THE HISTORICAL INTERPRETATION OF
UNABRIDGED
FREEDOM OF SPEECH,
BY
THEODORE SCHROEDER.
†
K
A chapter from “Obscene Literature and Constitutional Law.”
Republished from Central Law Journal, March, 1910.
FOR
FREE-SPEECH LEAGUE,
I2O LEXINGTON AWE.
*, NEW YORK.
SECOND EDITION.
Sir Leslie Stephens on Toleration.
“The doctrine of toleration requires a positive as well as a neg-
ative statement. It is not only wrong to burn a man on account of
his creed, but it is right to encourage the open avowal and defence of
every opinion sincerely maintained. Every man who says frankly and
fully what he thinks is so far doing a public service. We should be
grateful to him for attacking most unsparingly our most cherished
opinions.”
“Toleration, in fact, as I have understood it, is a necessary co-
relative to a respect for truthfulness. So far as we can lay it down as
an absolute principle that every man should be thoroughly trustworthy
and therefore truthful, we are bound to respect every manifestation
of truthfulness.”A man must not be punished for openly avowing
any principles whatever.”
“Toleration implies that a man is to be allowed to profess and
maintain any principles that he pleases; not that he should be allowed
in all cases to act upon his principles, especially to act upon them to
the injury of others. No limitation whatever need be put upon this
principle in the case supposed. I, for one, am fully prepared to listen
to any arguments for the propriety of theft or murder, or if it be pos-
sible of immorality in the abstract. No doctrine, however well es-
tablished, should be protected from discussion. The reasons have
been already assigned. If, as a matter of fact, any appreciable number"
of persons is so inclined to advocate murder on principle, I should
wish them to state their opinions openly and fearlessly, because I
should think that the shortest way of exploding the principle and of
ascertaining the true causes of such a perversion of moral sentiment.
Such a state of things implies the existence of evils which cannot be
really cured till their cause is known, and the shortest way to discover
the cause is to give a hearing to the alleged reasons.” From “The
Suppression of Poisonous Opinions” in The Nineteenth Century,
March and April, 1883.
THE HISTORICAL INTERPRETATION OF
UNABRIDGED
FREEDOM OF SPEECH,
BY
THEODORE SCHROEDER.
A chapter from “Obscene Literature and Constitutional Law.”
&epublished from Central Law Journal, March, 1910.
FOR
FREE-SPEECH LEAGUE,
120 LEXINGTON AVE.
NEW YORK.
THEODORE SCHROEDER
Return Postage Guaranteed
Coscob, Connecticut, U.S.A.


THE HISTORICAL INTERPRETATION OF
“FREEDOM OF SPEECH AND OF
THE PRESS.”
The purpose is to re-interpret our constitutional guarantee
for an unabridged freedom of speech and of the press, by the
historical or scientific method, and with special reference to the
specific issue raised by the judicial dogmatism thereon and my
different conception of how that phrase ought to be interpreted.
To clarify the issues, I restate these contradictory propositions,
So the reader may have them constantly in mind during the
following discussion.
My contention as to the meaning of a constitutionally guar-
anteed right to unabridged freedom of speech and of the press,
is this: No matter upon what subject, nor how injurious to
the public welfare any particular idea thereon may be deemed
to be, the constitutional right is violated whenever anyone is
not legally free to express any such or other sentiments, either;
First, because prevented in advance by a legally created
censorship, or monopoly in the use of the press, or by other
governmental power, or ;
Second, because in the effort to secure publicity for any
idea whatever, the equality of natural opportunity is destroyed,
in that some, by subsequent legal penalties or other legal limi-
tations, are deterred, or are impeded, in the use of the ordinary
and natural methods of reaching the public, on the same legal
terms, as these are permitted to any person for the presentation
of any other idea, or;
Third, because the natural opportunity of all is abridged by
Some statutory impediment, such as taxes upon the dissemina-
tion of information placed upon all intellectual intercourse, as
such, or on all of a particular class, or;
Fourth, because inequalities in State-created, or State-
supported, opportunity is legalized, so that, in the effort to
secure publicity for any sentiments and merely because of their
3
nature, literary style, or supposed evil tendency, any one is
discriminated against, either by law, or for any cause by any
arbitrary exercise of official discretion, in the use of such State-
created or State-supported facilities, or;
Fifth, because after expressing one's sentiments one is by
law liable to punishment, merely for having uttered disap-
proved thoughts;
Provided always, that the prohibition, abridgment, discrim-
ination, subsequent punishment, or other legal disability or
disadvantage, is arbitrarily inflicted, or attaches merely because
of the character, literary style, or supposed bad tendency of
the offending sentiments, and their spread among sane adults,
willing to read, see, or hear them, or is the result of arbitrary
official discretion, and that they do not attach because of any
inseparably accompanying, or other resultant penalized invasive
act, constituting an actually ascertained, resultant, material
injury, (as distinguished from mere speculative or constructive
harm) inflicted, or by overt act attempted to be inflicted, before
arrest and punishment, and in either case actually resulting
from the particular utterance involved.
But, if the injury is to reputation, or loss of public esteem,
and among the consequences is material injury to the libeled
person, even then, truth and justifiable motive must always be
recognized by law as a complete defense; and where the
resultant injury consists in violence to person or property,
actually attempted or achieved, then the intent to achieve such
results must be of the essence of the crime, and punishment
of a mere speaker must be only that of an accessory before the
fact, if our constitutional guaranty is to be made effective.
I do not discuss civil remedies. -
THE JUDICIAL INTERPRETATION.
The contrary conclusion of the Courts is well summarized
by a dictum, perhaps hastily uttered, of the Federal Supreme
Court. These are its words: “The main purpose of such con-
stitutional provisions is to prevent all such previous restraints
as had been practised by other governments, and they do not
prevent the subsequent punishment of such as may be deemed
contrary to the public welfare”!"
In England the licensing acts, which put a previous restraint
upon publications, existed for only a short time, and finally
expired in A. D. 1694. It seems, therefore, according to the
*Patterson v. Colo., 205 U. S. 454, (462).
*Stevens’ “Sources of the Constitution of the U. S.,” p. 221; Patterson’s
“Liberty of Press and Speech,” 50 and 51
4.
definition of our American Courts, that perfect unabridged
liberty of speech and press obtained in England after the year
1694, because no licenser prohibited before utterance, and there
prevailed a system of subsequent punishment for only such
opinions as were deemed contrary to the public welfare, and
for nearly a century preceding our Revolution the agitation
for larger freedom of speech and of the press was a vain
demand for something already enjoyed by the agitators, but
not known by them to exist.
However ridiculous such judicial implications will appear
to some, the official eminence of the many judges who have
sanctioned that doctrine, and especially the tremendous con-
sequence of it to our liberties, precludes levity. We will there-
fore proceed in all seriousness to demonstrate the error of our
cQurts by a historical study and a scientific interpretation of
the facts. Thus it will be made to appear that unabridged
liberty of discussion did not obtain in England, or its American
Colonies, from 1694 until the American Revolution, and that
our Constitutions were designed to change the prevailing
system of an abridged and abridgable liberty of discussion by
permission, to an unabridged and unabridgable liberty of dis-
cussion as a constitutionally guaranteed, natural right, not to
be ignored, as in England, or Russia, where the claim of such
freedom was and is denied, on the plea of furthering the public
welfare.
THE EARLY THEORY AS TO FREE SPEECH.
In England, “before public meetings were resorted to as
an ordinary exercise of self-government, great looseness pre-
vailed in the law, the theory apparently being that free-speech
was a species of gift by the Sovereign to the people.” To
have the power to control what others may hear or see, is of
course to that extent a limitation upon their right to acquire
and have opinions—thus abridging the liberty of conscience—
since one cannot well acquire opinions the materials of which
are withheld from him. Since the right to have a personal
judgment and the right to express it existed only as a gift
from kings and priests, when the issuing of pamphlets became
an extended form of speech nothing was more natural than
that at first “printing was treated like the making of salamoniac
and apprentices were cautioned not to lay open the principles
to the unfaithfill “
*Patterson’s “Liberty of Press, p. 19.
*Patterson’s “Liberty of Press,” p. 43, citing, Becket v. Denison, 17 Parl.
Hist., 958. 5
The reasons underlying such conclusions are fully appreci-
ated only by keeping in mind the English conception of that
period as to the nature of the State. The features especially
to be remembered are the union of Church and State, and the
King's rule of divine right, as vice-gerent for the Almighty,
exercising the divinity's political omnipotence, and thus being
the giver of all good, including the grant of commercial oppor-
tunity and monopoly, and being incapable of doing any wrong.
It necessarily followed from such premises that the State-
religion be declared the fundamental and controlling part of
the laws of England, so that any statute made against “any
point of the Christian religion or what they thought was the
Christian religion, was void.”
