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condemnation can be too severe; but when the misconduct,
apparent or real, may be simply an honest error of judgment,
the condemnation ought to be with-held or mingled with
charity. As said by Holt in his work on Libel, chap. 9, 'It
is undoubtedly within the natural compass of the liberty of
the press, to discuss in a decent and temperate manner the
decisions and judgments of a court of justice; to suggest
even errors ; and, provided it is done in tne language and with
the views of fair criticism, to censure what is apparently
wrong; but with this limitation, that no false or dishonest
motives be assigned to any party.' These views are, in my
judgment, sound; and these rights should be cheerfully ac-
corded to the press in this free and enlightened country."


The Constitution provides; "Every person may freely
speak, write and publish his sentiments on all subjects, being
responsible for the abuse of that right; and no laws shall be
passed to restrain or abridge the liberty of speech or of the

State ex rel. Attorney Gen. v. Cir. Ct. for Eau Claire
Co., 97 Wis. i (12, 13). (1897.) Action of prohibition to
check contempt proceedings for publication severely criticising
the conduct on the bench of a judge, who was at the time a
candidate for re-election. Peremptory writ granted.

The Court said: "Important as it is that courts should
perform their grave public duties unimpeded and unprej-
udiced by illegitimate influences, there are other rights guar-
anteed to all citizens by our constitution and form of govern-
ment, either expressly or impliedly, which are fully as im-
portant, and which must be guarded with an equally jealous
care. These rights are the right of free speech and of free
publication of the citizen's sentiments 'on all subjects' * * *
also the right to freely discuss the merits and qualifications
of a candidate for public office, being responsible for the
abuse of such right in a proper action at law. * * * Truly, it
must be a grievous and weighty necessity which will justify
so arbitrary a proceeding, whereby a candidate for office
becomes the accuser, judge and jury, and may within a few



hours summarily punish his critic with imprisonment. The
result of such a doctrine is that all unfavorable criticism of
a sitting judge's past official action can be at once stopped
by the judge himself, or, if not stopped, can be punished by
immediate imprisonment. If there can be any more effectual
way to gag the press and subvert freedom of speech, we do
not know where to find it. * * * We, however, adopted no
part of the common law which was inconsistent with our
constitution ; and it seems clear to us that so extreme a power
is inconsistent with, and would materially impair, the consti-
tutional rights of free speech and free press."


U. S. v. Hall, 26 Fed. Cas. No. 15, 282. (1871.) On
demurrer to Indictment for conspiracy to intimidate and pre-
vent free speech. Demurrer overruled.

The Court, in an elaborate argument, held that by the
Fourteenth Amendment to the Constitution of the United
States, the federal government assumed authority, as above
the states, to safeguard the fundamental rights of the citizen,
including that of free speech, and was bound to interfere,
in case of State legislation hostile to these rights, or failure
of the State properly to secure them.

U. S. v. Huggett, 40 Fed Rep. 636 (638, 639). (1889.)^
Demurrer to indictment for mailing sealed letters containing
obscene matter, prior to the passage of the statute including

The Court, sustaining the demurrer, said: "But I am of
the opinion that the adjudications which have affirmed the
validity of the indictments do fall into the very latitude of
construction which was condemned by the Supreme Court
of the United States in the above cited cases; and that upon
the somewhat gratuitous assumption that Congress intended
to purge the mails of all impurity whatever * * * I say upon
a gratuitous assumption, because the history of the legislation
shows quite clearly, it seems to me, that, until the recent
acts of Congress, that body has never come up to the elevated
plane of moral action suggested by these decisions, and to be
implied from putting this restriction upon the absolute free-
dom of that form of correspondence, but has especially re-
fused to do that thing * * * And this reluctance to interfere
with the freedom of private correspondence is readily ex-



