Page:Harvard Law Review Volume 32.djvu/998

962 962 HARVARD LAW REVIEW The Espionage Act should not be construed to reverse this national policy of liberty of the press and silence hostile criticism, unless Congress has given the clearest expression of such an intention in the statute. Judge Hand places outside the limits of free speech one who coimsels or advises others to violate existing laws. It is true, he says, that any discussion designed to show that existing laws are mistaken in means or unjust in policy may result in their violation, ^^ but if one stops short of urging upon others that it is their duty or their interest to resist the law, he should not be held to have at- tempted to cause illegal conduct. If this is not the test, the 19 17 Act punishes every political agitation which can be shown to be apt to create a seditious temper. The language of the statute proves that Congress had no such revolutionary purpose in view. There is no finer judicial statement of the right of free speech than these words of Judge Hand : " Political agitation, by the passions it arouses or the convictions it engenders, may in fact stimulate men to the violation of law. Detesta- tion of existing policies is easily transformed into forcible resistance of the authority which 'puts them in execution, and it would be folly to dis- regard the causal relation between the two. Yet to assimilate agita- tion, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government. The distinction is not a scholastic subterfuge, but a hard-bought acquisition in the fight for freedom." ^ Look at the Espionage Act of 191 7 ^^ with a post-armistice mind, and it is clear that Judge Hand was right. There is not a word in it to make criminal the expression of pacifist or pro- German opinions. It punishes false statements and reports — necessarily limited to statements of fact — but beyond that does not contain even a provision against the use of language. Clauses (2) and (3) punish successful interference with military affairs and attempts to interfere, which would probably include incitement. ^^ The tests United States v. Scott Nearing, 252 Fed. 223, Bull. Dept. Just., No. 129 (S. D. N. Y., 1918). " See note 91, supra, for text of the act. " Attempts do not ordinarily include solicitation, see Beale, infra, 16 Harv. L.
 * He expresses this idea both in Masses Publishing Co. v. Patten, supra, and in
 * Masses Pub. Co. v. Patten, 244 Fed. 535, 540 (1917).