Page:Harvard Law Review Volume 32.djvu/994

958 958 HARVARD LAW REVIEW porary involuntary servitude is permitted to secure social interests in the construction of roads, ^^ the prevention of vagrancy, the training of the miHtia or national army. It is common to rest these implied exceptions to the Bill of Rights upon the groimd that they existed in 1791 and long before,^ but a less arbitrary explana- tion is desirable. It seems better to say that long usage does not create an exception, but demonstrates the importance of the social interest behind the exception. ^^ The First Amendment protects two kinds of interests in free speech.^ There is an individual interest, the need of many men to express their opinions on matters vital to them if Hfe is to be worth living, and a social interest in the attainment of truth, so that the country may not only adopt the wisest course of action but carry it out in the wisest way. This social interest is especially impor- tant in war time. Even after war has been declared there is bound to be a confused mixture of good and bad arguments in its support, and a wide difference of opinion as to its objects. Truth can be sifted out from falsehood only if the government is vigorously and constantly cross-examined, so that the fundamental issues of the struggle may be clearly defined, and the war may not be diverted to improper ends, or conducted with an undue sacrifice of life and Uberty, or prolonged after its just purposes are accompHshed. Legal proceedings prove that an opponent makes the best cross- examiner. Consequently it is a disastrous mistake to Hmit criticism to those who favor the war.^® Men bitterly hostile to it may point ^ Butler V. Perry, 240 U. S. 328 (1916). 83 Robertson v. Baldwin, 165 U. S. 275, 281 (1897). 8* Not everything old is good. Thus the antiquity of peonage does not constitute it an exception to the Thirteenth Amendment; it is not now demanded by any strong social interest. Bailey v. Alabama, 219 U. S. 219 (1911). It is significant that the social interest in shipping which formerly required the compulsory labor of articled sailors (Robertson v. Baldwin, supra) is no longer recognized in the United States as suflBciently important to outweigh the individual interest in free locomotion and choice of occu- pation. Even treaties providing for the apprehension in our ports of deserting foreign seamen have been abrogated by the LaFollette Seamen's Act, Act of March 4, 19 15, c. 153, § 16, 38 Stat, at L. 1184; U. S. Comp. Stat., 1918, § 8382 a. For the old social interest in the regidation of laborers' wages, now abrogated by the New York Constitu- tion, see Saratoga v. Saratoga Gas, 191 N. Y. 123, 141, 83 N. E. 693 (1908). That the Bill of Rights does not crystallize antiquity, Hurtado v. California, no U. S. 516 (1884). 85 See Roscoe Pound, "Interests of Personality," 28 Harv. L. Rev. 445, 453-56. 8* Judge Van Valkenburgh told the jury that it must be so limited in United States v. Rose Pastor Stokes, Buu,. Dept. Just., 106, 14 (W. D. Mo., 1917). See page 966, infra.