From such considerations there grew up naturally laws
against blasphemous and seditious utterances. That these
found the tap-root of their justification in the union of Church
and State is evident from such judicial unreason as the follow-
ing : “To say that religion is a cheat, is to dissolve all those
obligations whereby civil societies are preserved, and Christian-
ity being part and parcel of the laws of England, therefore
to reproach the Christian religion is to speak in subversion of
the law.” This doctrine no longer obtains in England."
Since man can impose no rightful limitations on the exer-
cise of power by those who rule by divine right, it follows
that under such a State all liberty is necessarily only liberty
by permission, never liberty as an admitted natural right, and
necessarily to decry religion is to inculcate treason against
those whose right to rule is founded in that religion, and to
attack a government conducted by divine right is in its turn
irreligious and blasphemous. So, then, admitting the premises
of their Church-State, the Star Chamber was quite logical
when in de famosis libellis the court assumed “that words
against the government amount to sedition; and that words
against an archbishop are words against the government.”
Necessarily, under such a State, those who opposed the
existing restrictions upon speech and press were promoting
irreligion, and therefore treason against both earthly and
heavenly governments. In that controversy, the demand for
unabridged, or even larger freedom of heretical religious utter-
ance, necessarily included a demand for the right to advocate
even treason, and of course logically must include all the lesser
crimes. Although in America we boast of having outgrown at
*Patterson’s “Liberty of Press and Speech,” p. 67, citing 10 St. Tr. 375.
*Reg. v. Taylor, Ventris, 293
*See “Blasphemy and #lasphemous Libel,” by Sir Fitz James Stephens,
Fortnightly Review, Mar., 1884.
* Mence on Libel, p. 289.
6
least the avowed union of Church and State, we still retain
that union in fact, by virtue of many repressive laws which
Jhave no other foundation than the precedents of a Church-
State, and the moral sentimentalizing associated with, or
anchored in, religion. In studying the English precedents we
must always bear in mind the before-mentioned essential differ-
ence in our theories of government and the resultant difference
between liberty merely by permission and liberty as a constitu-
tionally guaranteed natural right.
ON CONSTITUTIONAL DESIGN.
Our constitutional guarantees upon this subject are both
useless and meaningless except on the assumption that they
were designed to repudiate the old theory that freedom of
utterance is liberty by permission or grant, and were intended
to establish intellectual liberty as a matter of constitutionally
guaranteed unabridgable natural right.
If it was not the design to change the English system of
liberty by permission to one of liberty as a right, then there was
no reason for any constitutional provision upon the subject.
If the only purpose was to preclude the creation of an official
censor, the easiest way would have been to have had the Con-
stitution say, “No censor shall ever be appointed,” or, “No
previous restraints shall be put upon speech or press.” Thus
there would be no restriction upon other modes of abridging
freedom of utterance. If the intention had been that a power
should remain which, by subsequent punishment, would sup-
press those discussions and ideas which were deemed contrary
to the public welfare, then, again, there was no need for any
constitutional provision upon the subject, because no other
opinions than such as had been deemed contrary to the public
welfare ever had been suppressed anywhere. If it is possible
to assume that the purpose of amending our Federal Constitu-
tion was to preclude Congress from punishing men for publish-
ing ideas, believed by it to be conducive to welfare, then we
might still expect that the most appropriate language would
have been used. Then our Constitution might have read thus:
“Congress shall make no law abridging freedom of speech or
of the press, except in the interest of the public welfare.” But
the insistence here is that such exception cannot properly be
interpolated into our Constitution by judicial action.
I utterly repudiate the dogmatic paradox of our courts,
7
which, while claiming to construe our Constitutions, declare
that the words, the legislature “shall make no law abridging,”
etc., mean that, in the alleged interest of the public welfare, it
may enact any abridging laws it sees fit, if thereby no restraint
is imposed prior to publication.
It does seem to me that these few suggestions, together
with a bit of critical thought on the words themselves, as used
in our Constitutions, should be all that is necessary in justifica-
tion of my contention. However, the abundance of judicial
dogmatism to the contrary, and the general acquiescence there-
in, persuade me that a more elaborate study of the historical
factors is quite indispensable for most minds, even of the sort
that have capacity for logical thinking upon this subject.
THE METHOD OUTLINED.
In the scientific aspect, our social and political institutions,
like all other natural phenomena, are but special manifestations
of the all-pervading law of evolution. With enlarged experi-
ences, we change our conceptions of what is required by the
natural law of our Social relations, and accordingly we change
our verbal statements of law. It follows that the laws of a
State always seem to be approaching, but never attain, perfec-
tion. This seeming corresponds to the reality so long as the
dominant conception of the law is nearing the truly scientific. By
a scientific conception of the law, I mean one wherein the em-
pirical generalizations have all been included in one rational
generalization, which is the law upon the subject, because it is
derived wholly from the nature of things; and, in every state
of facts to which it can be applied, it conclusively determines
the how and the why certain judgments must be so, and thus,
the result always being derived exclusively by deductions from
the ultimate rational generalization, which thus furnishes the
only standard of judgment determining the decision in every
particular case, that law must always be conformed to, irre-
spective of the direct estimate of the beneficence of its results
in any particular instance?”
I venture the assertion that no one who has understandingly
read the foregoing statement of the meaning of “Law,” and
who has also read the judicial opinions as to the meaning of
unabridged freedom of speech and of the press, will claim that
any American court has ever attempted to declare the law of
our Constitutions as to the freedom of utterance, because no
*See, v. 42, Am. Law Review, p. 360.
8
court has ever attempted, even in a crude way, to furnish us
with any comprehensive statement of the criteria for judging
the constitutionality of enactments relating to speech or press.
In England, where there is no constitutional limitation
upon the power of Parliament to abridge freedom of utterance,
it was said, after the passage of the Fox libel act, that
“Freedom of discussion is little else than the right to write
or say anything which a jury, consisting of twelve shopkeepers,
think it expedient should be said or written.” That is freedom
as a matter of expediency and by permission, the only kind
of freedom of speech and press that has ever obtained in Eng-
land or Russia. How useless then is our Constitution if, as
the Courts quite uniformly assert, unabridged and unabridg-
able freedom of discussion is the right to say whatever a legis-
lature of mediocre attainments may think it expedient to permit
to be said 2 If our constitutional guarantees declare and de-
termine rights, then these cannot be destroyed by the arbitrary
decree of the legislature, even though done in the alleged
interest of the public welfare. If the Constitution is a law
of right, then its declarations are always to be obeyed, even
though the legislature and court concur in the belief that in a
particular case the exercise of a constitutional right is against
the public welfare. Neither can such belief invest them with
the authority to amend the Constitution so as to make it read,
“Congress shall make no law abridging freedom of speech or
of the press except as to those ideas which it deems contrary
to the public welfare.” If we are to preclude such dogmatic
judicial amendments of our Constitutions, we must develop
in the judicial mind, by the scientific method, a conception of
constitutional law in accord with the conception of the legal
scientist.
The materials for a scientific interpretation of the Consti-
tution are antecedent historical controversies, whose issues the
Constitution was intended to decide. The method must be to
trace the evolution of the idea of unabridged freedom of dis-
cussion, from its inception as a mere personal protest and
mere wish of the individual to be personally free from a partic-
ular interference, through unnumbered empirical inductions to
the impersonal recognition of a general principle underlying
all such protests and demands, and determining the rightfulness
of them. To achieve this we must study the historical contro-
versies and the primitive crude demands for a lesser abridg-
10Dicey, “The Law of the Constitution,” p. 234.
9
ment of intellectual liberty, that we may discover the common
elements in all these varying demands, and when we have thus
discovered the elements of unification common to all these
struggles for a lesser abridgment of intellectual liberty, have
studied the various historical means of abridgment from which
arose the controversies which were settled by our Constitutions,
and have generalized the inhibition against all similar recur-
rences, we may achieve a scientific conception of what is meant
by an abridgment of freedom of speech. This will be a rational
generalization giving us the criteria by which to judge whether
or not a particular enactment is, or is not, a breach of the
constitutional right of an unabridged freedom of utterance.
THE DISPUTANTS CLASSIFIED.
I cannot resist the feeling that it is an awful reflection
upon the general and the judicial “intelligence” that any argu-
ment should be deemed necessary to show the absurdity of the
official “construction” of our Constitutions. Manifestly, it is
urgently necessary, and it is to this end that we are to make a
more precise analysis of the historical controversy which, in
America, culminated in the adoption of our constitutional
guarantees for unabridged freedom of speech and of the press.
In making our analysis of the historical contentions, we must
keep in mind at least three main classes of disputants.
The first and most popular class consisted of those emi-
nently respectable and official persons who asserted, not only
the existence of a proper governmental authority to abridge
in every manner the intellectual liberty of the citizen, but who
also defended every existing method by which the power was
being exercised. This class was the only one fortified by official
justifications and judicial definitions of the pre-revolutionary
period.
