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ever lawful, is opposed by prevailing sentiment, courts and juries will jump to the conclusion that it can be attained only by unlawful means, and so presume such means to be advocated.
C. Courts inevitably apply such laws to suit the prejudices of the majority, or the economic interests of the dominant group politically, as against expressions of unpopular heretical or revolutionary views, whether or not they include advocacy of anything unlawful.
The evidence of history sustains this contention.
The recent decisions of the United States Supreme Court illustrate it clearly, particularly when considered in the light of dissenting opinions by Justices Holmes and Brandeis.
Prosecutions are always directed against members of a class opposed to the dominant group, and not against members of the dominant group who may advocate precisely the same illegal doctrines.
Advocacies of violence by conservatives, and the Ku Klux Klan go unpunished, while the political theories of radicals are construed as advocacies of violence, and are punished. b. The same is true in other countries in the conflict between Fascists and Communists.
Prosecution depends primarily not on the ideas expressed, but on the persons who express them and under what circumstances.
They are therefore a cloak to cover an attack on persons opposed to an
interest influential enough to secure prosecution.
(1) The history of prosecution of radicals and others bears this
out, particularly in industrial conflicts.
(2) An examination of radical, even revolutionary, utterances in other circumstances or by persons with secure standing (see the utterances in the "New Freedom" by Woodrow Wilson) bears it out.
II. Repression by law does not stop the spread of the penalized doctrines when they represent the needs of any considerable class or section.
A. It tends to drive them into secret and conspiratorial channels and encourages the resort to violence.
B. Where repression does succeed in stopping the spread of ideas, it produces a deadly conformity and stagnation of thought which blocks progress.
III. The principle of free speech, fixed in both federal and state constitutions, is based upon practical experience of political and economic life, and is sound policy in promoting social progress.
A. Without the exercise of freedom of expression by the colonial patriots-contrary to the laws then existing-American institutions could not have been established.
B. Without its continued exercise, American institutions cannot be kept in accord with the changing needs and adapted to the maximum welfare of the people.
Every reform which society has secured, has had to overcome the majority's hostility.
Even wild advocacies of change are usually evidence that real grievances exist which need constructive remedies.
Progress comes from minority views, which are needed by society as a whole in order to promote its growth.
1. Society cannot stand still.
Attempts by suppression to make it do so only result in the evils of violence. and disorder.
D. If society is to progress to larger freedom, the more freedom accorded now in the struggles of conflicting groups, the more certain and the easier is that progress.
Otherwise persecution of classes struggling to power will create the spirit of persecution in them which they will perpetuate when they achieve power.
E. Disinterested support of freedom of agitation helps win orderly advance for groups seeking power, and reduces the violence of the controlling class.
IV. Penalties on opinion kill thought and promote more evils than they prevent.
A. Even where they successfully silence opposition, they create a deadly peace in which society stagnates.
1. The silenced opinion may be true and needed by society.
In any event it has a portion of the truth. 3. Only a collision of conflicting opinions
gives the whole truth.
B. Even if the majority's views are conceded to be for the time being the whole truth on any subject, unless contested they will be held with little comprehension and will become mere formal professions (as in the case of many religious creeds.)
C. The minority view has a better claim to be heard than the majority, for it represents a neglected side of human problems.
D. If thought is not free for the most detested doctrines (atheism and free love for example) it is not free in any real sense.
E. If any idea is penalized, the tendency will be to extend repression, until majority prejudices are everywhere in control.
Even in the absence of penalties on opinion, social intolerance may produce an equally deadly repression. (Note the Ku Klux Klan control in large sections, and the effect of the southern attitude on the Negro problem.)
I. Society must protect itself from subversive ideas. and movements, and cannot afford to wait until they have broken out into actual acts against the state or any property or other interest protected by the
A. Incitements tending to the commission of acts should be punished, and can be judged fairly even in the absence of acts or attempts.
1. Experience proves that incitements inspire acts, and governments are therefore justified in proceeding before the acts are actually committed.
a. The agitation of our colonial patriots
went practically unpunished, though violative of the British law of seditious libel and constructive treason. b. The result was violent revolution, clearly unlawful, even though right
B. The place to draw the line for prosecution is at specific incitements, as laid down by the United States Supreme Court in the Espionage Act cases, declaring the rule of a "clear and present danger" of an overt act as the guide to public policy.
C. General agreement on the necessity for government, private capital, and public morals (as represented in the restrictions on advocacy of birth control, etc.) demands that basic social institutions should be protected from attacks that threaten to undermine and destroy them. D. If the doctrines persecuted are useful to society, and the majority is in error, they will survive persecution.
Prosecution may therefore be a fair test of their utility.
If the doctrines represent a class struggling for power by illegal means, it is right for the dominant political power to protect its own interests against them.
a. The right of revolution is offset by the right of any government to defend itself, both by arms and by prosecution of advocates of revolution.
E. Whatever the evils of suppression may be, they are not so great as the evils of unchecked incitement to revolutionary changes.
Whatever injustice may be done in pe
nalizing opinion, it is more than offset by protecting the public peace and safety.