plainable by the suggestion of Mr. Justice Field that Congress
felt the difficulty of accomplishing its purpose to protect the
morals of the people by a wise use of its power over the postal
establishment, 'consistently with rights reserved to the people,
of far greater importance than the transportation of the mail.'
Ex. parte Jackson, 96 U. S. 727, 732. Free speech, and particu-
larly free speech in private intercourse, and the aversion of
our race of freemen to interfere with it, stood somewhat in
the way of this legislation ; at least in the popular estimation.
* * *Postal officials are not supposed to examine or to
appropriate to themselves the indulgence of reading that which
goes into the mails in any form, but their duty is to handle
and distribute it without doing that. They violate their duty
when they so use any mail matter whatsoever, except for the
purpose of such official inspection as may be authorized."

U. S. Harman, 45 Fed. Rep. 414 (415, 416). (1891.)
Indictment for mailing alleged obscene publication. The
Court said : "In view, however, of the fact that the defendant
places so much stress along the line of his entire defense on
the liberty which should be accorded to the press, it may as
well be said here as elsewhere that it is a radical misconcep-
tion of the scope of the constitutional protection to indulge
the belief that a person may print and publish, ad libitum, any
matter, whatever the substance or language, without account-
ability to law. Liberty, in all its forms and assertions in
this country, is regulated by law. It is not an unbridled li-
cense. Where vituperation or licentiousness begins, the liberty
of the press ends * * * While happily we have outlived the
epoch of censors and licensers of the press, to whom the pub-
lisher must submit his matter in advance, responsibility yet
attaches to him when he transcends the boundary line where
he outrages the common sense of decency, or endangers the
public safety * * * In a government of law, the law-making
power must be recognized as the proper authority to define
the boundary line between license and licentiousness; and it
must likewise remain the province of the jury the consti-
tutional triers of the fact to determine when that boundary
line has been crossed."

Thomas v. Cinn, etc., Ry. Co., 62 Fed. Rep. 803 (822).
(1894.) Contempt proceeding against labor leader for violat-
ing injunction.



The Court said: "Something has been said about the
right of assembly and free speech secured by the constitution
of Ohio. It would be strange, if that right could be used
to sustain the carrying out of such an unlawful and criminal
conspiracy as we have seen this to be. It never has been
supposed to protect one from prosecution or suits for slander,
or for any of the many malicious and tortious injuries which
the agency of the tongue has been so often employed to in-
flict. If the obstruction to the operation of the road by the
receiver was unlawful and malicious, it is not less a contempt
because the instrument which he used to effect it was his
tongue, rather than his hand."


Respublica v. Oswald, i Dall. (U. S.) 319 (325, 326).
(1788.) Action for contempt for publishing comment on
pending action.

The Court said: "However ingenuity may torture the
expressions, there can be little doubt of the just sense of these
sections (the constitutional guarantee of free speech and free
press) : They give to every citizen a right of investigating the
conduct of those who are entrusted with the public business;
and they effectually preclude any attempt to fetter the press
by the institution of license * * * The true liberty of the
press is amply secured by permitting every man to publish
his opinions ; but it is due to the peace and dignity of society
to inquire into the motives of such publications, and to distin-
guish between those which are meant for use and reformation,
and with an eye solely to the public good, and those which
are intended merely to delude and defame. To the latter de-
scription, it is impossible that any good government should
afford protection and impunity.

"If then, the liberty of the press is regulated by any just
principle, there can be little doubt that he who attempts to
raise a prejudice against his antagonist in the minds of those
that must ultimately determine the dispute beween them ; who,
for that purpose, represents himself as a persecuted man, and
asserts that his judges are influenced by passion and prejudice
wilfully seeks to corrupt the source, and to dishonor the
administration of justice."

Ex parte Jackson, 96 U. S. 727 (736). (1877.) Indict-
ment for mailing lottery circular. Habeas corpus proceeding.

