CHAPTER VII

FREEDOM AND INITIATIVE IN THE SCHOOLS

The _Liberty_ is likely to survive longer than anything else that I have written, because it is a kind of philosophic textbook of a single truth, which the changes progressively taking place in modern society tend to bring out into ever stronger relief: the importance, to man and society, of a large variety in types of character, and of giving full freedom to human nature to expand itself in innumerable and conflicting directions.—JOHN STUART MILL, _Autobiography_.

The state which refrains from fighting revolutionary doctrines by force except in times of clear and present danger is not helpless, for besides abolishing some causes of discontent, it can employ education to establish among its citizens faith in progress through law. If, however, the advocates of revolution by violence should share in the control of education, the state would seem to be surrendering its last stronghold. Such a possibility is indicated to many by the presence of radicals among public school teachers. The situation is complicated by factors which lie outside the province of this book, like the claim of teachers to participate in deciding the dismissal of one of their number. Questions of the fitness of some particular teacher to teach, instead of being settled purely on their merits, have become storm-centers of conflict for employees, trade unions, and the press. On one side, some teachers who are dismissed for good reasons are believed by their friends to be ousted for political or economic views. On the other side, the authorities assert that any one who holds certain views is _ipso facto_ unfit to teach. For example, Dr. John L. Tildsley, while Associate Superintendent of Schools in New York, declared,[559] “that men or women who are _Marxian Socialists_, who believe in the Communist Manifesto, have no right to be in the school system because such teachers believe in the overturn by force of those elements on which our civilization is based.” The student of freedom of speech is concerned with the comparative redness of these proscribed views, and with the question whether a teacher is to be dismissed for merely believing in them or only if he expresses them to his classes. The following reflections grow out of the New York controversy, but merely endeavor to suggest some controlling principles. Since the problem does not involve the legal questions which have received attention in previous chapters, it may be helpful, at the cost of some repetition, to restate in non-technical language the main conclusions of this book.

[559] The Public and the Schools, May 17, 1919, Public Education Assn., N. Y.

When I heard Dr. Tildsley say he believed in freedom of speech I felt glad that we stood in the same position. But when he went on and said no one who favored Marxian Socialism should teach in the schools, it seemed to me a little like a character in James Russell Lowell, a gentleman of the _Biglow Papers_, who said: “I du believe in Freedom’s cause, Ez fur away as Payris is.” Or something like the Irishman who inquired of his friend, “What is this Socialism that I hear so much about?” Mike said, “Why, Pat, don’t you know what that is? If you had a million dollars, you would give me half, wouldn’t you?” “Sure, I would!” “Well, that’s Socialism.” Pat said, “That is a grand thing! Tell me some more about it.” “Well,” replied Mike, “If you had ten dollars, you would give me half, wouldn’t you?” “I would not! I’ve got ten dollars!”

We all believe in freedom of speech, but the question is, do we believe in it when it is disagreeable to us? After all, if freedom of speech means anything, it means a willingness to stand and let people say things with which we disagree, and which do weary us considerably. A good deal of the public discussion on the matter turns on the use of the word “rights.” Those who want to speak freely insist on the right of freedom of speech; and, on the other hand, those who wish to restrict speakers talk of the right of the government to carry on war and the right of the government to maintain order, and there we have a deadlock. Each side says it is in the right, and that does not bring us anywhere at all. I think we will do well to get away from this word “right” entirely, and look at it from another point of view, not from the legal point of view, but simply from the point of view of the individual human being who wants to speak and the great group of human beings which constitute the society in which he speaks. That is, we have his individual interests and the interests of society at large.

First, we have the individual interest in freedom of speech. “Good,” as Emerson says, “does not mean good to eat and good to wear.” It means to live our own lives as fully as we can and to bear witness to the truth for which we came into the world. I did intend at this point to quote from _Jean-Christophe_, by Romain Rolland, but this is one of the proscribed books for recommending which to his pupils a teacher was dismissed from the New York high schools, and so I will refrain. But instead, I will take a book which was written three thousand years ago, which is fairly safe—the _Apology of Socrates_:

If in acquitting me you should say: “We will not put faith this time, O Socrates, in your accusers, but will let you go, on the condition, however, that you no longer spend your time in this search nor in the pursuit of wisdom, and that if you are caught doing either again you shall die”—if, I say, you were to release me on these conditions, I should say to you: “Athenians, I love and cherish you, but shall obey the God rather than you; and as long as I draw breath and have the strength, I shall never cease to follow philosophy and to exhort and persuade any one of you whom I happen to meet. For this, be assured, the God commands; and I believe that there has never been a greater good in the state than this my service to the God; for I do nothing but go about persuading you, both young and old, not to let your first thought be for your body or your possessions, nor to care for anything so earnestly as for your soul.” And, Athenians, I should go on to say: “Either hearken to my accusers or not, and either acquit me or not; but understand that I shall never act differently, even if I have to die for it many times.”

That is the individual interest in free speech. Over against that we have to set the social interests—the interest in the safeguarding of the government and the nation from foreign attack, the interest in order, without which all our individual interests would be lost, the interest in moral and decent living, and the interest in the training of the young, which is the main thing that we have to consider here. As between that individual interest and those social interests, it seems easy to conclude that the individual interest should always give way; that, as is often said, freedom of speech means liberty, not license; that we must not advocate anything that is wrong, anything which interferes with the social interests in order, and so on. But we have to remember that not only do we have the social interest in order, and in the education of the young, and in morals, but that freedom of speech is itself a social interest; that one of the purposes for which society exists just as much as for the maintenance of order is the discovery and the spread of truth.

Another member of the Lowell family, now President of Harvard, said in his report to the Corporation on the subject of freedom of speech, which every Harvard professor can regard as a Magna Charta:

Education has proved, and probably no one would now deny, that knowledge can advance, or at least can advance most rapidly, only by means of an unfettered search for truth on the part of those who devote their lives to seeking it in their respective fields, and by complete freedom in imparting to their pupils the truth that they have found. This has become an axiom in higher education, in spite of the fact that a searcher may discover error instead of truth, and be misled, and mislead others, thereby. We believe that if enough light is let in, the real relations of things will soon be seen, and they can be seen in no other way.

We cannot be sure that any statement is either wholly true or wholly false. We cannot separate the truth at once. We have to leave the separation on the whole to time. Any subject may have some bad features, but we must let the wheat grow with the tares until the time comes when the crop is ripe, and we can decide between them. If what is said does dangerously and directly interfere with those other social interests in order and in education of the young, then speech must be restrained. But until that time comes—and we ought to be sure that it has come—we should be very careful how we interfere. Because it is by the contest of argument that the truth is found. Argument on one side and argument on the other is the best way that we have on earth to bring about truth. Once force is thrown into the scale, once the pressure of government is used on one side or the other, it becomes simply a matter of chance on which side it is used, and then the natural ability to decide the matter by argument is altogether gone. I say it is just a matter of chance. For instance, force here is to be thrown against Marxian Socialism, a doctrine with which I do not at all agree; but, in North Dakota it is to be thrown on the side of something that comes pretty near Marxian Socialism. Under a populist régime in Kansas the State issued textbooks that had to be used in the schools, which devoted more time to the “crime of ’73,” by which free silver was abolished, than to the Civil War. It just depends on what government you have. The administration in Washington is now publishing textbooks for use in the schools.[560] When we have a Republican administration we may have a different kind of textbook. Therein lies the difficulty with Dr. Tildsley’s argument that teachers must teach and think according to the decision of a majority in Congress. It is true that a majority decision is the best way of determining how the government shall act, but it is not the best way of deciding what is right. We have to act on the decision of the majority, but the minority are not thereby precluded from doubting the wisdom of the decision, and it may eventually be that they will again become the majority and will put an end to that particular measure.

[560] “A Case of Federal Propaganda in our Public Schools,” Natl. Industrial Conference Board, Feb., 1919.

If the majority of Congress declares war, the minority must realize that we are at war, but they are not necessarily bound to believe that the war is right, and why should they not endeavor to stop it by argument when they believe that it has gone far enough? Once again, we have got to balance the interests in this matter—the public interest in the discovery of truth against the public interest in the education of the young and protection against invasion. And it is very necessary that the balancing should be done by people who realize the importance of freedom of speech. Freedom of speech ought to weigh very heavily in the scale.

It is all very well to say that religious views should be free; that scientific investigation should be free; but that political opinion cannot be free, because that is dangerous; that Marxian Socialism is so dangerous that it cannot be free. Three centuries ago, people felt just as strongly about religious views and about scientific investigation as they do now about political investigation. They felt just as sure that any view which was not in accord with the orthodox religion would unsettle the very foundations of morality, and that consequently no one should teach in the schools who was not an orthodox Christian. And they felt just as sure about scientific investigation; that if a man said the earth went around the sun, he should not be trusted anywhere. If they felt so strongly about it then, and were wrong, how can we be sure that we are right if we feel the same way about political investigation? On that we must have just as much freedom of investigation as in the old days was necessary for scientific discoveries. It is easy enough to think that everything that is different from ourselves must necessarily be dangerous. It is easy to believe that political ideas which are different from our own must necessarily advocate the use of force. We say, how could Socialism come into existence except by violence, because it is so objectionable. I do not believe in it, and hope it will not come into existence. But I do not see why it may not be adopted by popular suffrage, the same as other ideas. We ought not to assume it can only win by violence, simply because it differs from our views. In the old days they used to get rid of objectionable persons on the ground that they would overthrow society. They got rid of Socrates by saying he was a corrupter of the youth. They got rid of Jesus by saying he planned to upset the Roman state, and they said it is more expedient that one man should die than that the people should perish. It is more expedient, now, that one man should be put in prison or lose his job—it is just the same argument we use—than that the people should perish. But let us be sure that the people, after all, are going to perish.

