Chapter XII: Section 6: of the Criminal Code was enacted during the Civil War and was (1)

thought adequate to meet the real dangers of the Reconstruction Period in the South. However, Attorney General Palmer, in asking Congress for a new sedition law, alleges two defects in this section, which in his opinion destroy its usefulness in dealing with the present radical situation.[270] First, the section is limited to conspiracies and does not reach the isolated individual who threatens to overthrow the government. It may be a breach of the peace under state law but it is not now a federal crime if one man, all by himself, goes and hires a hall and tells his audience to start a revolution. This solitary talker was frequently held up at recent Congressional hearings as an example of existing danger to the country, until Mr. Alfred Bettman answered out of his long experience with sedition prosecutions during war service in the Department of Justice:[271]

This man does it all by himself. Nobody encourages him. No
organization supports or inspires him. He thinks up a rebellion
all by himself. He hires a hall all by himself. Nobody helps him
pay for it. He makes his speech all by himself. Nobody introduces
him. He makes his speech. And nothing happens. That is your case.
_Nothing happens._ Well, nothing happens.

[270] Investigation Activities of the Department of Justice, 6.

[271] 21 _New Republic_ 314 (February 11, 1920).

Mr. Palmer’s second objection grows out of a test case, in which Judge Hazel dismissed a prosecution under section 6 against three members of the El Ariete Society, a Buffalo anarchistic organization, for the circulation of a Spanish manifesto. The Attorney General states that this manifesto “clearly constitutes an appeal to the proletariat to arise and destroy the government of the United States by force and substitute Bolshevism or anarchy in place thereof”; and consequently that the failure of the prosecution shows that new legislation is necessary to meet such publications. The case cited does not justify any such conclusion.[272] (1) The defendants were not proved to have any substantial connection with the manifesto, so that the judge could not do anything but discharge them even if its language violated every section of the Criminal Code. (2) Judge Hazel expressly found that the manifesto does not advocate the overthrow of the government by force. Undoubtedly it abuses the form of our government and its officials, advocates the organization of soviets, anarchy, and the destruction of the institutions of society, “but there is nothing contained in it that advocates the destruction of society by the use of violence, and it is open to the construction that it was designed to be sent out for the purpose of bringing about a change in the government by propaganda—by written documents.”

[272] The opinion of Judge Hazel in this case (U. S. _v._ Aso) should be read in full on pp. 15–22, Investigation Activities of the Department of Justice.

A circular which is part of any actual plot to overthrow the government by unlawful acts would be punishable under section 6. This is plainly shown, not only by Judge Hazel’s reasoning, but also by another decision affirming a conviction under this section for a conspiracy to circulate pamphlets advocating resistance to the execution by conscription of the war resolution of Congress.[273] On the other hand, a statute applying to the Ariete manifesto would necessarily make it criminal to express economic views and aims different from those which now prevail. Whether such legislation is desirable will soon be discussed, but clearly it is not needed to meet any present danger of revolution. If there is any real revolutionary plot to-day by Bolshevists, anarchists, or any one else, they can be tried, convicted, and sentenced to six years in prison under section 6 of the Criminal Code, and if this is not time enough a simple amendment of this section can make it longer.

[273] Wells _v._ U. S., 257 Fed. 605 (C. C. A., 1919). See Chapter II, note 81.

One other feature of the existing federal law deserves attention. The chief danger from anarchists arises through the use of explosives, and if these are kept under federal control the country will be reasonably safe from bombs and dynamite. On October 6, 1917, Congress passed an elaborate statute making it unlawful, when the United States is at war, to manufacture, distribute, store, use, or possess explosives, fuses, detonators, etc., except under specified regulations which include a requirement for a government license given only after full information. This law was used during the war to impose sentences of eighteen months on bomb plotters who were shipping explosives without a license.[274] The statute is automatically suspended during peace, but Congress would do well to continue it, and could, it seems, accomplish this constitutionally under its powers to regulate interstate and foreign commerce and to conserve material needed for army and navy use. Under this statute it would be practically impossible for unauthorized persons to secure enough explosives to cause extensive damage.

[274] U. S. Comp. Stat., 1918, §§ 3115¼ a, ff.; Inspector Thomas J. Tunney, in _Bolshevik Propaganda_, 28.

With these suggested amendments to the federal statutes to protect the lives and persons of United States officials and regulate the use of explosives in peace, the normal law will be entirely adequate to guard us against dangerous anarchy. Violence, direct and dangerous provocation to violence, and conspiracies to bring about violence will be severely punished, and the instruments of outrage will be removed.

II. _The Normal Criminal Law of Words_

I have dwelt at such length upon the ordinary law in order to make it clear that the so-called anarchy acts, insofar as they are not unnecessary duplication of that law, go far beyond it and impose an entirely different test of criminality. To restate the matter in accordance with the reasoning in the first chapter, the normal criminal law is interested in preventing crimes and certain non-criminal interferences with governmental functions like refusals to enlist or to subscribe to bonds. It is directed primarily against actual injuries. Such injuries are usually committed by acts, but the law also punishes a few classes of words like obscenity, profanity, and gross libels upon individuals, because the very utterance of such words is considered to inflict a present injury upon listeners, readers, or those defamed, or else to render highly probable an immediate breach of the peace. This is a very different matter from punishing words because they express ideas which are thought to cause a future danger to the State.

