CONTINUES PRESS CENSORSHIP
Continues Press Censorship Senate Refuses To Take The Muzzle Off. Permits Arbitrary Power To Remain In Postmaster General. A Significant Roll Call BY a record vote of 25 ayes to 39 noes the...
...Democrats—Ashurst, Bankhead, Beckman, Fletcher, Cay, Henderson, Jones, N. Mex., Ken-drick, King, Kirby, Lewis, McKellar, Martin, Va...
...But they not only denied a hearing to people who had published papers contrary to their views but they denied a hearing to those who had views with reference to government contrary to theirs...
...President, except in a most technical sense, ended when the President read to the Congress the terms of the armistice and announced by public proclamation, as it were, that the war was at an end and that these conditions, to wit, the conditions and terms of the armistice, rendered it impossible for Germany to renew the war...
...I hope that when the Senator comes to review his remarks he will reflect upon one statement which he made—that the people to whom he referred here, Socialists and Bolshevists, are beyond the pale of the Constitution and beyond the pale of the law...
...BORAH...
...In my opinion, if the Congress should ever assume to usurp the power to establish a censorship with intent to accomplish that thing there could be no more effective and successful method adopted than that of giving the Postmaster General certain powers with reference to the exclusion of printed matter from the mail...
...I ask again, is the Senator willing to have it determined behind closed doors, by the counsel of a Cabinet officer and by his legal adviser, without anybody having an opportunity to meet the charge that he is guilty of treason...
...Then follow a lot of designations of what unmailable matter shall be—among others, obscene matter, libelous matter, indecent matter, lottery matter, fraudulent matter—and then there is a specific statute against mailing obscene, lewd, or lascivious matter...
...That is what I am complaining of...
...Republicans—Colt Jones, (Wash...
...Is there any Senator here who does not know of newspapers whose policies were modified, whose position was changed by reason of the fact that they had their interviews with the Postmaster General...
...I think things have been done that ought not to have been done, and things have been omitted that ought to have been done...
...it was the opinion of Mr...
...FRANCE...
...The war, I take it, Mr...
...So the first amendment to the Constitution was adopted which provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the Government for a redress of grievances...
...and when they supported the policies of the administration in a political and administrative way they were restored to their postal privileges...
...They are outside of the pale of constitutional or any other law...
...exactly...
...It was undoubtedly their belief that that was a matter which was left alone and exclusively to the States...
...To assert that to be true is to libel our institutions and to slander our whole form of government...
...Should Extend It SENATOR NELSON, of Minnesota, placed in the Record several quotations from what he termed a "Bolshevik publication," also advertisements one of a "Liebknecht-Luxemburg" memorial meeting in New York, another of a mass meeting at Chicago to raise money for the Mooney Defense fund, and he referred to the meeting at Washington February 2nd addressed by Albert Rhys Williams, and said: "Instead of repealing the espionage law, in my opinion we ought to have it extended to reach such cases as these to which I have referred in order to stem this most iniquitous propaganda that is now being carried on in this country...
...and that has been the result of this law...
...Repeal Is Asked MOO, we are asking for the repeal of a low, which, in my judgment we had no power in the first instance to pass, a law which, if it be considered to have been valid by reason of being a war measure, that reason has passed, and a law, which is still being invoked, at least in the minds of the people, to deal with a situation which relates only to peace...
...I do not care...
...That is what the reports in the papers say...
...LODGE...
...It was undoubtedly their belief that that was a matter which was left alone and exclusively to the States...
...President, as I have said a moment ago, that is the inevitable result at the administration of this kind of a law...
...That is the contest that has been going on for three centuries—to establish here a government of law, which would afford to every citizen under the law the ample protection of its provisions, regardless of whether he was insane or criminal...
...I desire Mr...
...Result of The Vote HEN SENATOR BORAH offered his amendment Senator Bankhead ised, and the Vice-President sustained a point of order that it was not in order under the rules...
...A Significant Roll Call BY a record vote of 25 ayes to 39 noes the Senate refused to suspend its rules and permit the adoption of an amendment to repeal section one of the Espionage Act...
...The old star-chamber trials were more humane and respectable than that...
...LODGE...
...It is our duty as legislators to do what we can to protect the American people against this poisonous spirit of anarchy and sedition...
...Jefferson and Mr...
...and there are only two ways in which we can protect ourselves...
...That was stricken out after long debate, but this clause, which had the same effect, remained in the bill...
...Where truth is permitted to have free sway, error will finally be driven from the minds of men...
...Senator Borah in presenting his amendment to repeal Section one of the Espionage Act of June 1, 1917 and Section four of the Espionage Act of May 10, 1918, said that he believed Sections 2 and 3 should also be repealed, but as some Senators thought otherwise, while he was of a different view, he was willing to accept a half loaf rather than get no bread...
