Page:Harvard Law Review Volume 32.djvu/1005

969 FREEDOM OF SPEECH IN WAR TIME 969 quoted from the Schenck case seems to mean that the Supreme Court will sanction any restriction of speech that has military force behind it, and reminds us that the Justice used to say when he was young, "that truth was the majority vote of that nation that could lick all others." ^^" His liberalism seems held in abeyance by his belief in the relativity of values. It is not by giving way to force and the majority that truth has been won. Hard it may be for a court to protect those who oppose the cause for which men are dying in France, but others have died in the past for freedom of speech. Inconclusive as the Supreme Court decisions are in many ways, there are three important facts about them. First, they lay down a good test for future free speech cases, "clear and present danger." Secondly, they involved three clear cases and one case close to the line. They do not justify the construction given the Act of 191 7 in United States v. Rose Pastor Stokes. Finally, they do not touch the constitutionality of the Espionage Act of 1918. That Act came too late to be much discussed judicially in this war, but it applies in all future wars. It goes so far in punishing discussion for sup- posed bad tendencies without even recognizing truth as a defense that it is probably unconstitutional.^^^ 130 Oliver Wendell Holmes, "Natural Law," 32 Harv. L. Rev. 40 (1918). 1^' For further consideration of the Act of 1918, see Z. Chafee, Jr., "Freedom of Speech," 17 New Republic, 66 (Nov. 16, 1918). Title I, § 3, asamended, reads as fol- lows (Act of May 16, 1918, 40 Stat, at L., 219, c. 75, § i, U. S. Comp. Stat. 1918, § 10212 c): "Whoever, when the United Stales is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of his enemies, or shall willfully make or convey false reports or false statements, or say or do anything except by way of bona fide and not disloyal advice to an investor or in- vestors, with intent to obstruct the sale by the United States of bonds or other se- curities of the United States or the making of loans by or to the United States; and whoever, when the United States is at war, shall willfully cause, or attempt to cause, or incite or attempt to incite, insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States, and whoever, when the United States is at war, shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the .United States, or the flag of the United States, or the uniform of the Army or Navy of the United States into contempt, scorn, contumely, or disrepute, or shall willfully utter, print,