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William Blackstone; Baruch (Benedict de)
A. THE CONSTITUTIONAL GUARANTEES
Amendments to the Constitution of the United
Treason Clause of the Constitution of the United
The Declaration of Independence
Act of Virginia Establishing Religious Freedom... 114 Kentucky and Virginia Resolutions, 1798, 1799.... 115
Reply Made by the Legislature of Massachusetts to the Kentucky and Virginia Resolutions....... 118 Resolution Adopted by the State of New York, in
Senate, March 5, 1799
B. LAWS RESTRICTING FREEDOM OF OPINION
Sedition Law of 1798
Tennessee Anti-Evolution Law
Mississippi Social Equality Law
THE ATTITUDE OF THE COURTS
A. COURT DECISIONS
Justices Brandeis and Holmes in Pierce v. United
United States Supreme Court in Ex-parti Milligan;
Justice Sanford, in Gitlow v. New York
United States Supreme Court in Scheneck v. United
Freedom of Speech; Vol. III. Chap. II of Revolu-
Nelles, Walter. Objections to Labor Injunctions... 153 Quigg, Murray T. Principles Upon Which Injunc
tions Issue in Labor Disputes
COMMUNIST AND FASCIST VIEWS
Lenin, Nikolai. The State and Revolution: Excerpt 187 Trotsky, Leon. Dictatorship vs. Democracy: Ex
RESOLVED: That no penalties should be imposed by law upon expressions of opinion or advocacies of any political, economic, religious, scientific or social doctrine or program in the absence of any criminal act either actually committed or attempted.'
I. Restrictions on freedom of expression of opinion have been imposed by laws sustained by the United States Supreme Court, passed chiefly since 1917, reversing the legal principle of over a century and putting an entirely new interpretation on the constitutional free speech guarantee.
A. During the war restrictions were sustained as emergency measures, upon the theory that under the conditions of war various expressions created present danger of concrete evils which Congress had a right to prevent.
B. The restrictions since the war under sedition and criminal syndicalism acts have been sustained on the theory that the state may protect itself from threats of its overthrow by violence or illegal action, whether or not there is immediate danger of overt acts following the
C. The courts hold that language in itself may be penalized for its remote tendency to incite to
1 NOTE: It should be understood that this general principle does not cover personal libels, obscenity (except where that charge is used to cover advocacies of doctrines) nor specific incitements to commit a specific crime made directly to one or more persons. The person who directly incites to an act which is actually committed or attempted is of course equally responsible with the person who commits it.
illegal acts, and that therefore freedom of speech and press may properly be limited by law.
D. In accordance with this position, other laws restricting expression of opinion have been passed, notably those prohibiting the teaching of evolution, and in one state, penalizing the advocacy of social equality between whites and blacks.
I. The law should interfere only with acts or attempted acts because it is impracticable to judge offences by utterances in the absence of acts.
A. Restrictive statutes usually purport to forbid only advocacies of unlawful means for bringing about social change.
Such laws cannot be fairly enforced.
Clear cases of the kinds of advocacy they forbid rarely arise in practice. b. Just what is advocated is debatable. (1) So usually is its lawfulness. Courts and juries, being human, can hardly avoid being controlled by personal prejudices in the construction of the law and of the language of the advocacy.
B. A main difficulty in the fair construction of
such an advocacy of unlawful means arises from the fact that the advocate is concerned mainly with an end.
He wants to make people believe in the kind of society or government that he believes in.
He is only incidentally concerned with the means to that end.
But if the end in which he believes, how