punishing for talking or writing is sustained do not rest upon the Blackstonian interpretation of liberty of speech,30 but upon another theory, now to be considered. Therefore, it is possible that Title I, section 3, of the Espionage Act, violates the First Amendment, although it does not interfere with utterances before publication.31 A second interpretation of the freedom of speech clauses limits them to the protection of the use of utterance and not to its "abuse." It draws the line between "liberty" and "license." Chief Justice White 32 rejects

"the contention that the freedom of the press is the freedom to do wrong with impunity and implies the right to frustrate and defeat the discharge of those governmental duties upon the performance of which the freedom of all, including that of the press, depends. . . . However complete is the right of the press to state public things and discuss them, that right, as every other right enjoyed in human society, is subject to the restraints which separate right from wrong-doing."

A statement of the same view in another peace case is made by Judge Hamersley of Connecticut: 33

"Every citizen has an equal right to use his mental endowments, as well as his property, in any harmless occupation or manner; but he has 459 (1909) — service-letter statute, making employer liable to civil action if he failed to furnish a discharged employee a written statement for the true reason for discharge. St. Louis, etc. Ry. Co. v. Griffin, 106 Texas 477, 171 S. W. 703 (1914), same; Wallace v. Georgia Ry. Co., 94 Ga. 732, 22 S. E. 579 (1894), same; Ex parte Harrison, 212 Mo. 88, 110 S. W. 709 (1908), - statute punishing voters' leagues for commenting on candidates for office without disclosing the names of all persons furnishing the information; State ex rel. Metcalf v. District Court, 52 Mont. 46, 155 Pac. 278 (1916) — contempt proceedings for criticism of judge for past decision; State ex rel. Ragan v. Junkin, 85 Neb. 1, 122 N. W. 473 (1909), — statute invalidating nomination of candidates by conventions or any other method except primaries; State v. Pierce, 163 Wis. 615, 158 N. W. 696 (1916) — corrupt practices act punishing political disbursements outside one's own county except through a campaign committee. Some of these decisions are open to dispute on the desirability of the statutes, and some are opposed by other cases for that reason, but in their repudiation of the Blackstonian test they furnish unquestioned authority.

30 Examples in such cases of express repudiation of the Blackstonian doctrine are found in Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247 (1919); State v. McKee, 73 Conn. 18, 46 Atl. 409 (1900); State v. Pioneer Press Co., 100 Minn. 173, IIO N. W. 867 (1907); Cowan v. Fairbrother, 118 N. C. 406, 418 (1896).

31 Title XII of the Espionage Act does impose previous restraint on publications which violate the Act by authorizing the Postmaster-General to exclude them from the mails. See page 961, infra.

32 Toledo Newspaper Co. v. United States, 247 U. S. 402, 419 (1918).

33 State v. McKee, 73 Conn. 18, 28, 46 Atl. 409 (1900).

no right to use them so as to injure his fellow-citizens or to endanger the vital interests of society. Immunity in the mischievous use is as inconsistent with civil liberty as prohibition of the harmless use. . . . The liberty protected is not the right to perpetrate acts of licentiousness, or any act inconsistent with the peace or safety of the State. Freedom of speech and press does not include the abuse of the power of tongue or pen, any more than freedom of other action includes an injurious use of one's occupation, business, or property."

The decisions in the war are full of similar language.34

Practically the same view is adopted by Cooley, that the clauses guard against repressive measures by the several departments of government, but not against utterances which are a public offense, or which injure the reputation of individuals.

"We understand liberty of speech and of the press to imply not only liberty to publish, but complete immunity from legal censure and punishment for the publication, so long as it is not harmful in its character, when tested by such standards as the law affords. For these standards we must look to the common-law rules which were in force when the constitutional guaranties were established, and in reference to which they have been adopted.”

To a judge obliged to decide whether honest and able opposition to the continuation of a war is punishable, these generalizations furnish as much help as a woman forced, like Isabella in "Measure for Measure," to choose between her brother's death and loss of honor, might obtain from the pious maxim, "Do right." What is abuse? What is license? What standards does the law afford?

34 Mayer, J., in United States v. Phillips, BULL. DEPT. JUST., No. 14 (S. D. N. Y., 1917), 5: "In this country it is one of our foundation stones of liberty that we may freely discuss anything we please, provided that that discussion is in conformity with law, or at least not in violation of it." Mayer, J., in United States v. Goldman, BULL. DEPT. JUST., No. 41 (S. D. N. Y., 1917), 2: “No American worthy of the name believes in anything else than free speech; but free speech means, not license, not counseling disobedience of the law. Free speech means that frank, free, full, and orderly expression which every man or woman in the land, citizen or alien, may engage in, in lawful and orderly fashion." Van Valkenburgh, J., in United States v. Stokes, BULL. DEPT. JUST., No. 106 (W. D. Mo., 1918), 12: “No one is permitted under the constitutional guaranties to commit a wrong or violate the law." See also United States v. Pierce, BULL. Dept. Just., No. 52 (S. D. N. Y., 1917), 22, Ray, J.; United States v. Nearing, BULL. DEPT. JUST., No. 192 (S. D. N. Y., 1917), 4, Mayer, J.

35 COOLEY, CONSTITUTIONAL LIMITATIONS, ed., 605; quoted by Hough, J., in Fraina v. United States, 255 Fed. 28, 35 (C. C. A. 2d, 1918).