Undoubtedly, the existence of these verbal peace-time crimes subjects the argument of my first chapter to an acid test. They are too well-recognized to question their constitutionality, but I believe that if they are properly limited they fall outside the protection of the free speech clauses as I have defined them. My reason is not that they existed at common law before the constitutions, for a similar argument would apply to the crime of sedition, which was abolished by the First Amendment. The existence of a verbal crime at common law shows the presence of a social interest which must be weighed in the balance, but the free speech guaranties, as I have argued at length, enact a countervailing social interest in the attainment and dissemination of truth, which was insufficiently recognized by the common law. Nor do I base my conclusion on the historical fact that the framers of the constitutions wanted to safeguard political discussion, because their own statements of freedom of speech in the address to the people of Quebec, the Virginia Toleration Statute, and the opening clause of the First Amendment itself, prove that they also wanted to safeguard scientific and religious freedom, both of which would be greatly restricted by a sweeping application of the common law of obscenity and blasphemy. The true explanation is, that profanity and indecent talk and pictures, which do not form an essential part of any exposition of ideas, have a very slight social value as a step toward truth, which is clearly outweighed by the social interests in order, morality, the training of the young, and the peace of mind of those who hear and see. Words of this type offer little opportunity for the usual process of counter-argument. The harm is done as soon as they are communicated, or is liable to follow almost immediately in the form of retaliatory violence. The only sound explanation of the punishment of obscenity and profanity is that the words are criminal, not because of the ideas they communicate, but like acts because of their immediate consequences to the five senses. The man who swears in a street car is as much of a nuisance as the man who smokes there. Insults are punished like a threatening gesture, since they are liable to provoke a fight. Adulterated candy is no more poisonous to children than some books. Grossly unpatriotic language may be punished for the same reasons. The man who talks scurriously about the flag commits a crime, not because the implications of his ideas tend to weaken the Federal Government, but because the effect resembles that of an injurious act such as trampling on the flag, which would be a public nuisance and a breach of the peace. This is a state but not a federal crime, for the United States has no criminal jurisdiction over offenses against order and good manners, although Congress may possibly have power to regulate the use of the national emblem. It is altogether different from sedition.

The absurd and unjust holdings in some of these prosecutions for the use of indecent or otherwise objectionable language furnish a sharp warning against any creation of new verbal crimes. Thus, the test of obscenity is very vague, and many decisions have utterly failed to distinguish nasty talk or the sale of unsuitable books to the young from the serious discussion of topics of great social significance. The white slave traffic was first exposed by W. T. Stead in a magazine article, “The Maiden Tribute.” The English law did absolutely nothing to the profiteers in vice, but put Stead in prison for a year for writing about an indecent subject.[275] When the law supplies no definite standard of criminality, a judge in deciding what is indecent or profane may consciously disregard the sound test of present injury, and proceeding upon an entirely different theory may condemn the defendant because his words express ideas which are thought liable to cause bad future consequences. Thus musical comedies enjoy almost unbridled license, while a problem play is often forbidden because opposed to our views of marriage. In the same way, the law of blasphemy has been used against Shelley’s _Queen Mab_, and the decorous promulgation of pantheistic ideas, on the ground that to attack religion is to loosen the bonds of society and endanger the state.[276] This is simply a roundabout modern method to make heterodoxy in sex matters and even in religion a crime. A Washington decision punishing a man for a newspaper article tending to defame George Washington is a serious restriction on historical writing.[277] Furthermore, the breach of the peace theory is peculiarly liable to abuse. It makes a man a criminal simply because his neighbors have no self-control and cannot refrain from violence. The _reductio ad absurdum_ of this theory was the imprisonment of Joseph Palmer, one of Bronson Alcott’s fellow-settlers at “Fruitlands,” not because he was a communist, but because he persisted in wearing such a long beard that people kept mobbing him, until law and order were maintained by shutting him up.[278] A man does not become a criminal because some one else assaults him unless his own conduct is in itself illegal or may be reasonably considered a direct provocation to violence.[279] Thus all these crimes of injurious words must be kept within very narrow limits if they are not to give excessive opportunities for outlawing heterodox ideas.

[275] For a division among judges whether a book was indecent, see People _v._ Eastman, 188 N. Y. 478 (1907). The Bibliography contains references on this class of crime.

[276] Austin W. Scott, “The Legality of Atheism,” 31 _Harv. L. Rev._ 289 (1917).

[277] People _v._ Haffer, 94 Wash. 136 (1916), under statute. Even such a conservative as Dr. Johnson opposed liability for defamation of the dead.

[278] Clara E. Sears, _Bronson Alcott’s Fruitlands_, c. IV.

[279] See the subsequent discussion of the right of assembly.

Besides these special classes of words which cause present injury, the normal law punishes speech which falls short of injury as an attempt or solicitation, but the first chapter has shown that this is only when the words come somewhere near success and render the commission of actual crime or other tangible obstruction of state activities probable unless the state steps in at once and penalizes the conduct before it ripens into injury. The law of attempts and solicitation is directed not against the words but against acts, and the words are punished only because that is the necessary way to avoid harmful acts. When A urges B to kill C and tells him how he can do it, this has nothing to do with the attainment and dissemination of truth, and besides there is genuine danger that the murder will take place long before discussion will prove it to be a mistaken scheme.

