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CHAPTER IX.

THE JUDICIAL DESTRUCTION OF FREEDOM OF
THE PRESS.*

It seems to me that before proceeding to the direct task of interpreting "freedom of the press," it is desirable that we have some general discussion as to the judicial destruction of liberty of the press, and to indicate how this has been accomplished. By such a discussion we can best get a clear understanding as to the issue between the two conflicting viewpoints from which our task can be approached.

Some words and phrases become so associated with emotions of approval that we instantly avow them as a part of our creedal declaration of faith, though very often we have no very real belief in nor very definite conception of that which the words symbolize. This is often illustrated in religion, where men give avowed support to creeds, almost every detail of which they will repudiate under a searching cross-examination. So likewise is it with our constitutionally guaranteed "freedom of the press." As a general proposition every one professes belief in it and yet in the concrete apparently nobody upholds it, except for self, and almost everybody can be relied upon to indorse some abridgment of freedom of the press whenever others wish to use that freedom to express anything radically different from their own thoughts, especially if "moral" sentimentalism is involved. Thus it comes that men, trying to frame definitions of freedom, practically always leave a loop hole for at least their own pet tyranny and censorship over opinion.

As a result of this, all but universal, emotional disapproval of unlimited intellectual liberty, it has come to pass that our courts, in their efforts to make effective the judges' disbelief in freedom of the press though construing our constitutional

guarantee of it, have by their authoritative dogmas amended

our constitutions with the judicial interpolation of exceptions Republished from The Albany Law Journal and Government.

never even vaguely hinted at in our fundamental laws. The unintelligent mob, engrossed with its necessary sordid selfseeking, without even a whispered protest has acquiesced in these successive encroachments upon the liberty of the press, until to-day there is not a state in the union whose laws do not punish the mere psychologic crime of expressing unpopular ideas, even though no one is shown to have been hurt as the result. The remarkable thing is that the constitutionality of those laws is seldom questioned, and when the paper guarantee of liberty of the press is invoked, the courts have promptly and almost uniformly amended the constitutional guarantees of freedom of speech and press by dogmatically writing into them new exceptions and limitations, which are not represented by a single word in the constitution itself, but which find abundant justification in ancient precedents coming from courts whose judges were tyrants, or the minions of tyrants, or who, through woefully limited intellectual vision, sought to define liberty by generalizing a single fact, and thus made freedom mean only the absence of the one particular abridgment of it, which alone was then within contemplation, and occupied a place so near as to obscure the more remote but larger possibilities for the tyrannous invasion of liberty.

When moral sentimentalizing becomes focused about one or a few subjects, by being widely advertised by a fanatical and well organized band of zealots which lends its aid, the courts, with the concurrence of legislatures and in spite of constitutions, exercise a power to amend our charter of liberties and to enforce the abridgment of the freedom of the press. To this end it is only necessary to neglect one simple rule of constitutional construction. This done and under the guise of interpretation, meanings and exceptions, which are not expressed therein by a single word or syllable, will be, as they have been, dogmatically read into the constitutional phraseology, instead of developing the actual and literal signification of the words really used. English precedents, where only discretion tempers tyranny, can be easily misapplied to furnish a seeming justification for a judicial "interpretation" such as effectively accomplishes the judicial amendment of our constitutional guarantee for a free press. Many circumstances have combined to induce State courts, unconsciously, to interpolate exceptions into the free-press clause of State constitutions, and so precedents have already been made, which if

followed to their logical conclusion would vest all American. legislative bodies with power to suppress every opinion upon every subject, should it choose to do so.

Too often legislators and judges have been afflicted with political myopia and so have seen only what seemed to them the beneficent immediate effect of their official destruction of the constitutionally guaranteed natural liberty of the citizen, and because of this shortsightedness have failed to see how every such additional liberty-invading precedent is related to the ultimate destruction of liberty and the unavoidable reaction through revolution by violence. Every invasive act, acquiring even a seeming acquiescence, contributes to the momentum by which we are increasingly inspiring thoughtful men with a contempt for the impotency of constitutional protection, and for governments, and simultaneously every such submission, even to a popular tyranny, inspires ambitious zealots with new hope for the realization of their lust for power. Thus by gradual stages we all thoughtlessly contribute to the development of that tyranny which in the end can be and is overthrown only by a violent revolution.

THE CONTEMPT FOR CONSTITUTIONS.

