Y. B. 119; 258 F. 855 C. 10 yrs. Rev. + +Coldwell, J. M. R. I. B. 158; B. 201, 256 C. 3 yrs. Aff. + F. 805; 250 U. S. + 661 (memo.) + +Creo, A. N. Y. 245 F. 878, 888; B. C. Aff. + 15; B. 52; 40 Sup. + 205 + +Curran, W. C. N. Y. B. 140 + +Darkow, M. Pa. 248 F. 290; B. 181, C. 5 yrs. Aff. + 254 F. 135; 40 Sup. + 259. See B. 42 + +Deason, T. Texas 254 F. 259 C. Aff. 1½ yrs. + (*1 yr.) + +Debs, E. V. Ohio B. 155; B. 196, 249 C. 10 yrs. Aff. + U. S. 211 + +Deilman, C. S. N. Y. 245 F. 878, 888; B. C. Aff. + 15; B. 52; 40 Sup. + 205 + +Dembowski, J. Mich. 252 F. 894 Ind. bad + +Denson, W. A. Ala. B. 142 Acq. + +Dodge, W. N. Y. B. 202; 258 F. 300; C. 6 yrs. Aff. + 250 U. S. 660 + (memo.) + +Doe, P. B. Colo. B. 55; 253 F. 903 C. 1½ yrs. Aff. + (*5/8/19) + +Doll, C. S. D. B. 5; B. 163, 253 F. C. Rev. + 646 + +Eastman, M. N. Y. 252 F. 232 2 mistrials + +Elmer, W. P. Mo. B. 171; 260 F. 646 C. $1,000. Rev. + +Enfield, O. E. Okla. 261 F. 141 C. Rev. + +Engdahl, J. L. Illinois B. 186 C. 20 yrs. + +Equi, Marie Oregon B. 172; 261 F. 53 C. 3 yrs. $500. Aff. + +Feltman, H. Ky. 264 F. 1 C. Aff. + +Fisher, G. H. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev. + +Fontana, J. N. D. B. 148; 262 F. 283 C. Rev. + +Foster, L. Wash. B. 78 C. 5 yrs. + +Frerichs, H. Neb. B. 85 + +Frohwerk, J. Mo. B. 128; 248 U. S. C. 10 yrs. Aff. + 540; B. 197, 249 U. (*1 yr.) + S. 204 + +Germer, A. Illinois B. 186 C. 20 yrs. + +Gneiser, G. A. W. V. B. 71 + +Goldsmith, C. H. Ala. B. 133 + +Goldstein, R. Cal. 258 F. 908. See C. 10 yrs. $5,000. + B. 33 Aff. (*3 yrs.) + +Graham, J. I. Tenn. B. 120 + +Granzow, F. A. Iowa 261 F. 172 C. Rev. + +Groeschl Ky. N. 3 Acq. d. + +Grubl, F. S. D. 264 F. 44 C. Rev. + +Guggolz, J. C. Cal. 262 F. 764 C. Rev. + +Hall, J. K. S. C. 256 F. 748, B. 189 C. Rev. + +Hall, V. Mont. 248 F. 150 Acq. d. + +Hamm, E. Cal. 261 F. 907 C. Aff. + +Harper, S. J. La. B. 76 Acq. + +Harshfield, J. Neb. 260 F. 659 C. Rev. + +Haywood, W. D., Illinois B. 175 C. 16 for 20 yrs. 33 + and 92 others for 10 yrs. 30 for + 5 yrs. 12 for 1 + yr. 2 for 10 days. + Aff. + +Head, W. J. S. D. 248 U. S. 593 C. 3 yrs. $500. Rev. + on confession of + error + +Henning, J. Wis. B. 184 Ind. bad + +Henricksen, H. M. Neb. B. 86 C. + +Herman, E. Wash. B. 109; 257 F. 601 C. 10 yrs. Aff. + +Heynacher, W. S. D. 257 F. 61 C. 5 yrs. Aff. + (*1 yr.) + +Hicks, W. M. Okla. B. 160 C. 20 yrs. (*5 yrs.) + +Hickson, F. C. S. C. 258 F. 867 C. Rev. + +Hitchcock, A. L. Ohio B. 122 C. 10 yrs. (*2 yrs.) + +Hitt, O. Colo. B. 53 Acq. + +Hodges, W. Wash. B. 78 C. 5 yrs. Rev. + +Hotze, W. N. Y. 263 F. 130 C. 1½ yrs. + +Howenstine, F. P. Cal. 263 F. 1 C. Aff. + +Huhn, W. Wyo. B. 58 + +Hundelshausen, H. N. J. B. 130, 251 F. 946; Mistrial; case + v. B. 156 dismissed + +Kammann, C. H. Illinois 259 F. 192 C. 3 yrs., $5,000. + Rev. + +Katzler, W. von N. J. B. 130, 251 F. 946; Mistrial; case + B. 156 dismissed + +Kaufman, W. H. Wash. B. 134 C. 5 yrs. + +Kennedy, I. Cal. 263 F. 1 C. Aff. + +Kirchner, H. E. W. V. B. 69; B. 174, 255 F. C. 2 yrs. Aff. + 301 (*5/8/19) + +Koenig, H. C. Mo. B. 123, 166 Acq. d. + +Kornmann, C. S. D. B. 89; 248 U. S. 594 C. 10 yrs. Rev. on + confession of + error + +Krafft, F. N. J. B. 6, 84; 249 F. 919; C. 5 yrs., $1,000 + 247 U. S. 520 Aff. (*4/1/19) + +Kruse, J. H. Ky. 264 F. 1 C. Aff. + +Kruse, W. F. Illinois B. 186 C. 20 yrs. + +Kumpula, E. Oregon 261 F. 49 C. Rev. + +Lachowsky, H. N. Y. 250 U. S. 616 C. 20 yrs. Aff. + +Lemke, H. Pa. 248 F. 290; B. 181, C. 2 yrs. Aff. + 254 F. 135; 40 Sup. + 259. See B. 42 + +Lipman, S. N. Y. 250 U. S. 616 C. 20 yrs. Aff. + +Listman, G. B. Wash. 263 F. 798, 800 Ind. bad + +Lockhart, A. P. Tenn. 264 F. 14 C. Aff. + +McMillan, A. H. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev. + +Mackley, H. G. Vt. B. 83 C. 15 yrs. (*3 yrs.) + +Magon, R. F. Cal. 260 F. 811 C. 20 yrs. Aff. + +Mamaux, J. Ohio 264 F. 816 C. Aff. + +Martin, F. A. Wash. B. 78 C. 5 yrs. Rev. + +Martin, R. J. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev. + +Martin, W. E. Ky. B. 157 + +Mayer, F. Ky. B. 146, 252 F. 868 Acq. d. + +Mead, W. E. Wash. B. 103; 257 F. 639 C. 5 yrs. Aff. + +Miller, J. A. Colo. B. 104 C. 2 yrs. (*1 yr.) + +Mills, W. T. N. D. B. 204 Acq. d. + +Mullen, P. Wash. B. 78 C. 5 yrs. Rev. + +Nagler, L. B. Wis. B. 127, 252 F. 217 Ind. good, C. + +Nearing, S. N. Y. B. 129, 252 F. 223; Acq. + B. 192; B. 198 + +Nelson, C. N. Y. 245 F. 878, 888; B. C. Aff. + 15; B. 52; 40 Sup. + 205 + +O’Hare, Kate R. N. D. B. 40; B. 165, 253 F. C. 5 yrs. Aff. + 538 (*5/29/20) + +Olivereau, Louise Wash. B. 40 C. 10 yrs. + +Pape, T. B. Illinois B. 151, 253 F. 270 Ind. bad + +Partan, A. J. Oregon 261 F. 515 C. Aff. + +Perry Wash. B. 78 C. 5 yrs. Rev. + +Peterson, J. A. Minn. A. 52 C. 4 yrs. + +Phelan, J. B. Wash. B. 78 C. 5 yrs. Rev. + +Pierce, C. H. N. Y. 245 F. 878, 888; B. C. Aff. + 15; B. 52; 40 + Sup.—. + +Preston, F. L. N. Y. 263 F. 130 C. 1½ yrs. + +Prieth, B. N. J. B. 130, 251 F. 946; Mistrial; case + B. 156 dismissed + +Prieth, E. S. N. J. B. 130, 251 F. 946; Mistrial; case + B. 156 dismissed + +Prober, G. See N. Y. Acq. + Abrams + +Pundt, G. Neb. B. 82 + +Ramp, F. Oregon B. 66 C. + +Reitz, E. S. D. 257 F. 731 C. 5 yrs., $1,000. + Aff. + +Reivo, W. N. Oregon 261 F. 515 C. Aff. + +Rhuberg, J. Oregon B. 94; B. 107; 255 C. Aff. + Fed. 865 + +Rivera, L. Cal. 260 F. 811 C. 15 yrs. Aff. + +Robison, F. H. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev. + +Rosansky, H. N. Y. 250 U. S. 616 C. 3 yrs. Aff. + (*5/8/19) + +Rust, F. A. Wash. 263 F. 798, 800 Ind. bad + +Rutherford, J. F. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev. + +Sandberg, A. Ariz. 257 F. 643 C. 2 yrs., $500. + Rev. + +Sandvick, H. Alaska B. 113 + +Schaefer, P. Pa. 248 F. 290; B. 181, C. 1 yr. Rev. + 254 F. 135; 40 Sup. + 259. See B. 42 + +Schenck, C. T. Pa. B. 43; B. 194, 249 U. C. Aff. + S. 47 + +Schoberg, C. B. Ky. B. 149; 264 F. 1 C. Aff. + +Schulze, C. G. Cal. 253 F. 377; 259 F. C. Aff. + 189 + +Schumann, W. Iowa 258 F. 233; 250 U. S. C. Aff. + 66 (memo.) + +Schutte, B. H. N. D. 252 F. 212 Ind. bad + +Seattle Union- Wash. 263 F. 798, 800 Ind. bad + Record Pub. Co. + +Seebach, J. C. Minn. 262 F. 885 C. Aff. + +Shaffer, F. Wash. B. 125; B. 190, 255 C. 2½ yrs. Aff. + F. 886 (*1 yr.) + +Shidler, A. Nev. 257 F. 620 C. 2 yrs. $100. Aff. + +Shilter, K. Cal. 257 F. 724 C. Aff. + +Spillner, C. Hawaii B. 145 C. 16 yrs. (*3 yrs.) + +Steene, C. W. N. Y. 263 F. 130 C. 1½ yrs. + +Steimer, Molly N. Y. 250 U. S. 616 C. 15 yrs. Aff. + +Stenzel, B. Iowa 261 F. 161 C. 1½ yrs., $300. + Rev. + +Stephens, E. A. Cal. 261 F. 590 C. Aff. + +Stephens, F. Del. B. 116, 121 Acq. + +Stilson, J. V. Pa. B. 177; 40 Sup. 28 C. 3 yrs. Aff. + +Stokes, Rose P. Mo. B. 106; 264 F. 18 C. 10 yrs. Rev. + +Strong, Anna L. Wash. 263 F. 798, 800 Ind. bad + +Sugarman, A. L. Minn. B. 12; 245 Fed. 604; C. 3 yrs. Aff. + B. 195, 249 U. S. + 182 + +Sukys, J. Pa. B. 177; 40 Sup. 28 C. 3 mos. Aff. + +Sykes, J. Cal. 264 F. 945 C. Aff. + +Tanner, W. B. Colo. B. 56 Acq. + +Taubert, G. H. N. H. B. 108 C. 3 yrs. (*1½ yrs.) + +Tucker, I. S. J. Illinois B. 186 C. 20 yrs. + +Van Armburgh, W. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev. + E. + +Vevig, T. Alaska B. 162 + +Vogel, P. Pa. 248 F. 290; B. 181, C. 1 yr. Rev. + 254 F. 135; 40 Sup. + 259. See B. 42 + +Von Bank, H. N. D. B. 164, 258 F. 641 C. Rev. + +Waechter, H. N. J. B. 130, 251 F. 946; Mistrial; case + B. 156 dismissed + +Waldron, C. H. Vt. B. 79 C. 15 yrs. (*4/1/19) + +Wallace, D. H. Iowa B. 4 C. 20 yrs., went + insane and died + in jail + +Wehmeyer, W. F. Mo. B. 176 C. $1,000 + +Weinsberg, C. H. Mo. B. 123 Acq. + +Weist, A. Mo. B. 169 C., $200 + +Werner, L. Pa. 248 F. 290; B. 181, C. 5 yrs. Aff. + 254 F. 135; 40 Sup. + 259. See B. 42 + +Wessels, G. Tex. 262 F. 389 C. Aff. + +White, J. Ohio 263 F. 17 C. Aff. + +Whitney, A. G. N. Y. N. 55 No. ind. + +Williams, L. E. Colo. B. 118 + +Wimmer, P. Ky. 264 F. 11 C. Aff. + +Windmueller, D. Alaska B. 112 C. 1 yr., $250 + (*1 yr.) + +Wishek, J. H. N. D. B. 153 + +Wolf, J. H. S. D. B. 81; 259 F. 388 C. 5 yrs., $1,000. + Rev. + +Woodworth, C. H. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev. + +Youngman, P. G. Ala. B. 137 Acq. + +Zademack, C. F. Ohio B. 143 C. 5 yrs. (*1½ yrs.) + +Zimmerman, J. Ind. N. 10 Acq. d. + +Zittel, J. Wash. B. 90 + + + II. SEIZURE OF MOTION PICTURE FILM UNDER TITLE XI + +U. S. _v._ Motion Cal. B. 33, 252 F. 946 Upheld + Picture Film, + “The Spirit of ’76” + + +III. EXCLUSIONS FROM THE MAILS UNDER TITLE XII + +Masses Pub. Co. N. Y. 244 Fed. 535; 245 F. Injunction refused + _v._ Patten 102; B. 7, 246 for Aug. issue + Fed. 24 B. 26 Injunction refused + for Sept. issue + +Jeffersonian Pub. Ga. 245 Fed. 585 Injunction refused + Co. _v._ West + +U. S. ex rel. D. C. 258 F. 282 Mandamus refused, + Milwaukee Soc. as to present and + Dem. Pub. Co. future issues + _v._ Burleson + + + + + 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. Comp. 