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desert. The severe terms of the imprisonment under this Act give the lie to this argument, however. If the government
had been intent on protecting the agitators from civilian attack the violators might have been imprisoned for the duration of the war instead of being sentenced to twenty years' incarceration. This treatment of persons opposed to
the prosecution of the war is in startling contrast to the century old policy of prevention instead of punishment for obnoxious utterances during a period when the government was vexed by unusual stresses and strains.
As the great majority of the prosecutions for disloyal activities were not made under the Act of 1918 but under the Act of 1917 it is necessary to deal with two major decisions interpreting the Act of 1917. The first is the interpretation of Judge Learned Hand of the Southern District of New York.
In the case of the Masses Publishing Co. v. Patten, Judge Hand was asked to enjoin the postmaster from excluding from the mails an issue of "The Masses", a monthly revolutionary journal which contained several articles, poems, and cartoons attacking the war. The publisher offered to delete any passages pointed out by the postmaster to be objectionable. To this the postmaster replied that the purport of the entire number was unlawful as it tended to encourage the enemies of this country and hamper the government in the conduct of the war. Several cartoons, a poem, and several articles were subsequently pointed out to be in violation of the law. This case involved the interpretation of the Espionage Act and Judge Hand refused to turn the original Act, which dealt only with the conduct of military affairs, into a means of suppressing all hostile
hostile criticism and all opinion opposed to the conduct of the war. Judge Hand insisted that the normal test for the suppression of speech in a democratic government is neither the justice of its substance nor the decency or propriety of its temper but the strong danger that it will cause injurious acts. Judge Hand was reversed on a point of administra
tive law. But the more important thing is the rejection by the Circuit Court of Appeals of his construction of the Espionage Act. For the view that speech was not punishable under the Act unless there was a strong danger that it would cause injurious acts the Court substituted the view that speech was punishable under the Act "if the natural and reasonable effect of what is said is to encourage resistance to the law, and the words are used in an endeavor to persuade to resistance". This view of the Circuit Court was accepted by Federal judges throughout the country and was the accepted standard of the Department of Justice in bringing prosecution. Through the establishment of the remote "bad tendency" test of the criminality of utterance a wide latitude was given to prosecutions under the Act that is seen, when looked at with a past-war mind, to represent a serious curtailment of civil liberties. The result of such interpretation is to allow the punishment of utterances without overt acts and with only a presumed intention to cause overt acts, and which a judge and jury considered to have a tendency to injure the state. The wording of the Act of 1917 bore little resemblance to the Sedition Laws of 1798 but the judicial construction was much the same. The administration of the Act of 1917 was more severe
6. Masses Publishing Company, v. Patten, 245 Federal 102, (C. C. A. 2d, 1917).