...Now, the war is over and the most serious questions which could possibly confront a people—domestic questions—are up for consideration...
...I assume that no such act would have been proposed by the Congress except as war measure...
...Hamilton and Mr...
...They denied a hearing to every man who did not agree with them...
...Is there any Senator here who does not know of newspapers whose policies were modified, whose position was changed by reason of the fact that they had their interviews with the Postmaster General...
...And under the broad terms of the espionage acts he could encompass the whole field of public opinion...
...Senator Borah then moved a suspension of the rule and on that secured a record vote...
...Mr...
...I think they have been abused...
...President, in discussing this matter to relieve it from mere personal criticism of the Postmaster General...
...OVERMAN...
...We have juries and we have laws by which to enforce and protect these general provisions of law...
...President, how did it occur that the first amendment to the Constitution was adopted...
...But you can gather any amount of testimony from newspaper men and publishers in the country to the effect that this paper published things which were, in popular judgment, equally reprehensible with what that paper published, while this paper was permitted to go through the mails and that was excluded...
...Mr...
...President, does the Senator believe that the way to control this matter is to place it arbitrarily in the hands of an individual...
...Immediately the editor or the publisher of the paper seeks consultation with the Postmaster General and secures from him an intimation or a guidance as to what shall thereafter appear in the paper and not be in THERE is no proposition better established as an historic fact than the belief in the minds of the framers of the Constitution of the United States that they gave no power whatever to Congress to deal with the subject matter of the freedom of the press or of free speech...
...The Republic can deal with them within the terms of the law and in an orderly way...
...Myers, Overman, Pittman, Pollock, Pom-erene, Ransdell, Shafroth, Sheppard, Simmons, Smith, Ariz., Smith, Ga., Smith, S. C, Swanson Thomas, Thompson, Trammell, Underwood, Walsh.—31...
...violation of the law...
...it was the opinion of Mr...
...BORAH...
...It is the doctrine which the Senator accepts...
...President, that this law with which we are dealing today does not in terms attempt any censorship of the press or in any way abridge its freedom, and that, as it is upon its face fair and equitable, simply giving to the Postmaster General the power to exelude from the mails, it is not unconstitutional but I have called attention to the fact that the result of the law in its execution and administration has been to establish a censorship as a practical fact...
...That is a complete system of licensing the press...
...I am utterly opposed to lodging in any administrative officer the power to say that this or that publication is in violation of his regulations...
...They have no place in this Chamber...
...Madison, the principal authors of the William E. Borah Federalist...
...I deny such principles...
...Face Great Danger 'TO my mind—and I have become more and 1 more convinced of this from what has trans-spired at the hearings before the committee of which I am a member—it is apparent that we are facing today in this country a greater danger than that which we faced during the war, in the way of having the spirit of liberty and of integrity and of good government of our people...
...Extension of Power "IT may be said, Mr...
...President, what is the doctrine of Bolshevism...
...I have no doubt there are a great many Bolsheviki who feel just like the Senator does...
...But have we any law that meets such eases, and is the United States Government bound to carry in its mails circulars or anything you please advocating resistance to the laws and the overthrow of the Government...
...President, I wish the Senator would let us know what newspapers he has in mind...
...Jefferson that, unless there was a more specific declaration, it might be said to be established as a matter of inference from other powers which were granted to the Congress...
...LODGE...
...Madison said that the silence which obtains with reference to this matter may give rise to argument and power will seek to be inferred from certain other powers in the Constitution...
...When the espionage act was first before the Congress it provided specifically for a censorship, as it were, of the press, a thing which seemed almost incredible to be proposed...
...These people are not beyond the pale of the Constitution...
...OVERMAN...
...Now, I am frank to say that I would rather risk restoring sanity and patriotism and established order in this country through a complete and frank and open and sincere discussion of all questions than by undertaking to repress the views of any particular faction or any particular community...
...People should be free to express themselves upon these questions without fear of censorship, or without the fear of having their publications in any way restrained or interfered with...
...The Constitution never was intended for the protection of people of that kind...
...It was the only opportunity which has thus far been presented for a vote to free the press in this session, and was as follows: AYES—For Press Freedom—25...
...BORAH...
...The Senator says certain people are bringing the doctrine of Bolshevism into this country...
...We have a method by which to try to arrive at the question of whether a particular matter is treasonable or not...
...and it was repeatedly stated in the debates in the different State conventions with reference to the ratification of the Constitution...
...President, I think we may deal with this matter according to the well-established principles of free government, without being diverted from our faith and our convictions through the propaganda either of those who are in favor of it or those who are against it for purely selfish ends...
...I would let him take it before a jury...
...I shall not stop to examine the evidence as to whether there was partiality or not...
...I have never liked these laws which have led to censorship, as the Senator knows...
...I do not know whether he regards it as closed or not...
...Remove Arbitrary Power MR...
