Chapter IV · LEGISLATION AGAINST SEDITION AND ANARCHY

If there be any among us who wish to dissolve this union, or to change its republican form, let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it. I know indeed that some honest men have feared that a republican government cannot be strong; that this government is not strong enough. But would the honest patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and firm on the theoretic and visionary fear that this government, the world’s best hope, may, by possibility, want energy to preserve itself? I trust not. I believe this, on the contrary, the strongest government on earth.—Jefferson’s First Inaugural.

Long before the armistice it became clear that the problem of freedom of speech would not end with the war, but would be raised for us in a different aspect and with added difficulties by the unaccustomed prevalence and outspoken expression of radical ideas. Despite my own adherence to traditional political and economic views, I believe that this phenomenon was bound to result from the war. The routine of the day’s work ordinarily holds in check the eternal antagonism of the “have-nots” to the “haves,” but habits of mechanical obedience and adjustment to the prevailing scheme of life were suddenly destroyed for many by the rapid shift to new scenes and occupations and a novel conviction of the power of unskilled labor. The immense amount of thought and discussion caused by the war during the three years preceding our entry has been often remarked. Such an overhauling directed popular attention to the part played by economic factors in the origin and conduct of the war. Many extreme radicals claimed therefrom fresh proof of the economic interpretation of history and the class struggle. The official emphasis on democracy against autocracy inevitably stimulated discussion of those two concepts and their application to industrial and other non-political fields. Labor programs in England and France crossed the ocean. Then came one of the earthquakes of history, from whose remote influence it was as impossible for us to escape as from the French Revolution which produced the Alien and Sedition Laws of 1798. Jefferson’s First Inaugural states the controversy of to-day.

During the throes and convulsions of the antient world, dur^g the agonis^d spasms of infuriat^d man, seeking through blood & slaughter his long lost liberty, it was not wonderful that the agitation of the billows should reach even this distant & peaceful shore: that y^s sh^d be more felt & fear^d by some, & less by others, & sh^d divide opinions as to measures of safety.

Much of this radicalism had identified itself with the opposition to the war, and thereby been involved in prosecutions under the Espionage Act and the state laws. A few members of the Non-Partisan League were tried in the federal courts, and its leaders and several of the rank and file were convicted in Minnesota. Much use was made against Debs, Berger, and Mrs. O’Hare of the St. Louis Socialist platform, with its declaration for “continuous, active, and public opposition to the war, through demonstrations, mass petitions, and all other means within our power.” The Industrial Workers of the World had taken advantage of the nation’s hour of need to withhold assistance which they felt under no obligation to give. Their position was stated to Carleton Parker in plain language by one of their chiefs.

You ask me why the I.W.W. is not patriotic to the United States. If you were a bum without a blanket; if you had left your wife and kids when you went West for a job, and had never located them since; if your job never kept you long enough in a place to qualify you to vote; if you slept in a lousy, sour bunk-house, and ate food just as rotten as they could give you and get by with it; if deputy sheriffs shot your cooking cans full of holes and spilled your grub on the ground; if your wages were lowered on you when the bosses thought they had you down; if there was one law for Ford, Suhr, and Mooney, and another for Harry Thaw; if every person who represented law and order and the nation beat you up, railroaded you to jail, and the good Christian people cheered and told them to go to it, how in hell do you expect a man to be patriotic? This war is a business man’s war and we don’t see why we should go out and get shot in order to save the lovely state of affairs that we now enjoy.

Parker, Colonel Disque, and the President’s Mediation Commission had striven with much success to bring these irreconcilables into the great stream of national effort. Others thought coercion a better method to end the dangerous menace of sabotage and the recurrent strike. W. D. Haywood and one hundred more members of the I.W.W. were convicted and imprisoned under long sentences for threats and designs of tangible obstruction to war work.

This union of hostility to the war with strange economic and political doctrines set its mark on the later war legislation. The amended Espionage Act of 1918 included the clauses about defamation of our form of government and curtailment of production which played such a prominent part in the Abrams case. A federal Sabotage Act was enacted. States punished the advocacy of syndicalism and sabotage in their war statutes or more often by separate acts. Much of this legislation extended automatically to peace-time utterances, and when it did not, it was easy and natural to adapt it for that purpose by the omission of a few military phrases. In the legislative sessions which followed the armistice, emergency laws against anarchy and criminal syndicalism were adopted by state after state with a coincidence of time and phraseology which proved either a uniform danger throughout the country or the operation of M. Tarde’s Laws of Imitation.

This coercive legislation was held by its supporters to have unanswerable justification in the succeeding outrages of 1919. A large number of bombs addressed to federal officials and judges were seized in the mails, and the houses of Attorney General Palmer and several other individuals prominent in sedition prosecutions and legislation were wrecked by explosions, one of which caused loss of life. There was much street fighting at May Day Parades in Boston and Cleveland, and a clash of very obscure origin between the I.W.W. and the American Legion in Centralia, Washington, resulted in the death of five ex-service men, four shot and one lynched. Meanwhile, the Department of Justice and a special Senate Committee to investigate Bolshevism accumulated a mass of evidence on the large number of revolutionary periodicals and publications in the United States.

The presence in our midst of new forces that make for disorder and violence renders it desirable to review the resources of our law for dealing with insurrection, bombs, and assassination, and to examine calmly recent and pending legislation to prevent the promotion of anarchy. The disruption of our social and economic fabric by revolution, or even the continual recurrence of local outrages, would be so disastrous that they ought to be prevented in the wisest and most effective manner. Many persons take it for granted that any statute which is directed against those evils must be beneficial. That does not necessarily follow. If an emergency really exists, it behooves us all to keep cool, and consider with great care any new laws, and particularly the bills lately introduced in Congress, to see whether they are actually needed to combat the danger, whether they will really meet it, and whether in the haste and excitement of the moment our legislators may not be going much too far.

This country has been able without any anarchy acts to cope with several insurrections like Shay’s Rebellion and the Dorr War, a considerable amount of anarchy, and a great many turbulent strikes. May it not be that a wise and vigorous enforcement of the ordinary criminal law will meet most, if not all, of the present danger?

I. The Normal Law Against Violence and Revolution

As far as state prosecutions are concerned, there has been very little need of specific legislation against anarchy and criminal syndicalism. Actual violence against government, life, and property is punishable everywhere. Those who plan or counsel such violence are liable even if they do not actively participate. When several policemen were killed by a bomb at the Haymarket in Chicago in 1886, Spies and other anarchists were convicted and executed though it was clear that some one else threw the bomb. Nor is it necessary that any criminal act shall take place. An unsuccessful attempt at a serious crime or a definite solicitation of another to commit it is punishable under the general criminal law. Chief Justice Morton of Massachusetts said in 1883, while upholding the sentence of one Flagg for urging another without success to burn down a barn: “It is an indictable offense at common law to counsel and solicit another to commit a felony or other aggravated offense, although the solicitation is of no effect, and the crime counseled is not in fact committed.” Consequently the normal law of the states and the District of Columbia, apart from any legislation against anarchy, enables the police and the courts to deal vigorously with actual or threatened insurrection, explosions, or assassination.⁠[266] The persons of the President and other federal officials are protected by these laws in the District and the various states. Thus the assassin of President McKinley was convicted in New York. If it is felt to be safer that crimes against such men should also be subject to prosecution in the federal courts, it may be that Congress has power so to provide, since any injury to them would seriously impede the operation of the national government, although this is a question which requires subsequent consideration. If such a statute can be constitutionally enacted, it should punish not only actual injuries to officials, but also unsuccessful attempts and incitement of others to commit such injuries, for such abortive conduct would not be criminal in the United States courts unless expressly made so.⁠[267]

No Congressional legislation is needed to make criminal any scheme to overthrow the United States Government by bombs or any other means. A glance at the first eight sections of the Federal Criminal Code suffices to prove this.⁠[268] Levying war against the United States is treason punishable with death, and recruiting or enlisting for armed hostility against the United States is a serious crime. Conduct short of insurrection is penalized in section 6. “If two or more persons ... conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States,” they are each liable to six years in prison or $5,000 fine or both. It is of course well settled that conspiracy does not have to succeed to be punishable. All that is required is a common design to commit a crime, and some overt act in pursuance of the design. The act may be entirely innocent in itself, and may consist in speech or publication. If any further protection against threatened revolution is needed, it is furnished by section 37 of the Criminal Code, which punishes with severity conspiracy “to commit any offense against the United States.”⁠[269]

Section 6 of the Criminal Code was enacted during the Civil War and was thought adequate to meet the real dangers of the Reconstruction Period in the South. However, Attorney General Palmer, in asking Congress for a new sedition law, alleges two defects in this section, which in his opinion destroy its usefulness in dealing with the present radical situation.⁠[270] First, the section is limited to conspiracies and does not reach the isolated individual who threatens to overthrow the government. It may be a breach of the peace under state law but it is not now a federal crime if one man, all by himself, goes and hires a hall and tells his audience to start a revolution. This solitary talker was frequently held up at recent Congressional hearings as an example of existing danger to the country, until Mr. Alfred Bettman answered out of his long experience with sedition prosecutions during war service in the Department of Justice:⁠[271]

This man does it all by himself. Nobody encourages him. No organization supports or inspires him. He thinks up a rebellion all by himself. He hires a hall all by himself. Nobody helps him pay for it. He makes his speech all by himself. Nobody introduces him. He makes his speech. And nothing happens. That is your case. Nothing happens. Well, nothing happens.

