Page:Harvard Law Review Volume 32.djvu/977

FREEDOM OF SPEECH IN WAR TIME 941 punishing for talking or writing is sustained do not rest upon the Blackstonian interpretation of liberty of speech,^" but upon another theory, now to be considered. Therefore, it is possible that Title I, section 3, of the Espionage Act, violates the First Amendment, although it does not interfere with utterances before publication.^^ A second interpretation of the freedom of speech clauses limits them to the protection of the use of utterance and not to its " abuse." It draws the Hne between "liberty" and "license." Chief Justice White '^ rejects "the contention that the freedom of the press is the freedom to do wrong with impunity and implies the right to frustrate and defeat the discharge of those governmental duties upon the performance of which the freedom of all, including that of the press, depends. . . . However complete is the right of the press to state public things and discuss them, that right, as every other right enjoyed in human society, is subject to the restraints which separate right from wrong-doing." A statement of the same view in another peace case is made by Judge Hamersley of Connecticut : ^ "Every citizen has an equal right to use his mental endowments, as well as his property, in any harmless occupation or manner; but he has 459 (1909) — service-letter statute, making employer liable to civil action if he failed to furnish a discharged employee a written statement for the true reason for discharge. St. Louis, etc. Ry. Co. v. GriflSn, 106 Texas 477, 171 S. W. 703 (1914), same; Wallaces. Georgia Ry. Co., 94 Ga. 732, 22 S. E. 579 (1894), same; Ex parte Harrison, 212 Mo. 88, no S. W. 709 (1908), — statute punishing voters' leagues for commenting on candi- dates for office without disclosing the names of all persons furnishing the information; State ex rel. Metcalf v. District Court, 52 Mont. 46, 155 Pac. 278 (1916) — contempt proceedings for criticism of judge for past decision; State ex rel. Ragan v. Junkin, 85 Neb. I, 122 N. W. 473 (1909), — statute invalidating nomination of candidates by conventions or any other method except primaries; State v. Pierce, 163 Wis. 615, 158 N. W. 696 (1916) — corrupt practices act punishing political disbursements outside one's own county except through a campaign committee. Some of these decisions are open to dispute on the desirability of the statutes, and some are opposed by other cases for that reason, but in their repudiation of the Blackstonian test they furnish imquestioned authority. '" Examples in such cases of express repudiation of the Blackstonian doctrine are found in Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247 (1919); State v. McKee, 73 Conn. 18, 46 Atl. 409 (1900); State v. Pioneer Press Co., 100 Minn. 173, no N. W. 867 (1907); Cowan v. Fairbrother, 118 N. C. 406, 418 (1896). " Title XII of the Espionage Act does impose previous restraint on pubhcations which violate the Act by authorizing the Postmaster-General to exclude them from the mails. See page 961, jw/ira. ^ Toledo Newspaper Co. v. United States, 247 U. S. 402, 419 (1918). ^ State V. McKee, 73 Conn. 18, 28, 46 Atl. 409 (1900).