Page:Harvard Law Review Volume 32.djvu/971

935 FREEDOM OF SPEECH IN WAR TIME 935* function. They fix a certain point to halt the government abruptly with a "Thus far and no farther"; but long before that point is reached they urge upon every official of the three branches of the state a constant regard for certain declared fundamental policies of American life.^ Our main task, therefore, is to ascertain the nature and scope of the poHcy which finds expression in the First Amendment to the United States Constitution and the similar clauses of all the state constitutions,^ and then to determine the place of that policy in the conduct of war, and particularly the war with Germany. The free speech controversy of the last two years has chiefly gathered about the federal Espionage Act. This Act contains a variety of provisions on different subjects, such as the protection of ships in harbors, spy activities, unlawful mihtary expeditions, etc., but the portion which concerns us is the third section of Title i.^ As orig- inally enacted on June 15, 191 7, this section established three new offenses: (i) false statements or reports interfering with mili- tary or naval operations or promoting the success of our enemies; (2) causing or attempting to cause insubordination, disloyalty, mutiny or refusal of duty in the mihtary and naval forces; (3) obstruction of enHstments and recruiting. Attorney General Greg- ory reports that, although this Act proved an effective instrumen- tality against dehberate or organized disloyal propaganda, it did not reach the individual, casual, or impulsive disloyal utterances. Also some District Courts gave what he considered a narrow con- will be enforced by the Courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution and from the resulting support of pubhc opinion. What is true of the constitution of France applies with more or less force to other polities which have been formed imder the influence of French ideas." questions of justice and right, and to fill the mind of legislators with thoughts of mere legality, of what the constitution allows." J. B. Thayer, Legal Essays, 38. See his quotation from i Bryce, American Commonwealth, i ed., 377. ' Massachusetts, New Hampshire, Vermont, North and South Carolina retain a short clause hke the federal Constitution. The other states follow the New York form: New York Constitution, 1822, Art. 7, § 8. "Every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that right; and no law shall be passed, to restrain, or abridge the liberty of speech, or of the press." See Schofield in 9 Proc. Am. Sociolog. Soc. 95. • Act of June 15, 1917, c. 30, tit. i, §3140 Stat. at. L. 217, 219; Comp. Stat. 1918, § I02I2C amended by Act of May 16, 1918, c. 75. The full text of the original and amended sections will be found in notes 91 and 131, infra.
 * "No doubt our doctrine of constitutional law has had a tendency to drive out