The two conspiracy cases mentioned in connection with the federal Criminal Code bring out neatly the boundary of the normal criminal law. The anti-draft pamphlets fell within its range because of the danger created by their language and the surrounding circumstances, and although unlike solicitations to murder they served a social interest in criticising the policies of the war, this was outweighed by the pressing peril to the social interest in the enforcement of war legislation. On the other hand, the Ariete manifesto was simply intemperate discussion of fundamental economic and political questions, and even if it had a remote tendency to injure the country by causing a revolution some day there was obviously plenty of time to present the other side before the revolution arrived.

III. _The Difference Between the Normal Law and the New Legislation_

We have seen and heard of revolutions in other States. Were they
owing to the freedom of popular opinions? Were they owing to the
facility of popular meetings? No, sir, they were owing to the
reverse of these; and therefore, I say, if we wish to avoid the
danger of such revolutions, we should put ourselves in a state as
different from them as possible.—CHARLES JAMES FOX, 1795.

The existing law protects us from dangerous anarchy, but the anarchy acts reach out to the futile soap-box orator who advocates violence and in most cases to the Ariete manifesto which does not. These statutes are not directed against those who commit or actually plan violence, but against those who express or even hold opinions which are distasteful to the substantial majority of citizens. Some of them are so sweeping as to suppress agitation which is neither dangerous nor anarchistic. The people may be led to accept such statutes because they fear anarchy, but they will soon find that all sorts of radical and even liberal views have thereby become crimes. These acts have been drafted by men who are so anxious to avoid any disturbance of law and order that they have punished by long prison terms and heavy fines not only provocation to the use of force, but also the promulgation of any ideas which might possibly if accepted cause some one to use force.

In the past the American law has shown little sensitiveness to revolutionary utterances in time of peace, and has wisely treated most fulminations against the social fabric like a pot-shot at a man ten miles away. However, as Judge Hand pointed out,[280] all vigorous criticism of the form of government or the economic system or particular laws may by arousing passion or engendering conviction of the iniquity of existing conditions lead indirectly to violence. Even an ardent oration urging the repeal of a statute may lead hearers to disobey it. We are always tempted to apprehend such results from opinions to which we are opposed. It is easy to believe that doctrines very different from our own are so objectionable that they could only come into operation through force, so that their advocates must necessarily favor criminal acts. The difference between the expression of radical views and direct provocation to revolution is only a difference of degree, but it is a difference which the normal criminal law regards as all-important.

[280] See p. 50, _supra_.

There are always men who want the law to go much farther and nip opinions in the bud before they become dangerous because they may eventually be dangerous. Thus, when Colley Cibber produced his adaptation of “Richard III,” the Master of the Revels expunged the whole first act, fearing that the distresses of Henry VI would put weak people too much in mind of James II, also exiled in France.[281] Such an attitude is particularly common in a period of unrest like the present, especially during a foreign revolution or after assassinations, when coercion and violence follow each other in a vicious circle. We have seen how George III’s judges transported men who wanted to abolish rotten boroughs and the limited franchise, because if the people of Great Britain possessed the same privileges as the French they might destroy the Constitution and imitate the Reign of Terror. Restoration France, after the assassination of the Duc de Berri, passed a law to suppress any journal “if the spirit resulting from a succession of articles would be of a nature to cause injury to the public peace and the stability of constitutional institutions.” It was only with the disappearance of these _procès de tendance_ that the press once more became free, and under the Republic one can urge a change in the form of government to monarchy or empire with impunity.[282]

[281] 3 Johnson’s _Lives of the Poets_ (ed. G. B. Hill), 292 note.

[282] A. Esmein, _Éléments de Droit Constitutionnel_, 6 ed., 1145, 1149; Ernst Freund in 19 _New Republic_ 14 (May 3, 1919). In the same way the New York post-office objected to the general tenor and animus of the _Masses_ as seditious without specifying any particular portion as objectionable, although the periodical offered to excerpt any matter so pointed out. Masses Pub. Co. _v._ Patten, 244 Fed. 535, 536, 543 (1917).

Abolition of slavery could never be mentioned in the antebellum South because it might cause a negro uprising. A similar sensitiveness to possible bad results led to the prohibition of “Mrs. Warren’s Profession” and “September Morn.” Since almost any opinion has some dangerous tendencies, it is obvious that its suppression on that account puts an end to thorough discussion. Writings which do not actually urge illegal acts should never be made criminal except perhaps in great emergencies like war or revolt when the mere statement of the author’s view creates a clear and present danger of injurious acts. In time of peace the limitation of the punishment of speech to direct provocation to crime is the essential element of the freedom of the press.

The normal criminal law is willing to run risks for the sake of open discussion, believing that truth will prevail over falsehood if both are given a fair field, and that argument and counter-argument are the best method which man has devised for ascertaining the right course of action for individuals or a nation. It holds that error is its own cure in the end, and the worse the error, the sooner it will be rejected. Attorney General Gregory has defended the Espionage Act on the ground that propaganda is especially dangerous in a country governed by public opinion.[283] I believe this to be wholly wrong. Free discussion will expose the lies and fallacies of propaganda, while in a country where opinion is suppressed propaganda finds subterranean channels where it cannot be attacked by its opponents.

