Page:Harvard Law Review Volume 32.djvu/980

944 944 HARVARD LAW REVIEW opportunity to make articulate for us that major premise, under which judges ought to classify words as inside or outside the scope of the First Amendment, He, we hoped, would concentrate his great abilities on fixing the line. Instead, like the other judges, he has told us that certain plainly unlawful utterances are, to be sure, imlawful. "The First Amendment . . . obviously was not intended to give immunity for every possible use of language. . . . We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder . . . would be an unconstitutional interference with free speech."" "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." ^^ How about the man who gets up in a theater between the acts and informs the audience honestly but perhaps mistakenly that the fire exits are too few or locked? He is a much closer parallel to Schenck or Debs. How about James Russell Lowell when he counseled, not murder, but the cessation of murder, his name for war? The question whether such perplexing cases are within the First Amendment or not cannot be solved by the multiplication of obvious examples, but only by the development of a rational prin- ciple to mark the limits of constitutional protection. "The gradual process of judicial inclusion and exclusion," ^^ which has served so well to define other clauses in the federal Con- stitution by blocking out concrete situations on each side of the line until the line itself becomes increasingly plain, has as yet been of very httle use for the First Amendment. The cases are too few, too varied in their character, and often too easily solved, to develop any definite boundary between lawful and unlawful speech. Even if some boimdary between the precedents could be attained, we could have little confidence in it unless we knew better than now the fundamental principle on which the classification was based. Indeed, many of the decisions in which statutes have been held to violate free speech seem to ignore so seriously the economic and political facts of our time, that they are precedents of very dubious " Frohwerk v. United States, 249 U. S. 204, 39 Sup. Ct. Rep. 249, 250 (1919). »8 Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247 (1919). »» Miller, J., in Davidson v. New Orleans, 96 U. S. 97, 104 (1877).