FREE SPEECH AND A FREE PRESS

...They are going to do the dying...

...In the first place, the sedition law of 1798, above quoted, related only to matter that was printed and therefore existed in durable and permanent form where its opportunities for evil would be much greater than is likely to arise from the spoken word...

...This Government is founded upon a rebellion...

...Roe: I think it would, clearly...

...That, gentlemen, is the thing you strike down by the language of this bill, criticism, sharp, alert, and bound, sometimes, to be unjust...

...IF THE TRUTH CAUSES DISAFFECTION AMONG THE SOLDIERS...

...The language of the Constitution with regard to the suspension of the Writ of Habeas Corpus is also illuminating...

...We are all in favor of free speech, of course, when the speech agrees with our views, but it is a little hard sometimes to believe in free speech when the fellow who Is making an argument on the other side gets pretty deep under our skin...

...whether there is a law that forbids him doing the thing he does...

...Congressional sanction has not been given—as yet—to the undermining of our constitutional guarantee of free speech and free press under cover of "war necessity...

...On the other hand, the voter who thyiks the war is right or necessary—and who still thinks so at the next election—will certainly vote for those representatives in Congress who will continue the war policy...

...The first one is that the language I have quoted is so indefinite that no one can tell what it means...

...When we pray that our trespasses might be forgiven us as we forgive those who trespass against us, I think it might be construed that we were praying for the forgiveness of our enemies, the Germans...

...There are many things plainly within the constitutional competence which the prudent Government would never venture to do even if so disposed, because of a moral certainty that the temper of the people would never sustain them in so doing...

...What stronger argument can you possibly put into the hands of one opposed to the prosecution of the war than that it has been found necessary, in order to prosecute the war, to strike down the freedom of the people to speak, and of the press to publish...

...President Jefferson no sooner assumed office than he pardoned every prisoner convicted under it, and Congress appropriated the money to repay every fine which had been paid under it...

...Clearly, therefore, freedom of speech and of the press was unabridged at the time the Constitution was adopted...

...The matter published or spoken may be the truth and probably the greater the truth the greater the disaffection its dissemination would cause...

...it must not give up the lives of its brave, patriotic young men because of hysterical and mistaken loyalty of silence when outspoken criticism is needed...

...I say they are given the right to vote, unless we recruit our army from minors, and do as Europe is doing, rob the schools and the nurseries to mako eoldiers...

...Remember that the President is the head of the military and naval forces of this country...

...or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances...

...and that is really the test of whether you believe in free speech or not...

...That may be a question that will arise later, which you gentlemen will have occasion to consider later on in your official capacity...

...IT WILL be noted that the language of the Constitution is that there shall be no "abridging" freedom of speech and of the press by Congress...

...It must continue from now until election if an intelligent judgment is to be made up by the voters...

...Conspicuous among these for its eloquence, power, and insight into our constitutional liberties, teas the argument of Gilbert E. Hoc, of the yew York Bar, representing the Free Speech League...

...Compelling protests vrre made to the House Judiciary Committee, April 7_\ against this proposal to choke off the Voice of the People...

...The man who believed the war was right when it was declared, may have become convinced that it is wrong...

...While the body of the Constitution, the work of the little group of learned men making up the Constitutional Convention, has been found faulty in many respects and in practice we have found ways of avoiding it or have amended it outright, as, for instance, in the manner of electing the President, and more recently, of electing United States Senators, the ten amendments demanded by the people stand unaltered through all the years...

...Yours is indeed a great responsibility...

...their strength to-day is due to the freedom of discussion, the, promptness of criticism before the tragedy of blund-dcrs is enacted, and, above all...

...Again in the same editorial, there is this language: 'The weakness of England and France in the first two years of the war may easily be traced to the covering up of blunders and inefficiency...

...Had not France been hurried by just but stern criticism to correct the errors by those In control of her army, last Spring's German drive against Verdun would have been won and Paris would have been far more seriously menaced than it was in September, 1914...

...Do not pass this question up to the courts, gentlemen...