To the second class belonged those conservative reformers
who did not question the existence of a power to control
legally the intellectual food-supply of the populace, but who
did question some particular manner of its exercise. These
usually believed in a larger liberty of speech and press, but did
not demand that it be wholly unabridged, and usually their
arguments were directed only to the inexpediency of some
particular abridgment and not toward the defense of liberty
as an unabridgable natural right. Among these could be found
persons who demanded larger liberty for the promotion of
10
their own heresies, but justified the punishment of other her-
etics; there were those who demanded liberty for the discussion
of religion, but hastened to out-Herod Herod in their justifica-
tion of the punishment of the psychologic crime of verbal
treason. Others, like Erskine, demanded a larger liberty for
the criticism of government, but hastened to give assurance of
their entire orthodoxy by joining in the clamor for the punish-
ment of religious heretics. Should we mistake any of these
disputants as the defenders of unabridged freedom of speech
and press, and adopt their definitions of liberty, as a means
of Constitutional construction, we should of course be led
far astray and reduce our constitutional right to unabridged
freedom to a limited liberty by permission.
The third class of controversialists was composed of those
few who denied the existence of any rightful authority for the
punishment of any mere psychologic crimes, and who therefore
demanded the establishment and maintenance of unabridged
liberty of utterance. It was the contention of these persons
which was adopted into our Constitutions, and it is their state-
ment of the meaning of “freedom of speech” which should
be made the basis for constitutional construction, and not the
judicial precedents of the Star Chamber, expressing the Eng-
lish practise from the viewpoint of the Church-State, which
viewpoint was repudiated by our American States and which
precedents were overruled by our American Constitutions.
Unfortunately, these precedents are still often followed by our
American Courts, whose judges are supposed to be the con-
servators, but often act as the destroyers, of our liberty,
especially when unpopular and disapproved utterances are in-
volved.
The varying conceptions of the limits of freedom of utter-
ance, as advocated by these classes of controversialists, will
now be exemplified by illustrative quotations, that we may
show what was meant by an unabridged liberty of utterance, by
those whose views were incorporated in our Constitutions.
LICENSING THE PRINTER.
The press was introduced into England by Henry VII.
From this fact, together with the prevailing opinion that the
whole matter of freedom of speech was one of permission, or
gift from the Sovereign, nothing was more natural than that
Edward the VI. should by patent appoint a printer, who was
*
11
to print and sell all Latin, Greek, and Hebrew books, as well
as all others that might be commanded, and penalties were
denounced for infringing his monopoly. Subsequently, the
number of licensed printers was enlarged, but for a consider-
able time it was limited.” In this form of license, the letter
of the law made no discrimination against a book according to.
the sentiments expressed. The license seems rather to have
been a business monopoly given to some court favorite, and a
matter of confidence in the printer, as one having the discretion
to publish nothing inimical to the grantors of his special
privilege. Of course, this public printer did not publish for
future reference any of the arguments against his monopoly.
Could we now look back to analyze the opposition to this first
form of licensing, we would seek for two possible explana-
tions of it. According to one, freedom of the press might
mean only the commercial freedom to use the press as a tool
of trade, in commercial competition with the Crown-mon–
opolists, and a modern judge, adopting that conception as a
basis for constitutional construction, might uphold a law cre-
ating a censorship over only the character of the printed
matter, and not directly and immediately affecting the equality
of commercial opportunity in the use of the printing press as
an instrument of commerce. According to this first point of
view, the abolition of this monopoly was the chief, or only,
end in view, and this object would not be in the least interfered.
with by a new form of censorship directed against particular
psychologic tendencies of opinions, which would leave in-
tellectual liberty just as much abridged as before.
The other view would be that the opposition to licensing
of the printer was based principally upon the demand for a
larger intellectual liberty, by equalizing the opportunity of all
for using the press as an extended form of speech. In this
second view, the mere abolition of the license for printers”
monopoly is not an end in itself, but a mere means to the endſ
of increasing intellectual liberty and opportunity, a viewpoint
quite constantly ignored in our judicial utterances upon this
subject. It is unthinkably paradoxical that the few friends.
of freedom of speech and of the press who existed at that
time should have had no interest in the enlargement of in-
tellectual liberty, and were interested only in the enlarged.
opportunity for the use of the press as a tool of trade.
Of course this view, that enlargement of intellectual op—
*Paterson’s “Liberty of Press,” p. 44.
12
portunity was the chief end sought, is confirmed by the related
controversial literature of approximately that time. As I
write this, I have open before me a volume in which are
reprinted the tracts on “Liberty of Conscience” which had been
published prior to 1661. These express “the first articulations
of infant liberty.” The arguments are in the main very crude,
as arguments for liberty. They may be clearly divided into a
few general classes: First, “we dissenters are right, therefore
ought to be tolerated.” Second, “the Bible teaches toleration,
therefore we should be tolerated.” Third, “it is not in the
power of man to believe as he wills, but he believes as he must,
and he therefore should not be punished for expressing con-
victions he cannot escape.” This last is a good argument
against the injustice of punishing “dangerous” opinions, even
yet. Amid much crude thinking, there are some few very
clear perceptions, excluding all mere psychological crimes from
the legitimate province of government. To this end, Luther
was quoted and his thought is several times restated by dif-
ferent authors. Luther’s words are these: “The laws of civil
government extend no further than over the body and goods,
and that which is external: For over the Soul, [mind] God
will not suffer man to rule.” Such were the contentions made
in behalf of liberty of speech, or, “the liberty of prophesying,”
as it was then often called. One would look in vain through
this volume of early tracts for any suggestion that the larger
liberty contended for, or an unabridged freedom of discussion,
consisted only in the absence of a prior censorship. I do not
recall even a single mention of a previous censorship as the
essence of the evil, nor mere commercial opportunity to use
the press as a tool of trade, as an end to be achieved. Always
the demand was for, and, indeed, the arguments were all in
furtherance of, a larger intellectual liberty, and sometimes
demanded an unabridged liberty of utterance, by excluding all
psychological offenses from the jurisdiction of the criminal
law. -
These early tracts, so far as they go, are a vindication of
the contention, stated at the head of this essay, as that relates
to the period prior to 1661. It is utterly absurd for our courts
to intimate, as they do, that the real friends of unabridged
intellectual opportunity were ever concerned only with the
mere time or manner (rather than the substance) of the
abridgment of liberty. The friends of freedom never sought
13
the abolition of previous restraint in favor of subsequent
punishment, as an end in itself, but were seeking to enlarge
intellectual opportunity as against abridgment either by prior
restraint or subsequent punishment.
No doubt it was in this early protest against a licensed
printer that the phrase “Freedom of the Press” came into use,
for here only does it have a literal signification. When the
press was made free, as an instrument of trade, the shifty
tyrant saw to it that no enlargement of intellectual opportunity
resulted.
USURPATION BY THE “STAR CHAMBER.”
Prior to 1637 there seems to have been no criminal penalties
inflicted by the English secular courts, for mere psychological
offenses, such as the expression of unpopular opinions. “The
Common Law took cognizance of no injuries but such as
affected persons or property.” In 1637 the Star Chamber,
which never hesitated to assume the most preposterous powers,
usurped the legislative function of penalizing libel, by its
decree regulating the press.” This Judicial lawlessness, in
usurping the power to punish mere psychologic crimes under-
er post facto criteria of guilt, of course provoked criticism
from those who loved liberty and knew something of its
nature, and no doubt it also secured for “the watchtower of the
King” the hearty approval of all tyrants, for the protection
of whose reputation and prerogatives this abridgment of free-
dom of utterance was inaugurated. This usurped censorship
and the accompanying ear post facto penalization of mere-
psychologic crimes, were among the last and most hideous of
the acts of this infamous “Judicial” body, for the Star Cham-
ber was abolished in 1640. No doubt the hostility excited by
its outrageous creation and enforcement of laws against mere
verbal crimes contributed much towards the downfall, but
tyranny did not die with the institution that invented this
special means to its end. The co-tyrants of the Star Chamber
Court and their successors, prompted by the same inordinate.
lust for power and preferring to be relieved of the occasion for
defending their official conduct, have continued, with slight
modifications and very brief cessations, to this very day to act.
upon the precedents of the abhorred Star Chamber. Parlia-
mentary enactment along similar lines soon took the place of
Star Chamber decrees, and vagueness in the legislative defini-
**Mence on Libel, p. 333.
*Patterson on “Liberty of Press and Speech,” 45; Mence, “Law of Libel,”
1. enc
Chapt. 9, (1824); “The Freedom of Speech and Writing,” pp. 47, 49, 99. (Lond.,
766). -
1766
14
tion of criminal libel left quite unimpaired the power for an
ea post facto creation of the criteria of guilt. So it comes
to pass that, while maintaining some of the outward seemings
of law, the fundamental evils of judicial despotism still exist,
even in those countries whose inhabitants are most vociferous
in their stupid boast over a purely imaginary liberty. How-
ever, let it be said, that the savagery of the penalties has been
a little abated, even though on the whole intellectual liberty
has received no substantial enlargement. What has been
gained as to some subjects has been lost as to others. Some
comparison as to this would be interesting but is not within the
Scope of this essay. «»
LICENSING THE BOOK.