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, insubordination, 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 abusive 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 disrepute_, 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, printing, publication, +or language spoken, urge, incite, or advocate any curtailment 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 curtailment 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 whoever +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 +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 +Espionage 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 +Interpretation 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 President’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.); 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, §§1044ff.; +damage to building by explosive, §1420; manufacture, storing, or +shipping of explosives, §1894; attempt to injure building without +damage, §1895; indirect participation or attempt to commit any crime, +§§2, 260–262; solicitation of another to commit a crime is probably +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; murder, +§§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. +syndicalism 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 discharging +them, §§825a, 885; indirect participation in crime, §908; attempts, +§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 particular statute has been + discussed in a reference listed in the Bibliography. 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 indicate + an impending war or state of war”). + Misdemeanor. + +_Hawaii_ Laws, 1918 sp., Act 19 (“language calculated or + tending to discourage or prevent the vigorous + prosecution of the war”; “disrespect to any flag of + the United States”; “contemptuous or abusive + language about any allied nation or its flag or + uniform”; also peace clauses). 1 yr., $1,000. + +_Iowa_ (See sedition statute, part II; no express war provision, + but opposition punished in:) + + State _v._ Gibson, 174 N. W. 34 (1919). + +_Louisiana_ Laws, 1917 sp., No. 10 (like Minn., 1917). 3 mos.-1 yr., + $100-$500. + + Laws, 1918, No. 138 (like contempt part of Espionage + 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. + 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) + (dissent). + 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) (reversed). + 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). + + 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. + +_Nebraska_ Laws, 1918 sp., c. 5 (very wide; punishes concealment + of knowledge that sedition has been committed; + also any violation of U. S. Act of 1917.) + 20 yrs., $10,000. + + Gerdes _v._ State, 175 N. W. 606 (1919) (reversed). + +_New Jersey_ Laws, 1918, c. 36 (like Minn., 1917). 7 yrs., $100-$2,000. + + State _v._ Tachin, 106 Atl. 145 (1919); 108 Atl. + 318 (dissent). + + (See sedition statute, part II). + +_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 + unconstitutional). + 3 mos.-1 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.) + + + PART II + + _Statutes not Limited to War._ (See pp. 180–194 of text.) + +A. _Red 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. + + 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., $500. + +_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 offense); 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 arbitrary. +Groups B-E run into one another, and the line between sedition 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 _v._ Quinlan, 86 N. J. L. 120; 87 N. J. L. + 333 (1915; with dissenting opinion). + State _v._ Scott, 86 N. J. L. 133 (1914) (reversal). + +_Vermont_ Laws, 1919, No. 194 (like Mass., but has “indirectly”). + 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). + +_Wyoming_ Laws, 1919, c. 76. 5 yrs., $5,000. + +D. _Statutes Against Criminal Anarchy_: + +*_New York_ Laws, 1902, c. 371. 10 yrs., $5,000: + + Von Gerichten _v._ Seitz, 94 App. Div. 130 + (1904). + +_Washington_ Laws, 1909, c. 249, secs. 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, scurrilous + 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 Espionage + Act of 1918; also war clauses and peace + clauses). 1–10 yrs., $100-$1,000. + +_Illinois_ Laws, 1919, p. 420, adding to Criminal Code secs. + 265 a-g (advocacy of reformation or overthrow of + present representative form of government by violence + 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 Ia. 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 Ia.). 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. + +_New Hampshire_ Laws, 1919, c. 155 (advocating overthrow of government + or interference with any public or private + right whatever by force; any act which _tends_ to + encourage violation of law). 10 yrs., $5,000. + Injunction provision. + +_New Jersey_ Laws, 1918, c. 44 (like Ia.). 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 + textbooks containing seditious or disloyal matter). + +_Pennsylvania_ Laws, 1919, No. 275 (any publication, utterance, or + conduct which _tends_ to cause any outbreak of + violence, to encourage conduct with a view of + overthrowing 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 + Resolutions 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 yrs., $5,000. + +_Minnesota_ Laws, 1917, c. 215. 10 yrs., $5,000. + + State _v._ Moilen, 167 N. W. 345 (1918); 1 + A. L. R. 331. + +_Montana_ Laws, 1918 sp., c. 7. 1–5 yrs., $200-$1,000. + +_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-$1,000. + +_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 sabotage). + 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 indexed by the plaintiff’s name. Important + prosecutions and election cases are also in the General Index. + Many federal and state prosecutions not discussed in this book + are indexed in Appendices II and V. + + + Abbott, _Re_, 320 _n._, 321 _n._ + + Abrams _v._ U. S., 120–160; + see General Index. + + Acklen Election Case, 349 _n._ + + Ahearn, P. _v._, 352 _n._ + + Ahlers, R. _v._, 326 _n._ + + Albers, U. S. _v._, 57 _n._, 59 _n._ + + American School of Magnetic Healing _v._ McAnnulty, 105 _n._, 285 _n._ + + American Socialist Society _v._ U. S., 27 and _n._, 308, 356. + + Aso, U. S. _v._, 167, 168 and _n._, 173. + + Atchison etc. Ry. _v._ Brown, 11 _n._ + + August _v._ U. S., 149 _n._ + + Ault, U. S. _v._, 115 _n._ + + + Bailey _v._ Alabama, 36 _n._ + + Baker, U. S. _v._, 101 _n._ + + Baltzer, U. S. _v._, 64, 65 and _n._, 88 _n._ + + Bancroft _v._ Frear, 320 _n._ + + Barker, P. _v._, 340 _n._, 342 _n._ + + Beatty _v._ Gillbanks, 183 and _n._ + + Beresford-Hope _v._ Lady Sandhurst, 319 _n._ + + Berger Election Case, 315–332; + see General Index. + + Bernat and Dixon, _Ex parte_, 272 _n._ + + Billingsley _v._ U. S., 166 _n._ + + Blanding, C. _v._, 8 _n._, 24 _n._ + + Blodgett, U. S. _v._, 62, 64. + + Blount, Expulsion Case, 346 _n._ + + Blum, Matter of, 304 _n._ + + Bollman and Swartwout, _Ex parte_, 325 _n._ + + Bosny _v._ Williams, 236 and _n._ + + Boutin, U. S. _v._, 57 _n._ + + Boyd, S. _v._, 192 _n._ + + Boyd _v._ U. S., 299, 300, 303 _n._, 335 _n._ + + Bradlaugh Election Case, 344. + + Bright Expulsion Case, 346, 347, 350 _n._ + + Brinton, U. S. _v._, 83. + + Bryant _v._ U. S., 40 _n._ + + Buessel, U. S. _v._, 128 _n._ + + Burman, P. _v._, 183 _n._ + + Bush, P. _ex rel._, _v._ Thornton, 342 _n._, 347 _n._ + + Butler _v._ Perry, 36 _n._ + + + Campbell _v._ Cannon, 347 _n._, 351 _n._ + + Cannon, Election and Expulsion Cases, 345 _n._, 347 _n._, 351 and _n._ + + Carlisle _v._ U. S., 326 _n._ + + Casement, R. _v._, 325, 326. + + Chandler, S. _v._, 31 _n._ + + Charges to Grand Jury, 327 _n._ + + Chin Wah, _Re_, 241 _n._ + + Chin Yow _v._ U. S., 255 _n._ + + Clap, C. _v._, 24 _n._ + + Clark, S. _v._, 151 _n._ + + Clark, U. S. _v._, 215 and _n._ + + Clarke, _Ex parte_, 307 _n._ + + Claudius _v._ Davie, 7 _n._ + + Coaks, R. _v._, 319 _n._ + + Cobbett, Trial of, 8 _n._ + + Coldwell, U. S. _v._, 9 _n._ + + Colyer and Katzeff _v._ Skeffington, 242–249, 257, 270 and _n._, 271, + 339. + + Comfort _v._ Fulton, 304 _n._ + + Connolly _v._ Union Sewer Pipe Co., 282 _n._ + + Cowan _v._ Fairbrother, 12 _n._ + + Croswell, P. _v._, 30 and _n._ + + Cummings _v._ Missouri, 302 _n._, 342 _n._ + + Curran, U. S. _v._, 128 _n._ + + Cuthell, R. _v._, 58 and _n._ + + + Dailey _v._ Superior Court, 61 _n._ + + Dalton, S. _v._, 344 _n._ + + Danbury Hatters’ Case, 53 _n._ + + Darmer, U. S. _v._, 110 _n._ + + Darwin, S. _v._, 112 _n._ + + Davidson _v._ New Orleans, 16 _n._ + + Dean of St. Asaph, R. _v._, 8 _n._, 9 _n._ + + Debs _v._ U. S., 90–93; + see General Index. + + Dennie, Resp. _v._, 8 _n._ + + Denson, U. S. _v._, 57 _n._, 59 _n._ + + Dobbs’ Case, 150 _n._ + + Doe _v._ U. S., 60, 67. + + Drakard, R. _v._, 27, 28. + + + Eastman, P. _v._, 171 _n._ + + Eastman, U. S. _v._, 85 _n._, 86, 126. + + Ehrich _v._ Root, 306 _n._ + + Eisner _v._ Macomber, 106 _n._ + + Entinck _v._ Carrington, 298 _n._, 304. + + Equi, U. S. _v._, 33 _n._, 128 _n._ + + + Flagg, C. _v._, 165. + + Fong Yue Ting _v._ U. S., 235 _n._, 241 _n._, 249 _n._ + + Fontana, U. S. _v._, 48 _n._ + + Foster, Matter of, 307 _n._ + + 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._ + + Fricke, U. S. _v._, 41 _n._, 326 _n._ + + Frishman, C. _v._, 182–185. + + Frohwerk _v._ U. S., 15, 16 and _n._, 88 _n._, 90. + + Furman, P. _ex. rel._, _v._ Clute, 320 _n._ + + + Garland, _Ex parte_, 342 _n._ + + Gegiow _v._ Uhl, 239 _n._ + + Gibson, S. _v._, 111 _n._ + + Gillow, R. _v._, 150 _n._ + + Gilmore, S. _v._, 344 _n._ + + Goetcheus _v._ Matthewson, 342 _n._ + + Goldman, U. S. _v._, 13 _n._, 41 _n._, 126. + + Goldsmith, U. S. _v._, 57 _n._, 59 _n._ + + Goldstein _v._ U. S., 10 _n._, 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 _n._ + + 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 _n._ + + Halliday, R. _v._, 42 _n._ + + Halter _v._ Nebraska, 112 _n._ + + Harris Expulsion Case, 345 _n._, 346. + + Harrison, _Ex parte_, 11 _n._ + + Harshfield _v._ U. S., 59 and _n._, 93 _n._ + + Hatzel _v._ Hall, 341 _n._ + + Haywood, U. S. _v._, 85 _n._, 87 _n._, 163. + + Head _v._ U. S., 88 _n._ + + Henning, U. S. _v._ 48 _n._ + + Herbert Expulsion Case, 345 _n._ + + Hiss _v._ Bartlett, 340 _n._ + + Hitchcock, U. S. _v._, 57 _n._ + + Hodges, U. S. _v._, 326 _n._ + + Holm, S. _v._, 111 _n._ + + Houston _v._ Moore, 112 _n._ + + Hunt, R. _v._, 27, 28, 68. + + Hurtado _v._ California, 36 _n._ + + + I. C. C. _v._ Brimson, 242 _n._ + + + Jackson, _Ex parte_, (Fed.), 241 _n._, 242 _n._, 273 _n._, 274. + + Jackson, _Ex parte_, (U. S.), 108 _n._ + + Ju Toy, U. S. _v._, 238 _n._, 255 and _n._ + + + Kammann _v._ U. S., 93 _n._ + + Kansas _v._ Colorado, 34 _n._ + + Karvonen, C. _v._, 186 _n._, 187 _n._ + + Kaufman, U. S. _v._, 57 _n._ + + Kentucky _v._ Dennison, 191 _n._ + + Kentucky Members Election Case, 350 _n._ + + Kirchner, U. S. _v._, 57 _n._ + + Konkel _v._ S., 112 _n._ + + Krafft, U. S. _v._, 57 _n._ + + Kramer, U. S. _v._, 110 _n._ + + Kumpula _v._ U. S., 83 and _n._ + + + Listman, U. S. _v._, 115 _n._ + + Loewe _v._ Lawlor, 53 _n._ + + Lopez _v._ Howe, 278–280. + + Louthan _v._ C., 11 _n._ + + Lowery, S. _v._, 272 _n._ + + Low Hong, U. S. _v._, 255 _n._ + + Low Wah Suey _v._ Backus, 238 _n._, 239 _n._ + + Ludemann, S. _v._, 60 _n._ + + Lynch, P. _v._, 111 _n._ + + Lyon Expulsion Case, 329, 345. + + + McClure, S. _v._, 7 _n._ + + McCulloch _v._ Maryland, 34 _n._ + + McDonald, P. _v._, 303 _n._ + + McGrorty _v._ Hooper, 351 _n._ + + McKee, S. _v._, 11 _n._ + + McKee _v._ Young, 347 _n._, 350 _n._ + + McNeill, _Re_, 344 _n._ + + Magon _v._ U. S., 214 _n._ + + Mahaney, P. _v._, 341 _n._ + + Mamaux _v._ U. S., 80 _n._ + + Martin, U. S. _v._, 128 _n._ + + Masses Publishing Co. _v._ Patten, 46–56; + see General Index. + + Maxwell _v._ Cannon, 347 _n._, 351 _n._ + + Meckel, _Ex parte_, 111 _n._, 192 _n._ + + Merryman, _Ex parte_, 34 _n._, 81 _n._ + + 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 _n._, 69 _n._, 81 _n._, 96 + _n._, 113, 116, 117 _n._, 325. + + Milwaukee Social Dem. Pub. Co. _v._ Burleson, 316 _n._ + + Mitchell, _Ex parte_, 239 _n._ + + Moilen, S. _v._, 192 _n._, 272 _n._ + + Molyneux, P. _v._, 85 _n._ + + Moore, U. S. _v._, 150 _n._ + + Most, P. _v._, 205, 206. + + Most, R. _v._, 205 _n._ + + Moy Suey _v._ U. S., 255 _n._ + + Moy Wing Sun _v._ Prentis, 241 _n._ + + Muir, R. _v._, 28, 146 _n._ + + Mutual Film Co. _v._ Industrial Commn., 10 _n._ + + + Nagler, U. S. _v._, 57 _n._ + + Neagle, _Re_, 200. + + Nearing, U. S. _v._, 27, 53 _n._, 55 _n._, 85 _n._, 125. + + Nesin, P. _v._, 110 _n._ + + New Yorker Staats-Zeitung _v._ Nolan, 110 _n._ + + Nishimura Ekiu _v._ U. S., 230 _n._ + + Norman _v._ Mathews, 42 _n._ + + + Ogletree _v._ S., 150 _n._ + + O’Hare, U. S. _v._, 83, 162. + + Orear _v._ U. S., 40 _n._ + + Oswald, Resp. _v._, 8 _n._ + + + Pacific Ry. Com’n, _In re_, 242 _n._ + + Palmer, R. _v._, 28. + + Pape, U. S. _v._, 59 and 60 _n._ + + Patterson _v._ Colorado, 9 _n._ + + Peaslee, C. _v._, 53, 89. + + Pembliton, R. _v._, 150 _n._ + + Pettine, _Ex parte_, 280 _n._, 281 _n._ + + Phillips, U. S. _v._, 13 _n._, 41 _n._, 79 _n._, 126. + + Pierce, S. _v._, 11 _n._ + + Pierce, U. S. _v._, 13 _n._, 94 and _n._, 101–106, 134, 135 _n._, 285 + _n._ + + Pioneer Press Co., S. _v._, 12 _n._ + + Powell Expulsion Case, 346. + + Preis, _In re_, 257, 261. + + Printing Co., S. _v._, 12 _n._ + + Public Clearing House _v._ Coyne, 108 _n._ + + + Quinlan, S. _v._, 189 _n._ + + + Ragan, S., _ex rel._, _v._ Junkin, 11 _n._ + + Rathbone _v._ Wirth, 343 _n._ + + Reeder, U. S. _v._, 41 _n._ + + Roach Election Case, 349 _n._ + + Roberts Election Case, 345 _n._, 347 _n._, 350 _n._, 352 and _n._ + + Roberts _v._ People, 150 _n._ + + Roberts, Resp. _v._, 326 _n._ + + Robertson _v._ Baldwin, 7 _n._, 36 _n._ + + Robinson, U. S. _v._, 41 _n._, 324 _n._, 326 _n._, 327 _n._ + + Rogers _v._ Common Council, 343 _n._ + + Rogers, U. S. _v._, 166 _n._ + + Ronnfeldt _v._ Phillips, 119 _n._ + + Russell, Bertrand, R. _v._, 2, 42 _n._, 59 and _n._ + + + St. Louis etc. Ry. _v._ Griffin, 11 _n._ + + Samson _v._ Columbia, 110 _n._ + + Sandberg, U. S. _v._, 57 _n._, 59 _n._ + + Sanford _v._ Richardson, 305 _n._ + + Schaefer _v._ U. S., 85, 87, 94–101, 106, 218 _n._, 265 and _n._ + + Schenck _v._ U. S., 9 _n._, 16 _n._, 88–93; + see General Index. + + Schoberg, U. S. _v._, 38 _n._, 59 _n._ + + Schurmann _v._ U. S., 110 _n._ + + Scott, S. _v._, 189 _n._ + + Selective Draft Law Cases, 7 _n._, 40 _n._ + + Shaffer, U. S. _v._, 57 _n._ + + Shelley’s Case, 38. + + Silverthorne Lumber Co. _v._ U. S., 242 _n._, 299 _n._, 300. + + Skuy _v._ U. S., 149 _n._ + + Smith _v._ Brown, 320 _n._, 347 _n._, 350 _n._ + + Smoot Election Case, 347 _n._, 352, 353. + + Socialists Election Case, 332–364. + + Spirit of ’76, U. S. _v._, 10, 38 _n._, 43, 60, 61. + + Star _v._ Brush, 110 _n._ + + Star Opera _v._ Hylan, 110 _n._, 183 _n._ + + Stark Election Case, 347 _n._, 349, 350 and _n._ + + Starr, _Ex parte_, 113 _n._ + + Steene, U. S. _v._, 116 _n._ + + Stephens, U. S. _v._, 51 _n._ + + Stern _v._ Remick, 242 _n._ + + Stilson _v._ U. S., 93 and _n._ + + Stokes, U. S. _v._, 13 _n._, 28 _n._, 58, 59, 67, 87 _n._, 92, 118, + 119. + + Strong, U. S. _v._, 115 _n._ + + Stuppiello, U. S. _v._, 280 _n._ + + Sugarman _v._ U. S., 88 _n._, 89, 90. + + Sultan _v._ Star Co., 110 _n._ + + Swelgin, U. S. _v._, 272 and 273 _n._ + + Swift _v._ U. S., 53 _n._ + + Symes _v._ Trimble, 350 _n._ + + + Tachin, S. _v._, 111 _n._, 112 _n._, 192 _n._ + + Taubert, U. S. _v._, 81 _n._ + + Thomas Election Case, 347 _n._, 350 _n._ + + Toledo Newspaper Co. _v._ U. S., 12 and _n._ + + Townley; see General Index. + + Truss, _In re_, 257. + + Turner _v._ Williams, 275, 277, 278, 283. + + + U. S. Steel Corp., U. S. _v._, 106 _n._ + + + Vallandigham, _Ex parte_, 117 _n._, 325. + + Van Lonkhuyzen _v._ Daily News, 110 _n._ + + Vegelahn _v._ Guntner, 53 _n._ + + Von Bank, U. S. _v._, 57 _n._ + + Von Gerichten _v._ Seitz, 188 _n._ + + + Waldman Election Case, 332–364. + + Waldron, U. S. _v._, 61, 62. + + Wallace, U. S. _v._, 13 _n._, 62. + + Wallace _v._ Georgia Ry., 11 _n._ + + Weeks _v._ U. S., 241 _n._, 299 _n._, 300. + + Weems _v._ U. S., 148 _n._ + + Weinsberg, U. S. _v._, 57 _n._ + + Weist, U. S. _v._, 57 _n._ + + Wells _v._ U. S., 41 _n._, 168 and _n._, 173. + + Werner, U. S. _v._, 41 _n._, 327 _n._; + see Schaefer _v._ U. S. + + Wheeler, U. S. _v._, 45 _n._ + + Whitaker, P. _v._, 110 _n._ + + White, U. S. _v._, 57 _n._ + + Whittemore Election Case, 349 _n._ + + Wiborg _v._ U. S., 149 _n._ + + Wilkes _v._ Wood, 297 _n._ + + Wilkes Election Case, 311–315, 328, 356. + + Wishek, U. S. _v._, 48 _n._ + + Wong Quong Wong, U. S. _v._, 241 _n._ + + Workingmen’s Co-operation Publishing Association, U. S. _ex rel._, + _v._ Burleson, 115 _n._ + + Wursterbarth, U. S. _v._, 109, 110 _n._ + + + Young, U. S. _v._, 325 _n._, 326 _n._ + + + Zenger trial, 23 and _n._ + + 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, 9 _n._, 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 assassination, 223. + + ADDISON, Judge, 21 _n._ + + ADMINISTRATIVE LAW, conclusiveness 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 becoming naturalized, 235, 236. + + ALTERCATIONS, language in, prosecuted, 59 and _n._, 68. + + AMERICAN FEDERATION OF LABOR, 193, 198, 255, 267, 272 _n._, 278. + + AMERICAN LABOR PARTY, 267. + + _American Labor Year-Book_, 257, 273 _n._, 305 _n._, 308 _n._, 319 + _n._ + + AMERICAN PROTECTIVE LEAGUE, 71, 308. + + 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; + prosecution, 27 and _n._, 308, 356. + + AMERICANISM, 178, 227, 331, 362, 372. + + AMIDON, C. F., Judge, 46, 48 _n._, 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 criminal 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 _n._, 194 _n._, 242–250, 253–257, + 268. + + ANGELL, W. F., on Caillaux trial, 136 _n._ + + ANSELL, S. T., General, on militia, 111 _n._ + + ANTIN, Mary, 82. + + ANTONELLI, Étienne, _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. + + ARMY, criticism of flogging in, 27, 28, 68; + abuse of uniform, crime, 45, 114, 115; + criticism of incompetent general by troops, 50. + See CONSCRIPTION; + WAR. + + _Army and the Press, Relation Between_, 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 deportation, 