Page:Harvard Law Review Volume 32.djvu/993

957 FREEDOM OF SPEECH IN WAR TIME 957 sion. Unlimited discussion sometimes interferes with these pur- poses, which must then be balanced against freedom of speech, but freedom of speech ought to weigh very heavily in the scale. The First Amendment gives binding force to this principle of pohtical wisdom.^" Or to put the matter another way, it is useless to define free speech by talk about rights. The agitator asserts his constitutional right to speak, the government asserts its constitutional right to wage war. The result is a deadlock. Each side takes the position of the man who was arrested for swinging his arms and hitting another in the nose, and asked the judge if he did not have a right to swing his arms in a free country. "Your right to swing your arms ends just where the other man's nose begins." To find the boundary line of any right, we must get behind rules of law to human facts. In our problem, we must regard the desires and needs of the indi- vidual himian being who wants to speak and those of the great group of himian beings among whom he speaks. That is, in technical language, there are individual interests and social interests, which must be balanced against each other, if they conflict, in order to determine which interest shall be sacrificed under the circumstances and which shall be protected and become the foundation of a legal right.^^ It must never be forgotten that the balancing cannot be properly done unless all the interests involved are adequately ascer- tained, and the great evil of all this talk about rights is that each side is so busy denying the other's claim to rights that it entirely overlooks the human desires and needs behind that claim. The rights and powers of the Constitution, aside from the portions which create the machinery of the federal system, are largely means of protecting important individual and social interests, and because of this necessity of balancing such interests the clauses cannot be construed with absolute literalness. The Fourteenth Amend- ment and the obligation of contracts clause, maintaining important individual interests, are modified by the police power of the states, which protects health and other social interests. The Thirteenth Amendment is subject to many imphed exceptions, so that tem- New Republic, 67. ^ This distinction between rights and interests clarifies ahnost any constitutional controversy. The distinction originated with Von Ihering. For a presentation of it in EngUsh, see John Chipman Gray, Nature and Sources of the Law, § 48 ff.
 * " This paragraph and a portion of the preceding have akeady been printed in 17