...But no one, apparently, looked forward to a time when we would SEND AN ARMY ABROAD, and no provision was made for the suspension of the Writ of Habeas Corpus in such case...

...Any publication or any speech which causes disaffection, discontent, disgust, or like feelings in the military or naval forces of the country clearly violates this bill if it becomes law...

...It is just as true to-day as it was then that the collective judgment of the whole people can better be trusted to guide the destinies of the United States than the judgment of one man or a few men, however wise or patriotic the latter may be, and it is the hope of our institutions that that fact will be recognized by the Representatives of the people in the Congress and the representatives of the people everywhere...

...Some of you, some of your sons may be among them...

...If it is well founded, do you want to put upon the statute books of this country any law that will put any impediment In the way of any one's pointing out the reason why tho boys are disaffected, so that the cause can be removed...

...Every right to discuss the conduct of the war, the causes which led up to it...

...It swept out of power the administration which passed it: and while numerous convictions were had under it...

...THERE are no such restraints to be found In the language of the bill now under consideration...

...The Constitution provided for the suspension of even the great Writ of Habeas Corpus when the exigencies of war demanded it...

...The sedition act was clearly, in the highest degree, impolitic and the prosecutions under it showed it was susceptible of being used for the purpose of oppression and terrorism and these facts afford abundant reason for its condemnation.'' It is well known that the alien act authorized the President to order out of the country such aliens as he deemed dangerous or, on good .grounds, suspected of treasonable purposes...

...BUT the war came...

...Had not the mistakes of the English Government the first year of the war been buried in silence, had the people and Parliament been aroused to demand efficiency in Army and Navy alike, we would not be at war to-day, for Germany would have been conquered before this...

...Just this word: You do not need this statute...

...That, in our Judgment, would be the poorest kind of support the President could have...

...The framers of the Constitution were familiar with that kind of war and evidently had In mind that other rebellions might occur...

...ICANNOT see how anyone can be in favor of thia provision of the bill and still be in favor of a vigorous and successful prosecution of the w.ar...

...The statute provided: "If any person shall write, print, utter or publish any false and malicious writing against the Government of the United .States, or either house of Congress, or the President, with intent to defame them, or either of them, or to bring them or either of them into contempt, or disrepute: or to excite against them or either of them, the hatred of the good people of the United States, then such person, being thereof convicted before any court of the United States haxnng jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years...

...It is no more the duty of a court to declare a law unconstitutional than it is the duty of Congress to refrain from passing an unconstitutional law...

...There is no danger of disaffection among them unless it is well founded...

...but the uttermost that the imagination of the men of the Revolutionary times could reach was a possibility that, under some circumstances, Congress might seek to limit or in some respect curtail or abridge the absolute freedom of speech and of the press, and hence the prohibition of any such action...

...That every man shall be entitled, when he commits an act, to know whether it is in violation of the law or not...

...The only safe course to take is to strike anything from this bill that can be construed into an infringement of our right to a free press and free speech...

...They are going to pay the taxes...

...WHEN I went down to the train last night to come down here I bought a copy of the New York Evening Mail...

...This country had been invaded and the framers of the Constitution clearly thought that it might be invaded again...

...We are all familiar, of course, with the history of this and the following nine amendments to the Constitution...

...In the second place, under the sedition law of 1798, the prohibited publication must be both false and malicious, and the intent with which the publication was made must, according to the act, have been base and subversive of the proper aim of Government...

...Hence the form of the prohibition...

...It seems never to have occurred to the people of that time that Congress might ever seek to abolish freedom of speech or of the press...

...We should not penalize the statement of the causes of it by imprisonment for life...

...or more entitled to vote upon it, than the soldiers who are engaged in it...

...Can you imagine anything that would cause more disaffection, more dissatisfaction, or disgust among our military and naval forces than the publication of the needless disaster and the reason for it...

...We all know that President Wilson's phenomenal majority at the last election was due very largely to the campaign slogan—and very justly so—that "HE HAS KEPT US OUT OF WAR...

