Court has stood staunch, we need not fear for the safety of our liberties.14

Some of the comments upon the results in the Espionage cases reveal a lack of confidence in our judicial system. I append some of these criticisms in a note.15 I mention them only because they tend to confirm what I have already said, that is that, after all, the questions arising under the Espionage Act largely involve ordinary matters of judicial procedure, not vital questions of civil liberty. And the differences between the Justices of the Supreme Court when analyzed, will be found to relate not to great questions of Constitutional law, but to differing ideas as to deductions from proven facts.

14 John Lord O'Brian, Assistant Attorney General, says: "In default of authoritative decisions by the Supreme Court, with eighty-eight Federal districts, each equipped with a United Stats Attorney and at least one district judge, and the great variety of conditions peculiar to the respective localities, it is only strange that there did not develop greater divergencies in the character of prosecutions as well as the character of the decisions by the lower Courts.

A review of the rulings of the Courts on questions of evidence and a scrutiny of the charges to juries will show the future commentator that United States District Judges were keenly alive to this danger. (i. e., that there should not be 'fair and impartial trials'). They continually emphasized constitutional rights, gave great latitude to defendant's proof and urged necessity for the dispassionate consideration of evidence.

The ordinary procedure of our Courts functioned well. The efficacy of juries as triers of fact has been once more demonstrated in a convincing manner, and the highest praise is not too much for the Federal judiciary who, with only a few exceptions, taking a broad view of the necessities of the country, still maintained the American tradition of fairness and went to extremes in enforcing consideration of the constitutional guaranties." (Address before the New York State Bar Association, Vol. 42, of the annual reports).

15 Thus it is said that in time of war the protection of a jury trial is illusory. Professor Chafee is disturbed because Judge Clayton, a judge of character and ability with a distinguished public career, was assigned to try the Abrams case, although it was his first prominent case of the kind, while there were three other District Court Judges who had had "extensive experience in the difficulties of war legislation." Furthermore, he thought the position of the defendants "could hardly be understood without some acquaintance with the immigrant population of a great city, some knowledge of the ardent thirst of the East Side Jew for the discussion of international affairs, and yet a judge was called in from a remote district where people were of one mind about the war, where the working class is more conspicuous for a submissive respect for law and order than for the criticism of high officials, where Russians are scarce and Bolsnevists unknown." This same critic continues that if we are going to continue to "prosecute men for the bad political tendency of their disloyal or anarchistic utterances, "that is, under the rule of procedure approved by the Supreme Court, it may be advisable to adopt the "wide open policy" of evidence in use in France, where parties and witnesses express themselves "fully and unhindered." This comment was made with reference to the exclusion of testimony which Professor Chafee admits was proper "in the absence of any established technique for political crimes in this country," but that made it necessary for the judge to have"pounded home" the proposition that the subject excluded had nothing to do with the case.

Words that we regard as impious, disloyal, revolutionary or obscene, produce in most of us a natural, if temporary, reaction in which the remedy of repression suggests itself. We do not readily summon up the unwisdom of seditious libel, the warning of the Wilkes case, or the history of the Constitutional struggles in England, by which freedom of speech became the heritage of our ancestors. Neither do the ancient lessons taught by the death of Socrates, or the unanswerable logic of Mill and Milton on freedom of opinion, occur to us. The natural impulse is to adopt the simplest and quickest method of repression. Many intelligent persons who would indignantly deny that they would change the guaranties of our Bill of Rights are among the first to denounce seditious utterances and to favor laws to prevent them. This human tendency has led to per

secutions of all kinds in the past.

But after centuries of experience we have worked out a practical solution of the vexed question, and we now believe that both as a matter of inherent individual right and of political and social expediency, opinion and its free expression should not be restrained except so far as that may be necessary for the preservation of order and the protection of the State. Experience shows that error, if repressed, gains factitious strength. The repression confirms it in those who are forced to be silent, while those who could dispel it, lack the opportunity. Justice Holmes has used a striking figure on the subject when he said:

"With effervescing opinions, as with the not yet forgotten champagne, the quickest way to let them get flat is to let them get exposed to the air."

