Page:Harvard Law Review Volume 32.djvu/1003

967 FREEDOM OF SPEECH IN WAR TIME 967 signed and almost all the District Court cases had been tried. Several appeals from conviction had resulted in a confession of error by the government/^^ but at last four cases were heard and decided against the accused. Of these three were clear cases of incitement to resist the draft/^^ so that no real question of free speech arose. Nevertheless the defense of constitutionality was raised, and denied by Justice Holmes. His fullest discussion is in Schenck v. United States .-'"^ "We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . 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 has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right." This portion of the opinion, especially the itaHcized sentence, substantially agrees with the conclusion reached by Judge Hand, by Schofield, and by investigation of the history and political purpose of the First Amendment. It is unfortunate that "the substantive evils" are not more specifically defined, but if they mean overt acts of interference with the war, then Justice Holmes draws the bound- ary line very close to the test of incitement at common law and clearly makes the punishment of words for their bad tendency im- possible. Moreover, the close relation between free speech and criminal attempts is recognized by the use of a phrase employed by the Justice in an attempt case. Commonwealth v. PeasleeP'^ If the Supreme Court had applied this same standard of "clear and present danger" to the utterances of Eugene V. Debs, in the re- maining decision,^25 j^. jg ^Q;rd to see how he could have been held ^1 32 Harv. L. Rev. 420, note 22. ^ Sugarman v. United States, 249 U. S. 130, 39 Sup. Ct. Rep. 191 (1919); Schenck V. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247 (1919); Frohwerk ». United States, 249 U. S. 204, 39 Sup. Ct. Rep. 249 (1919). 1^ 177 Mass. 267, 272, 59 N. E. 55 (1901). See 963, supra, ^ Debs ti. United States, 39 Sup. Ct, Rep. 252 (1919).
 * ^ 249 U. S. 47, 39 Sup. Ct. Rep. 247, 249. The italics are mine.