[283] Report of the Attorney General, 1918, 21.

Russia under the Czar took no risks. It was afraid to wait for a clear and present danger of violence. It put the ax to the root of the tree. Five powerful methods were developed to reach anarchy and revolution in their earliest stages. The government censored and suppressed books and periodicals; it raided houses and seized men and their papers without process; it prosecuted them for their expression of opinions and for their membership in radical societies; it deported them to Siberia or abroad; it devised ingenious methods of weeding them out of the Duma.

These are not American methods. During the whole of the nineteenth century, not one of them was used against radicals in the United States. It is the American habit to take a chance on queer and objectionable opinions. Roger Williams did it when he discarded religious qualifications for office and citizenship, which even England was afraid to abandon wholly for another two hundred and fifty years. It is easy for us to forget now what a tremendous risk the founder of Rhode Island was thought to run and did run in those days of wild beliefs. The “livelie experiment” of religious freedom described in the Charter, which it was much on his heart to hold forth, was a very lively experiment indeed in its early years. And in the past the same courage has marked our policy toward radicalism. Anarchy and communism are nothing new in this country,—we have had them in all varieties, foreign and domestic, since the days of Brook Farm until we lived safely through thirty-four years of Emma Goldman. The normal law, which refrains from punishing words for their bad political tendency, has carried us through far worse crises than the present. In the midst of the great railroad strikes of 1877, when unemployment was larger than ever before or since, a big communist meeting was permitted in New York. The Seventh Regiment was kept in a conspicuous readiness to put down any actual disorder, but there was no interference with anything that was said. The speakers indulged in the wildest kind of talk, but it fell flat on the meeting just because there was no chance for a row.[284] Arthur Woods used the same wise policy when he became police commissioner of New York City during the hard times of the summer of 1914. Under his predecessor the police had been breaking up anarchistic meetings in Union Square every Saturday afternoon and the feeling was excited, defiant, and bitter. Threats were not disguised that since the police had “acted like agents of the capitalists,” the crowds would come next time prepared to answer clubs and revolvers with bombs. Mr. Woods took office, and told the police to interfere in any actual disturbance, but not otherwise. Next Saturday, a large force of police was held within available distance, and a hundred plain-clothes men were scattered singly through the meeting, on the watch for signs of violence so that they could nip any attempt in the bud, but beyond that they were only to try to maintain an atmosphere of quiet and calm and radiate good nature. Mr. Woods says:

The change of method was almost unbelievably successful. There
was no disorder; the crowd was very large but very well behaved,
and at the end of the meeting when everything was over and many
had gone home, three cheers were proposed and given for the
police.[285]

[284] J. F. Rhodes, _History of the United States_, VIII, 41.

[285] Arthur Woods, _Policeman and Public_, 73–78. Equally typical of American methods is his account of the meeting in Bowling Green Park.

This courage, this tolerance, this friendly co-operation between government and people, with its visible creation of loyalty, this is the true Americanism. And the issue before us to-day is whether in a period of prosperity and tremendous demand for labor we shall throw overboard the American laws and the American methods which carried us safely through the turbulent early years of our history, through Reconstruction, through panics and Populism with its widespread agitation among the native-born population, and shall now shaking and shivering in every wind of doctrine that blows from Bolshevist Russia imitate even in part any of the five methods with which Czarist Russia fought radicalism up to the day of her stupendous ruin.

To this issue in its various aspects I shall devote the remainder of my book.

The interpretation of freedom of speech which I have endeavored to establish in the opening chapter applies in peace as in war. The various interests, individual and social, must once more be balanced against one another with full regard to the social interests in progress and the attainment and dissemination of truth. The resultant boundary line of permissible speech is drawn back of the point where overt acts of injury to the state occur but not far from that point. The test laid down by the United States Supreme Court in the Schenck case still holds good:

The question in every case is whether the words used are used in
such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive
evils that Congress (or the state legislature) has a right to
prevent.

The power of the government to restrict discussion is undoubtedly less in time of peace than in time of war because war opens dangers that do not exist at other times. The strength of the state in war time is chiefly occupied in fighting the enemy. In a great war the chances of success are uncertain, and a slight set-back due to hostile opinion at home may cause defeat. It is hard enough for the government to resist the human desire not to enlist and not to fight, without outside incitement from adverse views of the war. Thus, there are very plausible reasons for limiting the social interest for which I earnestly contend, the need of continuous contact with the facts and with sound conclusions. In peace, however, the social interest mainly affected by discussion is not the sorely-beset endeavor to save the country from a powerful enemy, but the interest in order. With this interest the mass of the population earnestly sympathizes. It is protected by an enormous body of otherwise unoccupied police and soldiers, who are now available to check any actual violence. This interest in order is not opposed by troops and guns from abroad but only by words, which it can afford to tolerate, confident in the support of public opinion. In war an evil and wholly unfounded opposition at home may upset the state. In peace, those who love disorder for its own sake are so few that a revolution is improbable unless there are very strong reasons for discontent. If the agitation is without merit the state can afford to ignore it. If it has merit the state cannot afford to suppress it without a hearing. Consequently, in peace governmental interference should be delayed as in the New York meeting of 1877 until the last possible moment before violence occurs.

