The Constitution of the United States of America: Analysis and Interpretation Part 146

[58] Kunz _v._ New York, 340 U.S. 290 (1951).

[59] Ibid. 314.

[60] Niemotko _v._ Maryland, 340 U.S. 268 (1951).

[61] Feiner _v._ New York, 340 U.S. 315 (1951).

[62] _See_ p. 1285. [Transcriber's Note: There is no mention of the Feiner case on p. 1285.]

[63] Arver _v._ United States, 245 U.S. 366 (1918).

[64] 293 U.S. 245 (1934).

[65] 325 U.S. 561 (1945). _cf._ Girouard _v._ United States, 328 U.S. 61 (1946) holding "an alien who is willing to take the oath of allegiance and to serve in the army as a non-combatant but who, because of religious scruples, is unwilling to bear arms in defense of this country may be admitted to citizens.h.i.+p * * *", overruling United States _v._ Schwimmer, 279 U.S. 644 (1929) and United States _v._ Macintosh, 283 U.S. 605 (1931).

[66] 325 U.S. 561, 578 (1945).

[67] Commentaries, Vol. IV, 151-152.

[68] Justice Frankfurter in Dennis _v._ United States, 341 U.S. 494, 521-522 (1951).

[69] Ibid. 524; citing Robertson _v._ Baldwin, 165 U.S. 275, 281 (1897).

[70] Ibid. 524; citing Gompers _v._ United States, 233 U.S. 604, 610 (1914).

"While the courts have from an early date taken a hand in crystallizing American conceptions of freedom of speech and press into law, it is scarcely in the manner or to the extent which they are frequently a.s.sumed to have done. The great initial problem in this realm of const.i.tutional liberty was to get rid of the common law of 'seditious libel' which operated to put persons in authority beyond the reach of public criticism. The first step in this direction was taken in the famous, or infamous, Sedition Act of 1798, which admitted the defense of truth in prosecution brought under it, and submitted the general issue of defendant's guilt to the jury. But the substantive doctrine of 'seditious libel' the Act of 1798 still retained, a circ.u.mstance which put several critics of President Adams in jail, and thereby considerably aided Jefferson's election as President in 1800. Once in office, nevertheless, Jefferson himself appealed to the discredited principle against partisan critics. Writing his friend Governor McKean of Pennsylvania in 1803 anent such critics, Jefferson said: 'The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked in an opposite direction; that is by pus.h.i.+ng its licentiousness and its lying to such a degree of prost.i.tution as to deprive it of all credit. * * * This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this, if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.' Works (Ford ed., 1905), IX 451-52.

"In the _Memorial Edition_ of Jefferson's works this letter is not included; nor apparently was it known to the Honorable Josephus Daniels, whose enthusiastic introduction to one of these volumes makes Jefferson out to have been the father of freedom of speech and press in this country, if not throughout the world. The sober truth is that it was that archenemy of Jefferson and of democracy, Alexander Hamilton, who made the greatest single contribution toward rescuing this particular freedom as a political weapon from the coils and toils of the common law, and that in connection with one of Jefferson's 'selected prosecutions.' I refer to Hamilton's many-times quoted formula in the Croswell case in 1804: 'The liberty of the press is the right to publish with impunity, truth, with good motives, for justifiable ends though reflecting on government, magistracy, or individuals.' People _v._ Croswell, 3 Johns (NY) 337. Equipped with this brocard our State courts working in co-operation with juries, whose att.i.tude usually reflected the robustiousness of American political discussion before the Civil War, gradually wrote into the common law of the States the principle of 'qualified privilege,' which is a notification to plaintiffs in libel suits that if they are unlucky enough to be officeholders or office seekers, they must be prepared to shoulder the almost impossible burden of showing defendant's 'special malice.' Cooley, _Const.i.tutional Limitations_, Chap. XII: Samuel A. Dawson, _Freedom of the Press, A Study of the Doctrine of 'Qualified Privilege'_ (Columbia Univ. Press, 1924)." Edward S. Corwin, _Liberty Against Government_. 157-159 fn.

(L.S.U. Press, 1948).

[71] Patterson _v._ Colorado, 205 U.S. 454, 462 (1907).

[72] Ibid. 461

[73] Prudential Ins. Co. _v._ Cheek, 259 U.S. 530, 543 (1922).

[74] Schenck _v._ United States, 249 U.S. 47 (1919); and _see_ below.

[Transcriber's Note: Reference is to Footnote 75, below.]

[75] _See_ Justice Brandeis concurring opinion in Whitney _v._ California, 274 U.S. 357 (1927); and cases reviewed below.

[76] Fiske _v._ Kansas, 274 U.S. 380 (1927).

[77] 133 U.S. 333 (1890).

[78] Ibid. 341-342.

[79] 236 U.S. 273 (1915).

[80] Fiske _v._ Kansas, 274 U.S. 380 (1927).

[81] Stromberg _v._ California, 283 U.S. 359 (1931).

[82] De Jonge _v._ Oregon, 299 U.S. 353 (1937).

[83] 249 U.S. 47 (1919).

[84] 40 Stat. 217, 219.

[85] 205 U.S. 454, 462 (1907).

[86] 249 U.S. 47, 51-52 (1919).

[87] 249 U.S. 204 (1919).

[88] Ibid. 206.

[89] 249 U.S. 211 (1919).

[90] Ibid. 215-216.

[91] 250 U.S. 616 (1919).

[92] Ibid. 627. It should be noted that Justice Holmes couples with his invocation of the clear and present danger test in his dissent in this case the contention that rightly construed the act of Congress involved (The Espionage Act of May 16, 1918; 40 Stat. 553) required that defendant's intent be specifically proved. He wrote: "I am aware of course that the word intent as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. Even less than that will satisfy the general principle of civil and criminal liability. A man may have to pay damages, may be sent to prison, at common law might be hanged, if at the time of his act he knew facts from which common experience showed that the consequences would follow, whether he individually could foresee them or not. But, when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed. It may be obvious, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it, but he does not do the act with intent to produce it unless to aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind. It seems to me that this statute must be taken to use its words in a strict and accurate sense." 250 U.S. at 626-627. In the Holmes-Pollock Letters this is the main point discussed by the two correspondents regarding the Abrams Case; the clear and present danger doctrine is not mentioned. 2 Holmes-Pollock Letters, 29, 31, 32, 42, 44-45, 48, 65.

[93] 251 U.S. 466 (1920).

[94] Ibid. 479. _See also_ to the same effect: Pierce _v._ United States, 252 U.S. 239 (1920).

[95] 268 U.S. 652 (1925).

[96] Ibid. 668, 669.

[97] Ibid. 670.

[98] Ibid. 671. Justice Holmes presented a dissenting opinion for himself and Justice Brandeis which contains a curious note of fatalism.

He said: "If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this Manifesto was more than a theory, that it was an incitement. Every idea is an incitement.

It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it, or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictators.h.i.+p are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." Ibid. 673.

[99] 274 U.S. 357 (1927).

[100] Ibid. 373, 377. Apparently this means that the ultimate test of the const.i.tutionality of legislation restricting freedom of utterance is whether there is still sufficient time to educate the utterers out of their mistaken frame of mind, and the final say on this necessarily recondite matter rests with the Supreme Court! Justice Brandeis also a.s.serts (274 U.S. at 376) that there is a distinction between "advocacy"

and "incitement," but fails to adduce any supporting authority.

[101] 301 U.S. 242 (1937).

[102] Ibid. 261-263.

[103] 310 U.S. 88 (1940).