The licensing of one printer was succeeded by the licensing
of many and later by the abolition of this system in its entirety,
allowing all alike to use the printing press as an instrument of
commerce, but maintaining inequalities as to its use in the
distribution of ideas. Here I have reference to those various
licensing acts, expiring in 1694, which succeeded to the Star
Chamber decrees, and by which a censor authorized particular
books to be printed, and all publications not so authorized.
were penalized. It was against this censorship that Milton
directed his immortal essay, “Areopagitica.”
Here, again, we must seek an answer to the same old
question, Is it true, as our courts generally assert, that Milton
and others who opposed these licensing acts were concerned
only with the manner and not with the substance of this abridg-
ment of freedom of the press? Is it true, as our courts usually
imply, that the opponents of these licensing acts demanded
only the abolition of the censor and previous restraint, and
were quite willing to admit a power to punish subsequent to
publication all those opinions which formerly had been denied
the necessary license for getting into print? In Milton's time,
one might print unpopular opinions, which the licenser had
disapproved, and be punished if caught. This the Supreme
Court of the United States says is an abridgment of freedom
of the press. However, if there is no previous censorship,
and although you receive the same penalty, merely for publish-
ing the same book, because a legislature or jury deem it
contrary to the public welfare, then unabridged liberty of the
press is thereby preserved, for “the greatest judicial tribunal
15
on earth” has said that a constitutionally guaranteed natural
right to unabridged freedom of press calls for the cessation of
“all such previous restraints as had been practised by other
governments, and [but] does not prevent the subsequent pun-
ishment of such [publications] as may be deemed against the
public welfare.”
In other words, our courts declare that our constitutional
right to unabridged freedom of utterance deals only with the
manner and time of the abridgment, or the tribunal which
inflicts it, and has nothing to do with unabridged intellectual
opportunity to utter, to hear, and to read. Be it remembered,
however, that no such distinction in favor of any ex post facto
censorship can be deduced from the very words of our Con-
stitutions, nor from the historical controversy culminating in
their adoption, and, therefore, these exceptions to unabridged
freedom are a matter of judicial creation—that is, of judicial
constitutional amendment.
IN DEFENSE OF THE CENSORSHIP.
Then, as now, the advocates for the suppression of un-
popular opinions refused to see that to admit the existence of
the power to suppress any opinion, is, in the long run, more
destructive to human well-being than the ideas against which
they would have the power exercised. Then, as now, the
alleged immediate public welfare was the justification of every
form of censorship, and some dangerous “tendency,” only
speculatively ascertained and usually so in a feverishly appre-
hensive imagination, was always the test of guilt. “The most
tyrannical and the most absolute governments speak a kind
parental language to the abject wretches who groan under
their crushing and humiliating weight.” To make this clear,
it is necessary only to quote a few passages from a publication
dated A. D., 1680, and written in defense of the abridgments
of freedom of speech and press. Sir Robert L’Estrange in, “A
Seasonable Memorial in some Historical Notes upon the Liber-
ties of the Press and Pulpit,” quotes Calvin as saying: “There
are two sorts of seditious men, and against both these must
the sword be drawn; for they oppose the King and God him-
self.” He then exhibits the evolution of dangerous tendencies
by these words: “First they find out corruptions in the Gov-
ernment, as a matter of grievance, which they expose to the
people. Secondly, they petition for Redress of those Griev-
*Erskine in defense of Carnan.
16
ances, still asking more and more, till something is denied
them. And then, Thirdly, they take the power into their own
hands of Relieving themselves, but with Oaths and protestations
that they act only for the Common Good of King and Kingdom.
From the pretense of defending the Government they proceed
to the Reforming of it; which reformation proves in the end
to be a Final Dissolution of the order both of Church and
State. * * * * Their consciences widened with their interest.
* * * * First, they fell upon the King's Reputation; they in-
vaded his authority in the next place; after that they assaulted
his Person, seized his Revenue; and in the conclusion most
impiously took away his Sacred Life. * * * * The Transition
is so natural from Popular Petition to a Tumult, that the one
is but a Hot Fit of the other; and little more than a more earnest
way of petitioning. * * * * They Preach the People into
murther, sacrilege, and Rebellion; they pursue a most gracious
Prince to the scaffold; they animate the Regicides, calling that
Execrable villainy an act of Public Justice, and entitling the
oly Ghost to Treason.”
This argument, backed by the historical fact, is unanswer-
le to the point that to permit freedom of criticism of Govern-
ent and its officials, and to allow the presentation of petitions
fºr the redress of grievances, is to permit that which tends
tº promote actual treason and rebellion. It follows that those
who were demanding the opportunity to express their senti-
ments in criticism of official conduct were in effect demanding
tle right verbally to promote treason with impunity, because
that was the demonstrated tendency of such utterances. That
is what unabridged freedom of speech and of the press meant
to its advocates, and our constitutional guarantee for an un-
abridged freedom of utterance was a final decision in favor of
that view and against all mere psychologic crimes, including
even verbal “treason.”
THE DEFENSE OF FREEDOM, BY MILTON.
In further justification of the contention that unabridged
freedom of utterance as a matter of right precludes the Sup-
pression of opinions having a “dangerous” tendency, either
by direct prior restraint or subsequent punishment—the fear
of which always operates as a prior restraint—we should
contrast the foregoing argument for restricting speech with
the historic argument for freedom made in Milton’s “Areo-
15In addition to “A Seasonable Memorial,” see, for similar argument, “A
Discourse of Ecclesiastical Politic, wherein the Mischiefs and Inconveniences of
Toleration are Represented,” London, 70
17
pagitica.” Here we can quote only a few paragraphs tending
to show what freedom of speech meant to its friends. Not
a word can be found to suggest ear post facto punishment as
a substitute for previous restraint.
Milton writes: “Till then, books were ever as freely ad-
mitted into the world as any other birth; the issue of the brain
was no more stifled than the issue of the womb. * * * * “To the
pure all things are pure,” not only meats and drinks, but all
kinds of knowledge, whether of good or evil; the knowledge
cannot defile, nor consequently the books, if the will and
conscience be not defiled. For books are as meats and viands
are, some of good and some of evil substance; and yet God
in that unapocryphal vision said, without exception, “Rise,
Peter, kill and eat,” leaving the choice to man's discretion.
Wholesome meats to a vitiated stomach differ little or nothing
from unwholesome, and best books to a naughty mind are not
unapplicable to occasions of evil. Bad meats will scarce breed
good nourishment in the healthiest concoction; but herein the
difference is of bad books, that they to a discreet and judicious
reader serve in many respects to discover, to confute, to
forewarn, and to illustrate. * * * * All opinions, yea, errors
known, read and collated, are of main service and assistan
toward the speedy ascertainment of what is truest. * * * * Fqr
those actions, which enter into a man rather than issue out 4f
him and therefore defile not, God uses not to captivate undºr
a perpetual childhood of prescription, but trusts him with the
gift of reason to be his own chooser. * * * *

“I cannot praise a fugitive and cloistered virtue, unexº.
cised and unbreathed, that never sallies out and sees her
adversary, but slinks out of the race, where that immortal
garland is to be run for, not without dust and heat. Assuredly
we bring not innocence into the world, we bring impurity much
rather; that which purifies us is trial, and trial is by what is
contrary. That virtue which is but a youngling in the con-
templation of evil, and knows not the utmost that vice promises
to her followers, and rejects it, is but a blank virtue, not a
pure; her whiteness is but an excremental whiteness. * * * *
“Since, therefore, the knowledge and survey of vice is in this
world so necessary to the constituting of human virtue, and the
scanning of error to the confirmation of truth, how can we
more safely, and with less danger, scout into the regions of
sin and falsity, than by reading all manner of tractates, and
18
hearing all manner of reason? " *** Truth and understanding
are not such wares as to be monopolized and traded in by
tickets and statutes and standards. * * * * Give me the liberty
to know, to utter, and to argue freely according to conscience,
above all [other] liberties.
“Though ye take from a covetous man all his treasure, he
has yet one jewel left; ye cannot bereave him of his covetous-
ness. Banish all objects of lust, shut up all youth into the
severest discipline that can be exercised in any hermitage, ye
cannot make them chaste that came not hither so.”
And yet Milton, though he made an unanswerable argument
for a totally unabridged freedom of utterance, could not get
wholly beyond all his religious prejudices, and so, although the
argument made no provision for it, he found it necessary dog-
matically to provide for one exception. “I mean not tolerated
Popery and open superstition, which, as it extirpates all re-
ligious and civil supremacies, so itself should be extirpated.”
