Note 2 — Chapter I · FREEDOM OF SPEECH IN WAR TIME

The various types of free speech clauses are given in Index Digest of State Constitutions, N. Y. State Cons. Conv. Comm., 1915, pp. 700–702, 956–958. Twenty-three state constitutions follow Hamilton (note 330, infra) in making truth a defense to criminal libel if published with good motives. The first was New York Constitution, 1821, Art. 7, § 8. See Reports of New York Constitutional Convention of 1821, pp. 167, 487. All but five states have a clause resembling another sentence of the New York section: “Every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that right; and no law shall be passed, to restrain, or abridge the liberty of speech, or of the press.” Massachusetts, Mississippi, New Hampshire, Vermont, and South Carolina retain a short clause much like the federal Constitution. The express exception of “abuse” was first made by Pennsylvania in 1790 (note 36, infra); but since I regard such an exception as implied in the United States form, I have assumed in this book that there is no difference in legal effect. The effect of the Hamiltonian clause is discussed by Henry Schofield, “Freedom of the Press in the United States,” 9 Proc. Am. Sociolog. Soc. 88 ff., cited hereafter as Schofield.