Sometimes in peace other social interests besides order come into play and strengthen the case for restriction. Thus, the interest in morals is concerned with moving-picture plays and books for the young. Street meetings may interfere with the public traffic besides causing a greater probability of violence than do books. Once more, it is a question of balancing the interests, and it may be worth while to arrange for meetings in less-used side streets in the noon-hour or in specified public parks, even at some sacrifice of traffic. After all, a democracy may wisely refuse to regard the streets only as a place where people exercise and go out to make money. Parades and soap-box orators and big meetings make them an open-air school, which prepares directly for citizenship.

The anarchy acts are the first break with the American tradition. Most of them are not willing to run any risks as to opinions generally considered objectionable, but make opinions in themselves and for their own sake a crime, although there is no direct and dangerous interference with order and only a remote possibility that violence will ensue. The first chapter has shown the evils of bad political tendency as a test of criminality. These statutes in large part revive that test, and are not directed against bad acts, but are designed to protect the minds of grown men and women from bad talk and bad thoughts.

IV. _Radical Meetings and the Red Flag_

There are several types of anarchy acts.[286] The simplest is the red flag law, recently adopted by twenty-five states. The New York statute[287] makes it a misdemeanor to display the banner “in any public assembly or parade as a symbol or emblem of any organization or association, or in furtherance of any political, social, or economic principle, doctrine or propaganda.” Other states go much further and forbid the display of the red flag anywhere. Some shrewdly guard against the wearing of red neckties or buttons or the evasive adoption of a green flag[288] by punishing the use of any emblem of any hue if it is “distinctive of bolshevism, anarchism, or radical socialism”;[289] or is “suggestive of any organized or unorganized group of persons who by their rules, creeds, purposes, practices, or efforts, espouse any theory or principle antagonistic to or subversive of the constitution or its mandates”;[290] or if it is employed with some other revolutionary intent. In West Virginia imprisonment for a year (five years for the second offense) may be imposed for the possession of any red or black flag, or the display of “any emblem of any nature whatever indicating sympathy or support of ideals, institutions, or forms of government, hostile, inimical, or antagonistic to the form or spirit of the constitution, laws, ideals, and institutions of this state or of the United States.”[291] It is plain to any lawyer that when a vague and very wide range of commonplace and harmless conduct is made criminal merely on the basis of a bad intention, a man is condemned for his thoughts and nothing else. He may never have expressed those thoughts until they were brought out under cross-examination in a sedition trial. He is convicted simply by the jury’s guess at the inside of his head. Men should be punished for what they do and not for what they think.

[286] All the state legislation mentioned in this chapter is listed in Appendix V.

[287] N. Y., Laws, 1919, c. 409.

[288] Testimony of Inspector Tunney and Raymond Robins, in _Bolshevik Propaganda_, 11, 838.

[289] Kans., Laws, 1919, c. 184.

[290] Wash., Laws, 1919, c. 181.

[291] W. Va., Laws, 1919, c. 24.

The way in which the red flag causes disorder is explained by Inspector Thomas J. Tunney, who played such a prominent part in the Abrams case and certainly cannot be considered unduly favorable to radicals:[292]

Senator OVERMAN. What effect does that red flag have on a crowd?

Mr. TUNNEY. It has the effect of creating a feeling on the part
of Americans that they would like to assassinate everybody
carrying the red flag; or at least, a large number of them feel
that way.

Senator OVERMAN. What effect does it have on the people who are
in sympathy with carrying the red flag?

Mr. TUNNEY. It simply enthuses them, and they indulge in cheering
and waving it in the air.

[292] _Bolshevik Propaganda_, 10, 11.

The Roxbury Riot of last May[293] is a practical demonstration of his statements and also illustrates some interesting points in the law of assembly. An unprejudiced account in the _Boston Herald_ relates that the trouble was caused by the appearance of a red flag carried at the head of a large group of members of the Lettish Workmen’s Association, who were marching from one meeting to another in a different hall. If this was a parade, it was illegal, for they had no permit, but no red flag law was in force. The account continues: “Everywhere in Roxbury small groups of men and boys were to be seen strolling along the streets armed with clubs and pieces of iron bar and pipe. It was difficult for the police to cope with every group for as fast as one would be dispersed another would gather. Nearly everybody with a facial indication of being a Lett or a Russian was attacked. It was useless for them to offer excuses for none were listened to.... As soon as it became generally known that the presence of a red flag was the cause of all the trouble soldiers and sailors began taking a hand. Each group carried at least one sailor or soldier and they inflicted severe punishment on the men in the parade or those discovered hiding in stores and houses afterwards.”

[293] _Boston Herald_, May 2, 1919; trials in _ibid._, May 6, 8, 14; letter of adverse comment, _ibid._, May 16. Convictions upheld, Comm. _v._ Frishman, 126 N. E. (Mass.) 838 (1920).

Either just before the attack on the marchers began or soon afterwards, it is hard to tell which from the tumultuous testimony, the police demanded a permit and ordered the parade to disperse. They replied with cat-calls, and in the three-cornered disturbance that followed between radicals, patriots, and police, two policemen were injured. A large number of marchers received sentences of six to eighteen months in the Municipal Court for participating in a riot or assaulting the police, and several of them have since been convicted by juries, but so far as I can ascertain none of their assailants was even tried.