While Milton thus fell short of an unlimited intellectual toler-
ation he yet furnished an immortal statement of reasons to
guide us to an unabridged freedom of utterance, and to the
invalidating of his own exception thereto.
SPINOZA.
To this same period belong the writings of Spinoza. As
is to be expected, his viewpoint is different from the others
of his time. -
He concludes: “We have shown already that no man's mind
can possibly lie wholly at the disposition of another, for no
one can willingly transfer his natural right of free reason and
free judgment, or be compelled to do so. For this reason the
government which attempts to control minds is accounted
tyrannical, and it is considered an abuse of sovereignty, and
a usurption of the rights of subjects, to seek to prescribe what
shall be accepted as true, or rejected as false, or what opinions
shall actuate men in their worship of God. All these questions
fall within a man's natural right, which he cannot abdicate
even with his own consent. * * * * The individual justly cedes
the right of free action, though not of free reason and judg-
ment. No one can act against the authorities without danger
to the State, though his feelings and judgment be at variance
therewith. He may even speak against them, provided that
he does so from rational conviction, not from fraud, anger,
19
or hatred, and provided that he does not attempt to introduce
any change on his private authority. * * * * Thus we see how
an individual may declare and teach what he believes, without
injury to the authority of his rulers, or to the public peace;
namely, by leaving in their hands the entire power of legis-
lation as it affects action; and by doing nothing against their
laws though he be compelled often to act in contradiction to
what he believes, and openly feels to be best. From the funda–
mental notions of a State, we have discovered how a man
may exercise free judgment without detriment to the supreme
power; from the same premises we can no less easily determine
what opinions would be seditious. Evidently those which by
their very nature nullify the compact by which the right of free
action is ceded. * * * * -
“If we hold to the principle that a man's loyalty to the
State should be judged, like his loyalty to God, from his actions
only—namely from his charity towards his neighbors—we
cannot doubt that the best government will allow freedom of
philosophical speculation, no less than of religious belief. I
confess that from such freedom inconveniences may sometimes
arise, but was any question ever settled so wisely that no
abuses could possibly spring therefrom ? He who seeks to
regulate everything by law is more likely to arouse vices than
to reform them.”
From these quotations it appears that Spinoza did not
believe in an unabridged freedom of utterance. His belief
in the psychologic crime of a mere verbal treason, though
limited within unusually narrow range, followed logically from
his erroneous conception of the sphere of government. Of this
he said: “The rights of the sovereign are limited by his power.”
Since in his theory of government sovereign rights arise out
of a cession of freedom of action by the citizen, the opinion
which nullified that hypothetical compact could be called
treason so long as the sovereign had the power to suppress it
as such. It is quite probable, and at least consistent with his
theory, that this exception may have been made by Spinoza
as a condition of securing tolerance for the rest of the argu-
ment in favor of free speech. -
However that may be, as Spinoza repudiated the exception
to unabridged freedom of utterance reserved by Milton, so
the latter annihilated the one exception made by Spinoza. The
premises of each exception were specifically repudiated by the
20
American Declaration of Independence and American Consti-
tutions, and hence these exceptions to unabridged liberty of
utterance also must fall. However, the matter that I now wish
specially to emphasize is this: The very nature of these argu-
ments for larger freedom is such as utterly to destroy our
judical assumption that the friends of unabridged freedom
of utterance, who framed our Constitutional Guarantees,
meant only to provide for ea post facto punishment as a
substitute for previous restraint.
MONTESQUIEU.
Some years after the death of Milton came the birth of
Montesquieu, who “commanded the future from his study
more than Napoleon from his throne,” and whose book on
“The Spirit of the Laws” “probably has done as much to
remodel the world as any product of the eighteenth century,
which burned so many forests and sowed so many fields.”
In the opinion of Justice O. W. Holmes, “Montesquieu had
a possibly exaggerated belief in the power of legislation,”
which alone would not predispose him against censorship.
The frequent reference to him in The Federalist and other
discussions of the revolutionary period, as well as our Constitu-
tions themselves, all show how the thought provoked by his
book helped to shape our Institutions. This makes it all the
more important to ascertain his views upon the province of
the State in relation to the liberty of speech and press, because
of their quite direct bearing upon the historical interpretation
of our Constitution. -
On the subject of religion, he emphasizes the essential
difference between human and divine laws, and argues reserv-
edly for general toleration of all religion, and concludes:
“When the legislator has believed it a duty to permit the
exercise of many religions it is necessary that he should enforce
also a toleration among these religions themselves. * * * *
Penal laws ought to be avoided in respect to religion.”
In the matter of verbal treason, Montesquieu seems very
exact in his statements and comprehensive in his thought.
Only a few lines will need quoting. He says: “Nothing
renders the crime of high treason more arbitrary than declaring
people guilty of it of indiscreet speeches. * * * * Words do
not constitute an overt act; they remain only an idea. When
considered by themselves, they have generally no determinate
21
signification, for this depends on the tone in which they are
uttered. * * * * Since there can be nothing so equivocal and
ambiguous as all this, how is it possible to convert it into a
crime of high treason? Wherever this law is established, there
is an end not only of liberty, but even of its very shadow. * * * *
“Overt acts do not happen every day; they are exposed to
the naked eye of the public, and a false charge with regard
to matters of fact may be easily detected. Words carried
into action assume the nature of that action. Thus a man who
goes into a public market-place to incite the subject to revolt
incurs the guilt of high treason, because the words are joined
to the action, and partake of its nature. It is not the words
that are punished but an action in which words are employed.
They do not become criminal but when they are annered to
a criminal action; everything is confounded if words are con-
strued into capital crime, instead of considering them only as
a mark of that crime.”
In this evolution to a clearer conception of the issues and
the more exact statement of the claims of contending parties,
we have now reached the place where unabridged intellectual
liberty is defined by excluding from the category of crime
every offense founded upon speech, merely as such.
BLACKSTONE AND HIS CRITICS.
Blackstone was the victim of most of the popular super-
stitions of his time, from witchcraft down. Of course he
indorsed the current theory of government and consequently
the current abridgments of freedom of speech and press. He
had no desire or intention to vindicate man's natural right
to such liberties unabridged, but approved and made declara-
tions of the laws in operation, as he found them. Thus he
wrote: “Everything is now as it should be with respect to the
spiritual cognizance, and spirtual punishment of heresy; unless
perhaps that the crime ought to be more strictly defined, |and
no persecution permitted, even in the ecclesiastical courts, till
the tenets in question are by proper authority previous declared
to be heretical. Under these restrictions, it seems necessary
for the support of the national religion that the officers of
the church should have power to censure heretics, yet not to
harrass with temporal penalties, much less to exterminate or
destroy them.”
These spiritual censures and excommunication involved
*Vol. I., p. 233, Aldine Edition.
17Vol. 4 Commentaries, p. 49.
2
2
indirect penalties, such as incapacity for “suing an action,
being witnesses, making a will, receiving a legacy,” etc., and
these indirect consequences it would seem that Blackstone
approved.
Again he writes: “The [some not unabridged] liberty of
the press is indeed essential to the nature of a free state; but
this consists in laying no previous restraints upon publications,
and not in freedom from censure for criminal matter when
published. * * * * To subject the press to the restrictive power
of a licenser, as was formerly done, * * * * is to subject all
freedom of sentiment to the prejudices of one man, and make
him the arbitrary and infallible judge of all controverted points
in learning, religion, and government. But to punish, as the
law does at present, any dangerous or offensive writings which,
when published, shall on a fair and unpartial trial be adjudged
of a pernicious tendency, is necessary for the preservation of
Deace and good order, of government and religion, the only
solid foundations of civil liberty.”
It should be apparent from the mere reading that Black-
stone was defending and describing only such limited liberty
by permission as was then enjoyed in England, and never in-
tended either to define or defend unabridged freedom of dis-
cussion, as that was contended for by his opponents, whose
views, and not Blackstone's, were adopted into our Constitu-
tions. For this reason, one may well be surprised to find the
foregoing statement from Blackstone quoted by American
courts as an authority on the meaning of unabridged freedom
of utterance, which he never mentions.
One of Blackstone's critics, whose book went through more
than one edition and of whom it is said,” “he induced the
learned commentator [Blackstone] to alter some positions in
the subsequent edition of his valuable work,” had this to say
as to the meaning of unabridged freedom of speech:
“For, though calumny and slander, when affecting our
fellow men, are punishable by law ; for this plain reason,
because an injury is done, and a damage sustained, and a repara-
tion therefore due to the injured party; yet, this reason cannot
hold where God and the Redeemer are concerned; who can
sustain no injury from low malice and scurrilous invective;
nor can any reparation be made to them by temporal penalties;
for these can work no conviction or repentance in the mind of
the offender; and if he continue impenitent and incorrigible,
*Vol. 4 Blackstone’s Commentaries, p. 151.
