Page:Harvard Law Review Volume 32.djvu/996

960 96c? HARVARD LAW REVIEW against each other of two very important social interests, in public safety and in the search for truth. Every reasonable attempt should be made to maintain both interests unimpaired, and the great interest in free speech should be sacrificed only when the interest in pubhc safety is really imperiled, and not, as most men believe, when it is barely conceivable that it may be slightly af- fected. In war time, therefore, speech should be unrestricted by the censorship or by punishment, unless it. is clearly hable to cause direct and dangerous interference with the conduct of the war. Thus our problem of locating the boundary line of free speech is solved. It is fixed close to the point where words will give rise to un- lawful acts. We cannot define the right of free speech with the pre- cision of the Rule against Perpetuities or the Rule in Shelley's Case, because it involves national policies which are much more flexible than private property, but we can estabUsh a workable principle of classification in this method of balancing and this broad test of certain danger. There is a similar balancing in the determination of what is "due process of law." And we can with certitude declare that the First Amendment forbids the punishment of words merely for their injurious tendencies. The history of the Amendment and the political function of free speech corroborate each other and make this conclusion plain. The Espionage Act of 191 7 seems on its face constitutional imder this interpretation of the First Amendment, but it may have been construed so extremely as to violate the Amendment. Furthermore, freedom of speech is not only a limit on Congressional power, but a policy to be observed by the courts in applying con- stitutional statutes to utterance. The scope of that policy is de- termined by this same method of balancing social interests. The boundary Une of punishable speech under this Act was consequently fixed where words come close to injurious conduct by the judge who has given the fullest attention to the meaning of free speech during the war, — Judge Learned Hand, of the Southern District of New York. In Masses Publishing Co. v. Patten ^^ Judge Hand was asked to enjoin the postmaster of New York from excluding from the mails The Masses, a monthly revolutionary journal, which contained several articles, poems, and cartoons attacking the war. The •• 244 Fed. 535 (S. f). N. Y., 1917).