A. General and Historical (Chapter I)
Reading edition
The legal meaning of freedom of speech cannot properly be determined without a knowledge of the political and philosophical basis of such freedom. Four writings on this problem may be mentioned as invaluable: Plato’s Apology of Socrates; Milton’s Areopagitica; the second chapter of Mill, On Liberty; and Walter Bagehot’s essay, “The Metaphysical Basis of Toleration.” The second chapter of J. F. Stephen, Liberty, Equality, Fraternity, has an important critique on Mill. See, also, J. B. Bury, A History of Freedom of Thought, the first and last chapters; Grote, Plato, Chap. VI; Graham Wallas, The Great Society, 195–98. The relation of freedom of thought to political progress is discussed by same, “The Price of Intolerance,” 125 Atlantic 116 (January, 1920); H. J. Laski, Authority in the Modern State, passim; same, “The Temper of the Present Time,” 21 New Republic 335 (February 18, 1920). Francis Hackett, “The Invisible Censor,” 21 New Republic 11 (December 3, 1919), sketches the psychology of suppression. For a caustic point of view, see Fabian Franklin, “Some Free Speech Delusions,” 2 Unpopular Rev. 223 (October, 1914). The difficulties of the problem as seen from actual experience on both sides are presented in Viscount Morley’s Recollections.
By far the best textbook on this and the other civil rights is Cooley, Constitutional Limitations, 7th ed.; Dicey, The Law of the Constitution, 8th ed., Chaps. VI and VII gives the English law of freedom of speech and assembly.
The best discussion of the legal meaning of “Freedom of the Press in the United States” will be found in an article under that name by Henry Schofield, in 9 Publications of the American Sociological Society 67 (1914). This volume is devoted entirely to “Freedom of Communication,” and contains several valuable papers on different aspects of the problem. Other general legal articles are: “The Jurisdiction of the United States over Seditious Libel,” H. W. Biklé, 41 Am. L. Reg. (N. S.) 1 (1902); “Restrictions on the Freedom of the Press,” 16 Harv. L. Rev. 55 (1902); “Free Speech and Free Press in Relation to the Police Power of the State,” P. L. Edwards, 58 Cent. L. J. 383 (1904); “Freedom of Speech and of the Press,” 65 Univ. of Pa. L. Rev. 170 (1916); Joseph R. Long, “The Freedom of the Press,” 5 Va. L. Rev. 225 (1918). Freedom of speech is discussed by Dean Pound as an interest of the individual in his “Interests of Personality,” 28 Harv. L. Rev. 445, 453 (1915); and as an alleged bar to injunctions of libel in his “Equitable Relief against Defamation and Injuries to Personality,” 29 Harv. L. Rev. 640, 648 (1916). For the technique of political trials, see Robert Ferrari, “Political Crime and Criminal Evidence,” 3 Minn. L. Rev. 365 (1919); “Political Crime,” 20 Col. L. Rev. 308 (1920); “The Trial of Political Criminals Here and Abroad,” 66 Dial 647 (June 28, 1919). Much useful material is collected in the writings of Theodore Schroeder, of which a bibliography by N. E. Sankey-Jones is published by the New York Free Speech League, 1919. Recent articles by him are “A Psychologic Study of Judicial Opinions,” 6 Cal. L. Rev. 89 (1918); “Political Crimes Defined,” 18 Mich. L. Rev. 30 (1919).
Origins of the First Amendment:
The history of freedom of speech in America has not yet been fully investigated, but Clyde A. Duniway, The Development of Freedom of the Press in Massachusetts, Cambridge, Harvard University Press, 1906, is extremely useful for the Colonial period. Max Farrand, Records of the Federal Convention, gives material on the proposed free speech clause, II, 334, 340, 341, 545; III, 122, 256, 290, 595, 599, 609. The state debates on this clause are in Elliot’s Debates (2d ed., 1836), I, 359, 360, 362, 369, 371, 375; II, 424, 511, 537; III, 411, 414, 415, 431, 551; IV, 159, 175, 209, 301, 302. J. B. McMaster and F. D. Stone, Pennsylvania and the Federal Convention, 1787–1788, Hist. Soc. of Penn., 1888, has contemporary press discussion.
English History and Law:
Much light is thrown on the problem by sedition trials in England, before our Revolution and during the French Revolution. The best account of these is in T. Erskine May, 2 Constitutional History of England, 2d ed., 1912, Chaps. IX-X, summarized by Charles A. Beard in 16 New Republic 350 (October 19, 1918). See, also, 2 Stephen, History of the Criminal Law, Chap. XXIV; Graham Wallas, Life of Francis Place, N. Y., 1919; Philip A. Brown, The French Revolution in English History, London, 1918; G. O. Trevelyan, The Early History of Charles James Fox, relates Wilkes and Junius controversies. See bibliography in J. F. Rhodes, History of the United States, IV, 233 note.
For the modern law: F. M. Anderson, “The Law of Sedition in the British Empire,” House Judiciary Hearings, p. 273; H. J. Laski, “The Fundamental Law in England,” 31 Harv. L. Rev. 296 (1917). Canada: A. V. Thomas, “Quoting Isaiah in Winnipeg,” 110 Nation 850 (January 3, 1920); J. A. Stevenson, “A Set-back for Reaction in Canada,” 110 ibid. 292 (March 6).
