ties to turn the color of legal litmus paper, Now just what, it is logical to ask, were the differences which made Justice Holmes decide for conviction in the Shenck case and for release in the Abrams case? They were these: Shenck conselled directly resistance to the draft, enacted under one of the war powers of Congress. Abrams only incidentally and in an indefinite way called for a strike while arguing against intervention in Russia, a country with which we were not at war. Shenck mailed his circulars directly to registered men. Abrams scattered his leaflets at random on the streets of New York City. Shenck therefore showed an intent and an attempt to obstruct a war measure. Abrams showed no such intent unless it were a transferred intent or a culpable negligence, and his attempt, if it was one, was as pusillanimous as the attempt of a man to accomplish the derailment of a train by showing children how to lay crossed nails on the track for the car wheels to flatten into "scissors." It was, in the words of Holmes, "a question of proximity and degree." The proximity and degree of crimes for which men were being brought before the court had been growing point by point more remote from the time of the Shenck, case down to the Abrams turning point. The case of Frohwerck v. United States,1 immediately following that of Shenck, was a more doubtful case than the first, as Justice Holmes admitted. A more complete record might have shown the defendants justified in printing the articles they printed in their Missouri StaatsZeitung, he intimated. "But we must take the case on the record as it is," he 14249 U. S. 204, 63 L. Ed. 561. said, “and on that record it is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame, and that the fact was known and relied upon by those who sent the paper out." Most of the justice's argument in this case was directed not to the support of this prosecution but to the support of the Espionage Act in general. The meat of his argument is as follows: The First Amendment, while prohibiting legislation against free speech as such, cannot have been, and obviously was not, intended to give immunity for every possible use of language. . . . We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech. A conspiracy to obstruct recruiting would be criminal even if no means were agreed upon specifically by which to accomplish the intent. It is enough if the parties agreed to set to work for that common purpose. Intent to accomplish an object cannot be alleged more clearly than by stating that the parties conspired to accomplish it. On the heels of the Frohwerck case came that of Eugene V. Debs. "Great cases, like hard cases, make bad law," Holmes once remarked.15 Here was a case that was both great and hard. The elements of intent and "clear and present danger" which had made the Shenck conviction clear, had in this one nearly reached the vanishing point. The element of the exempted general topic which should have overthrown the Abrams conviction was only beginning to appear. "The main theme of the (Debs) speech was socialism, its growth, and a prophecy of its ultimate success," wrote 15 Northern Securities Co. v. United States, 193 U. S. 400, 48 L. Ed. 726. Holmes in sustaining the Debs conviction.16 With that we have nothing to do, but if a part or the manifest intent of the more general utterances was to encourage those present to obstruct the recruiting service, and if in passages such encouragement was directly given, the immurity of the general theme may not be enough to protect the speech." But Professor Chafee of Harvard criticizes the justice's opinion in this manner: If the Supreme Court had applied this same standard of "clear and present danger" to the utterances of Eugene V. Debs, it is hard to see how he could have been held guilty. The test is not mentioned, however, but Justice Holmes is willing to accept the verdict as proof that actual interference with the war was intended and was the proximate effect of the words used. It is regrettable that he should have felt unable to go behind a verdict which had been found without any reference to the danger of the utterances. The point is that Judge Westenhaver did not instruct the jury according to the Supreme Court test at all, but allowed Debs to be found guilty, in Justice Holmes' words, because of the "natural tendency and reasonably probable effect" of his speech, and gave a fairly wide scope to the doctrines of indirect causation and constructive intent, so that the defendant could have been and probably was convicted for an exposition of socialism, merely because the jury thought his speech had a tendency to bring about resistance to the draft." 17 In defense of Holmes's statement, it may be maintained that if the intent to encourage persons to resist the draft was "manifest," the court did not need to analyze the actual words of the speech, one by one, for "clear and present danger," but could see without that test that seditious encouragement had been given directly enough and strongly enough to give ground for the conviction. The jurist may justifiably have reasoned that Debs's intention to cloak dan 16 Debs v. United States, 249 U. S. 211, 63 L. Ed. 566. 17 Chafee, Freedom of Speech, pp. 90-91. gerous words in a permissible general theme, Debs's knowledge, such as any reasonable man in his place would have had, that his disguised words would have an inciting effect, and Debs's eminence as a leader of his faction all would combine to supply the clear and present danger. To have reasoned thus, Holmes undeniably embraced “reasonable and probable effects" but not mere "tendencies" within the law of incitement. These opinions by Holmes form a quite coherent body of law; but if there is any divergence between his various decisions, what is the relative value of each as an index to the philosophy of the Massachusetts justice? The Shenck opinion is valuable for its test of "clear and present danger" of "substantive evils," but it was not a hard enough case to draw out from Holmes his full reasoning on the test of this guilt. It was not until he was confronted with an unjust conviction such as that of Abrams and his associates that Justice Holmes was moved to search himself and his philosophy to its depths. The result was a dissenting opinion comparable to his famous one in Lochner v. New York, 18 and one which probably will influence the future of the law on free speech more than all three of the opinions he wrote for the full court. Holmes appears to define his inspirations best when forced to do so by a majority of the court. His contention for the common law tests of criminal incitement in sedition the same as in other crimes is his vital contribution to the present law of freedom of speech. Freedom of Speech as a State Question There is a point where the philosophy of Justice Holmes on freedom of discussion is bounded by his also distinct philosophy of the division of state and federal powers. This is reached in the recent case of Gilbert v. Minnesota,19 In this case "the issue was the constitutionality of a state 18 See note 26, infra. 19254 U. S. 325, 65 L. Ed. 287, 41 Sup. Ct. 125. statute making unlawful any advocacy against enlistment in the federal military or naval forces or against aiding the United States in the prosecution of war."20 The majority opinion by McKenna held simply that Gilbert's conviction did not violate the constitutional guarantees of freedom of speech. Holmes concurred in the result though supposedly not in the reasoning. While he did not set forth his reasoning in an opinion, it may be fairly well guessed from the dissenting opinions with which he did not agree and from his own opinions in two early cases. Chief Justice White dissented on the ground that after the passage of the Espionage Act by Congress, there was no further room for state action. White applied the same reasoning to this subject that Marshall had early adopted for the commerce and bankruptcy powers of Congress.21 But it was not Holmes's philosophy to carry out this analogy. Justice Brandeis, who had been Holmes's dissenting colleague in the Abrams, Schaefer22 and Pierce 23 cases, dissented with White and stated the additional contention that freedom of speech was a "privilege or immunity" of a citizen of the United States within the terms of the constitutional protection, 24 and was also a "liberty" of which a citizen could not be deprived without due process of law.2 25 There is a quality in Brandeis' reasoning which one naturally expects the liberal Massachusetts jurist to accept. In fact it carries a conviction of an irony in the construction of the amendments to the Constitution. The irony is that after the Supreme Court has read into the Fourteenth Amendment what it called the freedom of contract, which is nowhere mentioned in the document of our forefathers, this same court refuses to include in that amendment the 2030 Yale Law Journal, 623. 21 Brown v. Maryland, 12 Wheat. 445, 6 L. Ed. 678; Sturges v. Crowninshield, 4 Wheat. 122, 4 L. Ed. 529. 22 Schaefer v. United States, 251 U. S. 482, 64 L. Ed. 367. 23 Pierce v. United States, 252 U. S. 253, 64 L. Ed. 549. 24 Constitution, Article IV, Section 2, Paragraph 1. 25 Constitution, Amendments, Article XIV, Section 1. |