Mr. Palmer’s second objection grows out of a test case, in which Judge Hazel dismissed a prosecution under section 6 against three members of the El Ariete Society, a Buffalo anarchistic organization, for the circulation of a Spanish manifesto. The Attorney General states that this manifesto “clearly constitutes an appeal to the proletariat to arise and destroy the government of the United States by force and substitute Bolshevism or anarchy in place thereof”; and consequently that the failure of the prosecution shows that new legislation is necessary to meet such publications. The case cited does not justify any such conclusion.⁠[272] (1) The defendants were not proved to have any substantial connection with the manifesto, so that the judge could not do anything but discharge them even if its language violated every section of the Criminal Code. (2) Judge Hazel expressly found that the manifesto does not advocate the overthrow of the government by force. Undoubtedly it abuses the form of our government and its officials, advocates the organization of soviets, anarchy, and the destruction of the institutions of society, “but there is nothing contained in it that advocates the destruction of society by the use of violence, and it is open to the construction that it was designed to be sent out for the purpose of bringing about a change in the government by propaganda—by written documents.”

A circular which is part of any actual plot to overthrow the government by unlawful acts would be punishable under section 6. This is plainly shown, not only by Judge Hazel’s reasoning, but also by another decision affirming a conviction under this section for a conspiracy to circulate pamphlets advocating resistance to the execution by conscription of the war resolution of Congress.⁠[273] On the other hand, a statute applying to the Ariete manifesto would necessarily make it criminal to express economic views and aims different from those which now prevail. Whether such legislation is desirable will soon be discussed, but clearly it is not needed to meet any present danger of revolution. If there is any real revolutionary plot to-day by Bolshevists, anarchists, or any one else, they can be tried, convicted, and sentenced to six years in prison under section 6 of the Criminal Code, and if this is not time enough a simple amendment of this section can make it longer.

One other feature of the existing federal law deserves attention. The chief danger from anarchists arises through the use of explosives, and if these are kept under federal control the country will be reasonably safe from bombs and dynamite. On October 6, 1917, Congress passed an elaborate statute making it unlawful, when the United States is at war, to manufacture, distribute, store, use, or possess explosives, fuses, detonators, etc., except under specified regulations which include a requirement for a government license given only after full information. This law was used during the war to impose sentences of eighteen months on bomb plotters who were shipping explosives without a license.⁠[274] The statute is automatically suspended during peace, but Congress would do well to continue it, and could, it seems, accomplish this constitutionally under its powers to regulate interstate and foreign commerce and to conserve material needed for army and navy use. Under this statute it would be practically impossible for unauthorized persons to secure enough explosives to cause extensive damage.

With these suggested amendments to the federal statutes to protect the lives and persons of United States officials and regulate the use of explosives in peace, the normal law will be entirely adequate to guard us against dangerous anarchy. Violence, direct and dangerous provocation to violence, and conspiracies to bring about violence will be severely punished, and the instruments of outrage will be removed.

II. The Normal Criminal Law of Words

I have dwelt at such length upon the ordinary law in order to make it clear that the so-called anarchy acts, insofar as they are not unnecessary duplication of that law, go far beyond it and impose an entirely different test of criminality. To restate the matter in accordance with the reasoning in the first chapter, the normal criminal law is interested in preventing crimes and certain non-criminal interferences with governmental functions like refusals to enlist or to subscribe to bonds. It is directed primarily against actual injuries. Such injuries are usually committed by acts, but the law also punishes a few classes of words like obscenity, profanity, and gross libels upon individuals, because the very utterance of such words is considered to inflict a present injury upon listeners, readers, or those defamed, or else to render highly probable an immediate breach of the peace. This is a very different matter from punishing words because they express ideas which are thought to cause a future danger to the State.

Undoubtedly, the existence of these verbal peace-time crimes subjects the argument of my first chapter to an acid test. They are too well-recognized to question their constitutionality, but I believe that if they are properly limited they fall outside the protection of the free speech clauses as I have defined them. My reason is not that they existed at common law before the constitutions, for a similar argument would apply to the crime of sedition, which was abolished by the First Amendment. The existence of a verbal crime at common law shows the presence of a social interest which must be weighed in the balance, but the free speech guaranties, as I have argued at length, enact a countervailing social interest in the attainment and dissemination of truth, which was insufficiently recognized by the common law. Nor do I base my conclusion on the historical fact that the framers of the constitutions wanted to safeguard political discussion, because their own statements of freedom of speech in the address to the people of Quebec, the Virginia Toleration Statute, and the opening clause of the First Amendment itself, prove that they also wanted to safeguard scientific and religious freedom, both of which would be greatly restricted by a sweeping application of the common law of obscenity and blasphemy. The true explanation is, that profanity and indecent talk and pictures, which do not form an essential part of any exposition of ideas, have a very slight social value as a step toward truth, which is clearly outweighed by the social interests in order, morality, the training of the young, and the peace of mind of those who hear and see. Words of this type offer little opportunity for the usual process of counter-argument. The harm is done as soon as they are communicated, or is liable to follow almost immediately in the form of retaliatory violence. The only sound explanation of the punishment of obscenity and profanity is that the words are criminal, not because of the ideas they communicate, but like acts because of their immediate consequences to the five senses. The man who swears in a street car is as much of a nuisance as the man who smokes there. Insults are punished like a threatening gesture, since they are liable to provoke a fight. Adulterated candy is no more poisonous to children than some books. Grossly unpatriotic language may be punished for the same reasons. The man who talks scurriously about the flag commits a crime, not because the implications of his ideas tend to weaken the Federal Government, but because the effect resembles that of an injurious act such as trampling on the flag, which would be a public nuisance and a breach of the peace. This is a state but not a federal crime, for the United States has no criminal jurisdiction over offenses against order and good manners, although Congress may possibly have power to regulate the use of the national emblem. It is altogether different from sedition.

The absurd and unjust holdings in some of these prosecutions for the use of indecent or otherwise objectionable language furnish a sharp warning against any creation of new verbal crimes. Thus, the test of obscenity is very vague, and many decisions have utterly failed to distinguish nasty talk or the sale of unsuitable books to the young from the serious discussion of topics of great social significance. The white slave traffic was first exposed by W. T. Stead in a magazine article, “The Maiden Tribute.” The English law did absolutely nothing to the profiteers in vice, but put Stead in prison for a year for writing about an indecent subject.⁠[275] When the law supplies no definite standard of criminality, a judge in deciding what is indecent or profane may consciously disregard the sound test of present injury, and proceeding upon an entirely different theory may condemn the defendant because his words express ideas which are thought liable to cause bad future consequences. Thus musical comedies enjoy almost unbridled license, while a problem play is often forbidden because opposed to our views of marriage. In the same way, the law of blasphemy has been used against Shelley’s Queen Mab, and the decorous promulgation of pantheistic ideas, on the ground that to attack religion is to loosen the bonds of society and endanger the state.⁠[276] This is simply a roundabout modern method to make heterodoxy in sex matters and even in religion a crime. A Washington decision punishing a man for a newspaper article tending to defame George Washington is a serious restriction on historical writing.⁠[277] Furthermore, the breach of the peace theory is peculiarly liable to abuse. It makes a man a criminal simply because his neighbors have no self-control and cannot refrain from violence. The reductio ad absurdum of this theory was the imprisonment of Joseph Palmer, one of Bronson Alcott’s fellow-settlers at “Fruitlands,” not because he was a communist, but because he persisted in wearing such a long beard that people kept mobbing him, until law and order were maintained by shutting him up.⁠[278] A man does not become a criminal because some one else assaults him unless his own conduct is in itself illegal or may be reasonably considered a direct provocation to violence.⁠[279] Thus all these crimes of injurious words must be kept within very narrow limits if they are not to give excessive opportunities for outlawing heterodox ideas.

Besides these special classes of words which cause present injury, the normal law punishes speech which falls short of injury as an attempt or solicitation, but the first chapter has shown that this is only when the words come somewhere near success and render the commission of actual crime or other tangible obstruction of state activities probable unless the state steps in at once and penalizes the conduct before it ripens into injury. The law of attempts and solicitation is directed not against the words but against acts, and the words are punished only because that is the necessary way to avoid harmful acts. When A urges B to kill C and tells him how he can do it, this has nothing to do with the attainment and dissemination of truth, and besides there is genuine danger that the murder will take place long before discussion will prove it to be a mistaken scheme.

