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of punishing mere psychologic crimes, he laid down tne limits
of governmental action which must be adhered to if freedom
of speech is to remain an unabridged right, instead of mere
limited liberty by permission. He said: "The law hath amply
provided against overt acts of sedition and disorder, and to
suppress mere opinions by any other method than reasoning
and argument is the hight of tyranny. Freedom of thought
being intimately connected with the happiness and dignity of
man in every stage of his being, is of so much more importance
than the preservation of any Constitution, that to infringe the
former under pretense of supporting the latter, is to sacrifice
the means to the end." 22

In his discourse, this Reverend author often emphasizes
the difference between ideas and overt acts and makes plain
over and over that in his view actual injury should be the
criteria of guilt, and not mere apprehension as to a psychologic
tendency. Our constitutional definition of Treason and the
guarantees of the right to carry arms, of "due process of law,"
and of unabridged freedom of utterance, show that it was
such views as Milton argued for, and as Montesquieu and the
Rev. Robert Hall expressed, and not the views of Blackstone,
Mansfield, Kenyon, or Bishop Horsley, that our Constitutions
sought effectually to perpetuate.

Both before and after these utterances by the Rev. Robert
Hall there was most eminent American authority for the same
interpretation of the meaning of a "free press." Thomas
Jefferson is popularly supposed to have had much to do with
framing the Declaration of Independence and shaping our
American institutions. He was a dominant figure in Virginia
politics for many years. Those who have familiarized them-

M "An Apology for Freedom of the Press," p. 18.



selves with the religious views of Jefferson, 13 will not doubt
that he encouraged the passage of the Act of the State of
Virginia establishing religious freedom. Although drafted
with a view only to theological subjects, it contains a summary
of incontrovertible reasoning in favor of the general liberty of
inquiry and a clear statement as to where the jurisdiction of the
state rightfully may be invoked without abridging intellectual
liberty. The Virginia enactment says: "To suffer the Civil
Magistrate to intrude his power into the field of Opinion, or
to restrain the profession or propagation of principles on sup-
position of their ill tendency, is a dangerous fallacy, which at
once destroys all liberty, because he, being of course judge of
that tendency, will make his opinions the rule of judgment,
and approve or condemn the sentiments of others only as they
shall square with or differ from his own. It is time enough
for the rightful purposes of Civil Government for its officers
to interfere when principles break out into overt acts against
peace and good order." "*

The Virginia declaration was made in 1786, several years
before the adoption of the first amendment to the Federal
Constitution. The Virginia enactment makes it clear that in
their opinion the State has no rightful authority over opinion
of any sort, and should not be suffered to interfere until
ACTUAL injury has resulted. It was that conception of
"freedom of the press" which America adopted, and not the
English tyrants' conception, to which it was opposed, and
which originated in the odious Star Chamber, found a palatable
justification in Blackstone and the English Judicial decisions,
and an official re-echo in American Courts, engaged in ex-
plaining away our constitutional guarantee for an unabridged
freedom of utterance.

When the Federalist party was defeated because of its
enactment of the Alien and Sedition Law, and Thomas Jef-
ferson became President of the United States, he proceeded
to pardon every man who had been convicted under this
infamous statute. That the penalized utterances tended to
sedition made no difference to him, which indicates that he too
indorsed the views of Montesquieu, the Rev. Robert Hall, and
the quoted enactment of the Virginia Legislature, as being
the correct interpretation of the words "unabridged freedom
of speech and of the press." Jefferson's own statement as to
his conduct is as follows :

"See, "Six Historic Americans."

"Requoted from Wortman's, "Liberty of the Press," p. 173.