We see in our political life repeated instances of the power of discussion to dispel error. To mention only one, we all remember the proposed recall of judges and decisions which was pressed with extraordinary earnestness and persistence. It was a fallacy affecting the proper function of the judiciary in our system which presented great danger to our institutions. The discussion which it excited resulted in the complete exposure to all of the fallacy on which it was founded; and its advocates were themselves persuaded of their error. If the agitation had been met with smug complacency, or by repression, it might have prevailed, or remained unsettled as a future menace. Discontent with our Courts will undoubtedly again arise in some other form-indeed, it has already arisen, as I have shown, on their treatment of the subject of free speech. The best way to meet it, is to discuss it, to make opinion liquid as water, free as air, and not by repression to freeze opinion into prejudice.

But my chief theme to-day is free speech in war time, especially bearing upon political rights in a representative democracy. The safety of such a State as ours rests in unrestrained discussion of any subject affecting it. But neither the State nor any public officer is sacrosanct, as they are in a monarchy where the permanency of the State depends in part on the sacred character of the sovereign, and free criticism easily becomes sedition. But in this country seditious libel has practically departed from our jurisprudence. And the most valuable. field for free speech is unrestrained discussion of public affairs and public men; and so long as there is no violation of the law of libel, such discussion is without restriction. If this results in unfairness, in misrepresentation, in intemperate abuse, in glaring breaches of good

taste and in other partisan excesses which our political contests evoke, we must depend upon time and discussion, working on the minds of the people finally aroused to exercise independent judgment, to allay animosities, to soften asperities, to condemn the intemperate, to discover the fundamental element of truth and finally to come to an approximately correct conclusion. With the complexities of our modern civilization, increasing obstacles are placed in the way of the free play of public opinion. For illustration I mention one of the obstacles I refer to. Mr. Cobb, the editor of the New York World, in December, 1919, said there were 1,200 private press agents engaged in business in New York, and he asserts that "many direct channels to news have been closed and the information for the public is first filtered through publicity agents. The great corporations have them, the banks have them, the railroads have them, all the organizations of business and of social and political activity have them, and they are the media through which news comes. Even statesmen have them." And so in times of peace we must exercise patience, and try to believe that in the long run substantial error will be detected and truth and sanity will prevail. But during the late war patience was not always possible. The emergency did not permit delay. We could not depend upon time and free discussion to eliminate error and vindicate truth. We were engaged in the greatest struggle of our history. We believed, rightly or wrongly, that our institutions and our liberties-yes, modern civilization-were at stake. We had to have a gigantic army; we couldn't wait. We had to get it through the instrumentality of our present form of government; we couldn't stop to examine the advantages

of the Soviet plan, and as a practical matter, mere discussion of that subject tended to impair the efficiency of our essential industries and, therefore, our fighting strength. It was too late to discuss the merits of the The die was cast. We had to fight, not discuss. And every one realized that under the circumstances it would take little to "fan the flame" and produce indifference, inefficiency or disloyalty.

war.

Under such circumstances, it would have been absurd to stop to hunt out the ignorant foreigners among whom Abrams distributed his inflammatory circular and persuade each of them by reason that it was based on an economic fallacy; or to correct maliciously falsified dispatches calculated to discourage our war operations; or to remove the impression of Pierce's dreadful circulars upon registrants. It became necessary, as one of the despairing critics had said, for the government to conscript public opinion, as it conscripted men and material. But conscription in any sense of the word is no longer necessary. The technical continuance of a state of war affords little reason for retaining laws to prevent obstruction of the operations of our military forces or of our recruiting service. The retention of such laws may give comfort to some, and in the present situation they are perhaps innocuous, unless, indeed, it is supposed that they may be useful in combatting communistic movements against our government. But, while it is true that Russian Bolshevism asserts that it cannot continue unless all the world is made communistic, and, if necessary, by force, no hostile invasion is possible except by propaganda. But now that the war is over and such propaganda cannot weaken our military resources, I believe that communism can best be fought by argument,