The two conspiracy cases mentioned in connection with the federal Criminal Code bring out neatly the boundary of the normal criminal law. The anti-draft pamphlets fell within its range because of the danger created by their language and the surrounding circumstances, and although unlike solicitations to murder they served a social interest in criticising the policies of the war, this was outweighed by the pressing peril to the social interest in the enforcement of war legislation. On the other hand, the Ariete manifesto was simply intemperate discussion of fundamental economic and political questions, and even if it had a remote tendency to injure the country by causing a revolution some day there was obviously plenty of time to present the other side before the revolution arrived.

III. The Difference Between the Normal Law and the New Legislation

We have seen and heard of revolutions in other States. Were they owing to the freedom of popular opinions? Were they owing to the facility of popular meetings? No, sir, they were owing to the reverse of these; and therefore, I say, if we wish to avoid the danger of such revolutions, we should put ourselves in a state as different from them as possible.—Charles James Fox, 1795.

The existing law protects us from dangerous anarchy, but the anarchy acts reach out to the futile soap-box orator who advocates violence and in most cases to the Ariete manifesto which does not. These statutes are not directed against those who commit or actually plan violence, but against those who express or even hold opinions which are distasteful to the substantial majority of citizens. Some of them are so sweeping as to suppress agitation which is neither dangerous nor anarchistic. The people may be led to accept such statutes because they fear anarchy, but they will soon find that all sorts of radical and even liberal views have thereby become crimes. These acts have been drafted by men who are so anxious to avoid any disturbance of law and order that they have punished by long prison terms and heavy fines not only provocation to the use of force, but also the promulgation of any ideas which might possibly if accepted cause some one to use force.

In the past the American law has shown little sensitiveness to revolutionary utterances in time of peace, and has wisely treated most fulminations against the social fabric like a pot-shot at a man ten miles away. However, as Judge Hand pointed out,⁠[280] all vigorous criticism of the form of government or the economic system or particular laws may by arousing passion or engendering conviction of the iniquity of existing conditions lead indirectly to violence. Even an ardent oration urging the repeal of a statute may lead hearers to disobey it. We are always tempted to apprehend such results from opinions to which we are opposed. It is easy to believe that doctrines very different from our own are so objectionable that they could only come into operation through force, so that their advocates must necessarily favor criminal acts. The difference between the expression of radical views and direct provocation to revolution is only a difference of degree, but it is a difference which the normal criminal law regards as all-important.

There are always men who want the law to go much farther and nip opinions in the bud before they become dangerous because they may eventually be dangerous. Thus, when Colley Cibber produced his adaptation of “Richard III,” the Master of the Revels expunged the whole first act, fearing that the distresses of Henry VI would put weak people too much in mind of James II, also exiled in France.⁠[281] Such an attitude is particularly common in a period of unrest like the present, especially during a foreign revolution or after assassinations, when coercion and violence follow each other in a vicious circle. We have seen how George III’s judges transported men who wanted to abolish rotten boroughs and the limited franchise, because if the people of Great Britain possessed the same privileges as the French they might destroy the Constitution and imitate the Reign of Terror. Restoration France, after the assassination of the Duc de Berri, passed a law to suppress any journal “if the spirit resulting from a succession of articles would be of a nature to cause injury to the public peace and the stability of constitutional institutions.” It was only with the disappearance of these procès de tendance that the press once more became free, and under the Republic one can urge a change in the form of government to monarchy or empire with impunity.⁠[282]

Abolition of slavery could never be mentioned in the antebellum South because it might cause a negro uprising. A similar sensitiveness to possible bad results led to the prohibition of “Mrs. Warren’s Profession” and “September Morn.” Since almost any opinion has some dangerous tendencies, it is obvious that its suppression on that account puts an end to thorough discussion. Writings which do not actually urge illegal acts should never be made criminal except perhaps in great emergencies like war or revolt when the mere statement of the author’s view creates a clear and present danger of injurious acts. In time of peace the limitation of the punishment of speech to direct provocation to crime is the essential element of the freedom of the press.

The normal criminal law is willing to run risks for the sake of open discussion, believing that truth will prevail over falsehood if both are given a fair field, and that argument and counter-argument are the best method which man has devised for ascertaining the right course of action for individuals or a nation. It holds that error is its own cure in the end, and the worse the error, the sooner it will be rejected. Attorney General Gregory has defended the Espionage Act on the ground that propaganda is especially dangerous in a country governed by public opinion.⁠[283] I believe this to be wholly wrong. Free discussion will expose the lies and fallacies of propaganda, while in a country where opinion is suppressed propaganda finds subterranean channels where it cannot be attacked by its opponents.

Russia under the Czar took no risks. It was afraid to wait for a clear and present danger of violence. It put the ax to the root of the tree. Five powerful methods were developed to reach anarchy and revolution in their earliest stages. The government censored and suppressed books and periodicals; it raided houses and seized men and their papers without process; it prosecuted them for their expression of opinions and for their membership in radical societies; it deported them to Siberia or abroad; it devised ingenious methods of weeding them out of the Duma.

These are not American methods. During the whole of the nineteenth century, not one of them was used against radicals in the United States. It is the American habit to take a chance on queer and objectionable opinions. Roger Williams did it when he discarded religious qualifications for office and citizenship, which even England was afraid to abandon wholly for another two hundred and fifty years. It is easy for us to forget now what a tremendous risk the founder of Rhode Island was thought to run and did run in those days of wild beliefs. The “livelie experiment” of religious freedom described in the Charter, which it was much on his heart to hold forth, was a very lively experiment indeed in its early years. And in the past the same courage has marked our policy toward radicalism. Anarchy and communism are nothing new in this country,—we have had them in all varieties, foreign and domestic, since the days of Brook Farm until we lived safely through thirty-four years of Emma Goldman. The normal law, which refrains from punishing words for their bad political tendency, has carried us through far worse crises than the present. In the midst of the great railroad strikes of 1877, when unemployment was larger than ever before or since, a big communist meeting was permitted in New York. The Seventh Regiment was kept in a conspicuous readiness to put down any actual disorder, but there was no interference with anything that was said. The speakers indulged in the wildest kind of talk, but it fell flat on the meeting just because there was no chance for a row.⁠[284] Arthur Woods used the same wise policy when he became police commissioner of New York City during the hard times of the summer of 1914. Under his predecessor the police had been breaking up anarchistic meetings in Union Square every Saturday afternoon and the feeling was excited, defiant, and bitter. Threats were not disguised that since the police had “acted like agents of the capitalists,” the crowds would come next time prepared to answer clubs and revolvers with bombs. Mr. Woods took office, and told the police to interfere in any actual disturbance, but not otherwise. Next Saturday, a large force of police was held within available distance, and a hundred plain-clothes men were scattered singly through the meeting, on the watch for signs of violence so that they could nip any attempt in the bud, but beyond that they were only to try to maintain an atmosphere of quiet and calm and radiate good nature. Mr. Woods says:

The change of method was almost unbelievably successful. There was no disorder; the crowd was very large but very well behaved, and at the end of the meeting when everything was over and many had gone home, three cheers were proposed and given for the police.⁠[285]

This courage, this tolerance, this friendly co-operation between government and people, with its visible creation of loyalty, this is the true Americanism. And the issue before us to-day is whether in a period of prosperity and tremendous demand for labor we shall throw overboard the American laws and the American methods which carried us safely through the turbulent early years of our history, through Reconstruction, through panics and Populism with its widespread agitation among the native-born population, and shall now shaking and shivering in every wind of doctrine that blows from Bolshevist Russia imitate even in part any of the five methods with which Czarist Russia fought radicalism up to the day of her stupendous ruin.

To this issue in its various aspects I shall devote the remainder of my book.

The interpretation of freedom of speech which I have endeavored to establish in the opening chapter applies in peace as in war. The various interests, individual and social, must once more be balanced against one another with full regard to the social interests in progress and the attainment and dissemination of truth. The resultant boundary line of permissible speech is drawn back of the point where overt acts of injury to the state occur but not far from that point. The test laid down by the United States Supreme Court in the Schenck case still holds good:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress (or the state legislature) has a right to prevent.

The power of the government to restrict discussion is undoubtedly less in time of peace than in time of war because war opens dangers that do not exist at other times. The strength of the state in war time is chiefly occupied in fighting the enemy. In a great war the chances of success are uncertain, and a slight set-back due to hostile opinion at home may cause defeat. It is hard enough for the government to resist the human desire not to enlist and not to fight, without outside incitement from adverse views of the war. Thus, there are very plausible reasons for limiting the social interest for which I earnestly contend, the need of continuous contact with the facts and with sound conclusions. In peace, however, the social interest mainly affected by discussion is not the sorely-beset endeavor to save the country from a powerful enemy, but the interest in order. With this interest the mass of the population earnestly sympathizes. It is protected by an enormous body of otherwise unoccupied police and soldiers, who are now available to check any actual violence. This interest in order is not opposed by troops and guns from abroad but only by words, which it can afford to tolerate, confident in the support of public opinion. In war an evil and wholly unfounded opposition at home may upset the state. In peace, those who love disorder for its own sake are so few that a revolution is improbable unless there are very strong reasons for discontent. If the agitation is without merit the state can afford to ignore it. If it has merit the state cannot afford to suppress it without a hearing. Consequently, in peace governmental interference should be delayed as in the New York meeting of 1877 until the last possible moment before violence occurs.

