Page:Harvard Law Review Volume 32.djvu/975

939 FREEDOM OF SPEECH IN WAR TIME 939 ment does not prevent prosecution and punishment of utterances, the Espionage Act is unquestionably constitutional. This Blackstonian theory dies hard, but has no excuse for longer life. In the first place, Bla(kstone was not interpreting a constitu- tion but trying to state the English law of his time, which had no censorship and did have extensive libel prosecutions. Whether or not he stated that law correctly, an ent^ely different view of the liberty of the press was soon afterwards enacted in Fox's Libel Act,^ so that Blackstone's view does not even correspond to the Enghsh law of the last hundred and twenty-five years. Further- more, Blackstone is notoriously unfitted to be an authority on the liberties of American colonists, since he upheld the right of Parlia- ment to tax them,^ and was pronounced by one of his own col- leagues to have been "we all know, an anti-republican lawyer." ^* Not only is the Blackstonian interpretation of our free speech clauses inconsistent with eighteenth-century history, soon to be considered, but it is contrary to modern decisions, thoroughly artificial, and wholly out of accord with a common-sense view of the relations of state and citizen. In some respects this theory goes altogether too far in restricting state action. The prohibition of previous restraint would not allow the government to prevent a newspaper from pubhshing the sailing dates of transports or the number of troops in a sector. It would render illegal removal of an indecent poster from a billboard or the censorship of moving pictures before exhibition, which has been held vahd under a free speech clause. ^^ And whatever else may be thought of the decision under the Espionage Act with the unfortunate title. United States v. The Spirit of 'y6,^^ it was clearly previous restraint for a federal court to direct the seizure of a film which depicted the Wyoming Massacre and Paul Revere's Ride, because it was "calculated reasonably so to excite or inflame the passions of our people or some of them as that they will be deterred from giving that full measure of co- operation, sympathy, assistance., and sacrifice which is due to ^ 32 Geo. Ill, c. 60 (1792). See page 948, infra. ^ I Blackstone, Commentaries, 109. " Willes, J., in Dean of St. Asaph's Case, 4 Doug. 73, 172 (1784), quoted by Scho- field, 9 Proc. Am. Sociol. Soc. 85, note. ® Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S. 230, 241 (1915)- « BxTLL. Dept. Just., No. 33 (D. C. S. D. Cal., 191 7), Bledsoe, J.