Page:Harvard Law Review Volume 32.djvu/973

937 FREEDOM OF SPEECH IN WAR TIME 937 to the great activities of German agents in our midst and to the unprecedented extension of the business of war over the whole nation, so that in the familiar remark of Ludendorff, wars are no longer won by armies in the field, but by the morale of the whole people. The widespread Liberty Bond campaigns, and the ship- yards, munition factories, government offices, training camps, in all parts of the country, are felt to make the entire United States a theater of war, in which attacks upon our cause are as dangerous and unjustified as if made among the soldiers in the rear trenches. The government regards it as inconceivable that the Constitution should cripple its efforts to maintain public safety. Abstaining from countercharges of disloyalty and tyranny, let us recognize the issue as a conflict between two vital principles, and endeavor to find the basis of reconciliation between order and freedom. At the outset, we can reject two extreme views in the con- troversy. First, there is the view that the Bill of Rights is a peace- time document and consequently freedom of speech may be ignored in war. This view has been officially repudiated.^ At the opposite pole is the belief of many agitators that the First Amendment renders unconstitutional any Act of Congress without exception ''abridging the freedom of speech, or of the press," that all speech is free, and only action can be restrained and punished. This view is equally untenable. The provisions of the Bill of Rights cannot be appHed with absolute literalness but are subject to exceptions.^*^ For instance, the prohibition of involuntary servitude in the Thir- teenth Amendment does not prevent military conscription," or the enforcement of a "work or fight" statute.^^ The difficulty, of course, is to define the principle on which the imphed exceptions are based, and an effort to that end will be made subsequently. Since it is plain that the true solution lies between these two extreme views, and that even in war time freedom of speech exists. ' Report or the Attorney General or the United States (1918), 20: "This department throughout the war has proceeded upon the general principle that the constitutional right of free speech, free assembly, and petition exist in war time as in peace time, and that the right of discussion of governmental policy and the right of political agitation are most fundamental rights in a democracy." ^" Robertson v. Baldwin, 165 U. S. 275, 281 (1897). " Selective Draft Law Cases, 245 U. S. 366, 390 (1918); Claudius v. Davie, 175 Cal. 208 (1917). " State V. McClure, 105 Atl. 712 (Del. Gen. Sess., 1919).