In war time, the problem is perhaps peculiar. Everybody is very much occupied. We haven’t time to think things over, and people will say, “We don’t care what sort of war it is. My country, right or wrong. Let us go ahead.” It is something like the colored man who went with his son to rob a hen coop, and sent his son inside. The boy turned and stuck his head out of the door and said, “Father, am dis right?” And the father said, “Dat am a great moral question. We will argue it out at home dis evening. You get busy and hand out dem chickens.”

I think this war was right, but the people who opposed it, who were wrong this time, may be right next time, as they were right in the Mexican War. They may be right next time, and we ought to be careful how we require every person who teaches in the schools to support every war that is going on. But now we have peace. We cannot postpone the discussion of problems until the “war” is over. We shall have to meet them as they arise. Dr. Tildsley spoke of our being under the spell of words. There is one word we are all under the spell of at the present time, and that is, Americanism. What does it mean? We are afraid of something. We were afraid of Germany, but we got over that. What is it we are scared about now? We are scared of Russia. Why? Is it because Russia has a different political system from ours? She had a different political system under the Czar, and we were perfectly willing to discuss his system. Is it because the people have a tremendous control there? We have been perfectly willing to discuss the initiative and the referendum for years. Is it because they have a restrictive franchise there? We have a restrictive franchise in certain states where half the adult population is not allowed to vote. In Rhode Island, where I used to live, the men who are most scared of Bolshevism are the men who are most ready to keep the property franchise under which people who have less than $134 cannot vote for many important offices. What we are really scared of is not something political; it is economic. We are afraid of a system which takes property from the people who have inherited it or who have earned it, and that is an economic question. It is not Americanism against something else. It is simply a choice of two economic systems, and we have got to have that controversy discussed if we are going to decide it rightly.

If Americanism means anything, it means free speech, right from the start. The Pilgrims came to Massachusetts to get it, and Roger Williams left Massachusetts, not only because he had his own religious views but because he attacked property rights in land not purchased from the Indians. Thomas Jefferson is usually considered a good American, but he said things about the desirability of rebellion that would make us all shudder. Alexander Hamilton argued for free speech here in New York, and James Russell Lowell called the Mexican War murder. The abolitionists, men whom we all honor to-day, believed in Americanism—freedom to criticise the government of their day and the institutions of property of their day, which included a tremendous form of property—the property in negro slaves. I believe in private property myself, but because I believe in it I want to know why it ought to be supported.

And now, for the problem as it affects teachers. There are two views of teaching. One regards teaching as a sort of handing out canned goods to the pupils, so much canned goods, so much knowledge. Well, if it is a canned goods business, we may need a Pure Food Law to make sure the children get the right brand of “corn.” But this is not the real theory. That was held by President Gilman of Johns Hopkins, when he took Professor Gildersleeve into a bare room and said, “Now, radiate.” We have got to have the kind of teachers that radiate. For that we not only need contented teachers, but we must have teachers who think for themselves.

In a pamphlet issued in the New York school controversy, the “Reply of the Superintendents,” is a statement that teachers should be obedient, and to support it a quotation about the sort of obedience that is necessary in the army and navy. Of course, teachers to some extent have to obey, but the kind of obedience we ought to get from them is far from the kind they get in the army and navy. In an autocracy, they might get along without teachers of independence. But this country has to be run by the people in it, and they are the people who are taught in the schools; and if the teachers cannot think for themselves, the pupils cannot think for themselves. They cannot discuss merely the questions of the past. They must discuss the critical problems of the present time if they are to solve them.

In England there is a leisure class to carry on the government. We cannot depend on that. Now, to what branch of citizens should we turn more for help in these matters than the teachers? And there is no class of people who are more injured by repression than teachers. If you say to any other man that he must not express his ideas on political questions, he can at least devote himself to his job, but if you confine the teacher in his thinking, what do you leave him? That is his job, to think.

People say that the teacher is employed by the government, and ought to agree with the government which pays him. The courts are just as much a part of the government as the schools—more so, for we have private schools, but we do not have private courts. Do we say that every one in the court must agree with the government? Do we say that the judges must always decide in favor of the government? Not at all! They often decide against it. We retain lawyers to defend criminals whom the government accuses. It is even suggested we should have one lawyer to do so all the time. Progressive manufacturing corporations employ men just to criticise the products of the corporation and see how they can be better made. The teacher may be serving the state even while he criticises it.

Of course, we have special considerations in the schools. We have this social interest in favor of the education of children. We cannot let everything be said in the schools that we might let be said outside. A teacher might be allowed to stand on his head at home, but not in school. In the same way there is much he ought not to do there in the way of free speech. If he taught that all boys and girls at sixteen were of a proper age to marry, he certainly ought to lose his position. He must adapt his discussion to the maturity of the pupils before him. And we certainly can require concentration on his subject; we can require judgment; we ought to demand of a teacher that he should be a master of his subject and a man of sound common sense.

But, on the other hand, you cannot control the mind of an expert. You cannot stand over Galileo and say “Use your telescope, but do not find that the earth goes around the sun.” You cannot stand over Pasteur and say, “Investigate spontaneous generation, but do not discover that spontaneous generation exists.” You cannot stand over a man that deals with economics and say, “Find out that economics exists according to this or that system”; or, if he deals with history, say to him, “Find out that the men who are in power in Russia are a gang of thugs.” If he finds it out, all right; but you cannot force him to do so, and you cannot force him to teach lies. Outside of the classroom he should be even more free. There he is a citizen, and as the New York Constitution says, every citizen may safely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.

Be sure that the right is abused. Be sure that freedom of speech weighs much in the scale. I think if every board which had to pass on the removal of a teacher would first read Milton’s _Areopagitica_ and Mill on _Liberty_, that some of the decisions would be very different; because they would see that, after all, freedom of speech is just as important as the maintenance of order.

Why are we so worried? Why are we so scared? Have we no confidence in the arguments that can be used against these radical ideas? Parents argue on the other side, and we have with us the army and the police, and everybody who has a savings bank account or a life insurance policy. After all, the dangers of rebellion are not very great, unless our case is very weak, and I do not think it is.

Finally, repression will produce just the kind of spirit in the teachers that we want to get rid of—that is, the revolutionary spirit. The French experience in this matter has been very instructive.[561] There the government threw its force against religion. Teachers were dismissed because they went to church. Teachers were dismissed for attacking the Prefect of their department. The state held a general inquisition into the opinions of all the teachers, a cabinet minister saying, “The government will not surrender the right to know the attitude of its servants toward the republic.” And they even had a law that government officials, including teachers, should wear a cheerful countenance on national holidays. What was the result? The teachers of France, although by birth, by training, by disposition affiliated with the middle class rather than the working class, have formed a revolutionary trade-union and affiliated themselves with the syndicalist organizations of France.

[561] H. J. Laski, _Authority in the Modern State_, c. V.

It is all very well to say that we ought to be loyal to the state. What do we mean by the state? After all, it comes right straight down to the government that we deal with, and the government comes down to the men that we deal with, which means the educational authorities, and those who have power to put us in prison, and if those men do not stand for the best things we stand for,—for the development of mind and spirit and the search for truth, we begin to wonder whether, after all, that government ought to endure, and whether we do not want a government which will stand for the things that we believe in. So it becomes important that the men who constitute the government, who, after all, are really the state, should stand for these things. We cannot love the state as a mystical unity, when that unity as we actually face it prevents us from living a true human life. So that, in order to make people loyal to the state, you must make the state a sort of thing that they want to be loyal to.

We have got to take risks. Of course, it is not perfectly safe to allow teachers to be free. There ought to be this balancing of youth against truth. But there are plenty of risks that we take in life. We let our children go on the street although they may be run over by automobiles and trolley cars. We do not keep them home until they are twenty-one years of age. In the same way, we might like to leave them until a little later before we discuss some of these economic problems, but then they are out at work, and it is too late. We have got to take them when we can get them. And even if an occasional teacher does speak very radically, that does not mean that high school students will believe all he says. If we go back to the time when we were sixteen, we remember the keenness with which we discussed those problems. We did not take everything the teacher said for granted, and the more he said, the more we were likely to oppose him.

We cannot lead sterilized lives. Think of the chances America took by allowing people with very little education to vote, and yet that is a risk we are ready to run. Democracy is not a water-tight compartment. It is a great adventure, and in order to prepare people for that adventure we have to teach them to think for themselves on the problems they will have to face when they grow up. It is not simply teaching them the ideals of the day,—we must train them to make the ideals of to-morrow.

APPENDIX I

BIBLIOGRAPHY ON FREEDOM OF SPEECH

Note: This Bibliography is far from a complete list of even the modern material in the English language. No Continental literature is included and information about religious liberty must be sought elsewhere. The purpose is to cover only the topics of the book.

A. GENERAL AND HISTORICAL (CHAPTER I)

The legal meaning of freedom of speech cannot properly be determined without a knowledge of the political and philosophical basis of such freedom. Four writings on this problem may be mentioned as invaluable: Plato’s _Apology of Socrates_; Milton’s _Areopagitica_; the second chapter of Mill, _On Liberty_; and Walter Bagehot’s essay, “The Metaphysical Basis of Toleration.” The second chapter of J. F. Stephen, _Liberty, Equality, Fraternity_, has an important critique on Mill. See, also, J. B. Bury, _A History of Freedom of Thought_, the first and last chapters; Grote, _Plato_, Chap. VI; Graham Wallas, _The Great Society_, 195–98. The relation of freedom of thought to political progress is discussed by same, “The Price of Intolerance,” 125 _Atlantic_ 116 (January, 1920); H. J. Laski, _Authority in the Modern State_, passim; same, “The Temper of the Present Time,” 21 _New Republic_ 335 (February 18, 1920). Francis Hackett, “The Invisible Censor,” 21 _New Republic_ 11 (December 3, 1919), sketches the psychology of suppression. For a caustic point of view, see Fabian Franklin, “Some Free Speech Delusions,” 2 _Unpopular Rev._ 223 (October, 1914). The difficulties of the problem as seen from actual experience on both sides are presented in Viscount Morley’s _Recollections_.