20 1


The Court, denying the writ, said: "In excluding
articles from the mail, the object of Congress has not been to
interfere with the freedom of the press or with any other
rights of the people ; but to refuse its facilities for the distri-
bution of matter deemed injurious to the public morals." The
Court, however, distinctly and forcibly held that Congress
had no authority to prohibit the transportation of such articles
in any other way than through the mails.

In Re Rapier, 143 U. S. no (134, 135). (1892.) Indict-
ment for mailing lottery advertisement.

The Court said: "We cannot regard the right to operate
a lottery as a fundamental right infringed by the legislation
in question ; nor are we able to see that Congress can be
held, in its enactment, to have abridged the freedom of the
press. The circulation of newspapers is not prohibited ; but
the government declines itself to become an agent in the
circulation of printed matter which it regards as injurious
to the people. The freedom of communication is not abridged
within the intent and meaning of the constitutional provision,
unless Congress is absolutely destitute of any discretion as to
what shall or shall not be carried in the mails, and compelled
arbitrarily to assist in the dissemination of matters condemned
by its judgment, through the governmental agencies which it
controls. That power may be abused furnishes no ground
for a denial of its existence, if government is to be main-
tained at all."

Patterson v. Colo., 205 U. S. 454 (462). (1906.) Writ of
error in contempt proceeding. Writ dismissed for lack of

The Court said: "But even if we assume that freedom
of speech and freedom of the press were protected from
abridgment on the part not only of the United States but
also of the States, still we should be far from the conclusion
that the plaintiff in error would have us reach. In the first
place, the main purpose of such constitutional provisions is
'to prevent all such previous restraints upon publications as
had been practised by other governments/ and they do not
prevent the subsequent punishment of such as may be deemed
contrary to the public welfare."



Having now exhibited the judicial cerebrations upon our
constitutional right to unabridged freedom of speech and of the
press, I proceed to restate what is claimed to be proven by the
exhibit. No matter whether the result of the opinion was to up-
hold or to abridge the freedom of the press, I think I am war-
rented in making the following assertion as applicable to, and
true of every opinion published upon the subject of freedom
or press.

1. In no case did the court derive its standard for deter-
mining the constitutionality of the enactment under considera-
tion by critical deductions made from the language of the
constitutional phase involved. If that was too ambiguous the
fact should have been stated, and the historical method of
interpretation should have been pursued.

2. In no case did the court arrive at its standard for
determining the constitutional meaning, by any historical study
of the pre-revolutionary controversies over freedom of utter-
ance, to discover what issues our constitutions were intended to
decide, or to find the elements of unification in those past de-
mands for such freedom, which common element of all strug-
gles against abridgments, varied both as to subject-matter
and methods of suppression, would inevitably reveal the true
essence of that which those who were still in closer touch
with these struggles than we can be, intended to protect us
against, by the constitutional phrase in question.

3. In-so-far as any court attempted to assign reasons for
its conclusions, upon either side, these justifications are never
drawn from the constitutions, but are a mere statement of
those considerations of expediency which might properly and
perhaps effectively, be addressed to a constitutional convention,
with the view to enlightening them as to what a constitution
ought to contain upon this subject, but certainly not very in-
forming as to what a constitution already in existence does in
fact mean. In other words, constitutional meanings were not
deduced from that instrument, but read into it, and instead of
having government according to Constitutional Laws, we have
government according to the arbitrary and despotic will of a
judiciary, with whom a Constitutionally guaranteed unabridg-
able right to utter one's sentiments, means the right to utter
only that which the courts deem advantageous to the public



4. From the foregoing propositions, I derive this last
one. In every case wherein our constitutional guarantees for
an unabridged right of utterance were involved, the alleged
judicial "interpretation" expressed only the judge's emotional
approval, or disapproval of the right to utter the particular
sentiments then before him for judgment, and the irrelevant
reasons assigned by him were deemed cogent only because they
seemed to justify his prior feeling-convictions. If I am
correct in this little psychologic study of the mental processes
of our judges, then of course they are hardly entitled to much
of that adoration usually accorded only to those possessed of
very superior intellectual attainments.

