Page:Harvard Law Review Volume 32.djvu/995

FREEDOM OF SPEECH IN WAR TIME 959 out evils in its management like the secret treaties, which its sup- porters have been too busy to unearth. The history of the last five years shows how the objects of a war may change completely during its progress, and it is well that those objects should be steadily reformulated under the influence of open discussion not only by those who demand a military victory but by pacifists who take a different view of the national welfare. Further argument for the existence of this social interest becomes unnecessary if we recall the national value of the opposition in former wars. The great trouble with most judicial construction of the Espion- age Act is that this social interest has been ignored and free speech has been regarded as merely an individual interest, which must readily give way like other personal desires the moment it interferes with the social interest in national safety. The judge who has done most to bring social interests into legal thinking said years ago, "I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advan- tage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate and often unconscious."^^ The failure of the courts *in the past to formulate any principle for drawing a boundary Hne around the right of free speech has not only thrown the judges into the diffi- cult questions of the Espionage Act without any well-considered standard of criminality, but has allowed some of them to impose standards of their own and fix the line at a point which makes all opposition to this or any future war impossible. For example: "No man should be permitted, by deliberate act, or even unthink- ingly, to do that which will in any way detract from the efforts which the United States is putting forth or serve to postpone for a single mo- ment the early coming of the day when the success of our arms shall be a fact." 88 The true boundary line of the First Amendment can be fixed only when Congress and the courts realize that the principle on which speech is classified as lawful or unlawful involves the balancing 8^ Oliver Wendell Holmes, "The Path of the Law," 10 Harv. L. Rev. 457, 467. «« United States v. "The Spirit of '76," Bull. Dept. Just., No. 33, 2 (S. D. Cal., 1917), Bledsoe, J. Another good example is United States v. Schoberg, Bull. Dept. Just., No. 149 (E. D. Ky., 1918), Cochran, J.