...But does the Senator from Massachusetts or any other Senator want to say that the Postmaster General shall determine whether or not an article that I write is treason...
...I could cite numerous instances where newspapers were excluded from the mails where they sought conversation and interviews with the Postmaster General, and where they returned to their publications with an under-Standing as to what would be agreeable to the Postmaster General...
...It should be debated upon a different plane and upon a higher plane...
...I think there ought to be a different way to determine it...
...It rests with the Postmaster to say how far he shall go...
...All of us who have looked into the pages of history know something of how utterly fruitless is the effort to direct men's thoughts and views through a system of arbitrary repression...
...As there were 64 Senators present and voting 43 affirmative votes would have been necessary to carry the motion...
...SHERMAN...
...I do not know whether it is true or not...
...Now, does the position the Senator takes include—I mean, in principle—the repeal of those statutes...
...I find that section 479—I suppose of the Revised Statutes—reads as follows: Unmailable matter includes all matter which is by law, regulation, or treaty stipulation prohibited from being transmitted through the mails...
...peal of this un-American and undemocratic law they are rendering a greater service to America and to liberty than the autocrat or the plutocrat who opposes the repeal of the law...
...President, the mere conviction, the mere sending to prison of one of these poor fellows is no relief or protection to the American people...
...There is only one rule after all these centuries of effort and experience, and that is that a man shall publish in the first instance what he choose, and then take the responsibility for the abuse of the privilege...
...Hamilton and Mr...
...BORAH...
...Government of Law R. PRESIDENT, this is a Government of law and not of men...
...I do not think freedom of speech can possibly be interpreted to mean freedom to advocate resistance to the laws, or treason, or insurrection...
...They disposed of them in arbitrary fashion, executed them without trial because they regarded them as beyond the pale of the law...
...but section 2 seems to me to go entirely outside the question of freedom of speech...
...Borah Gives View SPEAKING to his amendment Senator Borah said: "The amendment does not seek to repeal any part of the espionage acts other than those provisions with reference to mail matter...
...Does Not Like Them MR LODGE...
...But no man is without and beyond the protection of the law...
...the other is to educate the American people, as far as we can, against the dangers of this spirit of Bolshevism...
...BORAH...
...President, this was passed as a war measure...
...Results of Censorship "THE way in which this results in censor- ship is this...
...It inevitably results in that...
...Just as soon as Lenine and Trotsky were placed in power they suppressed every newspaper in the land that did not agree with them...
...NELSON...
...KELLOGG...
...Nelson, Poindexter, Smoot, Sterling, Wadsworth, Warren—8...
...When the question was raised in the constitutional convention that there ought to be something more expressive with reference to the power of Congress prohibiting the Congress from dealing with the subject, it was stated upon the floor of the convention that it could not be necessary because no power was given to the National Congress or to the National Government to deal with it in any way...
...No one could administer this provision without establishing what would be in effect a censorship of the press...
...If an article appears in a paper which the Postmaster General deems to be in violation of the espionage law, attention is called to the fact by excluding the paper from the mail...
...VARDAMAN Will the Senator yield to me to make this observation—that if the Bolshevists or the Socialists are advocating the reIT MAY be said, Mr...
...IT not only resulted in establishing a censorship but it resulted in a very universal feeling throughout the country that it was not enforced with equal effect as to all people...
...Republicans — Borah, Cummins, Curtis, France, Frelinghuysen, Gronna, Hale, Harding, Johnson, Cal., Kellogg, Knox, La Follette, Len-root, Lodge, McNary, New, Norris, Page, Penrose, Spencer, Sutherland, Townsend, Weeks— 23...
...I do not know what the opinion of the Postmaster General is...
...To my mind it is idle to invoke the liberty of the press for those classes of people...
...I apprehend that that can scarcely be denied...
...We are investigating this matter now, and a witness before our committee last week stated that there was a propaganda on the part of the Bolsheviki to repeal this legislation...
...Naturally a man who has his paper excluded from the mails will seek consultation and guidance and permission from the man who has power to exclude it, and the result is that the Postmaster General or his representative becomes the absolute dictator and director of what shall appear from time to time in the publications throughout the country...
...It is matter advocating treason, insurrection, or forcible resistance to the laws of the United States...
...The vote was far short of the necessary two-thirds, and while it reflects a slight liberalizing of Senate opinion It does not reflect the views of the great mass of the people, who are clamoring for freedom here...
...That belief results in the same hesitancy to discuss public questions in a frank, open, sincere, and candid way in some quarters as during the war...
...If insane, let him be sent to the asylum...
...Mr...
...There is a belief that this censorship still obtains...
...I desire to ask the Senator, in view of the exhibits that he has presented, whether he thinks the espionage law should be made more drastic, and, if so, in what particular...
...Could a licenser of the press execute his powers in any different or more effective way...