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, 7 _n._, 50; + in war, 57, 58; + in peace, 172, 177, 178, 180, 182–185, 205, 206; + permits 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 _n._ + + ATTEMPTS, criminal, 304 _n._; + relation to freedom of speech, 25, 165, 173; + to Espionage Act, 51–53, 88, 89, 155; + attempts to obstruct 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, DEPARTMENT OF. + + AUDIENCE, character of, as affecting criminality of utterances, + 57–61, 206. + + + BAGEHOT, Walter, 34, 140 _n._, 197, 207, 289 _n._ + + BAIL, under Espionage Act, 46; + in deportations, 248. + + BAKUNIN, 221. + + BALDWIN, Roger, 193 _n._ + + BARKLEY, F. R., 248 _n._, 255 _n._ + + BEALE, Joseph H., on criminal attempts, 51 _nn._ + + BEAN, R. S., Judge, 33 _n._ + + BEARD, imprisonment for wearing long, 172, 183. + + BECKSTROM, J. W., prosecution, 102 _n._ + + BEECHER, Edw., _Alton Riots_, 3 _n._ + + 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, Duc 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 _n._, 211 _n._, 265 _n._, 330 _n._ + + _Bible_, 110, 332, 333; + prosecution for quoting, 218. + See JESUS. + + BIKLÉ, H. W., on sedition law, 199 _n._, 204 _n._ + + BILLBOARD-POSTERS, indecent, 10. + + BILL OF 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 _n._, 86 and _n._; + do not crystallize antiquity, 35, 36; + deportation, 281–291; + miscellaneous references, 3, 228. + + BISBEE DEPORTATIONS, 45. + + BISHOP, on intent, 150 _n._ + + BISMARCK, sedition legislation, 263. + + BLACK, Jeremiah, 69, 113. + + BLACKSTONE, William, 9, 31 _n._; + definition of freedom of speech, 8–12, 19, 21, 22 _n._, 23 _n._, + 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 Committee, 134, 135, 164. + See RUSSIA. + + BOMBS, 163–169 _passim_, 196, 212, 268. + + BONDS. See LIBERTY BONDS. + + BOOKS, danger of suppression under federal sedition law, 220–224; + Rand School, 308–310. + + BORAH, Senator, 37 _n._ + + BOSTON, 182–186, 191, 311. + + BOURQUIN, G. M., Judge, 59 _n._, 273 _n._, 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 + _n._ + + BRAXFIELD, Lord, 87, 146 _n._, 210. + + BREACH OF THE PEACE, acts causing, not protected by free speech + clauses, 24, 25; + punishment of language as, 74 and _n._, 102 _n._, 110 _n._, 111, + 171, 172, 205, 208. + + BREWER, Justice, 278. + + BRIGHT, John, 104, 117. + + BRISSENDEN, Paul, 292. + + BROOK FARM, 177, 277. + + BROWN, Philip A., _French Revolution in English History_, 28 _n._, + 146 _n._ + + BRYCE, James, 6 _n._, 363 _n._ + + _Buford_, 230, 249. + + BUREAU OF INVESTIGATION, 164, 195, 243–247, 269–271. + See JUSTICE, DEPARTMENT OF. + + BURKE, Edmund, 266, 313, 314, 338, 355, 361. + + BURLESON, A. R., Postmaster General, 107, 108, 109 _n._, 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 _n._ + + CALIFORNIA, syndicalism prosecution, 190 _n._; + Oriental question, 209. + + CALLENDER, prosecution under Act of 1798, 78 _n._ + + CAMBRIDGE, raids, 311. + + CAMDEN, Lord, 297, 298. + + CAMINETTI, A., Commissioner General of Immigration, 243, 251. + + CAMPBELL, Lord, 344. + + CANADA, free speech in, 42, 218, 269. + + CARROLL, T. F., on war laws, 42 _n._, 325 _n._ + + CARTOONS, Opper, 52; + in _Masses_, 46. + + CASEMENT, Sir Roger, treason prosecution, 325, 326. + + CENSORSHIP, press, 8–12, 19, 21, 23 _n._, 25, 32, 38, 42 and _n._, + 179, 180; + in Russia, 176, 294 _n._; + billboards, 10; + moving pictures, 10, 61 _n._, 179, 203 _n._; + theater, 172, 175; + mails, see POST-OFFICE, telegraph, 109 _n._; + 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 _n._ + + CHATHAM, Lord, 250, 295, 296. + + CHESTERFIELD, Lord, 52. + + _Chicago Times_, suppression, 116 and 117 _n._ + + CHINESE, exclusion of, 230 _ff._, 255, 273. + + CHIVERS, Ellen, testifies against Socialist assemblymen, 357, 358, + 364. + + CIBBER, Colley, 175. + + CITIZENS, American, arrests for deportation, see ARRESTS; + in foreign countries, 288 and _n._ + + CIVIL RELIEF ACT, SOLDIERS’ AND SAILORS’, 112. + + CIVIL WAR, American, 2, 363; + opposition to, 41, 46, 81, 90, 116, 117; + treason cases, 324; + legislation exclusions, 325–330, 345–353. + + CLARKE, J. H., Justice, 87, 94, 129, 139, 140–142, 148–159, 215, 216. + + CLAESSENS, August, N. Y. Socialist assemblyman, 333, 356. + + CLAY, Henry, 330. + + CLAYTON, H. D., Judge, in Abrams trial, 28 _n._, 86 _n._, chapter + III., 125–148. + + COBDEN, Richard, 117. + + COKE, Edward, 19. + + COLLEGES, expulsion of pacifist student, 110 _n._ + + _Collier’s Weekly_, on telegraph censorship, 109 _n._ + + _Columbia Law Review_, 192 _n._, 263 _n._ + + COLUMBIA UNIVERSITY, expels pacifist 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 _ff._, 250, 256, 257, 261 and _n._, 262, + 339; + Communist Party of America, 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 PARDONS. + + 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 _ff._, 129; + declaration of war against Germany, 40; + used as evidence in prosecutions, 57, 103 _ff._; + freedom of discussion for elections, 62–65, 329–331; + sedition bills, 194–199; + House Rules hearings, 198, 250–252; + House Judiciary Committee, 197; + House Immigration Committee, 251; + repays fines of 1798, 30, 157; + Continental Congress, 17; + Confederate Congress, 117 _n._ + See UNITED STATES STATUTES; SEDITION BILLS; ESPIONAGE ACT; + DEPORTATIONS; LEGISLATIVE EXCLUSIONS (Berger, Test Oath Act, + etc.). + + CONNECTICUT, Bridgeport strike, 153; + sedition prosecution, 190 _n._; + Hartford deportations, 246. + + CONSCIENTIOUS OBJECTORS, discussion of, 2, 47, 59, 86. + + CONSCRIPTION, military, violation of, 40, 144, 145; + constitutionality, 7, 35, 40; + criminal to discuss, 57, 62, 88; + advocacy of resistance 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 rearrangement 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 freedom 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 injurious conduct of single person, 41, 50, 90, 167, + 196; + under Espionage 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 legislative eligibility, 340 _n._ + + COPPERHEADS, 41, 325. + + CORRUPT PRACTICES, statute void under free speech clause, 11 _n._ + + CORY, H. E., N. J. sedition law, 189 _n._ + + COURTS MARTIAL, for sedition, 33 _n._, 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 _n._ + + CRUELTY, charges against officials, 145, 146, 159, 189 _n._, 247, 248. + + CUDGEL, liberty of the, 18. + + CULLEN, Chief Justice, on exclusion for opinions, 352. + + + DALLINGER, F. W., Representative, on Berger case, 331, 332. + + DARWIN, Charles, 32. + + DAVIS, David, Justice, 33 _n._ + + DAY, Justice, 241 _n._, 300. + + DE ARMOND, Representative, 352 and _n._ + + DE WITT, S. A., N. Y. Socialist assemblyman, 333, 356. + + DEBS, E. V., prosecution, 16, 22 _n._, 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-Germans, 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 _n._; + from England, 263 _n._; + 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; + punishment for sedition, 198; + federal power, 200, 230, 284; + Statute of 1918, 109, 110; + text, 230, 231, 240; + of 1920, 230 _n._, 231 _n._; + administrative machinery, 232–240, 291, 292; + raids of January, 1920, 230, 241–254, 292, 293; + Palmer-Post controversy, 250–252; + arrest of citizens, 242, 244, 245, 249, 252–256; + Communists, 256–272; + Wilson decision on Communist Party, 257 _ff._, 268; + on Communist Labor Party, 261; + proof of membership in proscribed associations, 231 _n._, 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 _ff._; + constructive measures suggested, 289–293; + need of pardoning powers, 292. + + DETROIT, deportations, 243 _n._, 248, 255 _n._, 288. + + DICEY, A. V., 5 _n._, 76 and _n._, 183 _n._ + + DICKENS, Charles, 140. + + DICTAGRAPH, used to prosecute for conversations, 59 _n._ + + DISORDERLY CONDUCT, pacifism punished as, 74 and _n._, 102 _n._, 110 + _n._ + 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 balancing, 35, 38; + in deportation proceedings, 232, 241, 242 _n._, 254, 255, 280–285. + + DUGUIT, Leon, on the state, 109. + + DUMA, 176. + + DUNIWAY, C. A., _Freedom of the Press in Mass._, 19 _n._, 23 _n._, 24 + _n._ + + + EASTMAN, Max, 79, 85 _n._, 86, 126. See _Masses_. + + EGYPT, 108. + + EIGHTEENTH AMENDMENT. See PROHIBITION. + + ELECTORAL COLLEGE, 114. + + ELLENBOROUGH, Lord, 28, 68. + + ELLIOT’S DEBATES, cited, 5 _n._, 19 _n._, 20 _n._, 21 _n._, 211 _n._, + 240 _n._ + + EMERSON, 277, 367. + + EMPEY, Guy, 261. + + ENGLAND. See GREAT BRITAIN. + + ENLISTMENT, voluntary, interference with, 41, 43, 53, 57, 169. + + ENTINCK, John, raid on, 298, 304. + + ERSKINE, Thomas, 19, 23. + + ESMEIN, A., 175 _n._ + + ESPIONAGE ACT, 40–160. + _Act of 1917_: + origin and text, 40–43; + a military statute, 48 and _n._, 50, 51, 73; + construction generally, 43, 44, 57, 58, 69, 216, 218, 335, + in _Masses_ case, 46–56, + in prosecutions, 56–66, + by Supreme Court, 1, 15–17, 57, 65, 87–106, 265; + false statements, 51, 56, 57, 94–106, 134, 135, 218; + insubordination and recruiting, 57 _ff._ + _Act of 1918_: + origin, 43–46; + summarized, 44, 45; + text