These cases raise several questions of general interest as to the legality of radical meetings.[294] The radicals took the position that no permit was necessary to enable men to walk from one place to another, but only for an organized parade. Of course, the social interest in traffic already mentioned gives the city power to forbid unlicensed processions, but there is some question whether this particular body of people was not itself a part of traffic, without need for a permit. For example, is a license required for collegians to march from the stadium to the yard after a football victory with a red flag at their head? These are questions of fact for the jury. However, even if this gathering of Roxbury radicals had not been held illegal by the Massachusetts Supreme Court for want of a permit, it may well be that the order to disperse was valid on other grounds. Three such grounds have been suggested.

[294] See Dicey, _Law of the Constitution_, c. VII, “The Right of Public Meeting,” also my Bibliography. The Salvation Army case is Beatty _v._ Gillbanks, 9 Q. B. D. 308 (1882). German opera riots, Star Opera _v._ Hylan, 109 N. Y. Misc. 132 (1919). Opposed to my view of red flag riots, P. _v._ Burman, 154 Mich. 150 (1908).

(1) Since any gathering of radicals is likely to be attacked, the easiest way to preserve the peace is to forbid and break up such gatherings. Therefore, it may be contended that a meeting which is not otherwise illegal may become so solely because it will excite violent and unlawful opposition. This is the doctrine of the long-beard case over again. Let us see how it works out with respect to meetings. The Salvation Army holds a service in a public place, knowing that a mock-organization called the Skeleton Army intends to molest it. The Skeleton Army appears, and begins to throw stones. The members of the Salvation Army are arrested by the police for holding an unlawful assembly. Obviously they must be released. Their guilt cannot be determined by the intolerance of wrong-doers. Apart from the question of permits, and special regulation by ordinances and statutes, the police cannot treat a meeting as unlawful simply because it may probably or naturally lead others to attack it. And if a permit is refused on that ground alone, a small number of intolerant men by passing the word around that they intend to start a riot can prevent any kind of meeting, not only of radicals who want a revolution, but of socialists, of moderates like the Committee of ’48, of negroes, of novel religious sects, of free-masons in an anti-masonic community. Indeed, on any such theory a gathering which expressed the sentiment of a majority of law-abiding citizens would become illegal because a small gang of hoodlums threatened to invade the hall. The proper remedy for these emergencies is police protection, to which men are entitled in public places, whether they are there singly or in groups.

(2) There is, however, a well-recognized exception to this principle. If the meeting is going to cause trouble, not just because of the unpopularity of its views but because it expresses them in offensive ways, it may be unlawful _per se_. This is an analogy to the verbal crimes already discussed. For example, the “Pillars of Fire” were not allowed by the Mayor of Plainfield, New Jersey, to hold street meetings for abusing Roman Catholics. They must hire a hall where no one would be forced to listen to them. It is sometimes supposed that a parade displaying the red flag is illegal at common law for the same reason that it would be if it carried an abusive caricature of the Pope, but the situations are not truly parallel. The red flag is not offensive in itself. Nobody minds it at an auction sale or a railroad crossing. The onslaught is not on an object but on the unpopular ideas of those who carry it, because most of us consider that such ideas have a tendency to produce injury in the future. This only brings us back to the first point, that a meeting is not illegal just for unpopularity. Bad tendency must not be a test of criminality. Thus, the Roxbury marchers were not violating the law because of the red flag. On the other hand, their loud cries of, “To Hell with the Police! Hurrah Bolsheviki! To Hell with the American flag!” were so provocative of disorder as to render the parade unlawful even if a permit had been issued.

(3) Finally, after the order to disperse was given the gathering was undoubtedly illegal. That order was valid under a second exception to the general principle that unpopular meetings are not illegal meetings. Where a meeting which is originally lawful and inoffensive has in spite of this produced a disturbance, so that the only way to restore the peace is to put an end to the meeting, then there is a clear and present danger which justifies the suppression of ideas on this occasion. By the time the police arrived in the Roxbury affair, it was evident that the parade could not continue without a riot. Consequently, those who resisted or refused to obey the order thereby broke the law.

One more lesson of general application may be drawn from this incident, the danger that men of peculiar views who are charged with definite tangible crimes may be condemned in reality not for what they do but for what they think. Three clear offenses were possibly committed by the defendants, parading without a permit, assaulting policemen, and remaining in the parade after the order to disperse. Every one of these issues is a pure question of fact, on which the opinions of the defendants had not the slightest bearing. Yet the Municipal Court Judge, instead of limiting the examination of the prisoners to the question, “Did you do this on May 1?” himself inquired at length whether they believed in God, approved of soviets, or agreed with what the American flag stands for. In the same way, when the cases came before a jury in the autumn, the district attorney gave the impression that he was trying the prisoners, not for what they did in May, but for what they thought in October. And in the Municipal Court, the red flag, although it violated no statute, was clearly treated as an offense. The judge said: “The red flag means revolution, nothing else, and the day for the red flag is past in America. It means bloodshed; it cannot be interpreted otherwise.... Waving a red flag is a breach of the peace.”

