guaranty to insure an enlargement of the liberty of the press above that which had been enjoyed?

Merely to ask these questions would seem to answer them and yet, strange to say, when the question of the freedom of. the press has come up for judicial interpretation, courts have usually evaded the obvious answer, and have amended the constitution by "interpretations" which interpolate, and which leave our freedom just where it was in England before the revolution.

In order to interpret "freedom of the press" correctly, it seems to me that we must approach our problem in the light of the pre-revolutionary controversy over the question of intellectual liberty, which controversy our constitution-makers intended to settle for all time. Under the English system there was no controlling limitation upon the parliamentary power to abridge the liberty of the press, and such freedom was enjoyed only, according to parliamentary discretion, as a privilege exercised by permission, and not as a constitutionally protected right which could be exercised with impunity in spite of parliamentary enactments to the contrary. Under such a system as the English, liberty of the press could mean only such remnant of liberty as remained after parliamentary abridgment. Some American courts, erringly accepting the English judicial precedents, have defined our constitutional freedom-as-a-right to mean only what freedom had been declared by English courts to be under their different system, wherein was defined only the liberty which was a matter of permission by royal or parliamentary munificence. This suggests an issue as to whether we shall continue to misinterpret our unabridgable constitutional "freedom of the press" to mean only the same thing as that which, prior to the revolution, the English courts had described as their abridgable remnant of an unguaranteed freedom by permission? Or, on the other hand, must we assume that our constitution makers intended to enlarge our intellectual liberty in accord with views of "freedom of the press" entertained by those who were opposing the English (judicial) conception? If an unabridged intellectual liberty was not intended, then there was no need of any mention of the subject in our constitutions. According to the first view it has been held that, notwithstanding our constitutions, freedom of the press may be abridged by legislation just as much as it was, or can be, by the English parliament, the only difference being as to method, the constitution prohibiting only censorship prior to publica

tion, but, as to subject-matter, having an equal power with the English parliament to suppress and punish after publication. Under this "interpretation," quite generally accepted in America, the constitution only changed the manner of censorship, somewhat for the worse, without protecting or guaranteeing any enlarged intellectual opportunity. According to the other view-point the constitution was designed to protect, beyond all possibility of abridgment, an enlarged intellectual opportunity, not by changing the manner of censoring, or the time of application of censorial methods, but by the destruction of all censorship by prohibiting forever any punishment of any sort, for any mere intellectual or psychological crime of any nature whatever, until it had ceased to be merely a psychological crime, by having become an actually realized material and proved injury to some actual living being, or the imminent menace of such injury, determined by the known laws of the physical universe, as applied to some overt act in consummation and execution of an expressed desire to inflict such injury. In such event no speech, merely as such, is punishable, and no crime can be predicated upon uncertain speculation about mere psychologic tendencies. The crime attaches to an actual injury actually attempted or inflicted. The speech is only the evidence of intent, not the essence of the offence. This view still awaits its first adequate presentation for judicial adoption in America.

There is another reason why the judicial statements of English courts, as to the meaning of freedom of the press, are of no possible value as precedents in the interpretation of our constitutional prohibition against the abridgment of freedom of the press. The reason will be manifest upon a moment's reflection. In England there are no restrictions upon the power of parliament to prevent its abridgment of the freedom of the press. It follows that declarations of English courts, therefore, are not the judicial interpretation of any constitutional clause or right, nor the declaration of any general principle which could control the validity of such laws either in England or America. On the contrary, there being no fundamental and binding restriction on parliament, or the English courts, against abridging freedom of the press, English judicial statements as to the meaning of such freedom as exists in England could not be a declaration of legal principle as to the constitutional limits of such liberty in the United States, but on the contrary English authorities state only a fact of observation, namely that under English conditions, freedom of the press means only such

limited freedom as remains after its abridgment, in the parliamentary exercise of an unrestricted power to abridge. In other words, every judicial or polemical utterance coming from English sources is the declaration of what they mean by freedom of the press when such liberty is liberty by permission of parliament, and in the nature of things this can furnish no guide as to what is meant by American constitutions which were specifically designed to abolish English conditions upon the subject and which seek to establish liberty of the press as a right in spite of all legislative abridgments. American courts, by neglecting this distinction, have erringly followed English statements of their mere facts of practice, and because we mistook them for declarations of constitutional principles, and used them as guides in constitutional construction, our courts have almost reduced our liberty of press from libertyas-a-right to mere liberty as a matter of permission, which is not liberty at all.

