struction 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." 7 "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." 8

On May 16, 1918, Congress amended the Espionage Act by what is sometimes called the Sedition Act, adding nine more offenses to the original three, 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 a maximum penalty of $10,000 fine or twenty years' imprisonment, or both.

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 disapproval of the war as irreligious, unwise, or unjust. On the other, federal and state officials point

7.4 AM. BAR Assoc. JOURN. 306.

• REPORT OF THE ATTORNEY GENERAL OF THE UNITED STATES (1918), 18.

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 peacetime document and consequently freedom of speech may be ignored in war. This view has been officially repudiated. 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 cannot be applied with absolute literalness but are subject to exceptions.10 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.12 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.

Since it is plain that the true solution lies between these two extreme views, and that even in war time freedom of speech exists

9 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."

10 Robertson v. Baldwin, 165 U. S. 275, 281 (1897).

11 Selective Draft Law Cases, 245 U. S. 366, 390 (1918); Claudius v. Davie, 175 Cal. 208 (1917).

12 State v. McClure, 105 Atl. 712 (DEL. GEN. SESS., 1919).

subject to a problematical limit, it is necessary to determine where the line runs between utterance which is protected by the Constitution from governmental control and that which is not. Many attempts at a legal definition of that line have been made,13 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." 14 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,15 and is sometimes urged as a reason why libels should not be enjoined.16 It was adopted by American judges in several early prosecutions for libel,17 one of which was in Massachusetts,18 whence Justice Holmes carried it into the United States Supreme Court.19 Fortunately he has now repudiated this interpretation of freedom of speech,20 but not until his dictum had had considerable influence, particularly in Espionage Act cases.21 Of course if the First Amend

13 See a discussion by Dean Pound of two views besides Blackstone's in 29 HARV. L. REV. 640, 651. The view mentioned as Story's is really that of St. George Tucker, whom Story was criticising. 2 STORY, CONSTITUTION, § 1886.

14 4 BLACKSTONE, COMMENTARIES, 151.

15 King v. Dean of St. Asaph, 3 T. R. 428, 431 (1789): "The liberty of the press consists in printing without any previous licence, subject to the consequence of law.” 16 See Roscoe Pound, "Equitable Relief against Defamation and Injuries to Personality," 29 HARV. L. REV. 651. Recent Federal cases are American Malting Co. v. Keitel, 209 Fed. 351 (C. C. A. 2d, 1913); Willis v. O'Connell, 231 Fed. 1004 (S. D. Ala. 1916).

17 Respublica v. Oswald, 1 Dall. (U. S.) 319, 325 (Pa., 1788), McKean, J.; Trial of William Cobbett, for Libel, WHARTON'S STATE TRIALS, 322, 323 (Pa., 1797), McKean, J.; Respublica v. Dennie, 4 Yeates (Pa.) 267, 269 (1805). See Schofield in 9 PROC. AM. SOCIOL. SOC. 69.

18 Commonwealth v. Blanding, 3 Pick. (Mass.) 304, 313 (1825).

19 Patterson v. Colorado, 205 U. S. 454, 462 (1907).

20 Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247, 249 (1919).

21 Masses Pub. Co. v. Patten, 246 Fed. 24, 27 (C. C. A. 2d, 1917); United States v. Coldwell, BULL. DEPT. JUST., No. 158 (D. C. R. I.) 4.

ment does not prevent prosecution and punishment of utterances, the Espionage Act is unquestionably constitutional.

This Blackstonian theory dies hard, but has no excuse for longer life. 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,22 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 Parlia- · ment to tax them,23 and was pronounced by one of his own colleagues to have been "we all know, an anti-republican lawyer."

24

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.25 And whatever else may be thought of the decision under the Espionage Act with the unfortunate title, United States v. The Spirit of '76,26 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 cooperation, sympathy, assistance; and sacrifice which is due to

22 32 GEO. III, c. 60 (1792). See page 948, infra.

23 I BLACKSTONE, COMMENTARIES, 109.

24 Willes, J., in Dean of St. Asaph's Case, 4 Doug. 73, 172 (1784), quoted by Schofield, 9 PROC. AM. SOCIOL. Soc. 85, note.

25 Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S. 230, 241 (1915).

26 BULL. DEPT. JUST., No. 33 (D. C. S. D. Cal., 1917), Bledsoe, J.

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."

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.27 Cooley's comment on Blackstone is unanswerable: 28

"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."

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.29 And most of the decisions in which a particular statute

27 "Free speech, like every form of freedom, goes in danger of its life in war time. 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!"" John Galsworthy, "American and Briton," 8 YALE REV. 27 (October, 1918).

28 COOLEY, CONSTITUTIONAL LIMITATIONS, 7 ed., 603, 604.

29 Louthan v. Commonwealth, 79 Va. 196 (1884) statute punishing school superintendent for political speeches; Atchison, etc. Ry. v. Brown, 80 Kans. 312, 102 Pac.