...Senator La Follette, when the war resolution was before the Senate a few days ago, gave the results of unofficial and advisory votes taken at spring elections in different towns and villages throughout several States in the Middle West on the question of whether we should go to war with Germany...

...This is not confined to anything that is false...

...It is a maxim of the law, we all know, that when law is uncertain there is NO law...

...Candidly, if yon will pardon the statement, I hardly see how it would be safe to say the Lord's Prayer If this bill became a law...

...At least that was a little better than to send a man up for life...

...We know the great ability of the men who made up the Constitutional Convention, and with what singleness of purpose they labored to produce a Con stitution that would fit the needs of the Government they were establishing...

...IWISH only to touch upon that part of the so-called Espionage Bill which seems to me to abridge freedom of Speech and of the Press...

...What Judge Story said In his work on the Constitution, fifth edition, volume 2, in a note to section 1292, is very applicable here...

...Whether that is typical or not, I do not know, but I simply call attention to it here, In order to show that, aa Senator Calder says, there Is a great sentiment throughout the country opposed to our entering into the war...

...Article I, Section 9, Subdivision 2, of the Constitution provides: "The privilege of the Writ of Babcas Corpus shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it...

...So far as the available evidence shows, it must be admitted as Senator Calder stated, that there is a strong anti-war party in this country...

...Yet, I venture to suggest that the arguments in support of that act are much stronger than any argument which can be made in support of this provision in the bill here under consideration...

...Indeed, it would seem that ttiere was a greater necessity for a free press and free speech when the great issues involved in a war were to be considered and decided by the people than in time of peace...

...You put a man on trial before a jury in a Federal court to-day, with tho prosecuting officer, the United States district attorney, standing there as the embodiment of the authorby of the United States, demanding that man's conviction, and charging him with publishing anything derogatory of an officer or of the Government, you would get him convicted before that jury, at least in my city of New York,.as soon as the jury could go out to their room and return...

...It does not say that you shall even intend to stir up disaffection, but if you wilfully publish a certain thing, if you wilfully do, say or publish anything that does tend to do it, you are brought within this language...

...You are probably, all of you, familiar with its editorials with regard' to the war...

...It is so indefinite that it simply becomes tho vehicle for oppression...

...AS LAWYERS, you gentlemen all appreciate the force of precedent...

...There is no minimum penalty provided, and no discretion offered to the court...

...I know of no people in all the country more entitled to know all about the war...

...I need not, of course, argue before this body propositions so simple and so plain as those...

...or the manner of its prosecution...

...I trust that in nothing I shall say it will be understood that I am expressing any opinion with regard to the wisdom of going into this war...

...The people themselves have not been consulted about it...

...Under the language here, if anything should be published in reference to a matter of that, sort, would it come under the provisions of this bill...

...But even invasion and rebellion were not enough to suspend the Writ of Habeas Corpus...

...If you seek in the slightest to curtail by anything you do here the right of people to a free press and to freedom of speech on some future occasion some other Congress will use your action as a precedent and go one step beyond...

...that has no place In the present discussion...

...Now, gentlemen, finally...

...They carry with them the right to know and the right to vote, for I believe it has been the universal history of this country' that wherever they are, they are given the right to vote, so highly do we prize that right...

...Free Speech and a Free Press Gilbert E. Roe Discusses Need, in Times of War, of Obtaining Collective Judgment of the People on the Conduct of Affairs By GILBERT E. ROE (Congress rejected the drastic censorship clause demanded by the Administration as a part of the Espionage Bill...

...But in its leading editorial it has this to say on certain matters of policy, which agems to me to be so pertinent that I venture to beg the indulgence of this committee while 1 read the following paragraphs from the editorial: "Standing loyally by the country, as all should and must do, does not mean blinding ourselves to mistakes, however...

...The result of those votes shows that a very large proportion of those people were opposed to war...

...We know that after months of labor by the members of the Constitutional Convention, the Constitution, admirable in many respects, was prepared and submitted to the people for consideration...

...They are one at the top as well as at the bottom...