22 9


"I discharged every person under punishment or prosecution
under the sedition law, because I considered and now consider
that law to be a nullity, as absolute and as palpable as if
Congress had ordered us to fall down and worship a golden
image ; and that it was as much my duty to arrest its progress
in every stage as it would have been to have rescued from the
fiery furnace those who should have been cast into it for
refusing to worship the image. It was accordingly done in
every instance, without asking what the offenders had done, or
against whom they had offended, but whether the pains they
were suffering were inflicted under the pretended sedition law.
It was certainly possible that my motives in contributing to
the relief of Callandar, and in liberating sufferers under the
sedition law, might have been to protect, reward, and encourage
slander; but they may also have been those which inspire
odinary charities to objects of distress, meritorious or not or,
the obligation of an oath 'to protect the Constitution' violated
by an authorized act of Congress." 21

This action on the part of President Jefferson was con-
sistent with the issue upon which he was elected, and was
required by his own conception of what was meant by an
unabridged "Freedom of Speech and of the Press" as applied
to verbal treason. His views are thus expressed in his first
inaugural address: "If there be any among us who would
wish to dissolve this Union or to change its republican form,
let them stand undisturbed as monuments of the safety with
which error of opinion may be tolerated where reason is left
free to combat it."

These discussions again proclaim the historic view that
unabridged freedom of utterance means that every man may
say with impunity whatever he pleases, being held responsible
and punishable only for actual resultant injury, that being the
only abuse of such freedom which can be penalized.


Another form of impairing natural intellectual opportunity,
and therefore an abridgment of freedom of the press, was
taxes upon knowledge. In America, where to a very large
extent we have Government by newspapers, it seems unlikely
that such taxes will ever again become a subject of controversy.
However, we must briefly consider the matter as an historical

"See, 4 Jefferson's Complete Works, 556, quoted in Booth's v. Rycroft,
3 Wisconsin 183.



issue so that our final generalization as to unabridged freedom
of the press may negative also this form of abridgment.

George Jacob Holyoake has briefly described the conditions
against which he, and other friends of intellectual freedom
before him, waged such strenuous battle. These are his words:
"Yet every newspaper proprietor was formerly treated as a
blasphemer and a writer of sedition, and compelled to give
substantial securities against the exercise of his infamous
tendencies; every paper-maker was regarded as a thief, and
the officers of the Excise dogged every step of his business
with hampering, exacting, and humiliating suspicion. Every
reader found with an unstamped paper in his possession was
liable to a fine of 20. When the writer of this published
the 'War Chronicles' and 'War Fly Sheets,' the Inland Revenue
Office bought six copies as soon as each number was out ; thus
he incurred fines of 120 before breakfast, and when the
last warrant was issued against him by the Court of Exchequer
he was indebted to the Crown 600,000. Besides, he had
issued an average of 2,000 copies of The Rcasoner for twelve
years, incurring fines of 40,000 a week, which amounted to
a considerable sum in twelve years. He who published a
paper, containing news, without a stamp, was also liable to
have all his presses broken up, all his stock confiscated, him-
self, and all persons in his house, imprisoned, as had been done
again and again to others within the writer's knowledge.
Neither cheap newspapers nor cheap books could exist while
these perils were possible."

In his "History of the Taxes on Knowledge," Collet in-
forms us that "The History of the Taxes upon Knowledge
begins with their imposition (1711) in the reign of Queen
Anne. The battle against the Press had, indeed, begun before
that date." The year 1855 marked the final repeal of the
last of these English stamp acts, and those requiring bonds,
etc., from publishers. Those who are interested in this par-
ticular battle for larger freedom of the press are referred to
Mr. Collet's interesting account. 28 In all these discussions, it
is apparent that the main purpose was not to favor one system
of raising revenue as against some other system, but to in-
crease the intellectual opportunities of all, by removing all
State-created impediments to the greatest natural freedom
for the interchange of ideas.

'"Taxes on Knowledge, the story of their Origin and Repeal," Lend., 1899;
see also Patterson on "Liberty of Press and Speech, ' p. 57.



