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Theatre Magazine. 38:7. D. '23. Writing on the wall. Arthur Hornblow.
(N) Theatre Magazine. 38:9. D. '23. Sewer on the stage. John S. Sumner.
Governmental interference with "freedom of speech and of the press" is forbidden by the United States Constitution and in somewhat different language by the state constitutions. The framers said little to show what types of speech and publications they did or did not intend to protect by these clauses. They wisely refrained from crystallizing for all time an interpretation of liberty of discussion which might have proved too narrow for the needs of later centuries. Instead, they asserted the importance of that liberty as emphatically as they could, and left it for each succeeding generation to work out their own definition of its limits. The attitude of the men and women of a given time in our history toward this task is a significant test of their intelligence and vision. Are they content to repeat the language of the Bill of Rights as revered words with no concrete meaning or do they set themselves diligently to ascertain the proper extent of freedom of speech? Does their actual practice give to this great constitutional principle real power in the life of the nation?
We all desire that the next decade, judged by this test, shall stand high. The very reasons which underlie freedom of speech and make it essential that all important public questions shall be thoroughly overhauled in open controversy apply to this question of the limits of such freedom. Liberty of discussion must itself be constantly discussed. Therefore, the submission by the present volume of aspects of the problem for debate in schools and colleges is highly desirable.
The importance of the issue here presented is plain when we recall the great changes in political, economic,
and social institutions which have taken place in recent years. Equally great changes are certain to be proposed in the near future, and thorough going discussion is necessary if they are to be wisely rejected or wisely carried out. Even the most cherished institutions cannot hope to be immune from attack, but they may seek to protect themselves by developing sensitive spots in popular consciousness which are to be shielded from the rough contacts of controversy by censorship and criminal prosecutions. It will be urged, often with logical strength, that these institutions cannot be adequately preserved from insidious or violent overthrow if they are merely left to meet the arguments of their opponents with better arguments. The government must interfere in the initial stages of talk and print, or it will be too late. In former centuries such sensitive spots were common in religious thought, from which the Tennessee anti-evolution statute shows they have not wholly disappeared, but in the near future the problem, of how far the government and the community should tolerate utterances which they consider dangerous, is most likely to arise in connection with monogamous marriage, the status of the white race, the existing organization and distribution of private property, the maintenance of the army and navy especially in war, and the continuance of our political system.
This book provides abundant material on both sides of the problem. The advantages of unrestricted discussion are perhaps best stated in the extracts from Milton and Mill, and its dangers by the recent majority opinions of the United States Supreme Court. On the latter side readers who are tempted to pursue their inquires beyond the present volume will find a powerful reply to Mill in Fitzjames Stephen's Liberty, Equality, and Fraternity, which in turn meets a rejoinder on Mill's behalf in the biography of Stephen by his brother Leslie Stephen.
That much of the material here published is legal in nature should not mislead the reader into supposing that
he is dealing merely with a legal problem. Suppression of opinion may be exerted through many other channels than the police and the courts. Nearly every one is sooner or later given the opportunity to choose between tolerating and restricting opinions which to him seem absurd, grossly distasteful, and dangerous, whether as a parent guiding the conversation and reading of his children, as a teacher suggesting lines of thought for the classroom, as a publisher or editor of a newspaper or magazine presented with a book or article, as a bookseller or librarian deciding whether to exclude a publication from his shelves, as an employer tempted to discharge a workman who expresses radical views to his fellows, as a trade unionist voting on the expulsion of a Communist, as as a member of a community inclined to deal with a heterodox individual by the pressure of social ostracism or even stiffer measures.
Even in the field of the law, the amount of liberty of expression at a given time depends on the police as much as on the judges. Even if one of the most liberal definitions of freedom of speech suggested in these pages be adopted by the judge who sits at the trial of an agitator or a pacifist, the actual choice between conviction and acquittal is made by the twelve jurymen drawn from the community and applying its views of toleration. If they are unconvinced of the value of open discussion and determined to suppress the distasteful doctrines, only in rare cases can this verdict of guilty be set aside by appellate judges however liberal. Furthermore, the original decision about arresting and prosecuting the heterodox person-often enough to silence his views until the crisis is over even if he be ultimately acquitted-may be made by the district attorney in response to the energetically voiced demand of an intolerant community. And the judges themselves as citizens living in close contact with their fellow citizens cannot remain wholly immune from the intellectual and emotional atmosphere. It thus be
comes a matter of prime importance in the actual administration of the constitutional guarantee whether free speech and a free press are really desired or not by the man in the street.
In conclusion, two points may be emphasized. First, we must distinguish between constitutional, legal, and ethical considerations. The decision that a law limiting speech is constitutional does not mean it ought to be passed. It may still be highly undesirable for the government to use its constitutional power. In considering such a statute our citizens should apply just the same tests of public danger as against the great advantages of unrestricted discussion set forth by Milton and Mill which would be applied in England where no written constitution exists. And on the other hand, the fact that it is legal to speak or write intemperately in critical moments does not mean that an individual should always do so without hesitation. It is for him to consider seriously whether the gain of speaking out as he proposes is sufficient to justify him in outraging the feelings of his neighbors or creating risks of violence. Much that is constitutional is undesirable, and much that is legal is undesirable.
Secondly, the argument of Milton and Mill that unrestricted discussion is the best way to ascertain and disseminate truth loses much of its force if the discussion, even though unhampered by law, will not be thorough. It may be necessary for the community not to rest content with a negative attitude of hands off but to adopt in addition positive measures to ensure that argument and counter argument on vital issues will have full play. Thus if a group of discontented workingmen have never learned English, the radical agitator who knows their language has it all his own way unless the conservatives send speakers of their own who can be understood. And if one party to a controversy hires all the halls and controls all the newspapers and broadcasting stations, the