Sometimes in peace other social interests besides order come into play and strengthen the case for restriction. Thus, the interest in morals is concerned with moving-picture plays and books for the young. Street meetings may interfere with the public traffic besides causing a greater probability of violence than do books. Once more, it is a question of balancing the interests, and it may be worth while to arrange for meetings in less-used side streets in the noon-hour or in specified public parks, even at some sacrifice of traffic. After all, a democracy may wisely refuse to regard the streets only as a place where people exercise and go out to make money. Parades and soap-box orators and big meetings make them an open-air school, which prepares directly for citizenship.

The anarchy acts are the first break with the American tradition. Most of them are not willing to run any risks as to opinions generally considered objectionable, but make opinions in themselves and for their own sake a crime, although there is no direct and dangerous interference with order and only a remote possibility that violence will ensue. The first chapter has shown the evils of bad political tendency as a test of criminality. These statutes in large part revive that test, and are not directed against bad acts, but are designed to protect the minds of grown men and women from bad talk and bad thoughts.

IV. Radical Meetings and the Red Flag

There are several types of anarchy acts.⁠[286] The simplest is the red flag law, recently adopted by twenty-five states. The New York statute⁠[287] makes it a misdemeanor to display the banner “in any public assembly or parade as a symbol or emblem of any organization or association, or in furtherance of any political, social, or economic principle, doctrine or propaganda.” Other states go much further and forbid the display of the red flag anywhere. Some shrewdly guard against the wearing of red neckties or buttons or the evasive adoption of a green flag⁠[288] by punishing the use of any emblem of any hue if it is “distinctive of bolshevism, anarchism, or radical socialism”;⁠[289] or is “suggestive of any organized or unorganized group of persons who by their rules, creeds, purposes, practices, or efforts, espouse any theory or principle antagonistic to or subversive of the constitution or its mandates”;⁠[290] or if it is employed with some other revolutionary intent. In West Virginia imprisonment for a year (five years for the second offense) may be imposed for the possession of any red or black flag, or the display of “any emblem of any nature whatever indicating sympathy or support of ideals, institutions, or forms of government, hostile, inimical, or antagonistic to the form or spirit of the constitution, laws, ideals, and institutions of this state or of the United States.”⁠[291] It is plain to any lawyer that when a vague and very wide range of commonplace and harmless conduct is made criminal merely on the basis of a bad intention, a man is condemned for his thoughts and nothing else. He may never have expressed those thoughts until they were brought out under cross-examination in a sedition trial. He is convicted simply by the jury’s guess at the inside of his head. Men should be punished for what they do and not for what they think.

The way in which the red flag causes disorder is explained by Inspector Thomas J. Tunney, who played such a prominent part in the Abrams case and certainly cannot be considered unduly favorable to radicals:⁠[292]

Senator OVERMAN. What effect does that red flag have on a crowd?

Mr. TUNNEY. It has the effect of creating a feeling on the part of Americans that they would like to assassinate everybody carrying the red flag; or at least, a large number of them feel that way.

Senator OVERMAN. What effect does it have on the people who are in sympathy with carrying the red flag?

Mr. TUNNEY. It simply enthuses them, and they indulge in cheering and waving it in the air.

The Roxbury Riot of last May⁠[293] is a practical demonstration of his statements and also illustrates some interesting points in the law of assembly. An unprejudiced account in the Boston Herald relates that the trouble was caused by the appearance of a red flag carried at the head of a large group of members of the Lettish Workmen’s Association, who were marching from one meeting to another in a different hall. If this was a parade, it was illegal, for they had no permit, but no red flag law was in force. The account continues: “Everywhere in Roxbury small groups of men and boys were to be seen strolling along the streets armed with clubs and pieces of iron bar and pipe. It was difficult for the police to cope with every group for as fast as one would be dispersed another would gather. Nearly everybody with a facial indication of being a Lett or a Russian was attacked. It was useless for them to offer excuses for none were listened to.... As soon as it became generally known that the presence of a red flag was the cause of all the trouble soldiers and sailors began taking a hand. Each group carried at least one sailor or soldier and they inflicted severe punishment on the men in the parade or those discovered hiding in stores and houses afterwards.”

Either just before the attack on the marchers began or soon afterwards, it is hard to tell which from the tumultuous testimony, the police demanded a permit and ordered the parade to disperse. They replied with cat-calls, and in the three-cornered disturbance that followed between radicals, patriots, and police, two policemen were injured. A large number of marchers received sentences of six to eighteen months in the Municipal Court for participating in a riot or assaulting the police, and several of them have since been convicted by juries, but so far as I can ascertain none of their assailants was even tried.

These cases raise several questions of general interest as to the legality of radical meetings.⁠[294] The radicals took the position that no permit was necessary to enable men to walk from one place to another, but only for an organized parade. Of course, the social interest in traffic already mentioned gives the city power to forbid unlicensed processions, but there is some question whether this particular body of people was not itself a part of traffic, without need for a permit. For example, is a license required for collegians to march from the stadium to the yard after a football victory with a red flag at their head? These are questions of fact for the jury. However, even if this gathering of Roxbury radicals had not been held illegal by the Massachusetts Supreme Court for want of a permit, it may well be that the order to disperse was valid on other grounds. Three such grounds have been suggested.

(1) Since any gathering of radicals is likely to be attacked, the easiest way to preserve the peace is to forbid and break up such gatherings. Therefore, it may be contended that a meeting which is not otherwise illegal may become so solely because it will excite violent and unlawful opposition. This is the doctrine of the long-beard case over again. Let us see how it works out with respect to meetings. The Salvation Army holds a service in a public place, knowing that a mock-organization called the Skeleton Army intends to molest it. The Skeleton Army appears, and begins to throw stones. The members of the Salvation Army are arrested by the police for holding an unlawful assembly. Obviously they must be released. Their guilt cannot be determined by the intolerance of wrong-doers. Apart from the question of permits, and special regulation by ordinances and statutes, the police cannot treat a meeting as unlawful simply because it may probably or naturally lead others to attack it. And if a permit is refused on that ground alone, a small number of intolerant men by passing the word around that they intend to start a riot can prevent any kind of meeting, not only of radicals who want a revolution, but of socialists, of moderates like the Committee of ’48, of negroes, of novel religious sects, of free-masons in an anti-masonic community. Indeed, on any such theory a gathering which expressed the sentiment of a majority of law-abiding citizens would become illegal because a small gang of hoodlums threatened to invade the hall. The proper remedy for these emergencies is police protection, to which men are entitled in public places, whether they are there singly or in groups.

(2) There is, however, a well-recognized exception to this principle. If the meeting is going to cause trouble, not just because of the unpopularity of its views but because it expresses them in offensive ways, it may be unlawful per se. This is an analogy to the verbal crimes already discussed. For example, the “Pillars of Fire” were not allowed by the Mayor of Plainfield, New Jersey, to hold street meetings for abusing Roman Catholics. They must hire a hall where no one would be forced to listen to them. It is sometimes supposed that a parade displaying the red flag is illegal at common law for the same reason that it would be if it carried an abusive caricature of the Pope, but the situations are not truly parallel. The red flag is not offensive in itself. Nobody minds it at an auction sale or a railroad crossing. The onslaught is not on an object but on the unpopular ideas of those who carry it, because most of us consider that such ideas have a tendency to produce injury in the future. This only brings us back to the first point, that a meeting is not illegal just for unpopularity. Bad tendency must not be a test of criminality. Thus, the Roxbury marchers were not violating the law because of the red flag. On the other hand, their loud cries of, “To Hell with the Police! Hurrah Bolsheviki! To Hell with the American flag!” were so provocative of disorder as to render the parade unlawful even if a permit had been issued.

(3) Finally, after the order to disperse was given the gathering was undoubtedly illegal. That order was valid under a second exception to the general principle that unpopular meetings are not illegal meetings. Where a meeting which is originally lawful and inoffensive has in spite of this produced a disturbance, so that the only way to restore the peace is to put an end to the meeting, then there is a clear and present danger which justifies the suppression of ideas on this occasion. By the time the police arrived in the Roxbury affair, it was evident that the parade could not continue without a riot. Consequently, those who resisted or refused to obey the order thereby broke the law.