To argue that the federal Constitution does not prevent punishment for criminal utterances begs the whole question, for utterances within its protection are not crimes. If it only safeguarded lawful speech, Congress could escape its operation at any time by making any class of speech unlawful. Suppose, for example, that Congress declared any criticism of the particular administration in office to be a felony, punishable by ten years' imprisonment. Clearly, the Constitution must limit the power of Congress to create crimes. But how far does that limitation go? Cooley suggests that the legislative power extends only to speech which was criminal or tortious at common law in 1791. No doubt, conditions then must be considered, but must the legislature leave them unchanged for all time? Moreover, the few reported American cases before 1791 prove that our common law of sedition was exactly like that of England, and it would be extraordinary if the First Amendment enacted the English sedition law of that time, which was repudiated by every American and every liberal Englishman, and altered by Parliament itself in the very next year, 1792.36 Clearly, we must look further and find a rational test of what is use and what is abuse. Saying that the line lies between them gets us nowhere. And "license" is too often "liberty" to the speaker, and what happens to be anathema to the judge.

We can, of course, be sure that certain forms of utterance, which have always been crimes or torts at common law, are not within the scope of the free speech clauses. The courts in construing such clauses have, for the most part, done little more than place obvious. cases on this or that side of the line. They tell us, for instance, that libel and slander are actionable, or even punishable, that indecent books are criminal, that it is contempt to interfere with pending judicial proceedings, and that a permit can be required for street meetings; and on the other hand, that some criticism of the government must be allowed, that a temperate examination of a judge's opinion is not contempt, and that honest discussion of the merits of a painting causes no liability for damages. But when we ask where the line actually runs and how they know on which side of it a given utterance belongs, we find no answer in their opinions. Justice Holmes in his Espionage Act decisions had a magnificent

36 2 MAY, CONSTITUTIONAL HISTORY OF ENGLAND, Chap. IX; 2 STEPHEN, HISTORY OF THE CRIMINAL LAW, Chap. XXIV.

opportunity to make articulate for us that major premise, under which judges ought to classify words as inside or outside the scope of the First Amendment. He, we hoped, would concentrate his great abilities on fixing the line. Instead, like the other judges, he has told us that certain plainly unlawful utterances are, to be sure, unlawful.

"The First Amendment . . . obviously was not intended to give immunity for every possible use of language. . . . We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder... would be an unconstitutional interference with free speech."37 "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." 38

How about the man who gets up in a theater between the acts and informs the audience honestly but perhaps mistakenly that the fire exits are too few or locked? He is a much closer parallel to Schenck or Debs. How about James Russell Lowell when he counseled, not murder, but the cessation of murder, his name for war? The question whether such perplexing cases are within the First Amendment or not cannot be solved by the multiplication of obvious examples, but only by the development of a rational principle to mark the limits of constitutional protection.

"The gradual process of judicial inclusion and exclusion,” 39 which has served so well to define other clauses in the federal Constitution by blocking out concrete situations on each side of the line until the line itself becomes increasingly plain, has as yet been of very little use for the First Amendment. The cases are too few, too varied in their character, and often too easily solved, to develop any definite boundary between lawful and unlawful speech. Even if some boundary between the precedents could be attained, we could have little confidence in it unless we knew better than now the fundamental principle on which the classification was based. Indeed, many of the decisions in which statutes have been held to violate free speech seem to ignore so seriously the economic and political facts of our time, that they are precedents of very dubious

37 Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. Rep. 249, 250 (1919).

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

39 Miller, J., in Davidson v. New Orleans, 96 U. S. 97, 104 (1877).

value for the inclusion and exclusion process.40 Nearly every free speech decision, outside such hotly litigated portions as privilege and fair comment in defamation, appears to have been decided largely by intuition.

Fortunately Justice Holmes has not left us without some valuable suggestions pointing toward the ultimate solution of the problem of the limits of free speech,41 and still others are contained in Judge Learned Hand's opinion in Masses v. Patten.42 To these we shall soon return. For the moment, however, it may be worth while to forsake the purely judicial discussion of free speech, and obtain light upon its meaning from the history of the constitutional clauses and from the purpose free speech serves in social and political life. If we apply Coke's test of statutory construction, and consider what mischief in the existing law the framers of the First Amendment wished to remedy by a new safeguard, we can be sure that it was not the censorship. This had expired in England in 1695,43 and in the colonies by 1725.44 For years the government here and in England had substituted for the censorship rigorous and repeated prosecutions for criminal libel or seditious libel, as it was often called, which were directed against political discussion, and for years these prosecutions were opposed by liberal opinion and popular agitation. Primarily the controversy raged around two legal contentions of the great advocates for the defense, such as Erskine and Andrew Hamilton. They argued, first, that the jury and not the judge ought to decide the libellous nature of the writing, and secondly, that the truth of the charge ought to prevent conviction. The real issue, however, lay much deeper. Two different views of the relation of rulers and people were in conflict.45 According to one view, the rulers were the superiors of the people, and therefore must not be subjected to any censure that would tend to diminish. their authority. The people could not make adverse criticism in newspapers or pamphlets, but only through their lawful representatives in the legislature, who might be petitioned in an orderly manner. According to the other view, the rulers are agents and

40 See note 29, supra.

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

42 244 Fed. 535 (S. D. N. Y., 1917); reversed in 246 Fed. 24 (C. C. A. 2d., 1917)..

43 MACAULAY, HISTORY OF ENGLAND, Chap. XIX.

44 C. A. DUNIWAY, FREEDOM OF SPEECH IN MASSACHUSETTS, 89, note.

45 2 STEPHEN, HISTORY OF THE CRIMINAL LAW, 299.