and digest of cases, 395–398; + construction generally, 51, 113 _ff._, + 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; + resistance to U. S., 127, 129, 137, 141, 149, 153 _n._, 215, 216; + opposing cause of U. S., 114. + Human machinery of Act, 66–87, + public feeling, 70–73, + prosecuting officials, 73–76, + juries, 76–80, + judges, 80–87; + sentences, 58–62, 87 and _n._, 147, 148, 159, 220; + constitutionality, 12 and _n._, 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 _ff._, 162, + against actual incitement to violation of draft law, 57, 88–90, + after armistice, 113–116, 229, 261, 302, 335; + comparison, with Sedition Act of 1798, 56, 128, + with Civil War, 41, 46, 116, 117, + with Defense of the Realm Act, 118 and _n._; + 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, 23 _n._ + Relation of Act to law of attempts and solicitation, 49, 51–53, 88, + 89, 155; + intention in prosecutions, 54–56, 63–68, 86; + proved by utterances outside indictment, 58, 67, 85 and _n._, + 140–142, + and before U. S. entered War, 67; + in Abrams case, 127 _ff._, 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 _n._ + + EVIDENCE, questions of, in war cases, utterances outside indictment, + 58, 67, 68, 85 and _n._; + 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; DENATURALIZATION. + + EXPLOSIONS, 163–169 _passim_. + + EXPRESS, as substitute for mails, 109 and _n._ + + EXTRADITION, of political criminals, 191 and _n._, 286. + + + FACT, questions of, 101–106. + + FEDERALIST JUDGES, 8, 9, 21, 22, 31, 78, 80, 81. + + FEDERALIST PARTY, wrecked by Sedition Act of 1798, 30, 116. + + FERRARI, Robert, on political trials, 85 _n._, 136 _n._ + + FERRER, 278, 279. + + FIELD, Stephen, Justice, 96 _n._, 235. + + FIFTH AMENDMENT, in war, 33 and _n._, 42 _n._, 299. + See DUE PROCESS OF LAW. + + _Finished Mystery_, pamphlet, 101. + + 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 powers, 33 _n._ + + FLOGGING, in army, criticism of, 27, 28, 68. + + FLYNN, E. G., I.W.W., 189 _n._ + + “FORCE AND VIOLENCE,” legislation 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 _ff._, 108 _n._, 110 _n._; + in peace, 195, 199. + + FORTY-EIGHT, COMMITTEE OF, 184, 267. + + FOUR-MINUTE MEN, 64, 74. + + FOURTEENTH AMENDMENT, 35, 38, 323–328. + + FOURTH AMENDMENT. See SEARCHES 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; + Restoration 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 _n._, 206, 207, 211 _n._, 263 _n._, 267. + + FROHWERK, prosecution, 15, 16 and _n._, 88 _n._, 90. + + FUGITIVE SLAVE LAW, 114, 209, 210. + + FULLER, M. W., Chief Justice, 277, 283 _passim_. + + FURNEAUX, Philip, _Letters to Blackstone_, 31 _n._ + + + _Gaelic American_, excluded from mails, 108. + + GALSWORTHY, John, 10. + + GARRISON, W. L., 209, 210. + + GARVAN, Assistant Attorney General, 261, 262. + + GAYNOR, Wm. J., on searches, 304 _n._ + + GEIGER, Judge, 48 _n._ + + GEORGE III., sedition under, 312. + See GREAT BRITAIN. + + GEORGE, Lloyd, 117. + + GERMAN OPERA, prohibited, 110 _n._, 183 _n._ + + GERMANY, treaty with, 2; + opposition to war with, 6, 40–119, 317 _ff._; + propaganda by, 42, 70; + submarine warfare, 57, 60; + invasion of Belgium, 63; + spies, 6, + exaggerated reports, 70–72; + connection with Russian Revolution, 132 and chapter III _passim_; + laws against associations, 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 _n._, 41 _n._, 47, 56, 126, 177, 200, 256, 287. + + GOLDSTEIN, prosecution, 10 _n._, 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 _n._, 157, + 175, 210, 211, 216; + informers and anti-sedition associations, 72; + Defense of the Realm Act in World War, 42 and _n._, 58, 118 _n._; + other wars, 104, 117; + Combination Acts, 192; + treason, 201–203; + Reform Bill, 260; + laws against seditious associations, 263, 264; + expulsion of aliens, 263 _n._; + spies, 269–271; + Wilkes, 295–299, 311–315; + other Parliamentary cases, 344; + effect of English law on Federalist judges, 8, 9, 21, 22; + criticism of England suppressed under Espionage 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; + requests amendment of Espionage Act, 43, 44; + on baseless spy rumors, 72; + circulars to district attorneys, 74–76; + on slacker round-up, 107, 108. + See ATTORNEY GENERAL. + + GRENVILLE, George, 296, 298, 311, 313. + + GUESTS, prosecute host for sedition, 59. + + GUILT BY ASSOCIATION. See ASSOCIATION. + + GYORI, Louis, philosophical anarchist deported, 280. + + + HABEAS CORPUS, right to, 3, 69, 95 and _n._, 238, 239, 240, 253, 255. + See COLYER CASE. + + HALE, Swinburne, 270 _n._ + + HALÉVY, D., on American political parties, 363. + + HALIFAX, Lord, 296, 297, 302. + + HAMERSLEY, Judge, 12. + + HAMILTON, Alexander, 2, 15; + definition of free speech, 3 and _n._, 4 _n._, 30 and _n._, 372; + rejected for Espionage Act, 44. + + HAMILTON, Andrew, 19, 23 _n._ + See ZENGER. + + HAND, Augustus, Judge, 86, 126. + + HAND, Learned, Judge, 15, 17, 125, 128 _n._, 194, 324 _n._; + interpretation of freedom of speech in _Masses_ case, 46–56, 63, + 69, 76 _n._, 88, 89, 107, 174, 216. + + HANSON, Ole, 115 _n._, 193 _n._ + + HARPER, Saml. N., 186 _n._ + + 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 _n._, 51 _n._, 54 _n._, 57 + _n._, 76 _n._, 82 _n._, 83 _n._, 128 _n._, 150 _n._, 156 _n._, + 202 _n._, 214 _n._ + + HARVARD LIBERAL CLUB, 194 _n._, 226 _n._ + + HAYWOOD, W. D., prosecution, 85 _n._, 87 _n._, 163. + + HAZEL, Judge, 167, 168 and _n._ + + HEARST, W. R., 52; + newspapers in the war, 110 _n._ + + HENRY, Patrick, 60, 205. + + HIGGINS, Henry B., on conciliation courts, 192 _n._ + + HOBBES, Thomas, 13. + + HOLMES, O. W., Justice, on freedom of speech, 9, 15, 16, 22, 88–93, + 94, 101, 120, 148 _n._, 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 _n._, 54 _n._, 55, 108 _n._, 119. + + HOXIE, 267 _n._ + + HUGHES, Charles E., 2, 189, 332, 333, 336–339. + + HUMAN MACHINERY, for enforcing 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 _n._; + on witches, 356 _n._ + + HYDE, C. C., on Czecho-Slovaks, 131 _n._ + + HYLAN, Mayor, 110 _n._, 183 _n._, 190, 191. + + HYMNS, military imagery in, 140. + + + IDAHO, syndicalism law, 190. + + IHERING, von, on rights and interests, 35 _n._ + + _Illegal Practices of the United States Department of Justice_, + pamphlet, 243 _n._, 270 _n._ + + ILLINOIS, Alton riots, 3; + Haymarket murders, 165; + sedition statute, 191. + + IMMIGRATION OFFICIALS, hearings. + See DEPORTATIONS. + + INCITEMENT. See SOLICITATION. + + INDECENT PUBLICATIONS. See OBSCENITY. + + INDIA, discussion of, suppressed in U. S., 108; + sedition in, 66, 212, 241, 249. + + INDUSTRIAL WORKERS OF THE WORLD (I.W.W.), Bisbee deportations, 45; + Chicago trial, 85 _n._, 87 _n._, 163; + Sacramento trial, 87 _n._; + other federal prosecutions, 77, 83; + attitude toward war, 81, 162, 163; + state war prosecutions, 110, 113; + peace prosecutions, 189 _n._, 190–193; + Centralia, 164, 212; + economic causes, 193; + injunction against, 193; + raids upon, 212, 242 _n._, 260, 271; + deportations, 242 _n._, 272–275; + denaturalization, 272, 273; + constructive measures suggested, 274, 275. + + INJUNCTION, of libels, 8; + against exclusion from mails, 47, 48; + against coal strike, 82, 260. + + INTENTION, doctrine of constructive, 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 _ff._ + + INTERNATIONAL, COMMUNIST, 259, 260, 334, 360. + + IOWA, war sedition act, 111 _n._ + + 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 WORKERS OF 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 _n._, 290. + + JOHNSON, Reverdy, Senator, on legislative exclusion, 347 _n._, 351 + _n._ + + JOHNSON, Samuel, 10 _n._, 118 _n._, 172 _n._, 175 _n._, 289, 311. + + JU TOY, deportation, 238 _n._, 255 and _n._ + + JUDGES, effect of free speech clauses on, 5; + Federalist, 8, 9, 21, 22, 31, 78, 80, 81; + function in libel and petition prosecutions, 19, 22–28, 29, 85, 86; + interpretation 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; + supervision by Department of Justice, 84, 85; + sentences, 86, 87; + Abrams case, 125 _ff._; + jesting with prisoners, 146–148; + unfitness to determine bad intention and bad tendency, 213–219. + + JUNIUS, 23, 312, 314. + + JURY, right to, grouped with freedom of speech, 3, 4, 17; + function in libel and sedition prosecutions, 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 Espionage Act trials, 73, 76–80, 91, 98, 99, 103 _ff._, 132–136 + and _ff._; + importance of methods of selection, 26, 77–79; + under Sedition Act of 1798, 78 and _n._; + age and occupation, 79, 80; + divergent opinions of same writing, 26, 27; + denied in post-office exclusion proceedings, 158, 199; + in deportation proceedings, 158, 232–240. + + JUSTICE, DEPARTMENT OF, 202, 309; + administration of Espionage Act, 73–76, 90, 112, 113, 124–126, 229, + 261, 262, 302; + recommendations for reduction of sentences, 73, 87 _n._; + policy toward radicals, 164, 195–197, 229; + enforcement + 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; + instructions 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 legislative exclusion, 347 _n._, 353. + + KOHLER, on construction of fundamental 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 decisions 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._, 144, 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 _ff._; + in U. S. Constitution, 321, + Fourteenth Amendment, 323 _ff._, 348, + guilt of treason, 324 _ff._, + opposition to war as disqualification, 328 _ff._; + N. Y. Socialists, 332–364; + original proceedings, 332 _ff._; + protests, 335 _ff._; + Judiciary Committee sits, 339 _ff._; + power to suspend, 339, 340; + power to disqualify on grounds not stated in the constitution, 321, + 322, 328–332, 340 _ff._, 347 _ff._, + judicial precedents, 340–343; + legislative precedents, 343–354, + in England, 344, + expulsions from Congress, 345 _ff._, + disqualifications in Congress, 349 _ff._, + under Test Oath Act, 328, 330, 349–351, 353, + Mormons, 348, 351 _ff._, + in New York, 354; + disqualification 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 injunction, 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 campaigns on discussion, 7, 74; + interference 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. + + LINCOLN, Abraham, 46, 116, 117, 224, 329; + on revolution, 223. + + LIPMAN, S., prosecution, 123, 126, 138, 140, 141, 142, 143 _n._, 145, + 147, 147 _n._, 148. + See ABRAMS. + + LIPPMANN, Walter, 67 _n._ + + LITTLEFIELD, Charles, Representative, 347 _n._, 352 and _n._ + + LOANS, as cause of war with Germany, 102–106. + See MORGAN; LIBERTY BONDS. + + LOPEZ, F. R., philosophical anarchist deported, 278–280, 286. + + LORIMER, Wm., Senator, exclusion case, 339, 343, 347. + + LOVEJOY, E. P., 3. + + LOWELL, A. L., on academic freedom, 368. + + LOWELL, James Russell, 16, 97, 104, 116, 202, 366, 372. + + LOYALISTS, British, 2, 302 and _n._ + + 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 _n._ + + MCKINLEY, William, 52, 165, 187, 205, 230. + + MCMASTER, J. B., 19 _n._ + + MACAULAY, T. B., 19 _n._, 66 and _n._, 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 _n._, 34 _n._, 200, 201, 211 _n._, 265, 325. + + MARSHALS, United States, 78, 80. + + MARTENS, L. C. A. K., 287, 305–308. + + MARTIAL LAW, for opponents of war, 33 _n._, 41, 42, 116, 117; + for discussion in army, 50. + + MARTIN, Luther, 17. + + MARX, 221, 223, 279, 365 _ff._ + + MARYLAND, demands federal free speech clause, 4, 19. + + MASSACHUSETTS, 283, 315; + constitution, free speech clause, 4 and _n._; + Blackstonian decision, 8; + restriction of press by stamp tax, 19 _n._; + colonial sedition law, 23 _n._; + libel statute, 24 _n._; + Roxbury Riots, 182–186, 212; + red flag law, 186, 187; + anarchy act, 189, 190, 204, 212, 269; + Boston ordinance, 191; + deportations, 248 _n._, see COLYER CASE; + Secretary Langtry, 261; + raids, 310, 311. + + _Masses_, exclusion from mails, 9 _n._, 46–56, 107, 108 _n._, 118, + 119, 125, 154, 174, 175 _n._, 194, 205 _n._, 207, 214, 216. + See EASTMAN. + + MASTERS, Edgar L., 275. + + MAY, J. W., on intent, 150 _n._ + + MAY, T. E., on English sedition, 22 _n._, 23 _n._, 28 _n._, 72 and + _n._, 77, 263 _n._, 264 _n._, 265 _n._, 269 _n._, 271 _n._, 297 + _n._; + on exclusion from Parliament, 312, 344 _n._, 345 _n._, 356. + + MAY DAY RIOTS. See RIOTS. + + MAYER, J. M., Judge, 13 _n._, 27 _n._, 40, 54 _n._, 79 _n._, 125. + + MAZZINI, 286. + + MEEHAN, John, I.W.W., 275. + + MEETINGS. See ASSEMBLY. + + MERCHANT VESSELS, sinking of, 57, 60. + + MERIVALE, on Tiberius, 268 _n._ + + MEXICO, possible war with, 114, 133; + opposition in U. S., in 1846, 16, 64, 104, 116, 330; + possible deportation of Americans, 288. + + _Mikado_, quoted by Judge Clayton, 134. + + MILITARY INTELLIGENCE POLICE, 123, 124, 145, 146, 159. + + MILITIA, compulsory training constitutional, 35; + state and federal control, 111 and _n._ + + MILL, John Stuart, 32, 50, 157, 197, 205, 219 _n._, 365, 375. + + MILLER, Justice, 16 _n._ + + MILLER, S. L., Asst. U. S. Attorney, 126. + + MILLIGAN, 33 and _n._, 42 _n._, 69 _n._, 81 _n._, 96 _n._, 113, 116, + 117 _n._, 325. + + MILTON, John, 1, 32, 197, 375. + + _Milwaukee Leader_, 64; + exclusion from mails, 107, 315–317, 323, 331. + + MINNESOTA, safety commission, 33; + war sedition act, 57, 77, 85 _n._, 110–113, 162. + + MINORITIES, legal rights should be upheld, 2, 3, 156, 157, 294. + + MISDIRECTION, unexcepted, 149 _n._ + + MISSISSIPPI, constitution, free speech clause, 4 _n._ + + MOB VIOLENCE, 44, 45, 46, 212; + incitement to, 50, 260, 261. + + MONTANA, war sedition law, 44, 113 _n._; + peace sedition law, 190, 191. + + MOONEY, Thomas, 163. + + MOORE, J. B., _Digest of International Law_, cited, 160 _n._, 191 + _n._, 284 _n._, 288 _n._; + _Digest of International Arbitrations_, 288 _n._ + + MORGAN, J. P., 81 _n._, 102, 104. + + MORLEY, John, 66, 117, 159 _n._, 212, 241, 264, 265 _n._ + + MORMONS, exclusion from Congress, 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 + _n._, 179, 203 _n._ + + MUIR, prosecution, 28, 146 _n._ + + MUNICIPAL CORPORATIONS, censorship of press, 110 _n._; + prohibition of German opera, 110 _n._, 183 _n._; + of meetings, 182–186, 190, 191. + + MUNITION FACTORIES, limiting war-time discussion, 7, 58. + + MUNITIONS, curtailment of production, 45, 65, 127–153 _passim_, 152 + _n._, 163; + see ESPIONAGE ACT; + criticism of defective munitions prosecuted, 62. + + MYERSON, A., 289, 290. + + + NAPOLEON, propaganda in England, 27. + + _Nation_, excluded from mails, 107; + editorials, 132 _n._, 190 _n._, 193 _n._, 338. + + NATIONAL FOUNDERS’ ASSOCIATION, 240 _n._ + + NATIONAL GUARD. See MILITIA. + + NATIONAL POPULAR GOVERNMENT LEAGUE, 243 _n._ + + NATIONAL SECURITY LEAGUE, 338. + + NATURALIZATION, compulsory undesirable, 235, 236; + forbidden to anarchists, 278, 280; + limits on power, 281. + See DENATURALIZATION. + + NAVY, abuse of, crime, 45, 114, 115. + See SIMS. + + NEARING, Scott, prosecution, 27, 53 _n._, 55 _n._, 85 _n._, 125, 308, + 356. + + NEGROES, freedom of speech and, 175, 184, 195, 203, 204. + + NELLES, Walter, _Espionage Act cases_, 82 _n._, 83 _n._, 86 _n._, 110 + _n._ + + NEW HAMPSHIRE, constitution, free speech clause, 4 _n._ + + NEW JERSEY, war sedition law, 111 _n._, 112 _n._; + Plainfield regulation of meetings, 184; + anarchy act, 189 and _n._, 190, 204; + Berger, 321. + + _New Republic_, editorials, 116 _n._, 132 _n._, 272 _n._, 278 _n._, + 280 _n._, 338. + + NEW YORK: + _State._ + Constitution on free speech, 4 _n._, 21 _n._, 24 _n._, 30 _n._, + 374; + demands U. S. clause, 4; + libel statute, 24 _n._; + Croswell case, 30 and _n._; + red flag law, 180; + criminal anarchy statute, 187, 188, 216; + Loyalist investigation, 302 and _n._; + law of searches and seizures, 303–310. + See LUSK COMMITTEE; LEGISLATIVE EXCLUSIONS (N. Y. Socialists). + _City._ + Slacker round-up, 107, 108; + federal juries, 79; + radical meetings, 177–179; + Hylan ordinances, 110 _n._, 183 _n._, 190, 191; + Socialist aldermen, 338; + school situation, 365 _ff._ + + 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 _n._; + editorial on Abrams case, 146 _n._; + article on anarchistic press, 222; + editorial on I.W.W., 272 _n._; + on N. Y. Socialist assemblymen, 362. + + _New York Tribune_, on Socialist assemblymen, 338. + + _New York World_, telegrams censored, 109 _n._ + + NEWBERRY, T. H., Senator, 337, 338. + + NEWSPAPERS, restraint in war, 10, 46–59, 90, 94 _ff._, 106–109, 110 + _n._, 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; + conspiracy to compel handling of distasteful newspaper, 110 _n._; + 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 _n._, 110–113, 162, 267, 369. + + NORTH CAROLINA, discussion of federal free speech clause, 5 _n._ + + 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 _n._, 46 _n._, 70–77 _passim_, 107, 108, + 112, 113, 231 _n._, 319 _n._ + + 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 _n._ + + 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 assemblyman, 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 _ff._, 106, 224, 296, + 317, 329; + expulsion from college, 110 _n._ + + PALESTINE, 108. + + PALFREY, J. G., on Salem witches, 357 _n._ + + PALMER, A. Mitchell, U. S. Attorney General, enforcement of Espionage + Act after armistice, 115, 229, 302; + house bombed, 163, 197; + recommends federal sedition bill, 167, 195–198, 203, 207 _ff._, 335; + on federal conspiracy statute, 167–169; + does not fear revolution, 196, 251; + recommends and enforces state sedition laws, 195, 229, 249; + enforces deportation statute, 196, 229, 230, 241–252, 257, 274, + 283, 293, 302; + controversy with Post, 250–252; + on spies, 270–272; + on independent labor unions, 273 _n._ + + PALMER, Joseph, 172. + + PALMER, T. Fyshe, prosecution, 28. + + PARDONS, in Espionage Act cases, 61, 62 _n._, 73; + impossible in deportation cases, 292. + See COMMUTATIONS; AMNESTY. + + PARKER, Carleton, 162, 163. + + PARLIAMENT. See GREAT BRITAIN. + + PARNELL, C. S., 264. + + PARTIES, in America, 267, 363. + + PECK, Jared, 65 _n._ + + PENNSYLVANIA, constitution, free speech clause, 4 and _n._, 18, 24 + _n._; + discussion of federal free speech clause, 