ever the inspiration the result is a most eloquent statement of the principle underlying the doctrine of Freedom of Speech, which may well take rank with the reasoning in Mill on Liberty and Milton in the Areopagitica. It contains the following aphoristic and much quoted sen

tence:

"But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."

But after we have emerged from the spell of patriotic emotion caused by Justice Holmes' eloquent digression, it becomes necessary to remind ourselves again that the question before the Court was whether there was enough substantial evidence, even under Justice Holmes' rule, to justify the trial judge in submitting the case to the jury on the question of intent.

The striking phraseology of that part of his opinion vindicating the wisdom of the doctrine of Freedom of Speech has diverted the attention of some of the most vigorous critics of the conclusion of the majority of the Court from the real question in the case. The chief among these critics, Professor Chafee, has devoted forty pages of a book on Freedom of Speech, to a consideration of the question as to "how the Abrams trial and its outcome accord with a just administration of the criminal law." After a sweeping criticism of the attitude of the majority of the Court, he deplores the injustice to the defendants, but himself takes comfort, and then

allays the fear which his criticism may have aroused in others, by the anti-climactic statement that the effect of the decision "on legal conception of freedom of speech should be temporary in view of its meagre discussion of the subject and the enduring qualities of the reasoning of Justice Holmes." Why then, we may ask, is it necessary to pour forth pages of irrelevant reasoning and denunciation whose principal tendency is to impair the confidence of the people in the highest Court of the land? If the trial judge had in his discretion imposed a lighter sentence (with which the Supreme Court had nothing to do), and Justice Holmes had contented himself with discussing the question whether, under the rule he himself announced in the Schenck, Frohwerk and Debs cases, the facts in the Abrams case justified the submission of the case to the jury and had omitted his eloquent and inspiring, if irrelevant, discourse on the Freedom of Speech, the Abrams case would probably not have assumed, as it has in the minds of some critics, the epochal importance of the Wilkes case.

9

The next case decided by the Supreme Court was Schaeffer v. United States, where the defendants were accused of wilfully falsifying telegraphic dispatches with the ultimate result and intent of hampering the United States in raising armies and conducting the war. Referring to the article on which the prosecution was based, Justice McKenna, delivering the opinion of the Court, said that "its statements were deliberate and wilfully false, the purpose being to represent that the war was not demanded by the people, but was the result of the machinations of executive power, and thus to arouse resent

9251 U. S., 466.

ment to it and what it would demand of ardor and effort." Justice Holmes, Brandeis and Clark dissented. Justice Brandeis wrote a dissenting opinion in which Justice Holmes concurred. He refers to the "clear and present danger" test, and he concludes that the evidence did not justify the jury "acting in calmness" in finding "either that they (the acts) would obstruct or that they would promote the success of the enemies of the United States." On the contrary, he thinks the jury "must have supposed it to be within their province to condemn men not merely for disloyal acts but for a disloyal heart; provided only that the disloyal heart was evidenced by some utterance. To prosecute men for such publications reminds of the days when men were hanged for constructive treason." And he concludes that "convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief." But the position, already alluded to, of Justice Clark (who believed that the jury had not been correctly instructed) seems more consonant with the facts, that is, that the case involved no such serious consequences, but was an ordinary case involving the question whether a jury could reasonably infer guilt.

The case of Pierce v. The United States, 10 decided in March, 1920, remains to be examined. The prosecution in this case grew out of the distribution in New York State by the defendants of a pamphlet called "The Price We Pay," which was prepared by a Socialist organization in Chicago. The pamphlet was a “highly colored and sensational document," picturing in lurid terms the horrors of war and in juxtaposition making such statements as this: "Conscription is upon us; the

10 252 U. S., 239.

draft law is a fact. Into your homes the recruiting officers are coming. They will take your sons of military age and impress them into the army." And there are many statements of unquestioned fact, but coupled with dreadful rhetorical pictures referring to a "seething swamp of torn flesh and floating entrails" into which the conscripted men will be plunged "screaming as they go." And then there is the conclusion: "And still the recruiting officers will come; seizing age after age, mounting up to the elder ones and taking the younger ones as they grow to soldier size.

The

manhood of America gazes at the seething heaving swamp of bloody carrion in Europe, and says, 'Must we-be that?' * * You cannot avoid it; you are being dragged, whipped, lashed, hurled into it."

These statements introduced the conclusion that the realization of the awful predictions of the pamphlet could be avoided by establishing socialism; and the claim was made, as a similar claim was made in the Abrams case that that and not the obstruction of the prosecution of the war was the primary purpose of the pamphlet. But it was also shown that with some of the pamphlets there was also distributed a circular issued by the Socialist party in which it was stated: organization has opposed war and conscription. still opposed to war and conscription. * you want to help in this struggle?

"This

It is

* Do

Justice Pitney, writing the opinion of the Court,1

11

11 "If its (the pamphlet's) probable effect was at all disputable, at least the jury fairly might believe that, under the circumstances existing, it would have a tendency to cause insubordination, disloyalty, and refusal of duty in the military and naval forces of the United States; that it amounted to an obstruction of the recruiting and enlistment service; and that it was intended to interfere with the success of our military and naval forces in the war in which the United States was then engaged. Evidently it was intended, as the jury found, to interfere with the conscription and and recruitment services; to cause men eligible for the service to evade the draft; to bring home to them, and especially to their parents, sisters, wives, and sweethearts,

held that the defendants knowing the contents of the pamphlet were to have attributed to them an intent, and justified the conclusion that they attempted, "to bring about any and all such consequences as reasonably might be anticipated from its distribution" and that "whether the printed words would in fact produce as a proximate result a material interference with the recruiting or enlistment service, or the operation or success of the forces of the United States, was a question for the jury to decide in view of all the circumstances of the time and considering the place and manner of distribution. And in support of this conclusion the authority of the Schenck, Frohwerk and Debs cases was cited.

To the argument so frequently made in Espionage cases that the defendants said nothing new but only repeated comments upon matters of public concern, the Court said:

"In effect it would allow the proposed advocate of disloyalty to escape responsibility for statements however audaciously false, so long as he did but reiterate what had been said before; while his ignorant dupes, believing his statements and thereby persuaded to obstruct the recruiting or enlistment service, would be punishable by fine or imprisonment under the same action." Justice Brandeis, in writing the dissenting opinion12

a sense of impending personal loss, calculated to discourage the young men from entering the service; to arouse suspicion as to whether the chief law officer of the Government was not more concrned in enforcing the strictness of military discipline than in protecting the people against improper speculation in their food supply; and to produce a belief that our participation in the war was the product of sordid and sinister motives, rather than a design to protect the interests and maintain the honor of the United States."

12 "A verdict should have been directed for the defendants on these counts also because the leaflet was not distributed under such circumstances, nor was it of such a nature as to create a clear and present danger of causing either insubordination, disloyalty, mutiny or refusal of duty in the military or naval forces. The leaflet contains lurid and perhaps exaggerated pictures of the horrors of war. Its arguments as to the causes of this war appear to us shallow and grossly unfair. The remedy proposed may seem to us worse than the evil which, it is argued, will be thereby removed. But the leaflet, far from counselling disobedience to law, points to the