It is by such processes, for which the courts are largely responsible, that all constitutions have in the end come to be held in contempt, by thoughtful liberty-loving men as well as by the narrow-minded with autocratic ambitions. A few illustrations will suffice. "Ce n'est qu'en Angleterre, ou l'on pourroit faire ni avoir des livres sur des constitutions," said one of the most enlightened English ambassadors in Europe; and it is but a very few years since a French gentleman answered a foreigner who inquired for the best book upon the constitution of France, "Monsieur, c'est l'Almanach Royal."

Likewise, in England, the wise and calm Herbert Spencer said: "Paper constitutions raise smiles on the faces of those who have observed their results," and in America General Trumbull is reported as having opined that, "The constitution has hardly any existence in this country except as rhetoric."

This sort of contempt for constitutional guarantees is based upon a real love of constitutional liberty and despair at finding its guarantee explained away by those whose contempt for the constitution is based upon a contempt for liberty itself—a lust for the power of an autocrat. Of that we also have an abund

John Adams in A Defence of the Constitutions of Government of the U. S.

ance in the United States. Years ago when the constitutionality of some anti-Morman legislation was under consideration, United States Senator Cullom is reported to have said that "in the United States there is no constitution but public opinion." Later, Congressman Timothy Sullivan inspired a nation with mirth, but not with resentment, under the following circumstances: He was urging President Cleveland to sign a bill which had passed the Congress, and the President objected because he believed it unconstitutional. Our earnest statesman broke in with this plea, "What's the constitution as between friends?" And so it is with our professional reformers. We can almost hear them say: "What's the constitution when our moral sentimentalism is involved?" We also find President Roosevelt and his Secretary of State boldly encouraging contempt for the constitution by publicly urging its judicial amendment. President Roosevelt in his Harrisburg speech said: "We need through executive action, through legislation, and through judicial interpretation and construction to increase the power of the Federal Government. If we fail thus to increase it we show our impotence." Again, read the foregoing in the light of Mr. Root's utterance. "The distinguished Secretary of State declared that it was useless for the advocates of State rights to inveigh against the extension of national authority, * * and that constructions of the constitution would be found to vest the power in the national government." Here, then, we have the distinct admission by the highest officers of our nation that they desire to exercise a power which according to their own view the constitution does not confer, and that in spite of their official oath to uphold the constitution as it is they proposed to amend it, not by the method therein prescribed, but in contemptous disregard of the constitution itself by "executive action, through legislation and judicial interpretation and construction" to accomplish a perjured usurpation of power and corresponding destruction of constitutional liberty.

When lust for power becomes so lawless as openly and deliberately to justify usurpation and official perjury, and when such conduct does not in the least impair the aspiring autocrat's popularity, our love and understanding of liberty has come to a very low ebb. Will our courts endorse such processes as applied to freedom of the press?

The purpose of this essay is primarily to protest against the

judicial amendment of constitutional guarantee of liberty, and specially that liberty which underlies all others, the liberty to speak and to read. Only by way of contrast will we be concerned with the meaning of freedom of the press as we find it abridged in actual practice. Here it is intended only to exhibit the conflicting view-points, which will be very important in answering the question, What ought to be the practical effect and judicial significance of our constitutional guarantees of freedom of the press? With slight variations all our guarantees upon this subject are typified by these words of our federal constitution. "Congress shall make no law *** abridging the freedom of speech or of the press." How, if at all, does this provision operate as a limitation upon the congressional power to regulate the mails, commerce, etc., etc.?

CONFLICTING VIEW-POINTS.

As the discussion progresses, it is important to keep in mind several conflicting view-points. It seems to me that, because of having neglected to consider these diversities of viewpoint, courts have been led strangely and far astray in their alleged "interpretations" of "freedom of the press." Is this language of the constitution to be interpreted as having been intended to protect or enlarge only the commercial opportunity of printing-press owners, or is it from the view-point of a protected and enlarged intellectual liberty that we are to proceed to the task of interpretation? Was it only to protect the personal privilege of the speaker or printer to utter his sentiments to himself in solitude, or are we to view the constitutional guarantee also from the view-point of protecting all the rest of humanity in an opportunity to hear and to read, if they choose, anything that anyone else would be willing to communicate if permitted?

Was it achievement of the first, or an enlargement of intellectual liberty, and the abolition of the mere psychologic crime of an unfruitful "immoral" thinking which was to be accomplished? Can it be that the only object of the framers of our constitution was the mere abolition of a censorship before publication, in favor of a censorship after publication, without any actual enlargement of intellectual liberty? Such censorship prior to publication had been abolished in England prior to the American revolution. Did the makers of our constitution believe the people before that revolution enjoyed adequate liberty of the press, or was it the intention by our constitutional