Page:Harvard Law Review Volume 32.djvu/453

417 Harvard Law Review Published monthly, during the Academic Year, by Harvard Law Students SUBSCRIPTION PRICE, S2.60 PER ANNUM 86 CENTS PER NUMBER Editorial Board George E. Osborne, President Charles M. Thorp, Jr., Note Editor Henry H. Hoppe, Case Editor Harold J. Laski, Book Review Editor Carl H. Baesler Cloyd Laporte Joseph Davis Victor Levine Isaac D. Halpern H. William Radovsky Harold W. Holt Clarence J. Young The Espionage Cases. — Under Title I, Section 3, of the Espionage Act as amended May 16, 1918, there seems but little room for any- public discussion adverse to the war policies of the national govern- ment. The question of constitutionality seems alone to remain, and if the amended act is held to be constitutional, the power of Congress to abridge the time-honored right of freedom of speech will seem well established. Prior to the amendment, the original Espionage Act of June 15, 191 7, if properly interpreted, could well be held constitutional. But the de- cisions under the original act are, to say the least, unfortunate. The con- stitutionality of that act is not here in question. It is the construction and interpretation which the courts have put upon Title I, Section 3 ^ to which our attention is directed. Freedom of speech, being a constitu- tional guaranty, cannot be abridged in times of stress and strain any more than when the country is at peace.^ And it is submitted that 1 This section provides: "Whoever, when the United States is at war, shall wilfully make or convey false reports or false statements with the intent to interfere with the operation or success of the mihtary or naval forces of the United States or to promote the success of its enemies, and whoever, when the United States is at war, shall wil- fully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the mihtary or naval forces of the United States, or shall wilfully obstruct the re- cruiting and enUstment service of the United States, to the injury of the service of the United States, shall be punished by a fine of not more than $10,000 or imprison- ment for not more than twenty years, or both." times of stringency. But the Constitution is not alone a peace document; it enumer- ates and restricts the powers of Congress in times of war as well as peace, and in exer- cising a power delegated to it by the Constitution Congress cannot so exercise that power as to violate some restrictive provision. See Ex parte Merryman, Taney's Reports, 246; Ex parte Milligan, 4 Wall. (U. S.) 2. Cf. United States v. Stokes, Dep't of Justice, Bulletin No. 106.
 * It is contended by some that the Constitution itself can be suspended during