We next consider the method of creating inequalities in
intellectual opportunities, and of abridging them, by means of
a State-created postal censorship, which is fast becoming an
important issue in the contest for intellectual freedom in
America. The American postal censorship over mail matter
began in 1873, when a law was passed, without debate, making
"obscene" matter unmailable. I am informed that the original
draft of this bill included "blasphemy" in the unmailable list,
thus again emphasizing the origin in religious intolerance, and
pointing to the ultimate purpose of those who are so per-
sistently advocating and securing extensions of our postal
censorship. This censorship has already been extended, so
that now even political literatue, which in European monarchies
is spread without hindrance, has been excluded from Amer-
ican mails and penalized. The statutes heretofore have only
provided ex post facto punishment for use of the mails ; they
did not authorize the postal authorities to prevent the trans-
mission of prohibited matter. In several Congresses, the
Postal Department asked an amendment to the laws such as
would give the postmaster power to refuse transmission to
forbidden matter. The amendment never was passed. Not
abashed by the refusal of the Congress to confer the power,
the authorities proceeded to usurp it, under the usual guise
of a new "construction" of existing statutes. This usurped
power, having been calmly acquiesced in by the public, soon
received judicial confirmation and gradually has been extended,
so that it now assumes to override the judical department by
excluding from the mails publications which the courts have
decided are mailable, and has excluded matter without the
warrant of any statute, relying upon the absence of a remedy
for the afflicted persons.

Under our modern conditions of living, with their cheap
printing and postal facilities, to be denied the use of the mails
for the spread of one's ideas creates a relatively greater in-
equality and abridgment of intellectual opportunity than ever
was created by any prior form of censorship. Since private
competition with our public mail service is prohibited by law,
and since in these times of a cheap periodical press no one can
hope ever to attain a favorable public opinion, in competition
with his intellectual opponents, except by publication through



the mails, therefore it follows that a postal censorship is the
most effective possible abridgment of freedom of the press.
Moreover, since the postal authorities now exercise a usurped
censorhip over postal matter prior to publication through the
mails, we have quite effectively, though unconsciously, re-
establihed in some fields of thought a "previoiis censorship,"
substantially like that against which Milton wrote nearly 300
years ago. If this previous censorship is upheld, in spite of our
Constitutions and judicial dictums against the legal possibility
of a "previous censorship," then its spread into other, and
finally all, fields of thought is only a matter of time. Under
present conditions, the difference between a censorship previous
to printing and one after printing but previous to publication
by mail, is one of no practical import, because a book that
cannot get publicity by mail might as well never be printed,
since without facilities for distribution by post, interstate com-
merce, or private competitors of the postal system, the securing
of readers is practically impossible. Furthermore, a censorship
after printing, and before publication by mail, is worse than
one before printing, because it inflicts the needless loss of the
cost of printing.

The infamous Licensing Act of England, against which
Milton wrote, was passed September 20, 1649, and provided,
among its pernicious abridgments of freedom of the press, that
"no person whatever should presume to send by the post,
carriers, or otherwise, or endeavor to dispense, any unlicensed
book,"etc., on penalty of forfeiture, fine,and imprisonment. As
if to add insult to injury, every printer was required to give
a bond to "The Keepers of the Liberties of England," to insure
against the violation of the licensing act. It was precisely this
censorship previous to publication by mail against which Milton
wrote his "Areopagitica." Our courts have said that the ab-
sence of "such previous restraint as had been practised" is the
one thing, at least, against which our constitutional guarantees
protect us, and yet in spite of Courts and Constitutions we
have for some time acquiesced in just such a usurped postal
censorship previous to publication by mail. Furthermore, ow-
ing to the uncertainty of the statutory criteria of mailability,
this censorship previous to publication by post is in practise
an arbitrary discretion. So, then, we do not even have left
the one lonely element of freedom which our courts too often
have mistaken for all there is to unabridged freedom of the



press. Even that little "all" has disappeared, and only the
blank paper of our Constitutional guarantee remains. When
the issue is squarely presented, will our courts confirm also
the destruction of this last element of freedom of the press,
and so vest Congress and our Federal bureaucracy with all the
powers over the press which our Constitution was supposed
to withhold ?