To accomplish the destruction of freedom of speech and of the press in America our courts dogmatically assert that the purpose of the constitution was, not to enlarge the intellectual liberty of the citizen, but simply to replace a censorship before printing to a criminal prosecution for having printed or published. This has been seemingly justified by the erroneous adoption of English precedents as a means of constitutional interpretation. Of course the judicial way of stating this proposition adroitly veils that direct avowal whose blunt absurdity my form of statement exposes. Here is the judicial formula: "The main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practiced by other governments' and they do not prevent the subsequent punishment of such as may be deemed contrary to public welfare." There you have it! By judicial amendment our constitutional freedom of speech and of the press has been wholly explained away, and legislatures and courts now have the right to punish after utterance any opinion which "may be deemed against the public welfare," just as fully as such opinions may be punished in Russia or Turkey. Is this really freedom of speech and of press? The Supreme Court of the United States, the final arbiter and alleged "guardian" of our constitutional liberty, in the last above quoted sentence has said that the words "Congress shall make no law abridging the freedom of speech or of the press," means that within its

Patterson v. People, 27 Sup. Ct. Rep. 556-558.

geographical jurisdiction the courts must enforce any law which congress chooses to make to punish the verbal utterance of any and every thought, by the congress "deemed contrary to public welfare."

The expression of opinions approved by those in power had never been abridged. Those who were waging the battle for intellectual liberty and suffered for having exercised freedom of speech and of press, thought by our constitution they had finally secured protection for the expression of those unpopular opinions the promulgation of which had theretofore been punished because "deemed against the public welfare"-that is, because unpopular. And now comes our Supreme Court and restores the pre-revolutionary tyranny over ideas, by saying in substance that "freedom of speech and of the press" means the right to be punished for speaking and publishing ideas which are deemed against the public welfare, because unpopular. Those who have thought a constitutionally guaranteed freedom to speak means freedom to speak with impunity, so long as no one is actually injured thereby, will hereafter understand that, as in Russia, our liberty is but a liberty by permission, to be punished whenever exercised without that permission of our masters, who have limitless power to punish the publication of unpopular opinions, "deemed against public welfare." When the question is fairly presented, will the court adhere to this pernicious dictum? The judicial opinion hereinabove quoted is not constitutional interpretation, but judicial constitutional amendment, by interpolation. The judicial language was never derived by deductions made from any words actually used in the constitution, but on the contrary they were judicially read into the constitutional phraseology, thus accomplishing the judicial amendment of our constitution by unconstitutional methods, and utterly destroying "freedom of the press" as a right, and creating instead a liberty by permission. Shall this be the permanent interpretation of our constitutional guarantee? This is the question to be decided, and is by far the most important question ever presented to the Supreme Court of the United States.

CHAPTER X.

JUDICIAL DOGMATISM ON "FREEDOM OF THE PRESS."

If we may determine the intellectual bankruptcy of our American judges by their utter incapacity for using logical processes in the presence of slight emotional irritation, then I fear that our courts must be adjudged to have assumed obligations largely in excess of their intellectual resources. This is a sweeping and a terrible indictment; but, is it true? To me it seems to be true, and largely upon the record made by the courts in their dogmatizing concerning "freedom of the press."

Where the constitutional guarantee of "freedom of speech and of the press" is involved before a court, unless the judge's emotions and unreasoned sentimentalism determined his "construction" of the constitution, he would find the constitutional meaning in the actual words of that instrument, from which the court would deduce a criterion of "freedom" for application to and decision of the case before it and all others as well. Not in a single case has this rational method ever been attempted. Instead the courts have drawn on their "inner consciousness," and by consulting only their temporary emotions have determined what, according to their feeling-convictions, the Constitution ought to be, and then dogmatically decreed this, their own personal will, to be the true intent and meaning of the Constitution-that is, they made their own personal wish to be the Constitution itself.

But my critics will say that maybe "freedom of speech" is so vague a phrase as not to permit of the above method of interpretation and therefore the courts should not be criticised for having failed to use it. In the first place, I do not believe the phrase in question to be so vague as to justify any other method of constitutional construction. Neither do the courts believe it; at any rate not one court has ever attempted to deduce a meaning-a criterion of freedom of the press-from