By far the best textbook on this and the other civil rights is Cooley, _Constitutional Limitations_, 7th ed.; Dicey, _The Law of the Constitution_, 8th ed., Chaps. VI and VII gives the English law of freedom of speech and assembly.

The best discussion of the legal meaning of “Freedom of the Press in the United States” will be found in an article under that name by Henry Schofield, in 9 _Publications of the American Sociological Society_ 67 (1914). This volume is devoted entirely to “Freedom of Communication,” and contains several valuable papers on different aspects of the problem. Other general legal articles are: “The Jurisdiction of the United States over Seditious Libel,” H. W. Biklé, 41 _Am. L. Reg._ (N. S.) 1 (1902); “Restrictions on the Freedom of the Press,” 16 _Harv. L. Rev._ 55 (1902); “Free Speech and Free Press in Relation to the Police Power of the State,” P. L. Edwards, 58 _Cent. L. J._ 383 (1904); “Freedom of Speech and of the Press,” 65 _Univ. of Pa. L. Rev._ 170 (1916); Joseph R. Long, “The Freedom of the Press,” 5 _Va. L. Rev._ 225 (1918). Freedom of speech is discussed by Dean Pound as an interest of the individual in his “Interests of Personality,” 28 _Harv. L. Rev._ 445, 453 (1915); and as an alleged bar to injunctions of libel in his “Equitable Relief against Defamation and Injuries to Personality,” 29 _Harv. L. Rev._ 640, 648 (1916). For the technique of political trials, see Robert Ferrari, “Political Crime and Criminal Evidence,” 3 _Minn. L. Rev._ 365 (1919); “Political Crime,” 20 _Col. L. Rev._ 308 (1920); “The Trial of Political Criminals Here and Abroad,” 66 _Dial_ 647 (June 28, 1919). Much useful material is collected in the writings of Theodore Schroeder, of which a bibliography by N. E. Sankey-Jones is published by the New York Free Speech League, 1919. Recent articles by him are “A Psychologic Study of Judicial Opinions,” 6 _Cal. L. Rev._ 89 (1918); “Political Crimes Defined,” 18 _Mich. L. Rev._ 30 (1919).

_Origins of the First Amendment_:

The history of freedom of speech in America has not yet been fully investigated, but Clyde A. Duniway, _The Development of Freedom of the Press in Massachusetts_, Cambridge, Harvard University Press, 1906, is extremely useful for the Colonial period. Max Farrand, _Records of the Federal Convention_, gives material on the proposed free speech clause, II, 334, 340, 341, 545; III, 122, 256, 290, 595, 599, 609. The state debates on this clause are in _Elliot’s Debates_ (2d ed., 1836), I, 359, 360, 362, 369, 371, 375; II, 424, 511, 537; III, 411, 414, 415, 431, 551; IV, 159, 175, 209, 301, 302. J. B. McMaster and F. D. Stone, _Pennsylvania and the Federal Convention, 1787–1788_, Hist. Soc. of Penn., 1888, has contemporary press discussion.

_English History and Law_:

Much light is thrown on the problem by sedition trials in England, before our Revolution and during the French Revolution. The best account of these is in T. Erskine May, 2 _Constitutional History of England_, 2d ed., 1912, Chaps. IX-X, summarized by Charles A. Beard in 16 _New Republic_ 350 (October 19, 1918). See, also, 2 Stephen, _History of the Criminal Law_, Chap. XXIV; Graham Wallas, _Life of Francis Place_, N. Y., 1919; Philip A. Brown, _The French Revolution in English History_, London, 1918; G. O. Trevelyan, _The Early History of Charles James Fox_, relates Wilkes and Junius controversies. See bibliography in J. F. Rhodes, _History of the United States_, IV, 233 note.

For the modern law: F. M. Anderson, “The Law of Sedition in the British Empire,” _House Judiciary Hearings_, p. 273; H. J. Laski, “The Fundamental Law in England,” 31 _Harv. L. Rev._ 296 (1917). Canada: A. V. Thomas, “Quoting Isaiah in Winnipeg,” 110 _Nation_ 850 (January 3, 1920); J. A. Stevenson, “A Set-back for Reaction in Canada,” 110 _ibid._ 292 (March 6).

_Sedition Act of 1798_:

Frank Maloy Anderson, “The Enforcement of the Alien and Sedition Laws,” Ann. Rep. Am. Hist. Assn. (1912) 115; same, “Contemporary Opinion of the Virginia and Kentucky Resolutions,” 5 _Am. Hist. Rev._ 45 (1900); Albert J. Beveridge, _Life of John Marshall_, vols. II and III, _passim_, is vivid and collects much contemporary material. The four reported prosecutions are in Wharton’s _State Trials_,—Lyon, 333 (1798); Cooper, 659 (1800); Haswell, 684 (1800); Callender, 688 (1800). Wharton, 23, narrates the events leading up to these statutes; see, also, Channing and other standard histories. For references to the Sedition Act in Jefferson’s letters, see the edition of _Paul Leicester Ford_, VII, 245: “The object of that [the bill] is the suppression of the whig presses;” VII, 246; VII, 266, on unconstitutionality; VII, 283, “The alien and sedition laws are working hard;” VII, 289, 311, 336, 350, 354, 355, 356, on popular opposition to the acts; VII, 367, 371, 483, on continuation of Sedition Law by Congress; VIII, 54, 56 ff., 308 ff., on unconstitutionality and pardons; IX, 456, on dismissal of prosecutions. Madison’s Report on the Virginia Resolutions is reprinted in _Elliot’s Debates_.

_Reference Books_:

Soule’s _Lawyer’s Reference Manual_, for abbreviations of legal reports.

_New York Times Index_, issued quarterly, is very valuable for finding press accounts of prosecutions, etc.

B. THE WAR (CHAPTERS II AND III)

Important decisions under the U. S. Espionage Act are printed in the Federal (Fed.) and United States Supreme Court Reports (U. S.). The latter are in public and university libraries. The Bulletins of the Department of Justice on the Interpretation of War Statutes (cited herein as Bull. Dept. Just.), Nos. 1–204, contain many charges not otherwise reported. Appendix II, _infra_, tells where all reported prosecutions can be found. Supreme Court records and briefs are in the Harvard Law School Library. The cases before July, 1918, are collected by Walter Nelles, _Espionage Act Cases, with Certain Others on Related Points_, Natl. Civil Liberties Bureau, N. Y. This has some state cases, and gives a careful analysis of the decisions. The Bureau has also published _War-time Prosecutions and Mob Violence_, involving the rights of free speech, free press, and peaceful assemblage (from April 1, 1917, to March 1, 1919), containing an annotated list of prosecutions, convictions, exclusions from the mail, etc. It has prepared in MSS. “A Memorandum Concerning Political Prisoners Within the Jurisdiction of the Department of Justice in 1919,” for the Attorney General; and “Memorandum to the President of the United States as to Persons Imprisoned for Violation of the War Laws” (copies in Harvard Law School Library).

The enforcement of the Espionage Act and similar statutes is officially summarized in the Reports of the Attorney General for 1917, 1918, and 1919, with lists of prosecutions and results, and circulars issued to district attorneys. See, also “Suggestions of Attorney-General Gregory to Executive Committee in Relation to the Department of Justice,” 4 _Am. Bar. Assn. J._ 305 (1918). An invaluable account of the war work of the Department is, John Lord O’Brian, “Civil Liberty in War-time,” 52 _Rep. N. Y. Bar Assn._ 275 (1919). A military view of censorship is “The Proper Relations between the Army and the Press in War,” Army War College, November, 1915.

_The American Labor Year-Book_, 1919–20, Rand School, N. Y., narrates several prosecutions in detail.

The issues involved in the current decisions are presented in non-technical form by these articles: “Freedom of Speech,” Z. Chafee, Jr., 17 _New Republic_, 66 (November 16, 1918); Ralph Barton Perry in a book review, 7 _Yale Rev._ 670 (April, 1918); “The Supreme Court _vs._ the Supreme Court,” 22 _New Republic_ 235 (April 21, 1920).

_Legal Articles on the War_:

“Freedom of Speech and of the Press,” W. R. Vance, 2 _Minn. L. Rev._ 239 (1918); “The Espionage Act Cases,” 32 _Harv. L. Rev._ 417 (1919); “Threats to Take the Life of the President,” 32 _Harv. L. Rev._ 724 (1919); “The Vital Importance of a Liberal Construction of the Espionage Act,” Alexander H. Robbins, 87 _Cent. L. J._ 145 (1918); “Sufficiency of Indictments under the Espionage Act,” 87 _Cent. L. J._ 400 (1918). The Espionage Act is one of the topics covered by Judge Charles M. Hough, “Law in War Time—1917,” 31 _Harv. L. Rev._ 692, 696 (1918). Thomas F. Carroll, “Freedom of Speech and of the Press in War Time,” 17 _Mich. L. Rev._ 621 (1919); Z. Chafee, Jr., “Freedom of Speech in War Time,” 32 _Harv. L. Rev._ 932 (1919).

_Treason_:

Charles Warren, “What Is Giving Aid and Comfort to the Enemy?”, 27 _Yale L. Rev._ 331 (1918).