...Criticism—sharp, alert, and at times unjust—saved the armies of both England and France and made them the effective, strong, compact, well-handled lighting machines they are to-day...

...Nor can I conceive of any persons more entitled to know the truth than the soldiers at the front who are giving their lives—and all that they hold dear to the service of their country...

...they also might have voted overwhelmingly against it...

...our soldiers are our people: they are our neighbor's boys and our boys, and they carry with them into the trenches, or wherever they are sent, the rights of American citizens...

...You will find that statute in the laws of the United States of the Fifth Congress, Chapter 91...

...One thing that we in the Free Speech League stand for is the right of our opponents to express their views just as freely as we claim the right to express our own...

...The very first of these amendments, apparently the one standing foremost in the thought of the people of that time, was the one containing the language I have quoted...

...If I am not right in this then representative Government is at an end in this country...

...The first amendment to the Constitution provides: "Congress shall make no law * * * abridging t)ie freedom of speech or of the press...

...That means that they believe the war was wrong or inexpedient or that some better means could have been found to settle the difficulty, or for some other reason they opposed entering into the war...

...BUT in the case of a free press and free speech, even when the country was invaded, or a rebel' lion was in progress, NO ONE WAS ENTRUSTED WITH THE POWER TO SAY THAT THE PUBLIC SAFETY COULD BE SERVED BY ABRIDGING OB ABOLISHTNG THOSE GREAT RIGHTS...

...NOW, there are some strictly legal objections to this bill with which this committee, of course, is already familiar...

...This country must follow the same certain path t« victory...

...They are going to suffer the hardships...

...After, all...

...We are all familiar with the Indignation with which this legislation was received by the American people...

...The people are loyal...

...And the history of this government all bears ample c. :dence that these amendments have been most ncc-e ary to preserve our liberties...

...No one has ever accused the Evening Mail of being opposed to the war...

...IT MUST APPEAR, IN ADDITION THERETO, THAT THE PUBLIC SAFETY DEMANDED IT...

...It would be a handicap, that if you took into the war, it seems to me, would spell failure from the start...

...But I take it that no member of this committee, I take it that no American who loves his country and his fellow Americans would be willing to suppress the facts or excuse those in authority responsible, yet not to do so would be a clear violation of the bill, if it is enacted into law...

...Unless we can stand that, we are not believers in free speech, and we are not believers in the free speech that the Constitution has handed down to us, IT IS fair to say the people of this country have been committed by their constitutional representatives to a policy of war...

...I simply call attention to it today in passing...

...Senator Calder of New York, speaking before the Republican Club of the City of New York at a meeting called for the purpose of endorsing the action of the Administration in regard to war, on April 9, said, as reported in the public press, that' he was aware that there was a great anti-war party in the country as he had received more than ten thousand letters from persons in New York State and MORE THAN TWO-THIRDS OF THEM WERE AGAINST WrAR...

...This discussion cannot be confined to a few days or a few weeks before election...

...Disaffection means dissatisfaction, discontent, disgust, dislike, disloyalty, estrangement, hostility...

...I am not at all discussing the wisdom or unwisdom of entering into the war...

...That simply provides (dealing now with the offense referred to in the last half of the section) that whoever in time of war shall willfully cause—by any means whatsoever—or attempt to cause DISAFFECTION in the military or naval forces of the United States shall be punished by imprisonment of not less than twenty years or for life...

...You do not need any statute like it in this country...

...Either the framers of this clause of the Constitution never contemplated the possibilities of this country being engaged in war other than that of a rebellion or invasion, or else they saw no occasion, in case of a war waged abroad, for suspending the Writ of Habeas Corpus...

...Now, the bill under consideration provides: "Whoever in time of war shall willfully make or convey false reports or false statements with intent to interfere with the operation or succcss of the military or naval forces of the United States or to promote the success of their enemies, and whoever in time of war shall willfully cause or attempt to cause disaffection in the militant or naval forces of the United States, shall be punished by imprisonment for not less than twenty years or for life...

...Wilfully means if you do it intentionally, knowing what you are doing...