An English Barrister-at-law gives us this brief account of
the postal censorship in England: "The right of free speech
and writing can scarcely exist in perfection without mechanical
facilities for exchanging letters and printed matter between
correspondents. * * * * What is desired by each and every
citizen is, that he shall be entitled to send and receive all com-
munications which he thinks material to his own interest, and
that no third party shall be allowed to tamper or interfere with
this operation so that a message sent in writing or print shall
be secret and inviolable from the moment it is despatched till
the moment it is delivered. This has for two centuries been
more or less attained. The great medium for this communica-
tion between the subjects began in 1635, on a small scale, at
the suggestion of the Crown, but Parliament soon saw its im-
portance, and in 1649 passed a resolution that the office of post-
master ought to be [at] the sole disposal of Parliament. In
1710 a statute laid down the chief rules, and one of these,
continuing as it did the first sketch of a plan projected under
Charles I., forbade all other persons to carry and deliver letters
for hire. * * * *

"It appears to have been a century ago the common
complaint of leading statesmen that their political opponents
made a practise of opening their letters when they had the
power. * * * *

"In 1822 complaint was made by a member of Parliament
that a letter sent him by a prisoner had been opened. And,
though the Government claimed the right to do so for precau-
tion, yet many urged that it should be deemed a breach of
privilege ; this step, however, was not taken." Again, in 1844,
instances of private letters being opened were complained of,
and Parliamentary committees investigated the practise, and
found sufficient confirmation of the suspicion that such a prac-
tise was not unfrequent, especially in connection with foreign
refugees." Sir R. Peel said that no rule could be laid down
on such a subject, and successive Secretaries of State of all

"6 Parl. Deb. (2d), 282, 646.

M 75 Parl. Deb. (3) 1264; 76 Ibid. 212, 296.


parties had been in the habit of exercising this power at dis-
cretion." 29

Thus, this great authority on freedom of the press informs
us that, according to the English conception of it, the period of
our revolution found it a matter of constant complaint that
there was a post-office censorship. Those who thus complained
were the friends of a larger intellectual liberty and it was their
view that was adopted into our constitutional guarantee for
the security of papers against unreasonable searches, and
against all abridgments of freedom of utterance. These two
clauses together, until judicially explained away, would seem
clearly to preclude the search of unsealed as well as sealed
mail-matter for the purpose of creating inequalities of right
to the public service, according to whether the ideas transmitted
are officially approved or disapproved. This is the self-evident
meaning of our Constitution when viewed in the light of the
issues that were agitating the public at the time of its adoption.
The manifest purpose was the increase of intellectual oppor-
tunity, even though it protected such as might be inclined to
sedition, and just as manifestly it was not the purpose merely
to change a business policy in relation to a department of

To show that the advocates of unabridged freedom of the
press included a mail service free from censorship as a part
of their conception of freedom of speech, I will content myself
with one quotation from Jeremy Bentham, as confirming the
foregoing historical interpretation. After explaining that the
only check to tyrannous government is "instruction, excitation,
and facility of correspondence" that "the national mind be
kept in a state of appropriate preparation ; a state of prepar-
ation for eventual resistance," he later continues thus : "Neces-
sary to instruction to excitation in a word to a state of
preparation directed to this purpose is (who does not see it?)
the perfectly unrestrained communication of ideas on every
subject within the field of government [which includes the
discussion of sexual physiology and psychology as a founda-
tion for sex ethics, and the latter even from the viewpoint
of the free-lover and polygamist because a democratic govern-
ment must leave itself free to change even its marriage laws]
the communication, by vehicles of all sorts by signs of all
sorts ; signs to the ear signs to the eye by spoken language
by written, including printed, language by the liberty of the

M Rep. of Secret Com. 1845; Patterson, "Liberty of the Press, Speech, and
Public Worship," pp. 58-59.



