Page:Harvard Law Review Volume 32.djvu/984

948 948 HARVARD LAW REVIEW has been somewhat obscured by judicial retention of the two tech- nical incidents of the old law after the adoption of the free speech clauses. Many judges, rightly or wrongly, continued to pass on the criminality of the writing and to reject its truth as a defense,^* until statutes or new constitutional provisions embodying the popular view on these two points were enacted.^^ Doubtless, a jury will protect a popular attack on the government better than a judge, and the admission of truth as a defense lessens the evils of suppres- sion. These changes help to substitute the modern view of rulers for the old view, but they are not essential. Sedition prosecutions went on with shameful severity in England after Fox's Libel Act ^^ had given the jury power to determine criminahty. The American Sedition Act of 1798,^^ which President Wilson declares to have "cut perilously near the root of freedom of speech and of the press, "^^ entrusted criminahty to the jury and admitted truth as a defense. On the other hand, freedom of speech might exist without these two technical safeguards. The essential question is not, who is judge of the criminahty of an utterance, but what is the test of its criminahty. The common law and the Sedition Act of 1798 made the test blame of the government and its officials, because to bring them into disrepute tended to overthrow the state. The real issue in every free-speech controversy is this — whether the state can punish all words which have some tendency, however remote, to bring about acts in violation of law, or only words which directly incite to acts in violation of law. If words do not become criminal until they have an immediate tendency to produce a breach of the peace, there is no need for a law of sedition, since the ordinary standards of criminal sohcitation and attempt apply. Under those standards the words must bring the speaker's unlawful intention reasonably near to success. Such a hmited power to punish utterances rarely satisfies the zealous in times of excitement like a war. They reaUze that all condemnation " DxjNiWAY, supra, Chap. IX; Commonwealth v. Clap, 4 Mass. 163 (1808); Com- monwealth V. Blanding, 3 Pick. (Mass.) 304 (1825). " Examples are: Pa. Cons. 1790, Art. 9, § 7; N. Y. Session Laws, 1805, c. 90; N. Y. Cons., 1822, Art. VII, § 8; Mass. Laws, 1827, c. 107. See Schofield, op. cit., 95-99- " I Stat, at L., c. 74, 596, Act of July 14, 1798. M 3 WooDROw Wilson, History of the American People, 153.
 * • 32 Geo. Ill, c. 60 (1792).