19 _n._ + + _Pennsylvania and the Federal Constitution_, 19 _n._, 23 _n._ + + PERSECUTION, Justice Holmes on, 155, 156. + See RELIGION. + + PERSON, liberty of, 17; + searches of, 242 _n._, 301. + See ARRESTS. + + PETITION, right of, 5, 7 _n._; + Baltzer case, 64, 65, 116. + + _Philadelphia Tageblatt_, 94, 101. + See SCHAEFER. + + PHILLIPS, prosecution, 13 _n._, 41 _n._, 79 _n._, 126. + + PHILLIPS, Wendell, 209. + + PIERCE, prosecution, 13 _n._, 94 and _n._, 101–106, 134, 135 _n._, + 285 _n._ + + “PILLARS OF FIRE,” 184. + + PINCKNEY, Charles, 3, 21 _n._ + + PITNEY, Justice, 101–104. + + PLACE, Francis, 260, 271 _n._ + + PLATFORMS, party, not be taken too seriously, 267. + + POLITICAL DISCUSSION, doctrine that it should be confined to the + legislature, 27, 28; + punishment of criticism of government, chapter I.; + forbidden to superintendent of schools, 11 _n._; + conventions prohibited, 11 _n._; + campaign expenses limited, 11 _n._; + in war, 48, 49, 62, 63. + See SEDITION. + + 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; + controversy 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 Espionage Act, 6, 12 _n._, 43, 45, 46–56, 106–109, + 115, 229, 335; + in peace-time sedition bills, 197–199; + control of express and telegraph, 109 _n._; + no jury, 158, 199; + powers to exclude matter inciting to murder, etc., 214, 229; + opening mail, 241 _n._ + + POUND, Roscoe, on freedom of speech, 8 _n._; + on rights and interests, 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 COMMISSION, report of, 113 _n._, 163, 272 _n._, + 292. + + PRESS, freedom of, 5, 17, 18, 21. + See CENSORSHIP; SPEECH, FREEDOM OF. + + PREVIOUS RESTRAINT, 8–32; + definition 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. + + _Procès de tendance_, 175 and _n._ + + PROFANITY, 170 _ff._ + + PROFITEERS, discussion of criminal, 50, 58, 59, 68, 95, 102, 103, + 119, 225; + possible raids on, 308. + + PRO-GERMANS, 2, 59 _n._, 64, 70 and _n._, 73, 94 _ff._, 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 _ff._, 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 succeeding headings; + deportation of, 229–293; + exclusion from legislatures, 329, 332 _ff._ + + RAI, Lajpat, book on India excluded 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 Massachusetts, 310, 311. + See SEARCHES AND SEIZURES. + + RAND SCHOOL, 204, 257 _n._, 308–310, 356, 361. + + RANDOLPH, John, 23. + + RAY, Judge, 13 _n._, 214. + + READING, Lord, 325. + + RECHT, Charles, 272 _n._, 275 _n._, 278 _n._ + + RED CROSS, criticism of, punished, 57; + refusal of contributions, punished, 109, 110. + + RED FLAG LAWS, 180–187. + + REFERENDUM, before war, discussion criminal, 57, 64, 65. + + RELIGION, toleration, 2, 3, 172, 176, 177, 196, 197, 276, 277, 370; + Virginia statute, see VIRGINIA; + federal control prohibited, 5, 170; + Christianity called inconsistent with war, 6, 57, 61, 62; + religious meetings, 183, 184; + Catholic Association, in Ireland, 264. + See MORMONS. + + REPRESENTATIVE GOVERNMENT, right of, 17, 296. + See LEGISLATIVE EXCLUSIONS. + + _Review_ (now, _Weekly Review_), on Abrams case, 152 _n._; + on Socialist assemblymen, 338; + on Lusk bills, 362 _n._ + + 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-liberty, 177, 276, 283; + Berger, 321; + property qualification, 372. + + RHODES, J. F., 116 _n._, 117 _n._, 177 _n._, 290 _n._, 330 _n._ + + RIGHTS, and interests, 34–38, 366 _ff._ + + RIOTS, 164, 177, 178, 182–186, 203, 212. + + ROBERTS, Brigham H., exclusion case, 345 _n._, 347 _n._, 350 _n._, + 352 and _n._ + + ROBINS, Raymond, 132–137, 181 _n._ + + RODENBERG, Representative, on Berger case, 331. + + ROCKEFELLER, John D., 146. + + ROGERS, H. W., Judge, 54 _n._, 56 and _n._, 108 _n._, 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 _n._ + + ROSANSKY, H., prosecution, 123, 127, 144, 147 _n._, 148. + See ABRAMS. + + ROUSSEAU, J. J., 52. + + ROXBURY RIOT, 182–186, 212. + + RUGG, 186 _n._ + + RUSSELL, Bertrand, prosecution, 242 _n._, 59 and _n._, 295; + _Proposed Roads to Freedom_, 222, 223, 276, 284. + + RUSSELL, Lord John, 227. + + RUSSELL, G. W. E., 227 _n._ + + RUSSELL, Pastor, sect, prosecutions, 83 _n._, 101. + + RUSSIA, 10, 290; + Russians in U. S., 82, 120–160 _passim_, 230, 235, 256; + Czarist policy toward discussion, 176, 178, 191, 211 and _n._, 269, + 294 _n._; + effect of Russian Revolution in U. S., 26, 58, 81, 82, 86, 95, + 120–160 _passim_, 162, 178, 196, 289, 293, 334, 360 _ff._, 371; + truth needed, 158; + Harvard library on Revolution, 221; + documents censored in U. S., 107, 221, 311; + German participation, 132 and _n._, 135, 147; + Soviet Government Bureau in N. Y., 287, 305–308; + American intervention, 94, 129–132; + criminality of opposition, 130, 137 _ff._, 160; + questionable effect of our deportations policy upon Russia, 286, + 287. + + _Russian-American Relations_, cited, 131 _n._ + + RUTHERFORD, Livingston, _John Peter Zenger_, 23 _n._ + + RYAN, J. M., Asst. U. S. Attorney, 126, 145. + + + SABOTAGE, 163; + Federal statute, 152 _n._, 163; + state statutes, 163, 274, 276; + advocacy of, 190–194; + deportations, 231 _n._, 272–275. + + SALVATION ARMY, rioting against, 183 and _n._ + + SANFORD, Chancellor, 342, 354. + + SCANDELLA, American deported from Venezuela, 288 _n._ + + SCHAEFER, _Tageblatt_ prosecution, 85, 87, 94–101, 106, 207, 216, + 218, 265. + + SCHENCK, prosecution, 9 _n._, 16 _n._, 88–93, 98, 99, 102, 155, 178, + 179, 191, 192, 285. + + SCHOFIELD, Henry, _Freedom of the Press in the United States_, 4 + _n._, 8 _n._, 20 _n._, 21, 24 _n._, 30 and _n._, 31 _n._, 56. + + SCHOOLS, political speeches by superintendent, 11 _n._; + 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 _n._ + + SCRUTTON, Lord Justice, 119. + + SEARCHES AND SEIZURES, warrants authorized by Espionage Act, 43, 45, + 302; + raids in the war, 115, 229, 302; + Russia, 176; + importance of warrants, 140, 159; + in deportation proceedings, 241 and _n._, 242 _n._, 244–247, 302; + at time of Wilkes, 295–298; + Supreme Court decisions on Fourth Amendment, 299–301; + consequences of illegality, 300–302; + when legal, 242 _n._, 301, 310 _n._; + Lusk Committee raids, 302–310; + N. Y. law, 303–310; + Massachusetts raids, 310, 311. + + SEARS, Clara E., 172 _n._ + + 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 _n._, 157, 175, 296 _ff._; + colonial trials, 19, 22, 23; + societies to suppress, 71, 72, 357; + in war, see WAR, ESPIONAGE ACT; + punishment in peace, chapter IV., 161–228; + normal criminal law sufficient, 161–169; + criminal law of obscenity, breaches of peace, etc., distinguished, + 169–173; + criminal law of violence distinguished, 173–180, 196; + suppression of agitation by law unwise, 219 _ff._; + 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; + comparison with Espionage Act, 56, 128; + juries, 78 and _n._; + 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, affirmative federal power, 199–201, + treason clause, 201–203, + first amendment, 203–207; + wisdom, 207–228, 268. + + SEDITION STATUTES OF STATES, in war, 57, 74 _n._, 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; + recommended by Palmer, 195; + enforced by Palmer, 229, 249. + + SELF-INCRIMINATION, rule against, 69, 303 and _n._, 307. + + _Sentenced to Twenty Years Prison_, 145 _n._ + + SENTENCES, English and Scotch sedition trials, 28 and _n._, 87 _n._; + Defense of the Realm Act trials, 118 _n._; + India, 159 _n._; + Espionage Act trials, 58–62, 87 and _n._, 147, 148, 159, 160, 220; + long sentences as cruel and unusual punishment, 148 _n._ + + _September Morn_, suppression of, 175. + + _Sermon on the Mount_, and war, 55, 119. + + SERVICE-LETTER STATUTES, 3 _n._ + + SERVITUDE, involuntary, sometimes constitutional, 7, 35, 36. + + SEWARD, W. F., arbitrary arrests, 116; + on intervention, 160 _n._ + + SEX, discussion, 171, 172. + + SHAKESPEARE, William, 14, 55; + censored, 175, 214. + + 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 discussion, 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 possible, 14; + not immune, 15. + See LIBEL. + + SMITH, Alfred, Governor, 362 and _n._ + + SMITH, F. E. (now Lord Birkenhead), 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 _ff._; + in Germany, 262. + See DEBS; PIERCE; STOKES; SYRACUSE; 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-criminal interference with the government’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 _n._ + + SOVIET GOVERNMENT. See RUSSIA. + + SPEECH, FREEDOM OF. + _Constitutions_: + guaranty in U. S. Constitution, 3–5, 18, 200, + demanded 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 _n._; + clauses a guide to interpretation of constitutional statutes, 5, + 6, 46, 48, 193, 194, 207; + and also invalidate statutes, 3, 4, 11 and _n._, 16, 111 _n._, + 156, 192 _n._ + _Meaning_: 1–39, 155–158, 366–372; + subject to limits, 2, 7; + necessarily 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 _ff._, 368 _ff._; + view of Judge Hand, 50, 51; + of Justice Holmes, 88, 155, 156; + an issue between two tests of criminality, 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 