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of a room where an anarchist meeting is held, and an editor or publisher of anarchiat matter, are liable. The publisher of anarchist matter may be exculpated in case it was printed

without his knowledge or authority and immediately disavowed. It is noteworthy in respect to opinion in the United States that this Act lay idle for nearly twenty years.

18

New Jersey also passed an Act in the same year

punishing the advocacy of the subversion and destruction by force of any and all government, and the incitement, promotion, or encouragement of hostility or opposition to any and all government, also the membership in any organization formed for that purpose, and the introduction and circulation of pamphlets with the like purpose.

The breadth of these laws is indicative of the fact that they were not only aiming at the protection of public men but that the American tradition of freedom of discussion was changing. They smack distinctly of the autocratic measures used to suppress radical growths in continental Europe. Of these laws Freund in his notable work on "Police Power" 19

says:

......the constitutional guaranty of the freedom of speech and press and assembly demands the right to oppose all government and to argue that the overthrow of government cannot be accomplished otherwise than by force; and the statutes referred to, insofar as they deny these rights, should consequently be considered unconstitutional.

"It is probably true to say that to the extent that anarchist agitation exceeds the bounds of free speech it is punishable under the principles of the common law, and that it is impossible to strike at anarchism as a doctrine without jeopardizing valuable constitutional rights".

The Federal statute enacted by Congress in 1903 pro

18. Laws, New Jersey, 1902, Chap. 133. 19. Freund, Ernst, "Police Power"

p. 513.

vided that persons who disbelieve in or who are opposed to all organized government shall be forbidden to enter the country or to become naturalized. Obviously this provision does not collide with constitutional guarantys as no attempt is made by the Act to restrain the freedom of speech of anarchists residing in this country. That anarchists should be excluded however, in view of the asylum character of our previous attitude, shows a sharp shift of the cargo of ideas in the direction of less tolerance. It cannot be doubted however, that this tendency was not far advanced.

Freund could write:

20

In 1904

"Custom and public sentiment have come to sanction
the widest latitude of criticism of the government,
although in most cases it must be impossible to make
out, by legal proof, the truth of general charges
against a statesman or official or his administration.
Where the criminal law is codified, the definition of
libel often fails to cover sedition and comprehends
only the defamation of individuals. The most ample
freedom of discussion of public affairs is now gener-
ally understood to be guaranteed by the freedom of
speech and of the press, and the long continued prac-
tice of toleration may be accepted as sufficient
warrant for modifying the interpretation of the
express constitutional guaranty to that effect".
21

Washington passed a statute in 1909 similar to the New York statute of 1902. This statute went further, however, in making it criminal to circulate any document having a tendency to encourage the commission of any breach of the peace, or any disrespect for law or any court. The punishment was severe --10 years and $5000 for its violation. Says Chafee of this Act:

"The ridiculous possibilities of such legislation are proved by the conviction of one Fox for encouraging disrespect for law by an article, "The Nude and the Prudes", declaring bathing suits to be superfluous. Justice Holmes found nothing unconstitutional in the prosecution, but caustically remarked, 'Of course we have nothing to do with the wisdom of the defendant, the 20. Freund, op. cit., p. 509.

22. Chafee, op. cit.. p 188

22

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