19Allibone’s “Dictionary of Authors.”
23
he will receive his condign punishment in the day of final
retribution. Affronting Christianity, therefore, does not come
under the magistrate's cognizance, in this particular view, as
it implies an offense against God and Christ.” Here is again
a clear recognition and plain statement which, like Montes-
quieu's, demands that actual and material injury shall be the
basis of prosecution and not mere speculation about psychologic
tendencies. g
MANSFIELD AND KENYON.
Some of our courts, in addition to Blackstone, cite Lords
Mansfield and Kenyon, as authorities on the meaning of un-
abridged freedom of utterance as though their views had been
adopted into our Constitutions. Concerning these opinions,
Sir James Fitz James Stephens (after quoting the differing
definitions of Lords Mansfield and Kenyon as showing what
was the official conception of freedom of the press) says:
“Each definition was in a legal point of view complete and
accurate, but what the public at large understood by the ex-
pression was something altogether different—namely the right
of unrestricted discussion of public affairs.”
In other words, the judicial conception of free speech was
an abridged free speech, and the popular demand was for an
tunabridged free speech. It should need no argument to prove
that the latter, and not the former, was intended to be adopted
into American Constitutions, and to me it is difficult to account
for the contrary opinion, often expressed by our courts, which
quite uniformly ignore even the existence of the pre-revolu-
tionary contention against the English official conception as
expressed by the Star Chamber, the English Parliament, Black-
stone, Mansfield, or Kenyon.
BISHOP HORSLEY, REV. ROBERT HALL, AND THOMAS JEFFERSON.
The issue between “freedom of the press” in the official
English sense, on the one side, and unabridged freedom of
utterance on the other, was made clear in another English
controversy following so closely upon the heels of our adoption
of the first amendment as to be fairly considered an English
aftermath of that agitation and of the American Revolution.
Bishop Horsley, on January 30, 1793, delivered a sermon
before the House of Lords, wherein he indulged in a severe
censure of that “Freedom of dispute” on matters of “such
*Furneaux’s “Letters on Toleration,” pp. 70-71, Second Edition.
*Vol. 2 “Crim. Law of Eng.,” p. 349.
24
high importance as the origin of government and the authority
of sovereigns,” in which he laments that it has been the “folly
of this country for several years past” to indulge. Of the
divine right of Kings he declared: “It is a right which in no
country can be denied, without the highest of all treason. The
denial of it were treason against the paramount authority of
God.”
These premises had recently been repudiated by our
Declaration of Independence, by the American Constitutions,
and by the friends of unabridged freedom of utterance every-
where. One of the conspicuous critics of Bishop Horsley
was the Rev. Robert Hall. In arguing against the rightfulness
of punishing mere psychologic crimes, he laid down the limits
of governmental action which must be adhered to if freedom
of speech is to remain an unabridged right, instead of mere
limited liberty by permission. He said: “The law hath amply
provided against overt acts of sedition and disorder, and to
suppress mere opinions by any other method than reasoning
and argument is the hight of tyranny. Freedom of thought
being intimately connected with the happiness and dignity of
man in every stage of his being, is of so much more importance
than the preservation of any Constitution, that to infringe the
former under pretense of supporting the latter, is to sacrifice
the means to the end.”
In his discourse, this Reverend author often emphasizes
the difference between ideas and overt acts and makes plain.
over and over that in his view actual injury should be the
criteria of guilt, and not mere apprehension as to a psychologic
tendency. Our constitutional definition of Treason and the
guarantees of the right to carry arms, of “due process of law,”
and of unabridged freedom of utterance, show that it was
such views as Milton argued for, and as Montesquieu and the
Rev. Robert Hall expressed, and not the views of Blackstone,
Mansfield, Kenyon, or Bishop Horsley, that our Constitutions
sought effectually to perpetuate.
Both before and after these utterances by the Rev. Robert
Hall there was most eminent American authority for the same
interpretation of the meaning of a “free press.” Thomas
Jefferson is popularly supposed to have had much to do with
framing the Declaration of Independence and shaping our
American institutions. He was a dominant figure in Virginia
politics for many years. Those who have familiarized them-
22*An Apology for Freedom of the Press,” p. 18.
25
selves with the religious views of Jefferson,” will not doubt
that he encouraged the passage of the Act of the State of
Virginia establishing religious freedom. Although drafted
with a view only to theological subjects, it contains a summary
of incontrovertible reasoning in favor of the general liberty of
inquiry and a clear statement as to where the jurisdiction of the
state rightfully may be invoked without abridging intellectual
liberty. The Virginia enactment says: “To suffer the Civil
Magistrate to intrude his power into the field of Opinion, or
to restrain the profession or propagation of principles on sup-
position of their ill tendency, is a dangerous fallacy, which at
once destroys all liberty, because he, being of course judge of
that tendency, will make his opinions the rule of judgment,
and approve or condemn the sentiments of others only as they
shall square with or differ from his own. It is time enough
for the rightful purposes of Civil Government for its officers
to interfere when principles break out into overt acts against
peace and good order.””
The Virginia declaration was made in 1786, several years
before the adoption of the first amendment to the Federal
Constitution. The Virginia enactment makes it clear that in
their opinion the State has no rightful authprity over opinion
of any sort, and should not be suffered to interfere until
ACTUAL injury has resulted. It was that conception of
“freedom of the press” which America adopted, and not the
English tyrants’ conception, to which it was opposed, and
which originated in the odious Star Chamber, found a palatable
justification in Blackstone and the English Judicial decisions,
and an official re-echo in American Courts, engaged in ex-
plaining away our constitutional guarantee for an unabridged
freedom of utterance.
When the Federalist party was defeated because of its
enactment of the Alien and Sedition Law, and Thomas Jef-
ferson became President of the United States, he proceeded
to pardon every man who had been convicted under this
infamous statute. That the penalized utterances tended to
sedition made no difference to him, which indicates that he too
indorsed the views of Montesquieu, the Rev. Robert Hall, and
the quoted enactment of the Virginia Legislature, as being
the correct interpretation of the words “unabridged freedom
of speech and of the press.” Jefferson’s own statement as to
his conduct is as follows:
*See, “Six Historic Americans.”
*Requoted from Wortman's, “Liberty of the Press,” p. 173.
26
“I discharged every person under punishment or prosecution
under the sedition law, because I considered and now consider
that law to be a nullity, as absolute and as palpable as if
Congress had ordered us to fall down and worship a golden
image; and that it was as much my duty to arrest its progress
in every stage as it would have been to have rescued from the
fiery furnace those who should have been cast into it for
refusing to worship the image. It was accordingly done in
every instance, without asking what the offenders had done, or
against whom they had offended, but whether the pains they
were suffering were inflicted under the pretended sedition law.
It was certainly possible that my motives in contributing to
the relief of Callandar, and in liberating sufferers under the
Sedition law, might have been to protect, reward, and encourage
slander; but they may also have been those which inspire
Odinary charities to objects of distress, meritorious or not—or,
the obligation of an oath ‘to protect the Constitution,’ violated
by an authorized act of Congress.”
This action on the part of President Jefferson was con-
sistent with the issue upon which he was elected, and was
required by his own conception of what was meant by an
unabridged “Freedom of Speech and of the Press” as applied
to verbal treason. His views are thus expressed in his first
inaugural address: “If there be any among us who would
wish to dissolve this Union or to change its republican form,
let them stand undisturbed as monuments of the safety with
which error of opinion may be tolerated where reason is left
free to combat it.”
These discussions again proclaim the historic view that
wnabridged freedom of utterance means that every man may
say with impunity whatever he pleases, being held responsible
and punishable only for actual resultant injury, that being the
only abuse of such freedom which can be penalized.
TAXES ON KNOWLEDGE.
Another form of impairing natural intellectual opportunity,
and therefore an abridgment of freedom of the press, was
taxes upon knowledge. In America, where to a very large
extent we have Government by newspapers, it seems unlikely
that such taxes will ever again become a subject of controversy.
However, we must briefly consider the matter as an historical
See, 4 Jefferson's Complete Works, 556, quoted in Booth’s v. Rycroft,
25
3 Wisconsin 183.
27
issue so that our final generalization as to unabridged freedom
of the press may negative also this form of abridgment.
George Jacob Holyoake has briefly described the conditions
against which he, and other friends of intellectual freedom
before him, waged such strenuous battle. These are his words:
“Yet every newspaper proprietor was formerly treated as a
blasphemer and a writer of sedition, and compelled to give
substantial securities against the exercise of his infamous
tendencies; every paper-maker was regarded as a thief, and
the officers of the Excise dogged every step of his business
with hampering, exacting, and humiliating suspicion. Every
reader found with an unstamped paper in his possession was
liable to a fine of £20. When the writer of this published
the ‘War Chronicles' and War Fly Sheets, the Inland Revenue
Office bought six copies as soon as each number was out; thus
he incurred fines of £120 before breakfast, and when the
last warrant was issued against him by the Court of Exchequer
he was indebted to the Crown £600,000. Besides, he had
issued an average of 2,000 copies of The Reasoner for twelve
years, incurring fines of £40,000 a week, which amounted to
a considerable sum in twelve years. He who published a
paper, containing news, without a stamp, was also liable to
have all his presses broken up, all his stock confiscated, him-
self, and all persons in his house, imprisoned, as had been done
again and again to others within the writer’s knowledge.