One more lesson of general application may be drawn from this incident, the danger that men of peculiar views who are charged with definite tangible crimes may be condemned in reality not for what they do but for what they think. Three clear offenses were possibly committed by the defendants, parading without a permit, assaulting policemen, and remaining in the parade after the order to disperse. Every one of these issues is a pure question of fact, on which the opinions of the defendants had not the slightest bearing. Yet the Municipal Court Judge, instead of limiting the examination of the prisoners to the question, “Did you do this on May 1?” himself inquired at length whether they believed in God, approved of soviets, or agreed with what the American flag stands for. In the same way, when the cases came before a jury in the autumn, the district attorney gave the impression that he was trying the prisoners, not for what they did in May, but for what they thought in October. And in the Municipal Court, the red flag, although it violated no statute, was clearly treated as an offense. The judge said: “The red flag means revolution, nothing else, and the day for the red flag is past in America. It means bloodshed; it cannot be interpreted otherwise.... Waving a red flag is a breach of the peace.”

The policy behind even the mildest form of the red flag legislation resembles the rule of the British Government that the Uganda tribes must not wear war-paint except on the chief’s birthday. If Americans cannot be trusted any more than African natives to avoid the psychological effects of color, well and good. So far, the exact meaning of the red flag seems rather obscure. Some say it stands for bloody revolution,⁠[295] and others, the brotherhood of workingmen throughout the world.⁠[296] It might be desirable to find out which is right before we forbid it. There is no doubt that its display on May Day, 1919, was accompanied by much lawlessness—chiefly on the part of the supporters of law and order. Until the opponents of force can restrain themselves from mobbing any parade which carries a red flag, it may be wise to prohibit its use. We ought to remember, however, that if it is made a forbidden symbol its emotional appeal when displayed in secret is immeasurably heightened. The resentment caused by such laws, which assert any suggestion of revolutionary action to be a heinous offense, will not be lessened by the recent respect paid by mayors, governors, and legislators to an acknowledged banner of revolution, the green, white, and yellow of Ireland. Once we admit that violence may be a justifiable mode of political action in another country which has the ballot and representative government, we cannot consistently make men outlaws merely for holding a similar theory in this country, however much we disagree with them. Massachusetts once had a law prohibiting a red or black flag. This was declared constitutional,⁠[297] and then repealed because it made the Harvard crimson illegal. It is to be hoped that other portions of this land of the brave will also be willing to face valiantly a piece of cloth. There is much merit in the North Dakotan remark that the only animal that is afraid of a red flag has a fence around him.

The man who insists on waving the red flag on all occasions has just as little common sense. Those who want to remake society on a basis of fellowship and mutual agreement may fairly be asked to begin by yielding something to the wishes of their neighbors. It is an undoubted fact that most people do dislike seeing the red flag in a parade or over a building, but if the Stars and Stripes are beside it nearly all their objection vanishes. A decent respect for the opinions of mankind ought to lead the radical to do this much for the happiness of others. Even if he is so thoroughly a man without a country that he has no attachment for the government which guards his home and educates his children, at least like a foreign vessel in our ports he might out of courtesy raise our banner beside his own. I do not believe that a man should be arrested for carrying a solitary red flag in the street any more than for wearing a sweater at a dance, but ordinary politeness ought to keep him from doing either. Surely, it is worth while for the radical to take the conciliatory step I suggest, and thus produce a friendlier atmosphere in the mass of the population, which may gain converts for his views and will certainly induce many thoughtful men to co-operate with him in the more moderate of his schemes for a better world.

V. Criminal Anarchy and Criminal Syndicalism

A much more important group of statutes takes its origin from the New York Anarchy Act of 1902, which was enacted soon after the assassination of President McKinley.⁠[298] Criminal anarchy is there defined as “the doctrine that organized government should be overthrown by force or violence, or by assassination ..., or by any unlawful means.” It is a felony to advocate this doctrine by speech or writing, and to join any society or any meeting for teaching or advocating it. The act can be rigorously enforced, because the owner or person in charge of any room or building who knowingly permits a meeting therein is severely punished, and the editor or proprietor of a periodical or publisher of a book which contains anarchistic matter is liable unless it was printed without his knowledge and authority and disavowed immediately. This statute lay idle for nearly twenty years,⁠[299] but there have been several prosecutions in the last few months. Especially significant is the sentence of Benjamin Gitlow, a former Socialist member of the New York Assembly, to an imprisonment of five to ten years, under a ruling of Justice Weeks that the advocacy of a general strike without any direct reference to force, violence, or unlawful means is criminal anarchy, because it is camouflaged revolution.⁠[300] The Washington statute of 1909 is very similar, but also makes it criminal to circulate any document having a tendency to encourage the commission of any breach of the peace or disrespect for law or any court. 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 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 prosecution, or the act.”⁠[301] The first danger to be avoided in legislation against anarchy is the imposition of heavy penalties for slight offenses. Such penalties create that very hatred of our system of laws which it is our object to avoid.

Another pre-war statute, in New Jersey, punishing the advocacy of unlawful destruction of property or injury to persons, is much more restricted in its scope, and has been construed to enact the common law of criminal solicitation with an increased penalty. It was used to punish labor leaders in Paterson who urged clubbing strike-breakers out of the silk mills and using chemicals and other devices to make the product unmerchantable.⁠[302] The recent Massachusetts anti-anarchy act of 1919 is very similar; it specifically penalizes the advocacy of killing, destruction of property, or violent revolution.⁠[303] This Massachusetts act was reduced to its present form by repeated protests from liberals. Instead of legislating against anarchy and other radical doctrines as opinions, the Massachusetts and New Jersey statutes prohibit incitement to definite serious criminal acts. Such codifications of the common law serve the desirable purpose of letting speakers and writers know what they must not do. If these statutes are construed strictly like other penal statutes and applied with common sense and a realization, as Justice Hughes puts it, that “Hyde Park meetings and soap-box oratory constitute the most efficient safety-valve against resort by the discontented to physical force,”⁠[304] then they will enable New Jersey and Massachusetts to deal vigorously with any real danger of lawlessness without at the same time turning revolutionary opinions into crimes. Any state which considers legislation of this type necessary ought to turn to these two statutes as model anti-anarchy acts.

Most of the legislation since 1917 has, however, been far more extensive. About one-third of the states have applied the New York statutory scheme to the new crime of criminal syndicalism, “the doctrine which advocates crime, physical violence, arson, destruction of property, sabotage, or other unlawful acts or methods as a means of accomplishing or effecting industrial or political ends, or ... industrial or political revolution, or for profit.” The advocacy of any unlawful act for such ends and the circulation of any book affirmatively suggesting criminal syndicalism or any unlawful act for such ends are among the offenses punishable by imprisonment from one to ten years. These acts are almost uniform in phraseology, Idaho having apparently supplied the original model. Some states depart from type into much vaguer phraseology. Thus, Arizona in an act which Governor Hunt allowed to become law without being willing to put his name to it makes it criminal to advocate the violation of “the constitutional or statutory rights of another as a means of accomplishing industrial or political ends.”⁠[305] Montana punishes in peace all the non-military crimes mentioned in the federal Espionage Act of 1918 as well as “any language calculated to incite or inflame resistance to any duly constituted state authority.”⁠[306] West Virginia makes criminal any teachings in sympathy with or favor of “ideals hostile to those now or henceforth existing under the constitution and laws of this state.”⁠[307]

These are but brief extracts from the legislation which has been enacted or invoked in almost every state during the last few years.⁠[308] In addition, Mayor Hylan of New York wanted an ordinance to punish owners of buildings permitting an assemblage advocating “policies tending to incite the minds of people to a proposition likely to breed a disregard for law,” and a Boston ordinance to forbid the display of anything that was sacrilegious or tended to promote immorality was also unsuccessful, but the Mayor of Toledo is said to have prohibited any meeting anywhere in the city “where it is suspected a man of radical tendencies will speak.”

These statutes and regulations are, for the most part, different from the normal criminal law in three ways: (1) they label opinions as objectionable and punish them for their own sake because of supposedly bad tendencies without any consideration of the probability of criminal acts; (2) they impose severe penalties for the advocacy of small offenses as much as for serious crimes; (3) they establish a practical censorship of the press ex post facto. These statutes are no dead-letter. In particular, the Illinois law has been enforced by wholesale arrests in Chicago. Furthermore, the governors of other states are already granting the extradition of accused persons to Illinois. Under this policy, a state with a drastic sedition law like Montana will be able to hunt a man down in the most liberal part of the nation, and there will be practically no chance for a review by the United States Supreme Court. The United States has always refused to allow the extradition of persons charged by other countries with political crimes, even if the charge (as often happened with Russians) involved the advocacy of violence and revolution.⁠[309] Since state governors under the Constitution cannot be compelled to permit extradition,⁠[310] it is to be hoped that in future they will follow the wise policy of the national government.