...Nevertheless it was in the till as it was originally reported...
...BORAH...
...It is just as thoroughly established as an historical fact that it was adopted because of the possible doubt that in certain emergencies silence might be construed into the power to deal with this subject matter...
...There is no proposition better established as an historic fact than the belief in the minds of the framers of the Constitution of the United States that they gave no power whatever to Congress to deal with the subject matter of the freedom of the press or of free speech...
...There ought to be an impartial tribunal where an open hearing can be had...
...I call attention to this to illustrate the fact that the freedom of the press can never be restrained or circumscribed by any scheme or any plan which the ingenuity of the human brain can frame which will be satisfactory to the great public either in its impartiality or in its justice and equity...
...if criminal, let him be adjudged such by the ordinary procedure of our courts, and sent to the penitentiary...
...I am asking to take away the arbitrary power to say that a communication which I make is treason...
...but there is a universal belief throughout the country that it is still in existence, and that the law may still be invoked...
...and no man in this country who is a citizen or who owes allegiance to this country, or is found in this country subject to its jurisdiction is beyond the pale of the law...
...The provisions of the espionage acts resulted in a complete censorship of the American press...
...Therefore, an order that no inference may be drawn from any power granted in the Constitution, it should be expressly prohibited by specific amendment to the Constitution...
...They did not give anybody a hearing as to whether or not they should be suppressed...
...I am not prepared to have it finally decided there, but I would give him the same relief that the Senator would give the community...
...I am basing my statement upon what the papers reported, although I have reason to believe that perhaps sometimes these reports are exaggerated...
...President, I am very frank to say to the Senator that I think that law is entirely too broad...
...Shall I or any other citizen wear the brand or stigma of treason if a single individual without hearing, if he so elects, choose to declare me or my publication disloyal...
...President, there has been in this country since the day and hour that Congress passed this act just as complete a censorship as that censorship against which Milton inveighed, and against which Charles James Fax and Erskine, the great minds of those days, battled so earnestly, and finally so successfully...
...BORAH...
...Thus in real, if not technical peace times, the archaic censorship is to be continued...
...War Is Over "SO, Mr...
...they are not beyond the pale of the law...
...I do not like that at all...
...I know of newspapers whose managers and editors were informed— and the papers were afterwards excluded from the mails—that their editorial policies and expressions of opinion should be changed in conformity with some advices received from the Executive or from a representative of the Executive...
...and it was repeatedly stated in the debates in the different State conventions with reference to the ratification of the Constitution...
...One is to exclude these vicious publications from circulation among our people...
...BORAH...
...They practiced the doctrine which the Senator preaches...
...Was Effect Equal...
...Democrats—Gore, Hardwick—2...
...This amendment was adopted because of the belief of such men as Mr...
...NOES—Against Press Freedom—39...
...We stop fraudulent circulars in the mails now under our general law...
...Some might be willing to yield upon such matters in the exigency of war, but when peace has been restored and we are dealing with our domestic concerns, matters of supreme concern to the people at home, there ought not to be any restraint upon the minds of the American people in any way, shape, or form...
...I am not asking to repeal the espionage act...
...So although the war is virtually ended, Congress Continues the arbitrary power vested far the Postmaster General to suppress circulation through the mails of newspapers that in his opinion, or in the opinion of some person delegated to act for him, publishes matter which is contrary to the provisions of the Espionage Act...
...I apprehend that that can scarcely be denied...
...That is a different proposition...
...That was the opinion as expressed by the men in the convention...
...President, that this law with which we are dealing today does not in terms attempt any censorship of the press or in any way abridge its freedom, and that, as it is upon its face fair and equitable, simply giving to the Postmaster General the power to exclude from the mails, it iS not unconstitutional ; but I have called attention to the fact that the result of the law in its execution and administration has been to establish a censorship as a practical fact...
...I do not think the United States is bound to do it and if a man is wronged by being excluded by the Postmaster General the courts are open to him...
...Madison, the principal authors of the Federalist...
...These provisions give power to the Postmaster General to exclude all mail matter from the mail which he deems to be in violation of the terms of espionage acts...
...When the question was raised in the constitutional convention that there ought to be something more expressive with reference to the power of Congress, prohibiting the Congress from dealing with the subject, it was stated upon the floor of the convention that it could not be necessary because no power was given to the National Congress or to the National Government to deal with it in any way...
...It is an awful thing to say upon this floor that men are to be treated as beyond the pale of the law...
...I would make it so as to exclude publications that advocate what these documents do—a subversion of the Government and the destruction of law and order...
...I stated upon the floor of the Senate at the time that if this clause remained in the bill it would mean just as complete censorship as the clause which was intended to establish a censorship, and I take it that practice has demonstrated that that was a correct statement...
...That was the opinion as expressed by the men in the convention...
Vol. 11 • February 1919 • No. 2