_Post-office_:

“Federal Interference with the Freedom of the Press,” Lindsay Rogers, 23 _Yale L. J._ 559 (1914), substantially reprinted as Chapter IV of his _Postal Power of Congress_, Baltimore, John Hopkins Press, 1916; R. E. Cushman, “National Police Power under the Postal Clause of the Constitution,” 4 _Minn. L. Rev._ 402 (1920); William Hard, “Mr. Burleson, Espionagent,” 19 _New Republic_ 42 (May 10, 1919), and “Mr. Burleson, Section 481½ B,” 19 _New Republic_ 76 (May 17, 1919); “Burleson and the Call,” 22 _New Republic_ 157 (January 7, 1920); “The Call,” 1 _Review_ 652 (December 13, 1919). For examples of war censorship and legal discussion of Title XII of the Espionage Act, Carroll, _op. cit._, in 17 _Mich. L. Rev._ 629.

_Particular Cases under the Espionage Act and State War Acts_:

_Abrams_ (Chapter III):

The principal sources are the _Transcript of Record_, Supreme Court of the United States, October Term, 1919, No. 316, Jacob Abrams _et al._, Plaintiffs-in-Error, _v._ The United States; the two briefs; and the opinions of the court in 40 Sup. Ct. Rep. 17 (1919), also reprinted in “The Espionage Act Interpreted,” 20 _New Republic_ 377 (November 26, 1919). Transcript and briefs are in the library of the Law School of Harvard University. It has not been thought necessary to give references to the _Record_ except for significant passages. Some information about the trial not contained in the _Record_ is taken from current issues of the _New York Times_ and the _New York Call_, or from personal conversation and correspondence; the sources of such unofficial data are indicated in every instance, and have been carefully checked from the Stenographic Minutes of the trial, in the U. S. Attorney’s office, N. Y., where they were very kindly placed at my disposal. See also Palmer Deportations Testimony, 173.

For criticism of the trial, see the pamphlet, _Sentenced to Twenty Years Prison_, published by the Political Prisoners Defense and Relief Committee, New York, 1919; “Our Ferocious Sentences,” 107 _Nation_ 504 (November 2, 1918).

Comment in support of the majority opinion of the Supreme Court will be found in a note, “The Espionage Act and the Limits of Legal Toleration,” 33 _Harv. L. Rev._ 442 (January, 1910); and in articles, “Justice Holmes’s Dissent,” 1 _Review_ 636 (December 6, 1919); John H. Wigmore, “Freedom of Speech and Freedom of Thuggery,” 14 _Ill. L. Rev._ 539. The minority opinion is supported by a note, “Free Speech in Time of Peace,” in 29 _Yale L. J._ 337 (January, 1920); and 14 _Ill. L. Rev._ 601; and articles “The Call to Toleration,” 20 _New Republic_ 360 (November 20, 1919), “What Is Left of Free Speech,” Gerard C. Henderson, 21 _New Republic_ 50 (December 10, 1919).

_Berger_ (see under Legislative Exclusion).

_Debs_:

David Karnsner, _Debs, his Authorized Life and Letters from Woodstock Prison to Atlanta_, N. Y., 1919. Reviewed by Harry Salpeter, “Martyr or Felon?”, 110 _Nation_ 520 (April 17, 1920). Scott Nearing, “The Debs Decision,” Rand School, N. Y., 1919, contains Debs’ addresses at Canton and in the court-room. “The Law of the Debs Case and Freedom of Speech,” 19 _New Republic_ 13 (May 3, 1919); followed by correspondence, _ibid._, 151 (May 31). “The Trial of Eugene Debs,” Max Eastman, _The Liberator_ (November, 1918), gives another defendant’s impression.

_I.W.W._ (see under Radical Activities).

_Nearing_:

Scott Nearing, “The Great Madness: a Victory for the American Plutocracy,” Rand School, N. Y., 1917.

_O’Hare_:

“The Conviction of Kate Richards O’Hare and North Dakota Politics,” Natl. Civil Liberties Bureau, N. Y.; “The Kate O’Hare Booklets,” published by Frank P. O’Hare, St. Louis.

_Syracuse Socialist Case of 1920_ (Steene, Hotze, and Preston): 21 _New Republic_ 302 (February 11, 1920); “Bringing the Constitution into Disrepute,” _ibid._ 330 (February 18, 1920).

_Townley_:

C. R. Johnson, “The Conviction of Townley,” 20 _New Republic_ 18 (August 6, 1919); Judson King, “The Prosecution of Mr. Townley,” 109 _Nation_ 143 (August 2, 1919); “The Trial of Townley and Gilbert,” 1 _Review_ (July 26, 1919). An impartial account of the Non-Partisan League is Arthur Ruhl, “The North Dakota Idea,” _Atlantic Monthly_ (May, 1919).

C. RADICAL ACTIVITIES IN THE UNITED STATES AND PEACE-TIME RESTRICTIONS UPON FREEDOM OF SPEECH (CHAPTERS IV AND V)

_Backgrounds_:

All consideration of governmental activity against radicalism should be preceded by an inquiry into the nature and purposes of the various radical movements, which must be carefully kept distinct. Bertrand Russell, _Proposed Roads to Freedom: Socialism, Anarchism and Syndicalism_, N. Y., 1919, is a fair-minded survey though opposed to the present system. Among books on Russia are E. H. Wilcox, _Russia’s Ruin; Russian-American Relations_, ed. Cumming and Pettit. See, also, under I.W.W., _infra_.

On anarchy legislation of the past and similar problems, Ernst Freund, _The Police Power_, §§ 471–484. F. T. Hill, _Famous Battles of the Law_, narrates the Chicago affair of 1886. Concrete data on the handling of radical meetings before the war are furnished by Arthur Woods, _Policeman and Public_, New Haven, 1919; and J. F. Rhodes, _History of the United States_, Vol. VIII, N. Y., 1919. The work of the New York Bomb Squad is told by Tunney and Hollister in _Throttled_, Boston, 1919.

_Blasphemy_:

Austin W. Scott, “The Legality of Atheism,” 31 _Harv. L. Rev._ 289 (1917).

_Sex topics_:

Theodore Schroeder, _Obscene Literature and Constitutional Law_, N. Y., 1911, and other writings by him; J. C. Ruppenthal “Criminal Statutes on Birth Control,” 10 _J. Cr. L. & Crim._ 48 (1919); and see P. _v._ Byrne, 163 N. Y. Supp. 680, 682.

_Moving-picture Censorship_:

Amy Woods, “Boston and the ‘Movie’ Censorship,” 44 _Survey_ 108 (April 17, 1920).

_Strikes and Labor Troubles_:

The ability of freedom of speech to withstand such strains has not been sufficiently studied. William Hard has written a series of articles on Passaic: “America in Passaic,” 22 _New Republic_ 182 (April 7, 1920); “Learn from Passaic,” 22 _ibid._ 213 (April 14); “They Must Have Espionage,” 22 _ibid._ 248 (April 21). On the Steel Strike, see S. Adele Shaw, “The Makings for Revolution,” 20 _ibid._ 52 (August 13, 1919); W. Z. Foster, _The Great Steel Strike_; The Interchurch Report on the Steel Strike of 1919.

_Proposed Federal Sedition Bills and National Conditions_:

Four official reports have been published, which are valuable not only in relation to this topic, but also for information about deportations, state legislation, radical activities, and the work of the Department of Justice. These are: (1) _Bolshevik Propaganda, Hearings before a Subcommittee of the Committee on the Judiciary_, United States Senate, Sixty-fifth Congress, Third Session and thereafter, pursuant to Senate Resolutions 439 and 469 Washington, 1919. This is the report of the Overman Committee, and contains the testimony of Raymond Robins and others on Russian internal affairs. Cited as Bolshevik Propaganda in this book.

(2) Investigation Activities of the Department of Justice, Letter from the Attorney General transmitting in Response to a Senate Resolution of October 17, 1919, a Report on the Activities of the Bureau of Investigation of the Department of Justice against Persons advising Anarchy, Sedition, and the Forcible Overthrow of the Government, Sen. Doc. No. 153, 66th Cong., 1st Sess., Wash., 1919. Cited as Investigation Activities in this book.

(3) Rule Making in Order the Consideration of S. 3317, Hearings before the Committee on Rules, House of Representatives, 66th Cong., 2d Sess., on H. Res. 438, Wash., 1920. Cited as House Rules Hearings in this book.

(4) Sedition, Hearing before the Committee on the Judiciary, House of Representatives, 66th Cong., 2d Sess., on S. 3317, H. R. 10650 and 12041, Serial 16, February 4 and 6, 1920. Wash., 1920. This contains official publications of the Communist parties, etc. Cited as House Judiciary Hearings in this book.

See also copies of the various bills and the proposed amendments; also House Judiciary Report submitting Graham Bill, H. R. Report No. 542, 66th Cong., 2d Sess.; also Reports listed under _Deportations_.

Among articles in periodicals on these bills and the “red hysteria,” are: Frank I. Cobb, “The Press and Public Opinion,” 21 _New Republic_ 144 (December 31, 1919); Z. Chafee, Jr., “Legislation Against Anarchy” (Overman Bill), 19 _ibid._ 379 (July 23, 1919); “A New Alien and Sedition Law,” 20 _ibid._ 366 (November 26, 1919); Swinburne Hale, “The ‘Force and Violence’ Joker,” 21 _ibid._ 231 (January 21, 1920); “The Red Hysteria” (Harvard Liberal Club Dinner), 21 _ibid._ 249 (January 28); William Hard, “Perhaps the Turn of the Tide” (House Rules hearings on Graham Bill), 21 _ibid._ 313 (February 11); “What Is Attorney General Palmer Doing?” (circular letter by him), 110 _Nation_ 190 (February 14); “The Issue of Free Speech,” 1 _Review_ 634 (December 6, 1919); “Mock-Hysteria,” 2 _Review_ 43 (January 17, 1920); “What Shall We Do with the Direct Actionist?”, 89 _Cent. L. J._ 313 (1919); Walter Lippman and Z. Chafee, Jr., “Free Speech and Free Press as Factors in International Affairs,” League of Free Nations Bulletin, March, 1920.

