Page:Harvard Law Review Volume 32.djvu/1000

964 964 HARVARD LAW REVIEW "attempt," "obstruct," clearly involves proximate causation. Finally, this is a penal statute and ought to be construed strictly. Attorney General Gregory's charge that judges like Learned Hand "took the teeth" out of the 191 7 Act ^°^ is absurd, for the teeth the government wanted were never there until other judges in an excess of patriotism put in false ones. Nevertheless, Judge Hand was reversed,^"^ largely on a point of administrative law,^°^ but the Circuit Court of Appeals thought it desirable to reject his construction of the Espionage Act and sub- stitute the view that speech is punishable under the Act "if the natural and reasonable effect of what is said is to encourage re- sistance to law, and the words are used in an endeavor to persuade to resistance." ^^ It is possible that the Court of Appeals did not intend to lay down a very different principle from Judge Hand, but chiefly wished to insist that in determining whether there is incite- ment one must look not only at the words themselves but also at the surrounding circumstances which may have given the words a special meaning to their hearers. Mark Antony's funeral oration, for in- stance, counselled violence while it expressly discountenanced it.^°^ However, the undoubted effect of the final decision in Masses v. Pat- ten was to establish the old-time doctrine of indirect causation in the minds of district judges throughout the country. By its rejection of the common-law test of incitement,^°^ it deprived us of the only standard of criminal speech there was, since there had been no well- considered discussion of the meaning of free speech in the First Amendment. It allowed conviction for words which had an indirect effect to discourage recruiting, if the intention to discourage existed,^°^ and this requirement of intention became a mere form since it could ^"^ See page 936, supra. 1"^ Masses Pub. Co. v. Patten, 245 Fed. 102 (C. C. A. 2d, 1917), Hough, J., stayed the injunction; ibid., 246 Fed. 24 (C. C. A. 2d, 1917), Ward, Rogers, and Mayer, JJ., reversed the order granting the injunction. 1"* That the postmaster's decision must stand imless clearly wrong. See for authori- ties against this proposition, 32 Harv. L. Rev. 417, 420. 1"* Masses v. Patten, 246 Fed. 24, 38, Rogers, J. "^ See the review of Masses v. Patten by Learned Hand, J., in United States 11. Nearing, 252 Fed. 223, 227 (S. D. N. Y., 1918). 108 Ibid. Judge Rogers may not have reaUzed he was rejecting it (246 Fed. 38), but the test of common-law incitement has never been applied to the Act by a District Judge since. 1"' Masses Pub. Co. v. Patten, 246 Fed. 24, 39 (1917), Ward, J.