4. From the foregoing propositions, I derive this last one. In every case wherein our constitutional guarantees for an unabridged right of utterance were involved, the alleged judicial "interpretation" expressed only the judge's emotional approval, or disapproval of the right to utter the particular sentiments then before him for judgment, and the irrelevant reasons assigned by him were deemed cogent only because they seemed to justify his prior feeling-convictions. If I am correct in this little psychologic study of the mental processes of our judges, then of course they are hardly entitled to much of that adoration usually accorded only to those possessed of very superior intellectual attainments. It remains to be seen whether we are able to lead the way to a better method of constitutional interpretation, and make the initial attempt toward a rational generalization, such as will give us a standard of judgment for the determination of the constitutionality of every law claimed to be an abridgment of our right to utter; and thus, perhaps, ultimately we may lead the courts from mistaking their dogmatism, empirical inductions, personal emotions, moral sentimentalizing, judicial interpolations and constitutional amendment, or question-begging sophomoric declamation, for constitutional construction. When I read the exciting grammar-school oration from the Supreme Court of Oklahoma; and when in the foregoing opinions I see it manifested again and again, that the judges of the highest courts of our land evidently do not know the difference between an analogy and a mere figure of speech, and because of that ignorance can mis-use the former as a basis of constitutional "construction"; and when I see how often "most learned judges" are stupid enough to think they define the limits and prescribe the criteria of constitutional liberty by the use of such meaningless epithets as "license" or "licentiousness"; and when I see "abuse" of freedom founded only upon the damaged emotions or injured vanity of judges who misconceive this mere psychologic offense-this mere constructive abuse-to be very real, without ever having even thought of the possible difference between it and an actual abuse which can only be predicated upon an ascertained, actual, real and material injury; and when I contemplate the probable fact that many readers of this paragraph will not know, even now, just what I mean by these criticisms, because I cannot take space to an alyze each opinion and specifically point out its shortcomings; I say when I contemplate all these things, it makes me inexpressibly sad, because then I realize how slender a thread of intelligence sustains our liberties, and that the battle for real freedom is only just begun, because a generally accepted, intelligent conception of liberty, such as must precede its realization, for a long, long time yet will be impossible. Will the Federal Supreme Court exercise its great power to hasten the day of our liberation? Ah! there is a flattering hope, which may not disappoint. The doubt which the courts have cast upon the meaning of "Freedom of Speech and of the Press" by declaring limitations upon, or exceptions to that freedom, makes it imperative that the doubt be resolved by an appeal to the historical interpretation of that constitutional phrase. Such an investigation will disclose to us whether or not our courts are warranted in blindly following, as they have done more or less directly, the declarations of Blackstone, Ellenborough, Mansfield or even Erskine, as to what is meant by freedom of the press, constitutionally guaranteed as an unabridgable right, and not a mere liberty by permission. CHAPTER XI. THE HISTORICAL INTERPRETATION 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 guaranteed 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 limitations, 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 dissemination of information placed upon all intellectual intercourse, as such, or on all of a particular class, or; Fourth, because inequalities in State-created, or Statesupported, opportunity is legalized, so that, in the effort to secure publicity for any sentiments and merely because of their 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 Statecreated or State-supported facilities, or; Fifth, because after expressing one's sentiments one is by law liable to punishment, merely for having uttered disapproved thoughts; Provided always, that the prohibition, abridgment, discrimination, 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 constitutional 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"!1 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. 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 consequence of it to our liberties, precludes levity. We will therefore proceed in all seriousness to demonstrate the error of our courts 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 discussion 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 prevailed 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 consciencesince 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 unfaithful ” "Patterson's "Liberty of Press, p. 19. "Patterson's "Liberty of Press," p. 43, citing, Becket v. Denison, 17 Parl Hist., 958. |