_State Sedition and Syndicalism Laws_:

“Criminal Syndicalism,” 20 _Colum. L. Rev._ 232 (1920); letter in 110 _Nation_ 202 (February 14, 1920). _California_, Perry L. Edwards, “Criminal Syndicalism—Back-firing Against Industrial Unrest by the Legislature of California,” 89 _Cent. L. J._ 336 (1919); “The Conviction of Anita Whitney,” Clare Shipman, 110 _Nation_ 365 (March 20, 1920). _Connecticut_, “‘The Most Brainiest Man,’” 110 _ibid._ 510 (April 17). _Massachusetts_, Z. Chafee, Jr., “Warns of Anti-Anarchy Bill,” _Boston Sunday Advertiser_, April 13, 1919. _New Jersey_, H. E. Cory, “The Intellectuals and the Wage Workers,” N. Y., 1919 (p. 208 on Boyd case). _New York_, Swinburne Hale, “Criminal Anarchy,” 21 _New Republic_ 270 (January 28, 1920); [McAdoo decision against Gitlow and Larkin], House Judiciary Hearings, p. 155; A. Giovannitti, “Commercialism on Trial,” _Liberator_, March, 1920 (Gitlow trial). _Oregon_, “American by Decree” (foreign language press), 22 _New Republic_ 262 (April 28, 1920).

See U. S. official reports, _supra_, and Appendix V, _infra_.

_Industrial Workers of the World_:

There are two studies by scholars. Paul Frederick Brissenden: _The I.W.W.: A Study of American Syndicalism_. Colum. Univ. Studies in History, etc., vol. 83, 2d ed., N. Y., 1920. Carleton H. Parker: “The I.W.W.,” _Atlantic Monthly_, 651 (November, 1917), reprinted in his _The Casual Laborer and Other Essays_, N. Y., 1920.

For the Chicago trial, see U. S. _v._ W. D. Haywood _et al._ Bull. Dept. Just., No. 175; Evidence and Cross-Examination of W. D. Haywood [in same]; Evidence and Cross-Examination of J. T. (Red) Doran [in same]; Indictment [in same], I.W.W. Pub. Bureau, Chicago.; “The Truth about the I.W.W.”, Natl. Civil Liberties Bureau, N. Y.; “The Persecution of the Radical Labor Movement in the United States.” N. Y. Defense Committee of the I.W.W., N. Y.

The Sacramento trial is discussed in “Ol’ Rags and Bottles,” 108 _Nation_ 114 (January 25, 1919); _American Labor Year-Book_, 1919–20, 100 and 107, has accounts of Chicago and Sacramento trials.

For the Washington situation, see [Washington Injunction Against Membership in the I.W.W.], 109 _Nation_ 843 (_January 3, 1920_); Jerrold Owen: “Centralia,” _American Legion Weekly_, December 12, 1919; Anna Louise Strong, “Centralia: An Unfinished Story,” 110 _Nation_ 508 (April 17, 1920); E. M., “Centralia,” 22 _New Republic_ 217 (April 14, 1920). Ole Hanson, _Americanism vs. Bolshevism_.

_Deportation of Aliens_ (Chapter V):

The best review of the procedure is by Assistant Secretary of Labor Louis F. Post, “Administrative Decisions in Connection with Immigration,” 10 _Am. Pol. Sci. Rev._ 251 (1916). Recent legal articles: Howard L. Bevis, “The Deportation of Aliens,” 62 _U. of Pa. L. Rev._ 97 (1920); “Deportation of Seditious Aliens,” 23 _Law Notes_ (N. Y.) 64 (1919); “Deportation of Aliens who Advocate the Overthrow of Government by Force,” 89 _Cent. L. J._ 369 (1919). John Lord O’Brian, “The Menace of Administrative Law,” address to Maryland Bar Association; June, 1920.

Original sources: The administrative hearings are largely buried in the files of the immigration officials. A few cases are extracted in Charles Recht, “American Deportation and Exclusion Laws,” League for Democratic Control, Boston, 1919, and “The Anarchist Deportations,” 21 _New Republic_, 96 (December 24, 1919). The whole procedure in the Communist raids is exhaustively shown by the record in Katzeff _v._ Skeffington (Colyer case) in the United States District Court in Boston. The _Federal Reporter_ contains several recent decisions on the deportation of radicals. The decision of Secretary of Labor Wilson on the Communist Party is in _House Judiciary Hearings_ (p. 17), which also gives the platform, manifesto, etc., of this and the Communist Labor Party. Much of the same material with a history of the creation of the two parties is also accessible in _American Labor Year-Book_, 1919–20. Part of the decision of Assistant Secretary Post on the raid cases is in “On Behalf of Louis F. Post,” 22 _New Republic_ 264 (April 28, 1920). The most valuable document in the raids is Judge Anderson’s decision in the Colyer case, in the _Federal Reporter_, 265 Fed. 17.

The history of left-wing Socialism is also narrated by an impartial observer, Gordon S. Watkins, “The Present Status of Socialism in the United States,” 124 _Atlantic_ 821 (December, 1919); and in H. W. Laidler, “Socialism in Thought and Action.”

Congressional reports of especial value, 66th Congress, 2d Session, 1920: (1) Three pamphlets of Hearings before a Subcommittee of the House Committee on Immigration and Naturalization, “Communist and Anarchist Deportation Cases” “I.W.W. Deportation Cases,” “Communist Labor Party Deportation Cases,” all cited herein as _House Immigration Hearings_. These contain many administrative decisions, but not the complete records. (2) “Investigation of Administration of Louis F. Post, Assistant Secretary of Labor, in the Matter of Deportation of Aliens, Hearings before the Committee on Rules, etc., on H. Res. 522,” 2 parts; cited herein as _Post Deportations Testimony_. (3) “Attorney General A. Mitchell Palmer on charges made against the Department of Justice by Louis F. Post and others, Hearings before the Committee on Rules, etc.,” Part I; cited herein as _Palmer Deportations Testimony_.

Much important testimony from the Colyer case, including the official instructions, is in the pamphlet, “To the American People. Report upon the Illegal Practices of the United States Department of Justice,” by 12 lawyers, National Popular Government League, Washington, May, 1920; cited herein as _Illegal Practices_.

Popular articles on the “Buford” and the January raids are: “The Deportation,” 1 _Review_ 695 (December 27, 1919); “The Raid on the Reds,” 2 _Review_ 22 (January 10, 1920); “Deporting a Political Party,” 21 _New Republic_ 186 (January 14, 1920). Ernst Freund, “Burning Heretics,” 21 _ibid._ 266 (January 28, 1920); “A Federal Judge Speaks Up” (Bourquin, J., in _Re_ Jackson), 22 _ibid._ 135 (March 31); “Deportations and the Law,” 110 _Nation_ 131 (January 31); F. R. Barkley, “Jailing Radicals in Detroit,” 110 _ibid._ 136; F. C. Howe, “Lynch Law and the Immigrant Alien,” 110 _ibid._ 194 (February 14); “Another Man Without a Country,” 110 _ibid._ 289 (March 6); Lincoln Colcord, “Martens and Our Foreign Policy” (correspondence of Secretary Wilson and John E. Milholland), 110 _ibid._ 324 (March 13); Winthrop D. Lane, “The Buford Widows,” 43 _Survey_ 391 (January 10); “Aliens and Sedition in the New Year,” 43 _ibid._ 422 (January 13); Sidney Howard, “The Colyer Trial Opens,” 44 _Survey_ 105 (April 17). See, also, some of the articles on the red hysteria, etc.

Accounts of the New England raids from the point of view of the aliens are, “The Soviet of Deer Island, Boston Harbor, January-February, 1920, by One of the Members,” Boston Branch of Am. Civil Liberties Union; “Deported via Deer Island,” MSS. report prepared for the Bureau.

_Searches and Seizures_ (Chapters V and VI):

“The Case of the Rand School,” published by the School, N. Y., 1919; “The Truth about the Lusk Committee,” Nation Press, N. Y., 1920; “Whose Home Will Be Safe?”, 19 _New Republic_ 303 (July 9, 1919); Anna L. Strong, “A Newspaper Confiscated—and Returned,” 109 _Nation_ 738 (December 13, 1919).

D. POWER OF A LEGISLATURE TO EXCLUDE OR EXPEL FOR OPINIONS (CHAPTER VI)

For the English law, T. Erskine May, _Parliamentary Practice_, 12th ed., London, 1917; same, _Constitutional History of England_, vol. I, for Wilkes, and also G. O. Trevelyan, _Early History of Charles James Fox_, and Macaulay’s second _Essay on Chatham_. Justin McCarthy, _History of Our Own Times_, vol. III, for Bradlaugh.

For Congress, Asher Hinds, _Precedents of the House of Representatives of the United States_, Washington, 1907. This contains many Senate cases. See, also, Webb & Pierce, Compilation of Senate Election Cases, 1789–1913, Washington, 1913. Other Congressional compilations may be useful. Massachusetts cases are collected by Cushing, Loring, and Russell; New York, by Armstrong.

_Berger_:

Victor L. Berger, Hearings before the Special Committee appointed under the Authority of House Resolution No. 6 concerning the Right of Victor L. Berger to be Sworn in as a Member of the Sixty-sixth Congress, 2 vols., Wash., 1919. (These contain records of the prosecution and _Milwaukee Leader_ case.) Cited herein as _Berger Hearings_.