tongue, by the liberty of the writing desk, by the liberty of
the post office by the liberty of the press." He repeats that
this is necessary, "not only for instruction, but for excitation" ;
all "for keeping on foot every facility for eventual resistance.""
Bentham then pointed to the United States as a place
where such liberties existed, but he could not do so now were
he alive. The Declaration of Independence, the constitutional
guarantees for the right of assembly, due process of law, the
right to bear arms, and against searches and seizures; the
declarations of the conventions of several of the States, the
constitutional guarantees of unabridged freedom of speech and
of the press all proclaim the intention to protect the right
of the citizen against punishment for mere psychologic crimes,
to the end that he always may be prepared for eventual re-
sistance, even of government itself. 81


Historically considered, an inseparable part of the conten-
tion for a larger, or an unabridged, liberty of speech and of
the press was the condemnation of that practise in the prosecu-
tion for libels which made the guilt of the accused depend upon
"the evils which may be imaginatively and prospectively at-
tributed to the influence of his opinions." The opposition to
this uncertainty in the criteria of guilt was not limited to
persons who believed in unabridged freedom of speech, but
was often very forcibly urged by those who desired only a
little or no enlargement of intellectual opportunity. Even
Blackstone believed that the criteria of guilt for heresy and
seditious utterances should be made more certain.

The protest against the uncertainty of the tests of crimin-
ality in prosecutions for seditious and blasphemous utterances
was upon two distinct grounds. The first and most general
of these was the historical retrospect, and was an appeal to
expediency. The argument ran thus: Books once condemned
for their supposed evil tendencies are now believed to have
been good and useful. In making the psychologic tendency
of an utterance the test of its criminality, we are again opening
the door for a repetition of such error. Therefore, such
criminal laws are inexpedient and should be abolished. The
second reason for objecting to the tendency-test in penalized
utterances was from the point of view of that larger demand
for liberty which was founded upon the idea that no freeman

Jeremy Bentham, "On Liberty of the Press and Public Discussion."
"Stevens, "Sources of the Constitution of the United States," pp. 223-224;
Blackstone's Commentaries, v. 1, p. 154; Cooley, "Constitutional Law,' 270.



should be deprived of his liberty except by lawful judgment of
his peers, or by the law of the land. This was predicated upon
the conception that every man should in justice be forewarned
that his act is penalized. It could not be the law of the land:
if it did not impart that advance information, and could not
accomplish this except an exact statement of the criteria of
guilt was a part of every criminal statute. By such means the
lovers of Liberty hoped to obtain freedom under law in contra-
distinction to a mere liberty by permission under lawless despot-
ism. To such persons, it was self-evident that a speculative
opinion about the psychologic tendency of an utterance upon a
future, undescribed, hypothetical, reader, or hearer, when used
as a criterion of guilt, could be no restraint upon the moral
idiosyncracies, stupid bigotry, unreasoned hysterical apprehen-
sion, personal interest, or even the superstitious malice, of
those charged with the duty of determining whether or not
a verbal crime had been committed. It was seen that under
such circumstances guilt must be determined by ex post facto
standards, personal to the individuals passing judgment. This,
it was argued, was government according to the lawless
despotism of man, and the friends of freedom demanded as
one of the conditions without which there could be no liberty
of speech or press, or liberty of any sort, that the criteria .of
guilt be so certain that every man should know in advance,
from the very letter of the law, by what standard his conduct
would be adjudged criminal. It goes without saying that so
long as an ex post facto judicial guess as to the psychologic
tendency of a speech, book, or picture is the test of guilt, there
can be no such thing as liberty under the law. Even from
those to whom "free speech" meant a limited liberty by per-
mission, there came a protest against tyranny, and the demand
for the freedom of every man's opinion from that arbitrary
power for the penalizing of words by standards of an ex
post facto guess or pretense about "the evils which may
be imaginatively and prospectively attributed to the in-

Online LibraryTheodore Albert SchroederObscene literature and constitutional law; a forensic defense of freedom of the press → online text (page 23 of 43)