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The Green Bag

and county bar associations and that of New York City.

LIMITATIONS ON THE FREEDOM OF THE PRESS THE constitutionality of the legis lation adopted by the last ses sion of Congress in the form of a rider to an appropriation bill, encroaching somewhat upon the private business of newspapers by requiring them to publish statements of the owners of their stock and the volume of their paid circulation, is at least open to serious doubts. Even if the measure may be sound in part, some of its most salient features are hardly likely to survive the test of a judicial determination of their consti tutionality, and the unsoundness of some provisions may vitiate the law so thoroughly that the less objectionable provisions will fail with the rest. It is widely considered questionable jour nalistic ethics, in most cases, for a paper to print as ordinary reading matter what is actually paid for as advertising, this principle being recognized, for instance, in a Massachusetts statute relating to political advertisements. There is also something to be said in favor of compelling newspapers to dis close their ownership to their readers, as is required by the New York statute. It seems to be beyond the constitu tional power of Congress, however, to deal with these subjects specially appropriate to state legislation except in so far as may be possible without exceeding the scope of the authority to regulate the use of the mails; and for this reason legislation applying to all newspapers, whether circulated by mail or otherwise, enforced by a much more drastic penalty than merely that of exclusion from the privileges of the mails, may be subject to a successful

attack in the courts. It is conceivable that under a liberal interpretation of the police power, in line with that adopted in recent decisions of the United States Supreme Court, that in Noble State Bank v. Haskell for instance, the giving of this information to news paper readers about owners and adver tisers might be treated as one of the "great public needs," and that Congress would thus have the right to exclude from the mails publications failing to meet such requirements. That would be about as far as it would be possible to go in upholding the validity of this legislation. It clearly overreaches itself in calling for statements of circulation, which cannot be regarded as in any sense a great public need. It also seems to discriminate unfairly in favor of religious and fraternal periodicals, and likewise in favor of weekly at the expense of daily publications. On the latter grounds of unfair discrimination alone its constitutionality may perhaps be successfully assailed. CULPABLE NEGLIGENCE "TN an insurance case tried in an •1 Ohio town," says a Cleveland lawyer, "a youthful attorney asked an old sailor, during the course of his crossexamination, at what time of day a certain collision occurred. "About the middle of the first dog watch," was the reply. "In summing up the case, the youth ful lawyer enlarged upon the information thus imparted, as follows: — "'You can imagine, gentlemen of the jury, the care which was exercised on this occasion, when, as appears from the testimony of one of the plaintiff's own witnesses, this valuable ship and her cargo, to say nothing of the lives of the passengers and crew, were entrusted to