Neither cheap newspapers nor cheap books could exist while
these perils were possible.”
In his “History of the Taxes on Knowledge,” Collet in-
forms us that “The History of the Taxes upon Knowledge
begins with their imposition (1711) in the reign of Queen
Anne. The battle against the Press had, indeed, begun before
that date.” The year 1855 marked the final repeal of the
last of these English stamp acts, and those requiring bonds,
etc., from publishers. Those who are interested in this par-
ticular battle for larger freedom of the press are referred to
Mr. Collet's interesting account.” In all these discussions, it
is apparent that the main purpose was not to favor one system
of raising revenue as against Some other system, but to in-
crease the intellectual opportunities of all, by removing all
State-created impediments to the greatest natural freedom
for the interchange of ideas.
*Taxes on Knowledge, the story of their Origin and Repeal,” Lond., 1899;
see also Patterson on “Liberty of Press and Speech,” p. 57.
28
*
THE CENSORSHIP OF MAILS.
We next consider the method of creating inequalities in
intellectual opportunities, and of abridging them, by means of
a State-created postal censorship, which is fast becoming an
important issue in the contest for intellectual freedom in
America. The American postal censorship over mail matter
began in 1873, when a law was passed, without debate, making
“obscene” matter unmailable. I am informed that the original
draft of this bill included “blasphemy” in the unmailable list,
thus again emphasizing the origin in religious intolerance, and
pointing to the ultimate purpose of those who are so per-
sistently advocating and securing extensions of our postal
censorship. This censorship has already been extended, so
that now even political literatue, which in European monarchies
is spread without hindrance, has been excluded from Amer-
ican mails and penalized. The statutes heretofore have only
provided ea post facto punishment for use of the mails; they
did not authorize the postal authorities to prevent the trans-
mission of prohibited matter. In several Congresses, the
Postal Department asked an amendment to the laws such as
would give the postmaster power to refuse transmission to
forbidden matter. The amendment never was passed. Not
abashed by the refusal of the Congress to confer the power,
the authorities proceeded to usurp it, under the usual guise
of a new “construction” of existing statutes. This usurped
power, having been calmly acquiesced in by the public, soon
received judicial confirmation and gradually has been extended,
so that it now assumes to override the judical department by
excluding from the mails publications which the courts have
decided are mailable, and has excluded matter without the
warrant of any statute, relying upon the absence of a remedy
for the afflicted persons.
Under our modern conditions of living, with their cheap
printing and postal facilities, to be denied the use of the mails
for the spread of one's ideas creates a relatively greater in-
equality and abridgment of intellectual opportunity than ever
was created by any prior form of censorship. Since private
competition with our public mail service is prohibited by law,
and since in these times of a cheap periodical press no one can
hope ever to attain a favorable public opinion, in competition
with his intellectual opponents, except by publication through
29
the mails, therefore it follows that a postal censorship is the
most effective possible abridgment of freedom of the press.
Moreover, since the postal authorities now exercise a usurped
censorhip over postal matter prior to publication through the
mails, we have quite effectively, though unconsciously, re-
establihed in some fields of thought a “previous censorship,”
substantially like that against which Milton wrote nearly 300
years ago. If this previous censorship is upheld, in spite of our
Constitutions and judicial dictums against the legal possibility
of a “previous censorship,” then its spread into other, and
finally all, fields of thought is only a matter of time. Under
present conditions, the difference between a censorship previous
to printing and one after printing but previous to publication
by mail, is one of no practical import, because a book that
cannot get publicity by mail might as well never be printed,
since without facilities for distribution by post, interstate com-
merce, or private competitors of the postal system, the securing
of readers is practically impossible. Furthermore, a censorship
after printing, and before publication by mail, is worse than
one before printing, because it inflicts the needless loss of the
cost of printing.
The infamous Licensing Act of England, against which
Milton wrote, was passed September 20, 1649, and provided,
among its pernicious abridgments of freedom of the press, that
“no person whatever should presume to send by the post,
carriers, or otherwise, or endeavor to dispense, any unlicensed
book,” etc., on penalty of forfeiture, fine,and imprisonment. As
if to add insult to injury, every printer was required to give
a bond to “The Keepers of the Liberties of England,” to insure
against the violation of the licensing act. It was precisely this
censorship previous to publication by mail against which Milton
wrote his “Areopagitica.” Our courts have said that the ab-
sence of “such previous restraint as had been practised” is the
one thing, at least, against which our constitutional guarantees
protect us, and yet in spite of Courts and Constitutions we
have for some thme acquiesced in just such a usurped postal
censorship previous to publication by mail. Furthermore, ow-
ing to the uncertainty of the statutory criteria of mailability,
this censorship previous to publication by post is in practise
an arbitrary discretion. So, then, we do not even have left
the one lonely element of freedom which our courts too often
have mistaken for all there is to unabridged freedom of the
30
press. Even that little “all” has disappeared, and only the
blank paper of our Constitutional guarantee remains. When
the issue is squarely presented, will our courts confirm also
the destruction of this last element of freedom of the press,
and SO vest Congress and our Federal bureaucracy with all the
powers over the press which our Constitution was supposed
to withhold?
An English Barrister-at-law gives us this brief account of
the postal censorship in England: “The right of free speech
and writing can scarcely exist in perfection without mechanical
facilities for exchanging letters and printed matter between
correspondents. * * * * What is desired by each and every
citizen is, that he shall be entitled to send and receive all com-
munications which he thinks material to his own interest, and
that no third party shall be allowed to tamper or interfere with
this operation—so that a message sent in writing or print shall
be secret and inviolable from the moment it is despatched till
, the moment it is delivered. This has for two centuries been
more or less attained. The great medium for this communica-
tion between the subjects began in 1635, on a small scale, at
the suggestion of the Crown, but Parliament soon saw its im-
portance, and in 1649 passed a resolution that the office of post-
master ought to be [at] the sole disposal of Parliament. In
1710 a statute laid down the chief rules, and one of these,
continuing as it did the first sketch of a plan projected under
Charles I., forbade all other persons to carry and deliver letters
for hire. * * * *
“It appears to have been a century ago the common
complaint of leading statesmen that their political opponents
made a practise of opening their letters when they had the
power. * * * *
“In 1822 complaint was made by a member of Parliament
that a letter sent him by a prisoner had been opened. And,
though the Government claimed the right to do so for precau-
tion, yet many urged that it should be deemed a breach of
privilege; this step, however, was not taken.” Again, in 1844,
instances of private letters being opened were complained of,
and Parliamentary committees investigated the practise, and
found sufficient confirmation of the suspicion that such a prac-
tise was not unfrequent, especially in connection with foreign
refugees.” Sir R. Peel said that no rule could be laid down
on such a subject, and successive Secretaries of State of all
276 Parl. Deb. (2d), 282, 646.
2875 Parl. Deb. (3) 1264; 76 Ibid. 212, 296.
31
parties had been in the habit of exercising this power at dis-
cretion.”
Thus, this great authority on freedom of the press informs
us that, according to the English conception of it, the period of
our revolution found it a matter of constant complaint that
there was a post-office censorship. Those who thus complained
were the friends of a larger intellectual liberty and it was their
view that was adopted into our constitutional guarantee for
the security of papers against unreasonable searches, and
against all abridgments of freedom of utterance. These two
clauses together, until judicially explained away, would seem
clearly to preclude the search of unsealed as well as sealed
mail-matter for the purpose of creating inequalities of right
to the public service, according to whether the ideas transmitted
are officially approved or disapproved. This is the self-evident
meaning of our Constitution when viewed in the light of the
issues that were agitating the public at the time of its adoption.
The manifest purpose was the increase of intellectual oppor-
tunity, even though it protected such as might be inclined to
sedition, and just as manifestly it was not the purpose merely
to change a business policy in relation to a department of
government.
To show that the advocates of unabridged freedom of the
press included a mail service free from censorship as a part
of their conception of freedom of speech, I will content myself
with one quotation from Jeremy Bentham, as confirming the
foregoing historical interpretation. After explaining that the
only check to tyrannous government is “instruction, excitation,
and facility of correspondence” that “the national mind be
kept in a state of appropriate preparation; a state of prepar-
ation for eventual resistance,” he later continues thus: “Neces-
sary to instruction—to excitation—in a word to a state of
preparation directed to this purpose is (who does not see it?)
the perfectly unrestrained communication of ideas on every
subject within the field of government—[which includes the
discussion of sexual physiology and psychology as a founda–
tion for sex ethics, and the latter even from the viewpoint
of the free-lover and polygamist because a democratic govern-
ment must leave itself free to change even its marriage laws]
the communication, by vehicles of all sorts—by signs of all
sorts; signs to the ear—signs to the eye—by spoken language—
by written, including printed, language—by the liberty of the
*Rep. of Secret Com. 1845; Patterson, “Liberty of the Press, Speech, and
Public Worship,” pp. 58-59.