Sedition Act of 1798:
Frank Maloy Anderson, “The Enforcement of the Alien and Sedition Laws,” Ann. Rep. Am. Hist. Assn. (1912) 115; same, “Contemporary Opinion of the Virginia and Kentucky Resolutions,” 5 Am. Hist. Rev. 45 (1900); Albert J. Beveridge, Life of John Marshall, vols. II and III, passim, is vivid and collects much contemporary material. The four reported prosecutions are in Wharton’s State Trials,—Lyon, 333 (1798); Cooper, 659 (1800); Haswell, 684 (1800); Callender, 688 (1800). Wharton, 23, narrates the events leading up to these statutes; see, also, Channing and other standard histories. For references to the Sedition Act in Jefferson’s letters, see the edition of Paul Leicester Ford, VII, 245: “The object of that [the bill] is the suppression of the whig presses;” VII, 246; VII, 266, on unconstitutionality; VII, 283, “The alien and sedition laws are working hard;” VII, 289, 311, 336, 350, 354, 355, 356, on popular opposition to the acts; VII, 367, 371, 483, on continuation of Sedition Law by Congress; VIII, 54, 56 ff., 308 ff., on unconstitutionality and pardons; IX, 456, on dismissal of prosecutions. Madison’s Report on the Virginia Resolutions is reprinted in Elliot’s Debates.
Reference Books:
Soule’s Lawyer’s Reference Manual, for abbreviations of legal reports.
New York Times Index, issued quarterly, is very valuable for finding press accounts of prosecutions, etc.
B. The War (Chapters II and III)
Important decisions under the U. S. Espionage Act are printed in the Federal (Fed.) and United States Supreme Court Reports (U. S.). The latter are in public and university libraries. The Bulletins of the Department of Justice on the Interpretation of War Statutes (cited herein as Bull. Dept. Just.), Nos. 1–204, contain many charges not otherwise reported. Appendix II, infra, tells where all reported prosecutions can be found. Supreme Court records and briefs are in the Harvard Law School Library. The cases before July, 1918, are collected by Walter Nelles, Espionage Act Cases, with Certain Others on Related Points, Natl. Civil Liberties Bureau, N. Y. This has some state cases, and gives a careful analysis of the decisions. The Bureau has also published War-time Prosecutions and Mob Violence, involving the rights of free speech, free press, and peaceful assemblage (from April 1, 1917, to March 1, 1919), containing an annotated list of prosecutions, convictions, exclusions from the mail, etc. It has prepared in MSS. “A Memorandum Concerning Political Prisoners Within the Jurisdiction of the Department of Justice in 1919,” for the Attorney General; and “Memorandum to the President of the United States as to Persons Imprisoned for Violation of the War Laws” (copies in Harvard Law School Library).
The enforcement of the Espionage Act and similar statutes is officially summarized in the Reports of the Attorney General for 1917, 1918, and 1919, with lists of prosecutions and results, and circulars issued to district attorneys. See, also “Suggestions of Attorney-General Gregory to Executive Committee in Relation to the Department of Justice,” 4 Am. Bar. Assn. J. 305 (1918). An invaluable account of the war work of the Department is, John Lord O’Brian, “Civil Liberty in War-time,” 52 Rep. N. Y. Bar Assn. 275 (1919). A military view of censorship is “The Proper Relations between the Army and the Press in War,” Army War College, November, 1915.
The American Labor Year-Book, 1919–20, Rand School, N. Y., narrates several prosecutions in detail.
The issues involved in the current decisions are presented in non-technical form by these articles: “Freedom of Speech,” Z. Chafee, Jr., 17 New Republic, 66 (November 16, 1918); Ralph Barton Perry in a book review, 7 Yale Rev. 670 (April, 1918); “The Supreme Court vs. the Supreme Court,” 22 New Republic 235 (April 21, 1920).
Legal Articles on the War:
“Freedom of Speech and of the Press,” W. R. Vance, 2 Minn. L. Rev. 239 (1918); “The Espionage Act Cases,” 32 Harv. L. Rev. 417 (1919); “Threats to Take the Life of the President,” 32 Harv. L. Rev. 724 (1919); “The Vital Importance of a Liberal Construction of the Espionage Act,” Alexander H. Robbins, 87 Cent. L. J. 145 (1918); “Sufficiency of Indictments under the Espionage Act,” 87 Cent. L. J. 400 (1918). The Espionage Act is one of the topics covered by Judge Charles M. Hough, “Law in War Time—1917,” 31 Harv. L. Rev. 692, 696 (1918). Thomas F. Carroll, “Freedom of Speech and of the Press in War Time,” 17 Mich. L. Rev. 621 (1919); Z. Chafee, Jr., “Freedom of Speech in War Time,” 32 Harv. L. Rev. 932 (1919).
Treason:
Charles Warren, “What Is Giving Aid and Comfort to the Enemy?”, 27 Yale L. Rev. 331 (1918).
Post-office:
“Federal Interference with the Freedom of the Press,” Lindsay Rogers, 23 Yale L. J. 559 (1914), substantially reprinted as Chapter IV of his Postal Power of Congress, Baltimore, John Hopkins Press, 1916; R. E. Cushman, “National Police Power under the Postal Clause of the Constitution,” 4 Minn. L. Rev. 402 (1920); William Hard, “Mr. Burleson, Espionagent,” 19 New Republic 42 (May 10, 1919), and “Mr. Burleson, Section 481½ B,” 19 New Republic 76 (May 17, 1919); “Burleson and the Call,” 22 New Republic 157 (January 7, 1920); “The Call,” 1 Review 652 (December 13, 1919). For examples of war censorship and legal discussion of Title XII of the Espionage Act, Carroll, op. cit. , in 17 Mich. L. Rev. 629.