The policy behind even the mildest form of the red flag legislation resembles the rule of the British Government that the Uganda tribes must not wear war-paint except on the chief’s birthday. If Americans cannot be trusted any more than African natives to avoid the psychological effects of color, well and good. So far, the exact meaning of the red flag seems rather obscure. Some say it stands for bloody revolution,[295] and others, the brotherhood of workingmen throughout the world.[296] It might be desirable to find out which is right before we forbid it. There is no doubt that its display on May Day, 1919, was accompanied by much lawlessness—chiefly on the part of the supporters of law and order. Until the opponents of force can restrain themselves from mobbing any parade which carries a red flag, it may be wise to prohibit its use. We ought to remember, however, that if it is made a forbidden symbol its emotional appeal when displayed in secret is immeasurably heightened. The resentment caused by such laws, which assert any suggestion of revolutionary action to be a heinous offense, will not be lessened by the recent respect paid by mayors, governors, and legislators to an acknowledged banner of revolution, the green, white, and yellow of Ireland. Once we admit that violence may be a justifiable mode of political action in another country which has the ballot and representative government, we cannot consistently make men outlaws merely for holding a similar theory in this country, however much we disagree with them. Massachusetts once had a law prohibiting a red or black flag. This was declared constitutional,[297] and then repealed because it made the Harvard crimson illegal. It is to be hoped that other portions of this land of the brave will also be willing to face valiantly a piece of cloth. There is much merit in the North Dakotan remark that the only animal that is afraid of a red flag has a fence around him.

[295] Besides quotation above, see Rugg, C. J., in Comm. _v._ Karvonen, 219 Mass. 30 (1914).

[296] This is the explanation of all radicals whom I have questioned. See testimony of William Sidis in _Boston Herald_, May 14, 1919. This is confirmed by the expert and conservative opinion of Professor Samuel N. Harper, _Bolshevik Propaganda_, 101: “I think it is little more than a tradition ... representing this mental protest ... against what they consider the injustices of the present organization of society.”

[297] Comm. _v._ Karvonen, _supra_.

The man who insists on waving the red flag on all occasions has just as little common sense. Those who want to remake society on a basis of fellowship and mutual agreement may fairly be asked to begin by yielding something to the wishes of their neighbors. It is an undoubted fact that most people do dislike seeing the red flag in a parade or over a building, but if the Stars and Stripes are beside it nearly all their objection vanishes. A decent respect for the opinions of mankind ought to lead the radical to do this much for the happiness of others. Even if he is so thoroughly a man without a country that he has no attachment for the government which guards his home and educates his children, at least like a foreign vessel in our ports he might out of courtesy raise our banner beside his own. I do not believe that a man should be arrested for carrying a solitary red flag in the street any more than for wearing a sweater at a dance, but ordinary politeness ought to keep him from doing either. Surely, it is worth while for the radical to take the conciliatory step I suggest, and thus produce a friendlier atmosphere in the mass of the population, which may gain converts for his views and will certainly induce many thoughtful men to co-operate with him in the more moderate of his schemes for a better world.

V. _Criminal Anarchy and Criminal Syndicalism_

A much more important group of statutes takes its origin from the New York Anarchy Act of 1902, which was enacted soon after the assassination of President McKinley.[298] Criminal anarchy is there defined as “the doctrine that organized government should be overthrown by force or violence, or by assassination ..., or by any unlawful means.” It is a felony to advocate this doctrine by speech or writing, and to join any society or any meeting for teaching or advocating it. The act can be rigorously enforced, because the owner or person in charge of any room or building who knowingly permits a meeting therein is severely punished, and the editor or proprietor of a periodical or publisher of a book which contains anarchistic matter is liable unless it was printed without his knowledge and authority and disavowed immediately. This statute lay idle for nearly twenty years,[299] but there have been several prosecutions in the last few months. Especially significant is the sentence of Benjamin Gitlow, a former Socialist member of the New York Assembly, to an imprisonment of five to ten years, under a ruling of Justice Weeks that the advocacy of a general strike without any direct reference to force, violence, or unlawful means is criminal anarchy, because it is camouflaged revolution.[300] The Washington statute of 1909 is very similar, but also makes it criminal to circulate any document having a tendency to encourage the commission of any breach of the peace or disrespect for law or any court. The ridiculous possibilities of such legislation are proved by the conviction of one Fox for encouraging disrespect for law by an article, “The Nude and the Prudes,” declaring bathing suits superfluous. Justice Holmes found nothing unconstitutional in the prosecution, but caustically remarked, “Of course, we have nothing to do with the wisdom of the defendant, the prosecution, or the act.”[301] The first danger to be avoided in legislation against anarchy is the imposition of heavy penalties for slight offenses. Such penalties create that very hatred of our system of laws which it is our object to avoid.

[298] N. Y. Penal Law, 1918, §§ 160–166.

[299] The only case is a slander suit, in which “anarchist” was held a charge of crime. Von Gerichten _v._ Seitz, 94 App. Div. 130 (1904).

[300] _Boston Transcript_, February 17, 1920. House Judiciary Hearings, 155.

[301] Wash. Laws, 1909, c. 249, § 312; State _v._ Fox, 71 Wash. 185 (1912); Fox _v._ Washington, 236 U. S. 273 (1915).