The state anarchy acts are constitutional under the test laid down by the United States Supreme Court in the Schenck case, insofar as they are employed to meet a “clear and present danger” of unlawful conduct. It is probable that the open advocacy of sabotage and the doctrines of revolutionary syndicalism, against which most of these statutes are directed, does present a sufficient danger to bring such speech within the range of legislative discretion, and a few decisions have already so held.⁠[311] On the other hand, the clauses of these statutes which make it criminal ipso facto to belong to organizations like the Industrial Workers of the World, although the accused has never expressed any agreement with the violent portions of its economic theory, raise serious difficulties. This is not punishing a man for what he does, or even for what he says, but for what some one else says, which he may possibly not approve. There are so many reasons why a workman is led to join the labor union to which his fellows belong, that the law should hesitate to attribute to him an active support of every plank in its platform. Apart from questions of constitutionality, it is dubious policy to make membership in a labor union a crime no matter how much we may disagree as I do with its aims and methods. That was the policy of the English Combination Acts of the early nineteenth century. The attempt to break up trade unions by imprisonment was defended because of the violence which had accompanied some of their activities, but the imposition of severe penalties on men who had taken no part in that violence simply strengthened the unions and increased their bitterness. My own hope is that eventually the state may provide an impartial tribunal for the settlement of industrial disputes,⁠[312] just as it formerly brought blood-feuds and quarrels over boundaries into the King’s courts. Until that time comes, although my own sympathies and direct interests are on the side of the employers, I believe it to be a grave error for the state to intervene against the workingmen until immediate violence is threatened. The parties should be left to contend by economic methods. I know that many who would believe in such a policy as regards the American Federation of Labor will not approve its extension to the revolutionary unions. Nevertheless, those who investigated the I.W.W. on behalf of the government during the war found that the causes for its existence were deep-rooted economic factors,⁠[313] and not any widespread desire for political changes or violence for its own sake. Until those factors are dealt with directly, the use of the tremendous power of the state on behalf of the employers and the conservative unions, while it may produce a superficial weakening of revolutionary unionism, is sure to intensify its hostility to the state and the belief that government is only the organ of capital. For instance, the men who have been enjoined by a judge at Spokane “from continuing as members of the I.W.W.”⁠[314] will not thereby be turned into enthusiastic supporters of the country’s laws or alter their economic views. Indeed, careful observers already report a rapid shift of members of the I.W.W. into the A. F. of L., where they are safe from prosecution, and can do infinitely more damage than when they were in the open.⁠[315]

When the anarchy acts go still farther and punish discussions of the general strike, or condemn words and symbols, which are inoffensive in themselves, for their bad social, economic, or political tendencies, they clearly infringe the danger-test and ought to be declared void. But I do not think we ought to let the discussion of the state and federal sedition laws turn on the controversy whether they are unconstitutional. The free speech clauses, as I said at the outset of this book, are a declaration of American policy as well as an extreme limit upon legislative power. The most difficult questions are raised by the application of the anarchy acts to the advocacy of “force and violence,” when no immediate violence is liable to take place. Although I do not feel sure that such speech can constitutionally be punished when there is no danger of immediate violence, still both Justice Holmes and Judge Learned Hand would agree that the nature of the words used is an essential factor, apart from the surrounding circumstances, in deciding whether the danger does exist, and the common law cases on solicitation support this view. But even if the statute is constitutional, the most important questions still remain, whether it is expedient and in accord with American traditions, and how it shall be construed. On these points what I have already said of the syndicalism statutes has bearing, but it is upon this ground of sound policy that every thoughtful American ought to consider the proposed federal Sedition Law.

VI. The Federal Sedition Bills

Nothing less than a very great national danger should lead us to abandon the American policy of courage and tolerance and re-enact the first Sedition Act in time of peace since the disaster of 1798. The burden of proof rests fairly on those who advocate such a doubtful step. It has already been shown that it is not called for by any immediate danger of revolution, since the Criminal Code will deal with that, and indeed what has been said of the enormously exaggerated accounts of pro-German plots during the war ought to show that “the Red menace” is probably a similar panic.⁠[316] It is of course impossible for a private citizen to assert that no danger exists to justify the officials in their statement that this legislation is necessary, but he may properly assume that the documents in which they set forth that statement embody the principal facts on which it is based. If they have not yet supplied the vital facts, they ought to do so, and not ask this country to reverse its policy of six-score years at a mere trumpet-blast of danger.

The main documents in the case are furnished by the most distinguished supporter of sedition legislation, Mr. A. Mitchell Palmer. In an official Report,⁠[317] he has asked Congress not only to enact an unprecedented statute, but for fear this may not be enough he has also suggested that Congress recommend the passage of similar legislation by all the states. The seditious writer will then be run to earth by the five hundred agents of the Department of Justice, with the aid of twelve thousand policemen and fifty prosecuting attorneys in New York City, and a multitude of others throughout the land. Thus, we can meet “the present intolerable situation.” Why is it intolerable? The Attorney General says that he needs the legislation because of four facts: (1) the presence of “60,000 radically inclined individuals” whose histories have been compiled by his agents; (2) the circulation of 471 “radical newspapers” besides other publications, all of which are “one of the most potent and far-reaching influences in stirring up discontent, race prejudice, and class hatred in this country” and “more than any other one thing, perhaps, are responsible for the spread of the Bolshevik, revolutionary, and extreme radical doctrines”; (3) the fact that the Trading with the Enemy Act, which requires that the local postmaster shall receive a translation of every publication in a foreign language criticising the policies of any government before distribution of any sort expires with the war, and the lapse of this censorship will create a difficult problem in dealing with “radical propaganda of a more violent character”; (4) “practically all of the radical organizations have endeavored to enlist negroes on their side.”

If the Attorney General had limited himself to a statute punishing successful and unsuccessful attacks upon federal officials and property, he would have performed a real service in filling gaps in the federal law against violence. Legislation against his hypothetical man who approaches the Chief Justice with a bomb in his hand would not affect freedom of speech. But it should be clearly understood that Mr. Palmer asked much more than this when he sought to legislate out of existence the four kinds of propaganda just mentioned on the ground that these theories and doctrines might conceivably lead to future assaults and revolutions.

In a circular letter sent to the editors of leading magazines,⁠[318] Mr. Palmer shows even more plainly that he is seeking to use the power of the government, not against actual or threatened violence, but against bad ideas. After submitting copies of various publications of the Soviet Government, he states that these documents alone demonstrate: (1) “that the present aim of the Russian Government and its officers is to foment and incite discontent, aiming towards a revolution in this country; (2) that the entire movement is a dishonest and criminal one, in other words, an organized campaign to acquire the wealth and power of all countries for the few agitators and their criminal associates.” Among other qualities of Bolshevism: “It advocates the destruction of all ownership in property, the destruction of all religion and belief in God.... The sabotizing of public thought is an essential of this movement.”

The Department, as far as existing laws allow, intends to keep up an unflinching war against this movement no matter how cloaked or dissembled. We are determined that this movement will not be permitted to go far enough in this country to disturb our peace or create any widespread distrust of the people’s government.

There is a menace in this country. It may not be the menace of revolution.... My one desire is to acquaint people like you with the real menace of evil-thinking which is the foundation of the Red movement.

That a Quaker should employ prison and exile to counteract evil-thinking is one of the saddest ironies of our time, and particularly that he should justify this by the religious heresy of his opponents. After all that Milton and Bagehot and Mill have said of the unwisdom of influencing the mind by temporal punishments and burdens, after Justice Holmes’s warning against attempts to check by force “the expression of opinions that we loathe and believe to be fraught with death,” even those who disagree with Bolshevism, anarchism, and revolutionary syndicalism as strongly as I do myself will need no further argument to realize that as theories they must be defeated in some other way. To conduct arguments by violence, even if that violence is employed by government officials under the guise of law, is contrary to sound political policy and to the constitutional guaranties of freedom of speech.

Besides the draft Sedition Act recommended by the Attorney General, which goes so far as to punish writings which “tend to indicate sedition,” Congress has under consideration about seventy similar bills, of which three have attracted public notice.⁠[319] These are the Overman Bill, a peace-time replica of the sedition section of the Espionage Act of 1918, reported in 1919 by the Senate sub-committee to investigate Bolshevism, as the fruit of its labors; the Sterling Bill, the best drawn of the four, passed by the Senate in January, 1920; and the Graham Bill, a very drastic measure with a death penalty and a sweeping postal censorship, which the House Judiciary Committee substituted for the Sterling Bill and recommended for immediate enactment. Its reasons were the attack on Mr. Palmer’s house, the shooting of soldiers at Centralia, “numerous other instances of outrage aimed at the existence of our institutions,” and the vigor and extent of anarchistic teachings as revealed by recent investigations. The Committee does not show why the existing law is not adequate to deal with all these facts except the presence of pernicious and dangerous ideas. Attorney General Palmer refused to support the Graham Bill, and the House Rules Committee decided after several hearings that it was too unsatisfactory to be given any priority in the order of business. Some of these bills impose a maximum sentence of twenty years for unlawful discussion, and in addition aliens are to be deported and naturalized citizens are to be denaturalized and turned loose on the world as men without a country. Indeed, Senator McKellar of Tennessee wanted to go one step farther and deport native-born Americans to a penal colony in Guam, so that we also might have our Devil’s Island or Siberia.⁠[320]

Energetic opposition to all four bills by the American Federation of Labor and many kinds of other organizations and by the most conservative newspapers and periodicals, makes it improbable that any of them will become law. At all events the kaleidoscopic state of sedition legislation in Congress induces me to avoid going into the details of any pending bill. Instead, I am going to assume for purposes of discussion that Congress may eventually have before it a very simple measure, from which all the obviously objectionable features of the four bills mentioned will be eliminated. This hypothetical bill is limited by its terms to the advocacy of assassination of federal officials, and the use of “force or violence” for the overthrow of our government or all governments, or the attainment of changes in our Constitution and laws. It punishes the individual who urges such “force or violence” orally or in writing, and also any one who imports from abroad or transports from state to state any book or other printed matter which advocates such “force or violence.”