...They are going to give support to the war...

...He said: "The alien and sedition acts were beyond ail question condemned by public sentiment, but that the ground of condemnation in the minds of any considerable number of the people was placed on the ground of want of constitutional power is by no means clear...

...Suppose that in our eagerness to get into the trenches we send an army to France insufficiently drilled or seasoned or equipped to meet the great German war machine, with the result that our troops are cut to pieces with horrible and unnecessary slaughter...

...to the feeling throu-gh-out both nations that the coalition among all peoples extends right up to the center and control of government...

...I know of no teay in which that sentiment can be increased so rapidly and made so aggressive and militant as by denying to the people and to the press the right to freely and candidly and truthfully discuss the war...

...And it came in a constitutional manner through the action of the regularly appointed representatives of the people...

...I have already spoken of the anti-war seDtiment which undoubtedly exists in this country...

...Nelson: In the Spanish-American War there was a good deal of scandal about embalmed beef...

...BUT HOW IS ANY VOTER TO FORM AN INTELLIGENT OPINION UNLESS THERE IS THE FULLEST DISCUSSION PERMITTED OF EVERY PHASE OF THE WAR—ITS ORIGIN, ITS MANNER OF PROSECUTION AND ITS MANNER OF TERMINATION...

...I am simply making the point that the people have never had a chance to cjprcss themselves upon it...

...The man who believed that the war was wrong before It was declared may still believe that it was wrong—although he will support the war until the time comes when, in a constitutional manner, he can vote to reverse the war policy...

...The man who thought before war was declared that there was a better way than to declare war may think there is a better way than its relentless prosecution, and, when the time comes he has the right to vote for a representative who will express that view in Congress...

...STRANGELY enough, however, when that docu- ment was submitted to the people for consideration it was found that the great guarantees of human liberty, for which the Revolutionary W:ar had been waged, were omitted, and so it was that the first ten amendments to the Constitution were proposed and adopted in order that the Constitution might be accepted by the people...

...That is One of the foremost things we have been struggling for in this country—to make ours a government of laws and not a Government of men...

...THE PEOPLE, HOWEVER, RETAIN THEIR RIGHT, AT THE NEXT ELECTION, to return to Congress senators and representatives—if that is the people's will—who are opposed to the continuation of the war...

...They are not going to be hired mercenaries...

...and the methods by which it can be terminated, are brought under the ban of the proposed statute...

...When we raise and equip an army and put them in the field they are going to be our men...

...It must not pay its blood for silence about blunders...

...It did recognize that, in some respects, in time of war, certain civil rights must give way to the exigencies of war...

...It is an easy step to seek to exempt the President on grounds of military necessity, from criticism in time of war...

...And there is much reason to believe that had the question of entering into the war been submitted to the people, a majority of the voters would have been found against it—certainly a very large proportion of them were admittedly against it...

...The Colixcttve judgment of the people was superior to the wisdom ok the little croup of leak men men who framed the Constitution...

...Roc's effective protest follows.—Editor's Note...

...Had they been consulted, they might have voted overwhelmingly for war...

...Very early in the history of this Government, Congress passed a statute less sweeping in Its terms than the language that I hare just referred to...

...Nor does the proposed act gain any merit by the fact that it is limited to time of war...

...The bill which you recommend here will no doubt be the bill that Is passed...

...The law thus mado will become the precedent by which future laws on the same subject will be justified...

...If what I have said Is not the correct view, then we not only have not a democracy, but we have not a representative government...

...It will be noted that the Constitution did not provide that freedom of speech and of the press could be abridged in time of war...

...THEN WE SHOULD WELCOME THE DISAFFECTION AND TRY TO REMOVE THE CAUSES...

...1 can imagine no time in which it is more imperative that the truth should be told than in time of war...

...But there is no suggestion that the press or speech is to be less free in war than in peace...

...This act was limited In Its duration to the third day of March, 1801, the very day on which the period for which the then President who was elected was to expire...

...That is one of the vices of this bill or any bill of this kind...