Ho. Cal. No. 91, 66th Cong., 1st Sess., Report No. 413, Case of Victor L. Berger of Wisconsin. Cited herein as _Berger Report_.

“Victor L. Berger,” _Socialist Review_, (February, 1920); “The Berger Victory,” 109 _Nation_ 820 (December 27, 1919); for account of the trial from the side of the defense, _American Labor Year-Book_, 1919–20, 97–100.

_New York Socialists_:

The record of the investigation was printed by the Assembly. Briefs include, Brief of Special Committee appointed by the Association of the Bar of the City of New York (January 20, 1920); Outline of the Evidence taken before the Judiciary Committee to and including February 5, 1920, with a discussion of some conclusions to be drawn therefrom [against Socialists and signed by Attorney-General and associate counsel]; Brief for the Socialist Assemblymen, March 15, 1920; Brief for the Judiciary Committee, March 24, 1920.

Articles in periodicals (all in 1920): “The Issues in the Fight at Albany,” 2 _Review_ 121 (February 7); “Hillquit on the Socialist Programme,” 2 _Review_ 193 (February 28); “Governor Smith’s Opportunity,” 2 _Review_ 421 (April 24); “Speaker Sweet Does His Bit,” 22 _New Republic_ 210 (January 21); “The Mob in High Places,” 22 _New Republic_ 279 (February 4); “Up to the Voters,” 22 _New Republic_ 200 (April 14) [Lusk Bills]; 22 _New Republic_ 171 (April 7); “Minority Rights at Albany,” 110 _Nation_ 288 (March 6); Lewis S. Gannett, “The Socialists’ Trial at Albany: A Summary,” 110 _Nation_ 361 (March 20); Loula D. Lasker, “Back in the Districts: What New York Assemblymen’s Constituents Are Thinking,” 53 _Survey_ 767 (March 20); Robert Minor, “Dissolving the Duma at Albany,” _Liberator_ (March 20).

E. SCHOOLS

Henry R. Linville, John L. Tildsley, and Z. Chafee, Jr., “The Schools and the Issue of Freedom,” in leaflets, “The Public and the Schools,” published by Public School Education Assn., N. Y., May 3, 17, 24, 1919. Various pamphlets have been issued on both sides of the controversies in New York and Washington, and several articles printed in the _Nation_.

APPENDIX II

INDEX OF REPORTED CASES UNDER THE ESPIONAGE ACTS OF 1917 AND 1918

This index is meant to include all Espionage Act cases involving freedom of speech which are contained in the following reports, abbreviated as shown:

Bulletins of the Department of Justice on the Interpretation of War Statutes (B);

Federal Reporter (F), containing cases in the Circuit Court of Appeals, and occasionally in the District Courts;

United States Reports (U. S.), containing Supreme Court decisions;

One case is officially reported only in Report of the Attorney General for 1918 (A), which gives facts of many more.

Some recent Supreme Court cases are in the Supreme Court Reporter (Sup.).

A few cases are from Nelles, Espionage Act Cases (N).

So far as practicable I have indexed not only the defendant who gives his name to the case but every defendant. This seemed undesirable in the cases of the 93 I.W.W.’s in the Haywood case and the 27 Socialists in the Baltzer case. Consequently, while there are 184 persons indexed below, 118 more should be added to give the total number of persons whose prosecutions are reported, making 302 in all. Besides these many Espionage Act cases have never been reported. Notes of these are in _War-time Prosecutions and Mob Violence_, which contains the facts of many others. The total number of persons convicted is reported as 877, with 285 cases still pending on June 30, 1919. The Attorney General’s Reports for 1918 and 1919 show that there were 988 cases commenced in 1917–18, and 968 in 1918–19. Out of these 1,956 cases only a small fraction are reported anywhere.

In each instance I have given the defendant’s name, the state where he was prosecuted (omitting United States Districts within a state), a reference to the report, the result of the case, and the sentence.

Abbreviations are:

C., conviction. Acq., acquittal. Acq. d., acquittal directed. Ind., indictment. Aff., affirmed by Circuit Court of Appeals or Supreme Court. Rev., reversed by Circuit Court of Appeals or Supreme Court.

An asterisk shows that the sentence has been shortened by the President, and the length of the commuted sentence or date of its expiration is added. It is possible that some commutations have been omitted. Information as to convictions, sentences, pardons, etc., if not contained in the reports, has been obtained from _War-time Prosecutions; New York Times_, May 9, 1919; and from the Attorney General’s Report for 1919.

I. PROSECUTIONS UNDER TITLE I, SECTIONS 3 AND 4, AND TITLE XII

Abrams, J. N. Y. 250 U. S. 616 C. 20 yrs., aff.

Albers, H. Oregon B. 191; 263 F. 27 C. Aff.

American N. Y. B. 129, 252 F. 223; C. Fine $3,000 Socialist B. 192; B. 198 Society

Anderson, O. S. D. 264 F. 75 C. Aff.

Ault, E. B. Wash. 263 F. 798, 800 Ind. bad

Baer, Elizabeth Pa. B. 43; B. 194, 249 U. C. Aff. S. 47

Balbas, _sub_ Capo

Baltzer, E., and S. D. B. 3; 248 U. S. 593 C. 1–2 yrs. Rev. on 26 others confession of error

Bentall, J. O. Minn. B. 180, 262 F. 744 C. 5 yrs. Rev.

Berger, V. L. Illinois B. 186 C. 20 yrs.

Binder, L. N. Y. B. 117, B. 126 C.

Blodgett, D. T. Iowa N. 48 C. 20 yrs.

Bold, F. W. Oregon B. 183

Bosco, P. W. Vir. B. 71 C. 10 yrs. (*2 yrs.)

Bouldin, G. W. Texas 261 F. 674 C. Aff. (negro)

Boutin, A. N. Y. 251 F. 313 Ind. good

Brackett, W. A. Mo. B. 170 C. $150

Brenne, R. Ohio B. 199 Acq. d.

Brinton, J. W. N. D. B. 132

Buessel, T. Conn. B. 131 C. 10 yrs. (*4/1/19)

Bunyard, C. D. Mo. B. 168 C. $200

Capers, H. Okla. B. 74

Capo, V. Balbas Porto Rico B. 30, B. 37, 257 C. 8 yrs. $4,000. F. 17 Rev.

Carlson, J. A. Wash. B. 185

Casey, J. E. Wash. B. 78 C. 5 yrs. Rev.

Caughman, J. M. S. C. 258 F. 434 C. Rev.

Cecca, G. de N. Y. B. 119; 258 F. 855 C. 10 yrs. Rev.

Coldwell, J. M. R. I. B. 158; B. 201, 256 C. 3 yrs. Aff. F. 805; 250 U. S. 661 (memo.)

Creo, A. N. Y. 245 F. 878, 888; B. C. Aff. 15; B. 52; 40 Sup. 205

Curran, W. C. N. Y. B. 140

Darkow, M. Pa. 248 F. 290; B. 181, C. 5 yrs. Aff. 254 F. 135; 40 Sup. 259. See B. 42

Deason, T. Texas 254 F. 259 C. Aff. 1½ yrs. (*1 yr.)

Debs, E. V. Ohio B. 155; B. 196, 249 C. 10 yrs. Aff. U. S. 211

Deilman, C. S. N. Y. 245 F. 878, 888; B. C. Aff. 15; B. 52; 40 Sup. 205

Dembowski, J. Mich. 252 F. 894 Ind. bad

Denson, W. A. Ala. B. 142 Acq.

Dodge, W. N. Y. B. 202; 258 F. 300; C. 6 yrs. Aff. 250 U. S. 660 (memo.)

Doe, P. B. Colo. B. 55; 253 F. 903 C. 1½ yrs. Aff. (*5/8/19)

Doll, C. S. D. B. 5; B. 163, 253 F. C. Rev. 646

Eastman, M. N. Y. 252 F. 232 2 mistrials

Elmer, W. P. Mo. B. 171; 260 F. 646 C. $1,000. Rev.

Enfield, O. E. Okla. 261 F. 141 C. Rev.

Engdahl, J. L. Illinois B. 186 C. 20 yrs.

Equi, Marie Oregon B. 172; 261 F. 53 C. 3 yrs. $500. Aff.

Feltman, H. Ky. 264 F. 1 C. Aff.

Fisher, G. H. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev.

Fontana, J. N. D. B. 148; 262 F. 283 C. Rev.

Foster, L. Wash. B. 78 C. 5 yrs.

Frerichs, H. Neb. B. 85

Frohwerk, J. Mo. B. 128; 248 U. S. C. 10 yrs. Aff. 540; B. 197, 249 U. (*1 yr.) S. 204

Germer, A. Illinois B. 186 C. 20 yrs.

Gneiser, G. A. W. V. B. 71

Goldsmith, C. H. Ala. B. 133

Goldstein, R. Cal. 258 F. 908. See C. 10 yrs. $5,000. B. 33 Aff. (*3 yrs.)

Graham, J. I. Tenn. B. 120

Granzow, F. A. Iowa 261 F. 172 C. Rev.

Groeschl Ky. N. 3 Acq. d.

Grubl, F. S. D. 264 F. 44 C. Rev.

Guggolz, J. C. Cal. 262 F. 764 C. Rev.

Hall, J. K. S. C. 256 F. 748, B. 189 C. Rev.

Hall, V. Mont. 248 F. 150 Acq. d.

Hamm, E. Cal. 261 F. 907 C. Aff.

Harper, S. J. La. B. 76 Acq.

Harshfield, J. Neb. 260 F. 659 C. Rev.