It is improbable that power will be given to the Postmaster General to exclude such material from the mails, for the strongest hostility to the pending bills was directed to such a power. Even if it be said that the Blackstonian test does not forbid the government to control the use of its own machinery, the post-office, it is clear to every newspaper that its exclusion from the mails is equivalent to an absolute censorship. If Mr. Burleson or his successor can exercise the same power in peace that he had during the war to suppress political discussion which he deems objectionable, he has at hand a much more powerful weapon than the Sedition Act of 1798. A newspaper editor fears being put out of business by the administrative denial of the second-class mailing privilege much more than the prospect of prison subject to a jury trial. Even if the periodical is given the right of judicial review, this is of little practical value because of the ruin of circulation during the delay before a court hearing. The same considerations apply to a censorship of the foreign language press, although this presents special problems and dangers. Consequently, the bill before us for discussion imposes no previous restraint, but makes the advocacy of “force or violence” a crime, punishable by a long term in prison and a heavy fine.

Two questions are raised. (A) How far is such a measure constitutional? (B) How far is it wise and expedient?

VII. The Constitutionality of a Federal Sedition Law

The constitutional problem involves three points, affirmative power to punish, the treason clause, and the free speech clause.⁠[321]

1. What clause in the Constitution gives the United States power to punish seditious utterances? The states face no such difficulty, for they possess all power that is not expressly denied to them by their constitutions, and can reach objectionable writings under their general police power and criminal jurisdiction. The United States Government, on the other hand, has only the powers which are expressly granted to it by its organic document. Most of the discussion in 1787–88 over the need of a free speech clause in the federal Constitution and most of the controversy over the constitutionality of the Sedition Act of 1798 turned on this point. Much has happened since, however, to indicate that the United States has this power to punish verbal opposition unless prohibited by some negative clause in the Constitution. The epoch-making decisions of Marshall show that the government does not have to rely on any one specific grant of power. The Constitution as a whole creates a nation with officers and functions and in Article I, Section 8, gives to Congress the right “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” Consequently, no express provision is required to enable the government to operate one or more national banks, or exclude aliens from its shores. Its courts can punish contempts committed against them. The United States Supreme Court has already decided in the Neagle case that the Federal Government has power to protect the lives of its judges engaged in the discharge of judicial duties and in other decisions that it can safeguard even prisoners in its custody. The same principle applies to the President or any other official and it seems immaterial whether they are at the moment occupied with business. Their work may be hindered by threats and other utterances as well as by acts. Similarly words which interfere with express functions of the government like the war power fall within its criminal jurisdiction. The conviction of Emma Goldman for issuing pamphlets urging disobedience to the draft, and all the Espionage Act cases prove this beyond question. It is of course true that revolutionary speeches do not affect any specific function of the government, but they do affect its existence, the most important result of the Constitution. Therefore, on this point I conclude that the United States has affirmative power to protect its own life and the lives of its officers, not only from revolution and assassination, but also from attempts and solicitation directed toward these ends, and even from discussion which might have a remote tendency to produce such evils, unless that power is restricted by either the treason clause or the First Amendment.

2. Section 3 of Article III, which relates to the judicial power of the United States, provides: “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.”

We shall in discussing the Berger case return to the question of what is treason in war when there are “enemies,” but in peace, treason is narrowly limited in this country to “levying war,” and Chief Justice Marshall decided in the case of Aaron Burr that that crime requires an actual assemblage of forces. Consequently, the conduct we have in mind is not punishable as treason under our Constitution. Does this prevent it from being punishable otherwise? Under the English treason statute of 25 Edw. III, c. 2, very many kinds of action which interfered with the state were defined as treason. The courts construed these clauses very widely to reach as “constructive treasons,” conduct very remote from the defined crimes.⁠[322] This practice became so notorious that the framers of the Constitution wisely prevented it by rejecting most of the English categories and narrowly restricting the evidence on which conviction can be secured. Can Congress accomplish these undesired results by calling the same conduct, not treason but sedition or something else?

For example, under the English statute it was treason to “compass or imagine the death of our lord the king.” This was interpreted to include threats against him. By analogy, it would be treason to threaten the life of the President, if our Constitution had not definitely provided otherwise. Congress in 1917 created the crime of threats against the President.⁠[323] Is such a statute an unconstitutional evasion of the treason clause?

Again, if the Biglow Papers were not “aid and comfort to the enemy”—a problem to which I shall return in the sixth chapter—could Congress treat them as severely as if they were treasonable by creating the crime of seditious libel with a punishment of death? A similar question was put to the counsel for the United States in the Abrams case by Justice Brandeis, who got the reply, “Of course, we wouldn’t go that far.” But if Congress and the Department of Justice have power to go that far, the value of the treason clause is considerably weakened. All the acts which were constructive treasons under the English law could be made criminal without even the security of two witnesses or the provisions against corruption of the blood and forfeiture.

On the other hand, it is argued that the treason clause is not placed among the restrictions on Congress. It simply prevents the courts from construing the word “treason” in a statute to extend beyond the constitutional definition, even if the statute gives it a wider definition. Congress is not prohibited from punishing on other grounds and under other names crimes which were treason in England, if these are within the federal criminal jurisdiction. The same act might be both treason and something else. Thus killing the king was treason and murder. Congress can punish the murder of the President but not the treason. Or rather, it can punish it not as murder, but as an interference with an express function of the government. It is settled that the United States can prevent assaults on federal judges though that is analogous to treason in England. Counterfeiting money was treason there and is expressly punishable under the Constitution.

This argument seems to me more satisfactory when applied to active interferences with specific functions of the government, than when extended to utterances which have a tendency to weaken the sovereignty of the state as a whole. Are they treason in England plus something else? Was it not this tendency to weaken which made them constructive treason, and when they cannot be criminal on that account, does not all ground of jurisdiction fail?

This is a problem somewhat foreign to my province, so that I prefer not to state a definite conclusion, which can only be reached after more judicial interpretation of the treason clause.

3. The First Amendment seems clearly to be violated by many clauses in pending federal sedition bills, which punish words merely for their assumed tendency to produce bad consequences in the remote future, for instance, that section of the Graham Bill which excludes from the mails under heavy penalty “printed matter ... whereby the use of force ... is ... defended ... as a means towards the accomplishment of industrial, economic, social, or political change, or whereby an appeal is made to racial prejudice the intended or probable result of which appeal is to cause rioting or the resort to force and violence within the United States....” The first clause would affect every history of the American Revolution, Macaulay’s History of England, and W. R. Thayer’s Life of Cavour. The second would suppress all but the most carefully guarded presentations of the wrongs of the negro.⁠[324] This attempt to enlist popular support for attacks on radicalism by uniting fear of the blacks to fear of the reds has become a favorite device of late. Attorney General Palmer hints that negroes must not be allowed to join radical organizations. The Lusk Committee seizes an unanswered letter to the Rand School suggesting the spread of socialism among the negroes (without a word about violence) and presents it as a menacing scheme adopted by the School “for the spreading of Bolshevist propaganda among negroes in the South,” so that the New York Times runs front-page headlines: “Moves to Close the Rand School—District Attorney Takes Steps Toward Revoking Radical Institution’s Charter—Planned Negro Uprising.”⁠[325]

The Sedition Act of 1798 was also a violation of the First Amendment, especially as it included criticism of the President and Congress, which was very remotely injurious to the United States.⁠[326]

If, however, we consider a federal bill such as I have suggested, which, like the Massachusetts and New Jersey Anti-Anarchy Acts, eliminates all clauses obviously punishing bad tendency and penalizes only the advocacy of force and violence, much more difficult questions of constitutionality arise. It may be helpful to examine various kinds of utterances successively. If one directly incites another to murder an official and the murder takes place, the speaker is, of course, punishable. The same holds good, even if the incitement proves unsuccessful. If the speaker does not solicit any particular person, but eloquently appeals to a large audience for some new Charlotte Corday, or if naming no specific victim he urges the assassination of an indefinite number of men from some hated group, the case is not altered. Even if he alleges the loftiest motives, the social interest in truth and progress is far outweighed by the interest in order, and there is a direct interference with the safety of life. When he does not ask for any future killing, but merely glorifies such an event in the past, the danger lessens and the power to punish becomes more uncertain.⁠[327] The time elapsed is perhaps an element. A distinction might be drawn between praise of the assassin of McKinley, and “Cæsar had his Brutus, Charles I. his Cromwell.” Yet even Patrick Henry’s speech might be held advocacy of force and within the hypothetical Sedition Law. A further step is the discussion of tyrannicide as an abstract proposition of morality. Mill was willing to allow the fullest liberty even for this,⁠[328] but it is probable that assassination is so easily carried out that there is always a sufficiently clear and present danger of its occurrence to bring such discussions within the range of legislative discretion.