32
tongue, by the liberty of the writing desk, by the liberty of
the post office—by the liberty of the press.” He repeats that
this is necessary, “not only for instruction, but for excitation”;
all “for keeping on foot every facility for eventual resistance.”
Bentham then pointed to the United States as a place
where such liberties existed, but he could not do so now were
he alive. The Declaration of Independence, the constitutional
guarantees for the right of assembly, due process of law, the
right to bear arms, and against searches and seizures; the
declarations of the conventions of several of the States, the
constitutional guarantees of unabridged freedom of speech and
of the press—all proclaim the intention to protect the right
of the citizen against punishment for mere psychologic crimes,
to the end that he always may be prepared for eventual re-
sistance, even of government itself.”
PSYCHOLOGIC TENDENCY AS CRITERION OF GUILT.
Historically considered, an inseparable part of the conten-
tion for a larger, or an unabridged, liberty of speech and of
the press was the condemnation of that practise in the prosecu-
tion for libels which made the guilt of the accused depend upon
“the evils which may be imaginatively and prospectively at-
tributed to the influence of his opinions.” The opposition to
this uncertainty in the criteria of guilt was not limited to
persons who believed in unabridged freedom of speech, but
was often very forcibly urged by those who desired only a
little or no enlargement of intellectual opportunity. Even
Blackstone believed that the criteria of guilt for heresy and
seditious utterances should be made more certain.
The protest against the uncertainty of the tests of crimin-
ality in prosecutions for seditious and blasphemous utterances
was upon two distinct grounds. The first and most general
of these was the historical retrospect, and was an appeal to
expediency. The argument ran thus: Books once condemned
for their supposed evil tendencies are now believed to have
been good and useful. In making the psychologic tendency
of an utterance the test of its criminality, we are again opening
the door for a repetition of such error. Therefore, such
criminal laws are inexpedient and should be abolished. The
second reason for objecting to the tendency-test in penalized
utterances was from the point of view of that larger demand
for liberty which was founded upon the idea that no freeman
*Jeremy Bentham, “On Liberty of the Press and Public Discussion.”
*Stevens, “Sources of the Constitution, of the United States,” pp. 223-224;
Blackstone’s Commentaries, v. 1, p. 154; Cooley, “Constitutional Law,” 270.
33
should be deprived of his liberty except by lawful judgment of
his peers, or by the law of the land. This was predicated upon
the conception that every man should in justice be forewarned
that his act is penalized. It could not be the law of the land
if it did not impart that advance information, and could not
accomplish this except an exact statement of the criteria of
guilt was a part of every criminal statute. By such means the
lovers of Liberty hoped to obtain freedom under law in contra-
distinction to a mere liberty by permission under lawless despot-
ism. To such persons, it was self-evident that a speculative
opinion about the psychologic tendency of an utterance upon a
future, undescribed, hypothetical, reader, or hearer, when used
as a criterion of guilt, could be no restraint upon the moral
idiosyncracies, stupid bigotry, unreasoned hysterical apprehen-
Sion, personal interest, or even the superstitious malice, of
those charged with the duty of determining whether or not
a verbal crime had been committed. It was seen that under
such circumstances guilt must be determined by ex post facto
standards, personal to the individuals passing judgment. This,
it was argued, was government according to the lawless
despotism of man, and the friends of freedom demanded as
one of the conditions without which there could be no liberty
of speech or press, or liberty of any sort, that the criteria of
guilt be so certain that every man should know in advance,
from the very letter of the law, by what standard his conduct
would be adjudged criminal. It goes without saying that so
long as an er post facto judicial guess as to the psychologic
tendency of a speech, book, or picture is the test of guilt, there
can be no such thing as liberty under the law. Even from
those to whom “free speech” meant a limited liberty by per-T
mission, there came a protest against tyranny, and the demand
for the freedom of every man's opinion from that arbitrary
power for the penalizing of words by standards of an ex
post facto guess or pretense about “the evils which may
be inmaginatively and prospectively attributed to the in-
fluence of his opinions.”
As proof of the assertion that a demand for certainty
in the criteria of guilt always was a part of the agitation for
more freedom of speech and press, we need but to point out
that vast literature which was brought into being against
constructive treason and seditious libel. Erskine’s speeches
are replete with the glorification and demand for such certainty.
34
Here it is only necessary to call attention to its existence as a
part of the agitation for enlarged liberty. The discussion of
the question is better treated as a subdivision of an argument
to support the contention that “Due Process of Law” does
not obtain unless every criminal statute prescribes the criteria
of guilt with mathematical certainty.
IN CONCLUSION.
This historical review of the contentions which resulted in
the adoption of our constitutional guarantees for an unabridged
freedom of speech and of the press, is already too long for
comfortable reading, and not long enough to be anything like
an exhaustive treatise. I believe, however, that it adequately
establishes the following propositions:
I. The contention for an UNABRIDGED freedom of
utterance was always founded upon a demand for unrestrained
intellectual opportunity, and never concerned itself primarily
with preferences between different methods of abridging that
freedom.
II. It opposed all past and existing restrictions upon in-
tellectual intercourse, such as licensing printers or books,
censoring the post or other means of transmission, putting
taxes upon knowledge, and inflicting ex post facto punish-
ments; and our Constitutions not only sought to prevent a
recurrance of any of these former methods of abridging in-
tellctual opportunity, but the antecedent discussion and the
language used clearly express the determination to preclude
the enforcement of any other, even theretofore untried,
methods of curtailing intellectual intercourse, although again
claimed to be advocated for the furtherance of the public
welfare.
III. The demand for unabridged freedom of utterance
always was a demand for the abolition of all mere psychologic
crimes and all that uncertainty which attended them from the
fact that the criteria of guilt were usually “the evils which
may be imaginatively and prospectively attributed to the in-
fluence of one's opinions”; and the co-related demand that
crime should always be predicated upon a certainty, such as
an actual and material injury, or perhaps also the imminent
danger of such, according to the known laws of the physical
universe.
*
35
If we generalize all these contentions for a larger and an
unabridged intellectual opportunity, we shall have a compre-
hensive statement of the historical interpretation of unabridged
freedom of speech and of the press, and if the form of state-
ment is such as to furnish us with the criteria for determining
a breaching of the constitutional guarantee, we shall have
a statement in substance like that at the beginning of this
chapter.
If then we wish to determine whether or not any given
law is violative of the free-press clause of our constitutions
we must deductively apply to the law the several tests stated
at the beginning of this chaper. Doing this, with reference
to our laws prohibitive of sex-discussion I find them, in their
separate parts, to be unconstitutional, under the second, fourth,
and fifth, test of constitutionality.

A. J. Willard, on Free Speech.
“The most general office of speech is to reproduce the
thoughts and feelings of one in others. In this sense the liberty of
speech is absolute, according to the principles of the law. It is
impossible to conceive of an actionable wrong existing solely on the
ground that one has attempted to impart his thoughts and feelings
to another, unless some public law affords such remedy, or unless
such speech is accompanied by some action that is an aggression on the
nights of another. * * *
“It is a means of combining and constituting the common or
mutual action of individuals, and therefore, must be examined as
among the means of performing such actions as depends upon co-
operation. It would follow that, when an action is unlawful, speech
used as a means to such end would partake of that unlawful charac-
ter. This results from the fact that what is said, as well as what is
done, may form a part of a transaction, and thus the lawful or un-
lawful character imputed to such transaction must effect all the
elements of that transaction. Speech in this way may be part of
the means of connecting the action of rioters or conspirators against
governments. It may even point the nature and tendency of the
actions which it accompanies, and thus become a means of con-
ferring upon them the legal character of lawfulnesss or unlawful-
ness. * * * *
“In all these cases eyen of where the character of what is
spoken determines the legal character of what is done, it is the act
alone that can convert the mere use of words into violations of -right.
Again, speech may be used for purposes of deception, and in that
case, as in the cases previously mentioned, the act of wrong is not con-
summated by the speech alone, but by the action produced by the speech.
“In the instance of slander, words uttered may be attended by
consequences rendering them injurious to the right of character.
In these cases the wrong consists in what is actually or presumably done by
individuals, by society at large, or by the community as a consequence of
words spoken, the words in such a case being the cause of injurious
consequences, are regarded as in themselves injurious.”—WILLARD,
on The Law of Personal Rights, pp. 349-351.