Haywood, W. D., Illinois B. 175 C. 16 for 20 yrs. 33 and 92 others for 10 yrs. 30 for 5 yrs. 12 for 1 yr. 2 for 10 days. Aff.

Head, W. J. S. D. 248 U. S. 593 C. 3 yrs. $500. Rev. on confession of error

Henning, J. Wis. B. 184 Ind. bad

Henricksen, H. M. Neb. B. 86 C.

Herman, E. Wash. B. 109; 257 F. 601 C. 10 yrs. Aff.

Heynacher, W. S. D. 257 F. 61 C. 5 yrs. Aff. (*1 yr.)

Hicks, W. M. Okla. B. 160 C. 20 yrs. (*5 yrs.)

Hickson, F. C. S. C. 258 F. 867 C. Rev.

Hitchcock, A. L. Ohio B. 122 C. 10 yrs. (*2 yrs.)

Hitt, O. Colo. B. 53 Acq.

Hodges, W. Wash. B. 78 C. 5 yrs. Rev.

Hotze, W. N. Y. 263 F. 130 C. 1½ yrs.

Howenstine, F. P. Cal. 263 F. 1 C. Aff.

Huhn, W. Wyo. B. 58

Hundelshausen, H. N. J. B. 130, 251 F. 946; Mistrial; case v. B. 156 dismissed

Kammann, C. H. Illinois 259 F. 192 C. 3 yrs., $5,000. Rev.

Katzler, W. von N. J. B. 130, 251 F. 946; Mistrial; case B. 156 dismissed

Kaufman, W. H. Wash. B. 134 C. 5 yrs.

Kennedy, I. Cal. 263 F. 1 C. Aff.

Kirchner, H. E. W. V. B. 69; B. 174, 255 F. C. 2 yrs. Aff. 301 (*5/8/19)

Koenig, H. C. Mo. B. 123, 166 Acq. d.

Kornmann, C. S. D. B. 89; 248 U. S. 594 C. 10 yrs. Rev. on confession of error

Krafft, F. N. J. B. 6, 84; 249 F. 919; C. 5 yrs., $1,000 247 U. S. 520 Aff. (*4/1/19)

Kruse, J. H. Ky. 264 F. 1 C. Aff.

Kruse, W. F. Illinois B. 186 C. 20 yrs.

Kumpula, E. Oregon 261 F. 49 C. Rev.

Lachowsky, H. N. Y. 250 U. S. 616 C. 20 yrs. Aff.

Lemke, H. Pa. 248 F. 290; B. 181, C. 2 yrs. Aff. 254 F. 135; 40 Sup. 259. See B. 42

Lipman, S. N. Y. 250 U. S. 616 C. 20 yrs. Aff.

Listman, G. B. Wash. 263 F. 798, 800 Ind. bad

Lockhart, A. P. Tenn. 264 F. 14 C. Aff.

McMillan, A. H. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev.

Mackley, H. G. Vt. B. 83 C. 15 yrs. (*3 yrs.)

Magon, R. F. Cal. 260 F. 811 C. 20 yrs. Aff.

Mamaux, J. Ohio 264 F. 816 C. Aff.

Martin, F. A. Wash. B. 78 C. 5 yrs. Rev.

Martin, R. J. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev.

Martin, W. E. Ky. B. 157

Mayer, F. Ky. B. 146, 252 F. 868 Acq. d.

Mead, W. E. Wash. B. 103; 257 F. 639 C. 5 yrs. Aff.

Miller, J. A. Colo. B. 104 C. 2 yrs. (*1 yr.)

Mills, W. T. N. D. B. 204 Acq. d.

Mullen, P. Wash. B. 78 C. 5 yrs. Rev.

Nagler, L. B. Wis. B. 127, 252 F. 217 Ind. good, C.

Nearing, S. N. Y. B. 129, 252 F. 223; Acq. B. 192; B. 198

Nelson, C. N. Y. 245 F. 878, 888; B. C. Aff. 15; B. 52; 40 Sup. 205

O’Hare, Kate R. N. D. B. 40; B. 165, 253 F. C. 5 yrs. Aff. 538 (*5/29/20)

Olivereau, Louise Wash. B. 40 C. 10 yrs.

Pape, T. B. Illinois B. 151, 253 F. 270 Ind. bad

Partan, A. J. Oregon 261 F. 515 C. Aff.

Perry Wash. B. 78 C. 5 yrs. Rev.

Peterson, J. A. Minn. A. 52 C. 4 yrs.

Phelan, J. B. Wash. B. 78 C. 5 yrs. Rev.

Pierce, C. H. N. Y. 245 F. 878, 888; B. C. Aff. 15; B. 52; 40 Sup.—.

Preston, F. L. N. Y. 263 F. 130 C. 1½ yrs.

Prieth, B. N. J. B. 130, 251 F. 946; Mistrial; case B. 156 dismissed

Prieth, E. S. N. J. B. 130, 251 F. 946; Mistrial; case B. 156 dismissed

Prober, G. See N. Y. Acq. Abrams

Pundt, G. Neb. B. 82

Ramp, F. Oregon B. 66 C.

Reitz, E. S. D. 257 F. 731 C. 5 yrs., $1,000. Aff.

Reivo, W. N. Oregon 261 F. 515 C. Aff.

Rhuberg, J. Oregon B. 94; B. 107; 255 C. Aff. Fed. 865

Rivera, L. Cal. 260 F. 811 C. 15 yrs. Aff.

Robison, F. H. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev.

Rosansky, H. N. Y. 250 U. S. 616 C. 3 yrs. Aff. (*5/8/19)

Rust, F. A. Wash. 263 F. 798, 800 Ind. bad

Rutherford, J. F. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev.

Sandberg, A. Ariz. 257 F. 643 C. 2 yrs., $500. Rev.

Sandvick, H. Alaska B. 113

Schaefer, P. Pa. 248 F. 290; B. 181, C. 1 yr. Rev. 254 F. 135; 40 Sup. 259. See B. 42

Schenck, C. T. Pa. B. 43; B. 194, 249 U. C. Aff. S. 47

Schoberg, C. B. Ky. B. 149; 264 F. 1 C. Aff.

Schulze, C. G. Cal. 253 F. 377; 259 F. C. Aff. 189

Schumann, W. Iowa 258 F. 233; 250 U. S. C. Aff. 66 (memo.)

Schutte, B. H. N. D. 252 F. 212 Ind. bad

Seattle Union- Wash. 263 F. 798, 800 Ind. bad Record Pub. Co.

Seebach, J. C. Minn. 262 F. 885 C. Aff.

Shaffer, F. Wash. B. 125; B. 190, 255 C. 2½ yrs. Aff. F. 886 (*1 yr.)

Shidler, A. Nev. 257 F. 620 C. 2 yrs. $100. Aff.

Shilter, K. Cal. 257 F. 724 C. Aff.

Spillner, C. Hawaii B. 145 C. 16 yrs. (*3 yrs.)

Steene, C. W. N. Y. 263 F. 130 C. 1½ yrs.

Steimer, Molly N. Y. 250 U. S. 616 C. 15 yrs. Aff.

Stenzel, B. Iowa 261 F. 161 C. 1½ yrs., $300. Rev.

Stephens, E. A. Cal. 261 F. 590 C. Aff.

Stephens, F. Del. B. 116, 121 Acq.

Stilson, J. V. Pa. B. 177; 40 Sup. 28 C. 3 yrs. Aff.

Stokes, Rose P. Mo. B. 106; 264 F. 18 C. 10 yrs. Rev.

Strong, Anna L. Wash. 263 F. 798, 800 Ind. bad

Sugarman, A. L. Minn. B. 12; 245 Fed. 604; C. 3 yrs. Aff. B. 195, 249 U. S. 182

Sukys, J. Pa. B. 177; 40 Sup. 28 C. 3 mos. Aff.

Sykes, J. Cal. 264 F. 945 C. Aff.

Tanner, W. B. Colo. B. 56 Acq.

Taubert, G. H. N. H. B. 108 C. 3 yrs. (*1½ yrs.)

Tucker, I. S. J. Illinois B. 186 C. 20 yrs.

Van Armburgh, W. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev. E.

Vevig, T. Alaska B. 162

Vogel, P. Pa. 248 F. 290; B. 181, C. 1 yr. Rev. 254 F. 135; 40 Sup. 259. See B. 42

Von Bank, H. N. D. B. 164, 258 F. 641 C. Rev.

Waechter, H. N. J. B. 130, 251 F. 946; Mistrial; case B. 156 dismissed

Waldron, C. H. Vt. B. 79 C. 15 yrs. (*4/1/19)

Wallace, D. H. Iowa B. 4 C. 20 yrs., went insane and died in jail

Wehmeyer, W. F. Mo. B. 176 C. $1,000

Weinsberg, C. H. Mo. B. 123 Acq.

Weist, A. Mo. B. 169 C., $200

Werner, L. Pa. 248 F. 290; B. 181, C. 5 yrs. Aff. 254 F. 135; 40 Sup. 259. See B. 42

Wessels, G. Tex. 262 F. 389 C. Aff.

White, J. Ohio 263 F. 17 C. Aff.

Whitney, A. G. N. Y. N. 55 No. ind.

Williams, L. E. Colo. B. 118

Wimmer, P. Ky. 264 F. 11 C. Aff.

Windmueller, D. Alaska B. 112 C. 1 yr., $250 (*1 yr.)

Wishek, J. H. N. D. B. 153

Wolf, J. H. S. D. B. 81; 259 F. 388 C. 5 yrs., $1,000. Rev.

Woodworth, C. H. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev.

Youngman, P. G. Ala. B. 137 Acq.

Zademack, C. F. Ohio B. 143 C. 5 yrs. (*1½ yrs.)

Zimmerman, J. Ind. N. 10 Acq. d.

