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THEODORE PARKER (1810-1860) *

Your President tells us it is treason to talk so! Treason is it? Treason to discuss a war which the government made and which the people are made to pay for? Why, if the people cannot discuss the war they have got to fight and to pay for, who under heaven can? Whose business is it, if it is not yours and mine?

I think lightly of what is called treason against a government. That may be your duty today, or mine. But treason against the people, against mankind, against God, is a great sin, not lightly to be spoken of.

WENDELL PHILLIPS (1811-1884) *

No matter whose the lips that would speak, they must be free and ungagged. Let us believe that the whole of truth can never do harm to the whole of virtue; and remember that in order to get the whole of truth you must allow every man, right or wrong, freely to utter his conscience, and protect him in so doing. Entire unshackled freedom for every man's life, no matter what his doctrine-the safety of free discussion no matter how wide its range. The community which dares not protect its humblest and most hated member in the free utterance of his opinions, no matter how false or hateful, is only a gang of slaves.

If there is anything in the universe that can't stand discussion, let it crack.


Must the citizen even for a moment, or in the least degree, resign his conscience to the legislator? Why has

4 American preacher and social reformer, whose grandfather, Captain John Parker, was the leader of the Lexington Minute Men. Excerpt from "A Sermon on the Mexican War," preached at the Melodeon, June 25, 1848. Coolidge and Wiley. Boston. 1848.

American orator, social reformer, and ardent Abolitionist. • American naturalist and writer.

every man a conscience, then? I think that we should be men first, and subjects afterwards. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right..

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There is no need of a law to check the license of the press. It is law enough and more than enough to itself. Virtually the community must have come together and agreed what things shall be uttered, have agreed on a platform and to excommunicate him who departs from it, and no one in a thousand dares utter anything else.



The loud little handful, as usual, will shout for the war. The pulpit will-warily and cautiously-object at first; the great big, dull bulk of the Nation will rub its sleepy eyes and try to make out why there should be a war, and will say, earnestly and indignantly, "It is unjust and dishonorable, and there is no necessity for it." Then the handful will shout louder. A few fair men on the other side will argue and reason against the war with speech and pen, and at first will have a hearing and be applauded; but it will not last long; those others will outshout them, and presently the anti-war audiences will thin out and lose popularity. Before long you will see this curious thing: the speakers stoned from the platforms, and free speech strangled by hordes of furious men who in their secret hearts are still at one with those stoned speakers—as earlier-but do not dare to say so. And now the whole nation-pulpit and all-will take up the war-cry and shout itself hoarse, and mob any honest man who ventures to open his mouth; and presently such mouths will cease to open. Next the statesmen will invent cheap lies, putting the blame upon the nation that is attacked, and every man will be glad of their conscience

From the "Mysterious Stranger." See Mysterious Stranger and Other Stories, by Mark Twain. Harper. New York. 1922.

soothing falsities, and will diligently study them, and refuse to examine any refutation of them; and thus he will bye and bye convince himself that the war is just, and will thank God for the better sleep he enjoys after this process of grotesque self-deception. "Satan" speaking of the affect of an aggressive war on liberty of opinion.


Our government is based on the agreement both tacit and implied, that the minority shall always have the rights of free speech, of free press, and of free agitation, in order to convert itself if possible from a minority into a majority. As soon as these rights of the minority are denied, it will inevitably resort to secret meetings, conspiracies and finally force. In times of stress, it may be extremely embarrassing for the majority to be hampered in quick, decisive action by an obstinate minority; but nevertheless the recognition of the right of the minority is our sole bond of unity. For this reason, I repeat that any attempt to interfere with the rights of free speech and free press is a blow at the very foundations of our government. On the Espionage Bill, 1917.


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

Professor of Sociology, Columbia University.

Professor of Law, Harvard University. From his Freedom of Speech. Copyright, 1920, by Harcourt, Brace & Howe, Inc. New York.

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 proGerman. (p. 2)

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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.

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 out

side discussion. . . At the first session of Congress, a Bill of Rights including the present First Amendment, was proposed for adoption by the states, and became a 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.

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.

Į 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.

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