Page:Harvard Law Review Volume 32.djvu/997

961 FREEDOM OF SPEECH IN WAR TIME 961 Espionage Act of 191 7 ^° made non-mailable any publication which violated the criminal provisions of that act,^^ already summarized in this article. ^^ One important issue was, therefore, whether the postmaster was right in finding such a violation. The case did not raise the constitutional question whether Congress could make criminal any matter which tended to discourage the successful prosecution of the war, but involved only the construction of the statute, whether Congress had as yet gone so far. Judge Hand held that it had not and granted the injunction. He refused to turn the original Act, which obviously dealt only with interference with the conduct of military affairs, ^^ into a prohibition of all kinds of propaganda and a means for suppressing all hostile criticism and all opinion except that which encouraged and supported the existing policies of the war, or fell within the range of temperate argument. As Cooley pointed out long ago, you cannot limit free speech to polite criticism, because the greater a grievance the more Hkely men are to get excited about it, and the more urgent the need of hearing what they have to say.^^ The normal test for the suppression of speech in a democratic government, Judge Hand insists, is neither the justice of its substance nor the decency and propriety of its temper, but the strong danger that it will cause injurious acts. ^" Act of June 15, 1917, c. 30, Title XII, § 2, 40 Stat, at L. 230, U. S. Comp. Stat., 1918, § 10401 a. " Act of June 15, 1917, c. 30, Title I, § 3, 40 Stat, at L. 219, U. S. Comp. Stat., 1917, § 10212 c: " Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies, and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the mili- tary or naval forces of the United States, or shall willfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both." 92 Page 935, supra. 9' Masses Publishing Co. v. Patten, supra, 539. The plain fact that the original Espionage Act is a military statute and not a sedition statute is also recognized by United States v. Fontana, Bull. Dept. Just., No. 148 (N. D. 1917), Amidon, J. United States v. Wishek, Bull. Dept. Just., No. 153 (N. D., 1917), Amidon, J. United States v. Henning, Bull. Dept. Just., No. 184 (Wis., 1917), Geiger, D. J. and implied by other cases. The large niunber of cases which ignore the clear meaning of the statute is astoimding in view of the rule that criminal statutes must be con- strued strictly. »* Cooley, Constitutional Limitations, 7 ed., 613.