It remains to be seen whether we are able to lead the
way to a better method of constitutional interpretation, and
make the initial attempt toward a rational generalization,
such as will give us a standard of judgment for the determina-
tion of the constitutionality of every law claimed to be an
abridgment of our right to utter; and thus, perhaps, ultimately
we may lead the courts from mistaking their dogmatism, em-
pirical inductions, personal emotions, moral sentimentalizing,
judicial interpolations and constitutional amendment, or ques-
tion-begging sophomoric declamation, for constitutional con-

When I read the exciting grammar-school oration from the
Supreme Court of Oklahoma ; and when in the foregoing opin-
ions I see it manifested again and again, that the judges of
the highest courts of our land evidently do not know the differ-
ence between an analogy and a mere figure of speech, and
because of that ignorance can mis-use the former as a basis of
constitutional ''construction"; and when I see how often
"most learned judges" are stupid enough to think they define
the limits and prescribe the criteria of constitutional liberty by
the use of such meaningless epithets as "license" or "licentious-
ness"; and when I see "abuse" of freedom founded only upon
the damaged emotions or injured vanity of judges who mis-
conceive this mere psychologic offense this mere constructive
abuse to be very real, without ever having even thought of
the possible difference between it and an actual abuse which can
only be predicated upon an ascertained, actual, real and material
injury; and when I contemplate the probable fact that many
readers of this paragraph will not know, even now, just what
I mean by these criticisms, because I cannot take space to an-



alyze each opinion and specifically point out its shortcomings ;
I say when I contemplate all these things, it makes me inex-
pressibly sad, because then I realize how slender a thread of
intelligence sustains our liberties, and that the battle for real
freedom is only just begun, because a generally accepted, in-
telligent conception of liberty, such as must precede its realiza-
tion, for a long, long time yet will be impossible. Will the
Federal Supreme Court exercise its great power to hasten the
day of our liberation ? Ah ! there is a flattering hope, which
may not disappoint.

The doubt which the courts have cast upon the meaning
of "Freedom of Speech and of the Press" by declaring limita-
tions upon, or exceptions to that freedom, makes it imperative
that the doubt be resolved by an appeal to the historical inter-
pretation of that constitutional phrase. Such an investigation
will disclose to us whether or not our courts are warranted in
blindly following, as they have done more or less directly, the
declarations of Blackstone, Ellenborough, Mansfield or even
Erskine, as to what is meant by freedom of the press, consti-
tutionally guaranteed as an unabridgable right, and not a
mere liberty by permission.






The purpose is to re-interpret our constitutional guarantee
for an unabridged freedom of speech and of the press, by the
historical or scientific method, and with special reference to the
specific issue raised by the judicial dogmatism thereon and my
different conception of how that phrase ought to be interpreted.
To clarify the issues, I restate these contradictory propositions,
so the reader may have them constantly in mind during the
following discussion.

My contention as to the meaning of a constitutionally guar-
anteed right to unabridged freedom of speech and of the press,
is this: No matter upon what subject, nor how injurious to
the public welfare any particular idea thereon may be deemed
to be, the constitutional right is violated whenever anyone is
not legally free to express any such or other sentiments, either ;

First f because prevented in advance by a legally created
censorship, or monopoly in the use of the press, or by other
governmental power, or ;

Second, because in the effort to secure publicity for any
idea whatever, the equality of natural opportunity is destroyed,
in that some, by subsequent legal penalties or other legal limi-
tations, are deterred, or are impeded, in the use of the ordinary
and natural methods of reaching the public, on the same legal
terms, as these are permitted to any person for the presentation
o>f any other idea, or ;

Third, because the natural opportunity of all is abridged by
some statutory impediment, such as taxes upon the dissemina-
tion of information placed upon all intellectual intercourse, as
such, or on all of a particular class, or;