exclude intemperate and foolish discussion, 48, 83, 114, + 140 _n._, 173, 206, 219, 220; + applies to political 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. + _Procedural safeguards_: 39, 49, 66–69, 92, 93; + Fox’s Libel Act, etc., 24, 39, 69; + precise offense must be specified, 49, 92, 93; + objective test of criminality of words, 49–51, 54 _ff._, 216 + _ff._; + exclusion of psychological questions 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 _ff._, 247 _ff._; + narrow range of administrative power in criminal law, 75. + See HUMAN MACHINERY. + _Relation to other branches of the law and concrete applications_: + libel, see same; + nuisance, 52, 171, 205; + breaches of the peace, 24, 25, 74 and _n._, 102 _n._, 110 _n._, + 111, 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 _ff._; + obscenity, blasphemy, etc., 169–173, and see same; + peace-time sedition laws, 173–180, 191–194, 199–228; + deportations, 280–291; + legislative exclusion, 328–332, 362–364; + schools, 368–376. + See ATTEMPT; SOLICITATION; 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 _n._, 43, 60, 61. + + STAMP TAX, restraint of press by, 19 _n._, 32. + + STANCHFIELD, J. B., on guilt by association, 360. + + STANTON, E. M., arbitrary arrests, 116. + + STAR CHAMBER, 32, 232, 238. + + STAR-SPANGLED BANNER, alleged prosecutions for not standing up, 102 + and _n._, 103. + + STATE SEDITION LAWS, in war and peace. See SEDITION STATUTES OF + STATES. + + STATE WAR CASES, miscellaneous, 110 _n._ + + STEAD, W. T., “The Maiden Tribute,” 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 + _n._, 92, 118, 119, 225. + + STONE, F. D., 19 _n._ + + STOREY, Moorfield, on intervention, 160 _n._ + + STORY, Joseph, 8 _n._, 341, 345 _n._ + + 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 _n._ + + SUBMARINE WARFARE, discussion of criminal, 57, 60. + + SUGARMAN, prosecution, 88 _n._, 89, 90. + + SUHR, and 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 conscription, 7, 35, 40, 57; + on postal power, 108; + protection of lives of judges, 197, 200, 206; + on power over aliens, 230 _ff._; + on anarchist exclusions, 275 _ff._; + on guilt by association, 265; + on searches and seizures, 299–301, 335; + on federal peace-time sedition bill, 207. + + SWEDEN, free speech in, 286. + + SWEET, Thaddeus C., N. Y. Speaker, 333–339, 357, 361 _ff._ + + 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 suppressed, 57, 64, 65, 95, 107. + + TELEGRAPH, censorship of, 109 _n._ + + TENDENCY, bad, as test of criminality of words, fatal to freedom 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, 111 _n._ + + THAW, H. K., trial, 136 _n._, 163. + + THAYER, J. B., 6 _n._ + + THAYER, W. R., 203. + + THEATER, shouting fire in, 16; + censorship 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. + + TIGHE, Ambrose, on war powers, 33 _n._, 117 _n._ + + TILDSLEY, John L., 365 _ff._ + + TOBACCO, 209. + + TOLEDO, 191. + + TOLSTOY, 276, 279, 294 _n._ + + TORTS, outside free speech clauses, 14, 15. + See LIBEL. + + TOWNLEY, prosecution, 78 _n._, 85 _n._, 111 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; + sanitary conditions, 64. + + TREASON, 97; + levying war, 166, 201, 265; + aid and comfort to enemies, 148 _n._, 202, 324–328; + in war with Germany, 41 and _n._, 50, 74, 91, 325 _n._; + against U. S., states cannot prosecute, 111; + effect of clause on federal sedition statutes, 201–203, 218; + Berger 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 expulsion, 346, 347. + + TRUTH, social interest in, 34–39, 155–160, 176, 368 _ff._; + 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 obscenity, profanity, etc., 169–173. + See LIBEL. + + TUCKER, St. George, 8 _n._ + + TUCKER, St. John, 101. + + TUNNEY, T. J., Inspector, 123, 169 _n._, 181 and _n._, 182. + + TURNER, John, anarchist excluded, 275–283 _passim_. + + TYLER, Moses C., 276 _n._ + + + UNDER-COVER INFORMANTS, 269–272. + + UNITED STATES, inciting resistance to, opposing cause, see ESPIONAGE + ACT; + division of state and federal jurisdiction over crimes, 113 _ff._, + 171; + political parties, see PARTIES; + absence of intellectual divergencies, 289, 363. + + UNITED STATES CONSTITUTION, absence of free speech clause and + ratification, 3, 4, 156; + affirmative power over speech and sedition, 3, 34 and _n._, + 199–201; + abuse of, crime, 45, 114. + See various topics, 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, protection of, from violence, 163–169, + 196–207, 213–215, 251. + See PRESIDENT; 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 Germany excluded from mails, 108. + + VENEZUELA, deportation of American, 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; + suppression of opinion by, 196, 197, 219, 260, 264. + See “FORCE AND VIOLENCE”; 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 _n._, 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 exclusion, 328–332; + on schools, 366 _ff._; + technical war, 113–119; + future wars and free speech, 46, 64, 113 _ff._; + federal war powers, 88, 200. + See SPEECH, FREEDOM OF, _Concrete applications_; CONSCRIPTION; + ESPIONAGE ACT; ARMY; NAVY; SEDITION STATUTES OF STATES; + ASSEMBLY; names of various wars. + + WAR DEPARTMENT, _Report of Activities 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 + _n._, 102 _n._, 110 _n._, 302 _n._ + + WARD, Judge, 54 _n._ + + WARRANTS, general, 296, 297, 299, 311. + See ARRESTS; SEARCHES AND SEIZURES; DEPORTATIONS. + + WARREN, Charles, on treason, 325 _n._, 326 _n._, 327 _n._ + + WASHINGTON, prosecution for libel on the dead, 172; + red flag law, 181 _n._; + anarchy act, 188. + + WASHINGTON, George, 147; + libel on, 172. + + WATKINS, Gordon S., 256. + + WEBSTER, Daniel, 330. + + WEINBERGER, Harry, 126, 132, 133 _n._, 146. + + WEST VIRGINIA, red flag law, 181; + sedition law, 190; + moving picture law, 203 _n._ + + WESTENHAVER, Judge, 91. + + WESTERN FEDERATION OF MINERS, 267. + + WESTERN UNION TELEGRAPH CO., 109 _n._ + + WHARTON, Francis, quoted, 52, 73. + + WHITE, E. D., Chief Justice, 12, 148 _n._ + + WHITE SLAVE TRAFFIC, discussion punished, 171. + + WHITNEY, Anita, 190 _n._ + + WICKERSHAM, G. W., 133. + + WIGMORE, J. H., _Evidence_, 85 _n._; + on Abrams case, 130 _n._, 141 _n._ + + WILCOX, E. H., _Russia’s Ruin_, 132. + + WILKES, John, 23, 295; + searches and seizures, 295–298, 301; + exclusion from House of Commons, 250, 295, 296, 311–315, 321, 328, + 329, 338, 343, 349, 355, 356. + + WILLES, Justice, 9 _n._ + + WILLIAMS, A. R., called in Abrams case, 133. + + WILLIAMS, Roger, 176, 227, 276, 277, 286, 321, 372. + + WILLOUGHBY, W. W., 230 _n._, 233 _n._ + + _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; + ignorance of secret treaties, 37 _n._; + opposes court martial for pacifists, 62; + speeches as evidence in Espionage Act cases, 57, 103–106; + exercise of pardoning power, 60, 61, 62 _n._, 73, 87 _n._, 117; + war aims hindered by policy of suppression, 113, 119; + attacked in Abrams case, 120–122, 138; + Russian policy, 131, 132, 151; + message on Federal Sedition Bill, 211–213, 220; + threats to kill, 215; + responsibility for deportations, 249; + on economic nature of the War, 321; + free speech record, 336; + miscellaneous, 60, 225, 315, 363. + + WITCHES, Salem, 356, 351. + + WOLVERTON, Judge, 83. + + WOMEN, discouragement of, in war, criminal, 57, 58, 103; + nationalization of, 154. + + WOOD, Baron, 27, 28. + + WOODS, Arthur, 177, 178 and _n._ + + WORDS, and acts, relation to freedom of speech, 49–51, 164–180; + criminal law of language, 169–173. + + WORKS, John D., on federal judges, 84. + + “WORK OR FIGHT” statute, constitutional, 7. + + WURSTERBARTH, denaturalized, 109, 110 _n._ + + WURTS, John, on federal juries, 80 _n._ + + + YOUNG MEN’S CHRISTIAN ASSOCIATION, 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 _ff._ + + + ZENGER, Peter, trial, 23 and _n._ + + + + +TRANSCRIBER’S NOTE + +The index was not checked for proper alphabetization or correct page +references. + +Obvious typographical errors and punctuation errors have been corrected +after careful comparison with other occurrences within the text and +consultation of external sources. + +Some hyphens in words have been silently removed, some added, when a +predominant preference was found in the original book. + +Except for those changes noted below, all misspellings in the text, and +inconsistent or archaic usage, have been retained. + + Pg 84: “recommmends” replaced by “recommends” + 99: “unbiassed” replaced by “unbiased” + 126: “Revolutions” replaced by “Revolution” + 166: “refererences” replaced by “references” + 169: “protct” replaced by “protect” + 193: “Bolshevisim” replaced by “Bolshevism” + 220: “nor” replaced by “now” + 220: “aganist” replaced by “against” + 238: “write” replaced by “writ” + 241: “admistrative” replaced by “administrative” + 277: “trangressors” replaced by “transgressors” + 407: “Heating” replaced by “Healing” + 408: “Hal” replaced by “Hall” + 409: “Mollen” replaced by “Moilen” + 416: “prosesecuting” replaced by “prosecuting”. + +*** END OF THE PROJECT GUTENBERG EBOOK 77769 *** |