Zittel, J. Wash. B. 90

II. SEIZURE OF MOTION PICTURE FILM UNDER TITLE XI

U. S. _v._ Motion Cal. B. 33, 252 F. 946 Upheld Picture Film, “The Spirit of ’76”

III. EXCLUSIONS FROM THE MAILS UNDER TITLE XII

Masses Pub. Co. N. Y. 244 Fed. 535; 245 F. Injunction refused _v._ Patten 102; B. 7, 246 for Aug. issue Fed. 24 B. 26 Injunction refused for Sept. issue

Jeffersonian Pub. Ga. 245 Fed. 585 Injunction refused Co. _v._ West

U. S. ex rel. D. C. 258 F. 282 Mandamus refused, Milwaukee Soc. as to present and Dem. Pub. Co. future issues _v._ Burleson

APPENDIX III

TEXT AND CONSTRUCTION OF THE ESPIONAGE ACT OF 1918

Title I, § 3, as amended, reads as follows (Act of May 16, 1918, c. 75, § 1, _U. S. Comp. Stat._, 1918, § 10212_c_). The italicized words punish language for remote tendencies: _Cf._ the Sedition Act of 1798.

“Whoever, _when the United States is at war_, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall willfully make or convey false reports or false statements, or say or do anything except by way of bona fide and _not disloyal_ advice to an investor or investors, with intent to obstruct the sale by the United States of bonds or other securities of the United States or the making of loans by or to the United States, and whoever, when the United States is at war, shall willfully cause, or attempt to cause, or incite or attempt to incite, insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States, and whoever, when the United States is at war, shall willfully utter, print, write, or publish any _disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States into contempt, scorn, contumely, or disrepute_, or shall willfully utter, print, write, or publish any language intended to incite, provoke, or encourage resistance to the United States, or to promote the cause of its enemies, or shall willfully display the flag of any foreign enemy, or shall willfully by utterance, writing, printing, publication, or language spoken, urge, incite, or advocate any curtailment of production in this country of any thing or things, product or products, necessary or essential to the prosecution of the war in which the United States may be engaged, with intent by such curtailment to cripple or hinder the United States in the prosecution of the war, and whoever shall willfully advocate, teach, defend, or _suggest_ the doing of any of the acts or things in this section enumerated, and whoever shall _by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein_, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both: Provided, That any employee or official of the United States Government who commits any _disloyal_ act or utters any _unpatriotic or disloyal language_, or who, in an _abusive and violent manner criticizes the Army or Navy or the flag of the United States_ shall be at once dismissed from the service. Any such employee shall be dismissed by the head of the department in which the employee may be engaged, and any such official shall be dismissed by the authority having power to appoint a successor to the dismissed official.”

The conspiracy, harboring, and search-warrant sections of the Act of 1917 apply to the section just quoted; and also the mail provisions, which were amended on May 16, 1918, by the addition of a section authorizing the Postmaster General, “upon evidence satisfactory to him that any person or concern is using the mails” in violation of the Espionage Act, to have all mail of every kind addressed to that person or concern returned to the sender. (Act, May 16, 1918, c. 75, §2; _U. S. Comp. Stat._, 1918, § 10401 d. See Carroll, in 17 _Mich. L. Rev._ 689.)

Cases involving the new crimes created by the Espionage Act of 1918, reported in the _Bulletins of the Department of Justice on the Interpretation of War Statutes_, the _Federal Reporter_, and the _U. S. Reports_, through 1919, are as follows:

(1) Obstruction of war loans. United States _v._ Bold, _Bull._ 183 (Ore., Wolverton, J.); United States _v._ Brackett, _Bull._ 170 (E. D. Mo., Munger, J.); Kumpula _v._ United States, 261 Fed. 49 (C. C. A. 9th, 1919, per Hunt, J.); Hall _v._ United States, 256 Fed. 748, _Bull._ 189 (C. C. A. 4th, 1919, per Pritchard, J.).

(2) Disloyal, etc. language about form of government of United States. Abrams _v._ United States, 40 Sup. Ct. Rep. 17 (1919) (Clarke, J.; Holmes, J., dissenting.)

(3) Language intended to defame form of government. Abrams _v._ United States, _supra_.

(4) Disloyal, etc. language about military or naval forces. United States _v._ Buessel, _Bull._ 131 (Conn., 1918, Howe, J.); United States _v._ Curran, _Bull._ 140 (S. D. N. Y., 1918, L. Hand, J.); United States _v._ Martin, _Bull._ 157 (E. D. Tenn., 1918, Sanford, J.; criticism of President’s military policy is within this clause since he is commander-in-chief of army and navy); United States _v._ Equi, _Bull._ 172 (Ore., 1918, Bean, J.); Partan _v._ United States, 261 Fed. 515 (C. C. A. 9th, 1919, per Hunt, J.).

(5) Language intended to defame the military or naval forces. United States _v._ Equi, _supra_; United States _v._ Vevig, _Bull._ 162 (Alaska, 1918, Bunnell, J.); Partan _v._ United States, _supra_.

(6) Disloyal, etc. language about flag. United States _v._ Buessel, _supra_.

(7) Language intended to defame the flag. United States _v._ Equi, _supra_.

(8) Language intended to incite, etc. resistance to United States or promote cause of enemies. United States _v._ Zademack, _Bull._ 143 (N. D. Oh., 1918, Westenhaver, J.); United States _v._ Debs, _Bull._ 155 (N. D. Oh., 1918, Westenhaver, J.); United States _v._ Martin, _supra_; United States _v._ Weist, _Bull._ 169 (E. D. Mo., 1918, Munger, J.); United States _v._ Equi, _supra_; United States _v._ Carlson, _Bull._ 185 (W. D. Wash., 1918, Neterer, J.); United States _v._ Albers, _Bull._ 191 (Ore., 1919, Wolverton, J.); United States _v._ Dodge, _Bull._ 202 (W. D. N. Y., 1919, Hazel, J.); 258 Fed. 300 (C. C. A. 2d, 1919, Rogers, J.); certiorari denied, 250 U. S. 660, 40 Sup. Ct. Rep. 10 (1919); Abrams _v._ United States, _supra_; Kumpula _v._ United States, _supra_.

(9) Language urging curtailment of production of war materials. United States _v._ Carlson, _supra_; Abrams _v._ United States, _supra_.

(10) Favor cause of enemies or oppose that of United States. United States _v._ Buessel, _supra_; United States _v._ Zademack, _supra_; United States _v._ Schoberg, _Bull._ 149 (E. D. Ky., 1918, Cochran, J.); United States _v._ Bunyard, _Bull._ 168 (E. D. Mo., 1918, Munger, J.); United States _v._ Weist, _supra_; United States _v._ Bold, _supra_; United States _v._ Albers, _supra_; United States _v._ Dodge, _supra_; Schulze _v._ United States, 259 Fed. 189 (C. C. A. 9th, 1919, per Gilbert, J.); United States _v._ Brackett, _supra_; Kumpula _v._ United States, _supra_.

See also recent cases in Appendix II: Ault, Listman, Lockhart, Rust, Seattle etc. Co., Strong, Mamaux, Wimmer.

APPENDIX IV

NORMAL LAW OF FOUR JURISDICTIONS AGAINST ACTUAL OR THREATENED VIOLENCE

(See page 165)

Massachusetts: Treason, R. L. (1902) c. 206; murder or attempt to murder, c. 207; destruction of property by explosives, or attempt thereto, c. 208 §§ 85, 86; indirect participation in a crime, c. 215, §3; attempts to commit any crime, c. 215 §6; solicitation of another to commit a crime is punishable under this section, Commonwealth _v._ Peaslee, 177 Mass. 267, and also at common law, Commonwealth _v._ Flagg, 135 Mass. 545, quoted in the text.

New York: Treason, Penal Law (1909), §§2380–2383; murder, §§1044ff.; damage to building by explosive, §1420; manufacture, storing, or shipping of explosives, §1894; attempt to injure building without damage, §1895; indirect participation or attempt to commit any crime, §§2, 260–262; solicitation of another to commit a crime is probably punishable under this section, People _v._ Strauss, 100 Misc. 661, and also at common law; any act seriously disturbing the person or property of another, or seriously disturbing the public peace, §43; this includes advocacy of revolution and assassination, People _v._ Most, 171 N. Y. 423. The N. Y. anarchy act is discussed in the body of the book.

Washington: Treason, Remington’s Code (1915), §§2317–2319; murder, §§2392ff.; damage by explosives, or placing them, §§2652, 2653; unlawful making, storing, or shipping explosives, §§2403, 2504, 2506; indirect participation in any crime, §2260; attempts toward any crime, §2264; solicitation of another is punishable under this section, State _v._ George, 79 Wash. 262, and also at common law. The Wash. syndicalism and sedition acts are discussed in the body of the book.

District of Columbia: Treason, punishable under general Federal law; murder, Code, §798; placing explosives near buildings or discharging them, §§825a, 885; indirect participation in crime, §908; attempts, §906; solicitation is probably a common law offense punishable under §910.

APPENDIX V

STATE WAR AND PEACE STATUTES AFFECTING FREEDOM OF SPEECH

(Note: As some of the statutes have varying penalties, in order to avoid confusion only the punishment for the most serious offense is mentioned, which will indicate the relative severity of these laws. Fines may operate as a term of imprisonment if the defendant is obliged to work them out when too poor to pay. An asterisk shows that this particular statute has been discussed in a reference listed in the Bibliography. The cases listed are only the appellate court decisions under the statutes; many prosecutions never reach such a court. Each decision given affirms a conviction by the trial court unless otherwise described. “Reversed” means that a conviction was reversed on appeal. The list ends with the year 1919.)