Fourth, because inequalities in State-created, or State-
supported, opportunity is legalized, so that, in the effort to
secure publicity for any sentiments and merely because of their



nature, literary style, or supposed evil tendency, any one is
discriminated against, either by law, or for any cause by any
arbitrary exercise of official discretion, in the use of such State-
created or State-supported facilities, or ;

Fifth, because after expressing one's sentiments one is by
law liable to punishment, merely for having uttered disap-
proved thoughts ;

Provided always, that the prohibition, abridgment, discrim-
ination, subsequent punishment, or other legal disability or
disadvantage, is arbitrarily inflicted, or attaches merely because
of the character, literary style, or supposed bad tendency of
the offending sentiments, and their spread among sane adults,
willing to read, see, or hear them, or is the result of arbitrary
official discretion, and that they do not attach because of any
inseparably accompanying, or other resultant penalized invasive
act, constituting an actually ascertained, resultant, material
injury, (as distinguished from mere speculative or constructive
harm) inflicted, or by overt act attempted to be inflicted, before
arrest and punishment, and in either case actually resulting
from the particular utterance involved.

But, if the injury is to reputation, or loss of public esteem,
and among the consequences is material injury to the libeled
person, even then, truth and justifiable motive must always be
recognized by law as a complete defense; and where the
resultant injury consists in violence to person or property,
actually attempted or achieved, then the intent to achieve such
results must be of the essence of the crime, and punishment
of a mere speaker must be only that of an accessory before the
fact, if our constitutional guaranty is to be made effective.
I do not discuss civil remedies.


The contrary conclusion of the Courts is well summarized
by a dictum, perhaps hastily uttered, of the Federal Supreme
Court. These are its words: "The main purpose of such con-
stitutional provisions is to prevent all such previous restraints
as had been practised by other governments, and they do not
prevent the subsequent punishment of such as may be deemed
contrary to the public welfare" I 1

In England the licensing acts, which put a previous restraint
upon publications, existed for only a short time, and finally
expired in A. D. 1694. 2 It seems, therefore, according to the

'Patterson v. Colo., 205 U. S. 454, (462).

2 Stevens' "Sources of the Constitution of the U. S.," p. 221; Patterson's
"'Liberty of Press and Speech," 50 and 51.



definition of our American Courts, that perfect unabridged?
liberty of speech and press obtained in England after the year
1694, because no licenser prohibited before utterance, and there
prevailed a system of subsequent punishment for only such
opinions as were deemed contrary to the public welfare, and
for nearly a century preceding our Revolution the agitation
for larger freedom of speech and of the press was a vain
demand for something already enjoyed by the agitators, but
not known by them to exist.

However ridiculous such judicial implications will appear
to some, the official eminence of the many judges who have
sanctioned that doctrine, and especially the tremendous con-
sequence of it to our liberties, precludes levity. We will there-
fore proceed in all seriousness to demonstrate the error of our
courts by a historical study and a scientific interpretation of
the facts. Thus it will be made to appear that unabridged
liberty of discussion did not obtain in England, or its American
Colonies, from 1694 until the American Revolution, and that
our Constitutions were designed to change the prevailing
system of an abridged and abrid gable liberty of discussion by
permission, to an unabridged and unabridgable liberty of dis-
cussion as a constitutionally guaranteed, natural right, not to
be ignored, as in England, or Russia, where the claim of such
freedom was and is denied, on the plea of furthering the public


In England, "before public meetings were resorted to as
an ordinary exercise of self-government, great looseness pre-
vailed in the law, the theory apparently being that free-speech
was a species of gift by the Sovereign to the people."* To
have the power to control what others may hear or see, is of
course to that extent a limitation upon their right to acquire
and have opinions thus abridging the liberty of conscience
since one cannot well acquire opinions the materials of which-
are withheld from him. Since the right to have a personal
judgment and the right to express it existed only as a gift
from kings and priests, when the issuing of pamphlets became
an extended form of speech nothing was more natural than

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 20 of 43)