Another pre-war statute, in New Jersey, punishing the advocacy of unlawful destruction of property or injury to persons, is much more restricted in its scope, and has been construed to enact the common law of criminal solicitation with an increased penalty. It was used to punish labor leaders in Paterson who urged clubbing strike-breakers out of the silk mills and using chemicals and other devices to make the product unmerchantable.[302] The recent Massachusetts anti-anarchy act of 1919 is very similar; it specifically penalizes the advocacy of killing, destruction of property, or violent revolution.[303] This Massachusetts act was reduced to its present form by repeated protests from liberals. Instead of legislating against anarchy and other radical doctrines as opinions, the Massachusetts and New Jersey statutes prohibit incitement to definite serious criminal acts. Such codifications of the common law serve the desirable purpose of letting speakers and writers know what they must not do. If these statutes are construed strictly like other penal statutes and applied with common sense and a realization, as Justice Hughes puts it, that “Hyde Park meetings and soap-box oratory constitute the most efficient safety-valve against resort by the discontented to physical force,”[304] then they will enable New Jersey and Massachusetts to deal vigorously with any real danger of lawlessness without at the same time turning revolutionary opinions into crimes. Any state which considers legislation of this type necessary ought to turn to these two statutes as model anti-anarchy acts.

[302] N. J. Laws, 1908, c. 278; the cases construing it are given in Appendix V. The possibilities of the misapplication of even such a narrow statute are shown by State _v._ Scott, reversing a conviction for an intemperate newspaper attack on the brutality of the Paterson police; and by the dissenting opinion in State _v._ Quinlan because the defendant was prejudiced by the elaborate inquiry at the trial into the doctrines of the I.W.W. For the comment of an I.W.W. on these cases, see the quotation from E. G. Flynn in Herbert E. Cory’s _The Intellectuals and the Wage Workers_, N. Y., 1919, p. 208.

[303] Mass. Laws, 1919, c. 191.

[304] Brief for N. Y. Socialist Assemblymen, p. 41 (see Chapter VI).

Most of the legislation since 1917 has, however, been far more extensive. About one-third of the states have applied the New York statutory scheme to the new crime of criminal syndicalism, “the doctrine which advocates crime, physical violence, arson, destruction of property, sabotage, or other unlawful acts or methods as a means of accomplishing or effecting industrial or political ends, or ... industrial or political revolution, or for profit.” The advocacy of any unlawful act for such ends and the circulation of any book affirmatively suggesting criminal syndicalism or any unlawful act for such ends are among the offenses punishable by imprisonment from one to ten years. These acts are almost uniform in phraseology, Idaho having apparently supplied the original model. Some states depart from type into much vaguer phraseology. Thus, Arizona in an act which Governor Hunt allowed to become law without being willing to put his name to it makes it criminal to advocate the violation of “the constitutional or statutory rights of another as a means of accomplishing industrial or political ends.”[305] Montana punishes in peace all the non-military crimes mentioned in the federal Espionage Act of 1918 as well as “any language calculated to incite or inflame resistance to any duly constituted state authority.”[306] West Virginia makes criminal any teachings in sympathy with or favor of “ideals hostile to those now or henceforth existing under the constitution and laws of this state.”[307]

[305] Ariz. Laws, 1918, sp., c. 13.

[306] Mont. Laws, 1919, c. 77.

[307] See note 291.

These are but brief extracts from the legislation which has been enacted or invoked in almost every state during the last few years.[308] In addition, Mayor Hylan of New York wanted an ordinance to punish owners of buildings permitting an assemblage advocating “policies tending to incite the minds of people to a proposition likely to breed a disregard for law,” and a Boston ordinance to forbid the display of anything that was sacrilegious or tended to promote immorality was also unsuccessful, but the Mayor of Toledo is said to have prohibited any meeting anywhere in the city “where it is suspected a man of radical tendencies will speak.”

[308] For harsh applications of these statutes, see Clare Shipman, “The Conviction of Anita Whitney,” 110 _Nation_ 365 (March 20, 1920), California; “The Most Brainiest Man,” _ibid._ 510 (April 17), Connecticut.

These statutes and regulations are, for the most part, different from the normal criminal law in three ways: (1) they label opinions as objectionable and punish them for their own sake because of supposedly bad tendencies without any consideration of the probability of criminal acts; (2) they impose severe penalties for the advocacy of small offenses as much as for serious crimes; (3) they establish a practical censorship of the press _ex post facto_. These statutes are no dead-letter. In particular, the Illinois law has been enforced by wholesale arrests in Chicago. Furthermore, the governors of other states are already granting the extradition of accused persons to Illinois. Under this policy, a state with a drastic sedition law like Montana will be able to hunt a man down in the most liberal part of the nation, and there will be practically no chance for a review by the United States Supreme Court. The United States has always refused to allow the extradition of persons charged by other countries with political crimes, even if the charge (as often happened with Russians) involved the advocacy of violence and revolution.[309] Since state governors under the Constitution cannot be compelled to permit extradition,[310] it is to be hoped that in future they will follow the wise policy of the national government.

[309] See the state papers in 4 _Moore’s Digest of International Law_ 332 ff. The possible exception of anarchists who actually cause explosions (_ibid._ 354) may be disregarded, since we are dealing at most with unsuccessful incitement to anarchy, and in general with the expression of revolutionary views and membership in revolutionary organizations, which would clearly be political crimes and unextraditable.

[310] Kentucky _v._ Dennison, 24 How. (U. S.) 66 (1860).