Page:Harvard Law Review Volume 32.djvu/1001

965 FREEDOM OF SPEECH IN WAR TIME 965 be inferred from the existence of the indirect effect.^^° A few judges, notably Amidon of North Dakota/^^ have stemmed the tide, but of most Espionage Act decisions what Schofield and Stephen and Jefferson said about the prosecutions under George III and the Sedition Act of 1798 can be said once more, that men have been punished without overt acts, with only a presumed intention to cause overt acts, merely for the utterance of words which judge and jury thought to have a tendency to injure the state. Judge Rogers was right in saying "^ that the words of the Espionage Act of 191 7 bear slight resemblance to the Sedition Law of 1798, but the judicial construction is much the same, except that under the Sedition Law truth was a defense. The revival of the doctrines of indirect causation and construc- tive intent always puts an end to genuine discussion of public matters. It is unnecessary to review the Espionage Act decisions in detail,^^^ but a few general results may be presented here. The courts have treated opinions as statements of fact and then con- demned them as false because they differed from the President's speech or the resolution of Congress declaring war. They have made it impossible for an opponent of the war to write an article or even a letter in a newspaper of general circulation because it will be read in some training camp where it might cause insubordination or interfere with military success. He cannot address a large audience because it is liable to include a few men in uniform; and some judges have held him punishable if it contains men between eighteen and forty-five; while Judge Van Valkenburgh, in United States v. Rose Pastor Stokes, ^^^ would not even require that, because what is said to mothers, sisters, and sweethearts may lessen their enthusiasm for the war, and "our armies in the field and our navies upon the seas can operate and succeed only so far as they are supported and maintained by the folks at home. " The doctrine of indirect causation never had "° Masses Pub. Co. v. Patten, 246 Fed. 24, 59 (1917), Roger, J.: "The court does not hesitate to say that, considering the natural and reasonable efifect of the publi- cation, it was intended willfully to obstruct recruiting." 1" See in particular his discussion of "stirring up class against class," in United States V. Brinton, Bull. Dept. Just. No. 132 (N. D., 1917). "2 Masses Pub. Co. v. Patten, 246 Fed. 24, 29 (1917). "* Detailed comment will be found in Walter Nelles, Espionage Act Cases, and in 32 Harv. L. Rev. 417. , "* Bull. Dept. Just., No. 106, p. 4 (W. D. Mo., 1917).