Advocacy of revolution is much less dangerous except in extraordinary times of great tension. The chances of success are so infinitesimal that the probability of any serious attempt following the utterances seems too slight to make them punishable by the Federal Government. This is especially true if the speaker urges revolution at some future day, so that no immediate check is required to save the country. Even if several men talk like this with very bad intentions, they should not be held guilty of conspiracy under section 6 of the United States Criminal Code unless the danger-test is satisfied. There is no “clear and present danger” in a revolution announced for 1948.

The Federal Government has nothing to do with the question whether such discussion is a public nuisance or a breach of the peace under state law. Johann Most was convicted on both sides of the Atlantic for advocacy of assassination,⁠[329] but those decisions are based on present injury to the peace and not on danger to the rulers. When, however, the audience joins in the speaker’s inflammatory utterances the assembly becomes unlawful, and may possibly constitute a conspiracy under the federal Criminal Code. Thus, Most at a New York meeting on the morrow of the Spies executions doomed to an early death the prosecuting attorney; the trial judge; the Supreme Court of Illinois; “the highest murderers in the land, the Supreme Court of the United States”; and the Governor of Illinois. His hearers exhibited warm approval, and when he said, “The day of revolution is not far distant,” one of the audience rose and said excitedly: “Why not to-night, for we are ready and prepared?” The address by itself appears to have been deemed insufficient to support a criminal prosecution, but he was convicted of participating in an unlawful assembly.⁠[330] Possibly there was also a conspiracy within the United States Criminal Code, but the absence of any real danger to the Federal Government makes this improbable.

This case shows how much the danger of utterances is affected by surrounding circumstances as well as by the words used. A soap-box orator on a street-corner shouting to casual passers-by is far less perilous than if he delivers the same address in a hall overcrowded with sympathetic listeners. A pamphlet is less dangerous than any speech, a book than a pamphlet. A threat of revolution over the family tea-table is innocuous. Every one will admit that these considerations affect the wise drafting and enforcement of sedition legislation, and some at least hold that they may decrease the danger from objectionable utterances until they sink below the minimum limit of Congressional power. Thus, Freund says:⁠[331]

The doctrine that crime may under given conditions become justifiable or that it may have a tendency to arouse the public conscience should not in itself be held to constitute a crime. It is clear that an exposition of social wrong or injustice must be allowed, nor can the necessary liberty of agitation be said to be overstepped by appeals to sentiment rather than to reason; and if it is said that appeal to sentiment is appeal to passion and must lead to disorder and violence, it must be answered that this was always the plea upon which political agitation was formerly suppressed. Not even the fact that an adherent of the doctrine commits a crime is conclusive that the teaching of the doctrine amounts to incitement; for the crime may as well have been induced by a morbid brooding over conditions which are the cause of social discontent.... The constitutional guaranty of 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.... It is probably true to say ... that it is impossible to strike at anarchism as a doctrine without jeopardizing valuable constitutional rights.

Nevertheless, the Abrams and Schaefer decisions in the Supreme Court should deter any one from predicting unconstitutionality under the First Amendment for the Threats against the President Act, or the Sterling Bill, or the hypothetical statute I have been considering, which is carefully limited to “force and violence.” The “nature of the words used” may be held to create sufficient danger to support the restriction on freedom of speech. Moreover, the real issues of constitutional law, as in Masses v. Patten and the Abrams trial, are likely to arise from a loose construction of the statute, even if its wording is valid. Therefore, I consider it a much more fertile subject of discussion to turn to the wisdom and policy of a federal sedition law against the advocacy of “force and violence.”

VIII. The Wisdom and Expediency of a Federal Sedition Law

No one knows what blasphemy is or what sedition is, but all know that they are vague words which can be fitted to any meaning that shall please the ruling powers.—Walter Bagehot.

“No man,” says Attorney General Palmer, “can go further than I will go in his earnestness to protect the people in the guaranty of free speech.” Nevertheless, he insists that there must be a dead-line, and this he finds it easy to draw at the place where there is a threat or promise or necessary implication of the use of physical force or violence.⁠[332] So long as Congress does no more than punish this sort of language, how can any one reasonably object? The public seems at first sight to get no benefit from such talk, and clearly the speaker has no claim to encouragement. Men may well inquire how the interest of society in the attainment of truth and progress is served by threats to kill officials, blow up buildings, and bring in the dictatorship of the proletariat with a holocaust of vengeance. Consequently, the question whether a law against the advocacy of force and violence is wise may be thought to admit only of an affirmative answer.

I believe, however, that the problem is far less simple than it seems. Although the opponent of the proposed legislation apparently occupies a very bad position, that of standing up for force and violence, yet it may be possible to show that such legislation is dangerous, far more dangerous than the agitation it expects to suppress. If a federal law against violent talk and writings which create no immediate danger of injurious action is not only constitutional but highly desirable and necessary, why is it that we have had only one such law in the past, and that one a stupendous failure? Even the state laws against inflammatory utterances as breaches of the peace have been used very sparingly against soap-box orators and revolutionary literature. We have refused to make arrests unless there was a real danger that the lawlessness which was advocated would immediately take place. Surely, there is nothing to be ashamed of in urging a continuance of this traditional American policy.

Most of us believe that our Constitution makes it possible to change all bad laws through political action. We ought to disagree vehemently with those who urge violent methods, and whenever necessary take energetic steps to prevent them from putting such methods into execution. This is a very different matter from holding that all discussion of the desirability of resorting to violence for political purposes should be ruthlessly stamped out. There is not one among us who would not join a revolution if the reason for it be made strong enough. Californians would take up arms against an amendment passed by Congress and the other state legislatures for the cession of California to an Oriental power. And talk about violence is far more common. Tobacco will not follow alcohol into oblivion without some murmurs of a fight from the most peaceable citizens.

The United States is the last place on earth where mere talk about resistance and revolution ought to be treated as inherently vicious and intolerable. The founders of the colonies broke the religious laws of England before they came here and some of them engaged in a large-sized rebellion. The founders of the United States urged the destruction of property by the destruction of tea and the burning of stamped paper. They went further. They advocated the overthrow of this or any other government by force and violence when they adopted a well-known document which reads, “That whenever any form of government becomes destructive of these ends, it is the right of the people to alter and abolish it.”

If a federal statute against the advocacy of force and violence had been enacted in the Abolition period, several distinguished citizens of Massachusetts would have been criminals. Wendell Phillips advocated opposition to the Fugitive Slave Law, and his statue is in the Public Gardens of Boston. William Lloyd Garrison did so, and his statue is on Commonwealth Avenue. The Overseers of Harvard College dismissed a law teacher, Edward G. Loring, because he carried out his oath of office as United States Commissioner by enforcing that law, and for the same reason both houses of the Massachusetts legislature requested the Governor to remove him from a probate judgeship, and he was removed. Theodore Parker, George L. Stearns, Thomas Wentworth Higginson, and Frank B. Sanborn contributed funds to send John Brown to Harper’s Ferry to use force and violence.

These men believed that some bad laws are so powerfully supported that the only way to obtain their repeal is to violate them. They believed that no decent man could sit silent and inactive while the Fugitive Slave Law was enforced. Perhaps they were all of them wrong. Some of them were clearly liable as accessories to criminal acts. I insist that such acts must be punished, however noble the motive. But we cannot honor and praise these men for their courageous onslaughts on established evils, and at the same time pronounce it a heinous crime for any one to-day to urge the removal of wrongs by force. Above all, we cannot draw a distinction between those days and ours on the ground that the government was bad then and is now good. I believe that to be true, but time alone will prove which is right, the left-wing Socialist or I. We must not forget how Braxfield justified his ferocious sentences by saying that the British Constitution of 1794 was the best in the world. The law and order men of 1774 and 1854 did not consider their governments and laws bad. They would have been glad to incarcerate Otis and Adams, Garrison and Sumner, if they had had Mr. Palmer’s bill in force. Yet the advocates of repression in those days were not a race of tyrants. They were respectable citizens just like ourselves. They were merely mistaken. Can we be any more sure of our infallibility than of theirs? And how do we know that we are infallible until we hear the men on the other side, however excitable and given to threats?