Page:Harvard Law Review Volume 32.djvu/1004

968 968 HARVARD LAW REVIEW guilty. The test is not mentioned, however, but Justice Holmes is willing to accept the verdict as proof that actual interference with the war was intended and was the proximate effect of the words used. The point is that Judge Westenhaver did not instruct the jury ac- cording to the Supreme Court test at all, but allowed Debs to be found guilty, in Justice Hohnes's words, because of the "natural tendency and reasonably probable effect" of his speech,^^^ and gave a fairly wide scope to the doctrines of indirect causation ^^^ and^con- structive intent,^^^ so that the defendant could have been and prob- ably was ^^^ convicted, merely because the jury thought his speech had a tendency to bring about resistance to the draft. If the Supreme Court test is to mean anything more than a passing observation, it must be used to upset convictions for words when the trial judge did not insist that they must create "a clear and present danger" of overt acts. Justice Holmes seems to discuss the constitutionality of the Espionage Act of 191 7 rather than its construction. There can be little doubt that it is constitutional under any test if construed naturally, but it has been interpreted in such a way as to violate the free speech clause and the plain words of the statute, to say nothing of the principle that criminal statutes should be construed strictly. If the Supreme Court test had been laid down in the summer of 191 7 and followed in charges by the District Courts, the most casual perusal of the utterances prosecuted makes it sure that there would have been many more acquittals. Instead, bad tendency has been the test of criminality, a test which this article has endeavored to prove wholly inconsistent with freedom of speech, or any genuine discussion of pubhc affairs. Furthermore, it is regrettable that Justice Holmes did nothing to emphasize the social interest behind free speech, and show the need of balancing even in war time. The last sentence of the passage "® Ibid., 249 U. S. 211, 39 Sup. Ct. Rep. 252, 254. The italics are mine. 127 United States v. Debs, Bull. Dept. Just., No. 155 (N. D. Oh., 1918). See especially the last paragraphs on page 8. 128 Ibid., 15 : "In deciding what the defendant's intention was, permit me to suggest to you these questions: Ought he not to have reasonably foreseen that the natural and probable consequences of such words and utterances would or might be to cause insubordination, etc.?" 1" Ernst Freund, "The Debs Case and Freedom of Speech," 19 New Republic, 13 (May 3, 1919); and the correspondence in 19 ibid. 151 (May 31, 1919).