Chapter I: Freedom of Speech in War Time (2)

The repudiation by the constitutions of the English common law of sedition, which was also the common law of the American colonies, has been somewhat obscured by judicial retention of the two technical incidents of the old law after the adoption of the free speech clauses. Many judges, rightly or wrongly, continued to pass on the criminality of the writing and to reject its truth as a defense,[53] until statutes or new constitutional provisions embodying the popular view on these two points were enacted.[54] Doubtless, a jury will protect a popular attack on the government better than a judge, and the admission of truth as a defense lessens the evils of suppression. These changes help to substitute the modern view of rulers for the old view, but they are not essential. Sedition prosecutions went on with shameful severity in England after Fox’s Libel Act[55] had given the jury power to determine criminality. The American Sedition Act of 1798, which President Wilson declares to have “cut perilously near the root of freedom of speech and of the press,”[56] entrusted criminality to the jury and admitted truth as a defense. On the other hand, freedom of speech might exist without these two technical safeguards. The essential question is not, who is judge of the criminality of an utterance, but what is the test of its criminality. The common law and the Sedition Act of 1798 made the test blame of the government and its officials, because to bring them into disrepute tended to overthrow the state. The real issue in every free speech controversy is this—whether the state can punish all words which have some tendency, however remote, to bring about acts in violation of law, or only words which directly incite to acts in violation of law.

[53] Duniway, _supra_, Chap. IX; Commonwealth _v._ Clap, 4 Mass. 163 (1808); Commonwealth _v._ Blanding, 3 Pick. (Mass.) 304 (1825).

[54] Examples are: Pa. Cons. 1790, Art. 9, § 7; N. Y. Session Laws, 1805, c. 90; N. Y. Cons., 1821, Art. VII, § 8; Mass. Laws, 1827, c. 107. See Schofield, _op. cit._, 95–99.

[55] 32 Geo. III, c. 60 (1792).

[56] 3 Woodrow Wilson, _History of the American People_, 153.

If words do not become criminal until they have “an immediate tendency to produce a breach of the peace,” there is no need for a law of sedition, since the ordinary standards of criminal solicitation and attempt apply. Under those standards the words must bring the speaker’s unlawful intention reasonably near to success. Such a limited power to punish utterances rarely satisfies the zealous in times of excitement like a war. They realize that all condemnation of the war or of conscription may conceivably lead to active resistance or insubordination. Is it not better to kill the serpent in the egg? All writings that have even a remote tendency to hinder the war must be suppressed.

Such has always been the argument of the opponents of free speech. And the most powerful weapon in their hands, since the abolition of the censorship, is this doctrine of indirect causation, under which words can be punished for a supposed bad tendency long before there is any probability that they will break out into unlawful acts. Closely related to it is the doctrine of constructive intent, which regards the intent of the defendant to cause violence as immaterial so long as he intended to write the words, or else presumes the violent intent from the bad tendency of the words on the ground that a man is presumed to intend the consequences of his acts. When rulers are allowed to possess these weapons, they can by the imposition of severe sentences create an _ex post facto_ censorship of the press. The transference of that censorship from the judge to the jury is indeed important when the attack on the government which is prosecuted expresses a widespread popular sentiment, but the right to jury trial is of much less value in times of war or threatened disorder when the herd instinct runs strong, if the opinion of the defendant is highly objectionable to the majority of the population, or even to the particular class of men from whom or by whom the jury are drawn.

Under Charles II trial by jury was a blind and cruel system. During part of the reign of George III it was, to say the least, quite as severe as the severest judge without a jury could have been. The revolutionary tribunal during the Reign of Terror tried by a jury.[57] It is worth our frank consideration, whether in a country where the doctrine of indirect causation is recognized by the courts twelve small property-holders, who have been through an uninterrupted series of patriotic campaigns and are sufficiently middle-aged to be in no personal danger of compulsory military service, are fitted to decide whether there is a tendency to obstruct the draft in the writings of a pacifist, who also happens to be a socialist and in sympathy with the Russian Revolution. This, however, is perhaps a problem for the psychologist rather than the lawyer.

[57] 1 Stephen, _History of the Criminal Law_, 569.

Another significant fact in sedition prosecutions is the well-known probability that juries will acquit, after the excitement is over, for words used during the excitement, which are as bad in their tendency as other writings prosecuted and severely punished during the critical period. This was very noticeable during the reign of George III. It is also interesting to find two juries in different parts of the country differing as to the criminal character of similar publications or even the same publication. Thus Leigh Hunt was acquitted for writing an article, for the printing of which John Drakard was convicted. The acquittal of Scott Nearing and the conviction by the same jury of the American Socialist Society for publishing his book form an interesting parallel.[58]

[58] Judge Mayer has decided that there is not such inconsistency in the two verdicts as to warrant a new trial. American Socialist Society _v._ United States, 260 Fed. 885 (1919).

The manner in which juries in time of excitement may be used to suppress writings in opposition to the government, if bad tendency is recognized as a test of criminality, is illustrated by the numerous British sedition trials during the French Revolution. These were after the passage of Fox’s Libel Act. For instance, in the case just mentioned, Drakard was convicted for printing an article on the shameful amount of flogging in the army, under a charge in which Baron Wood emphasized the formidable foe with whom England was fighting, and the general belief that Napoleon was using the British press to carry out his purpose of securing her downfall.[59]

It is to be feared, there are in this country many who are
endeavoring to aid and assist him in his projects, by crying down
the establishment of the country, and breeding hatred against
the government. Whether that is the source from whence the paper
in question springs, I cannot say, but I advise you to consider
whether it has not that tendency. You will consider whether it
contains a fair discussion—whether it has not a manifest tendency
to create disaffection in the country and prevent men enlisting
into the army—whether it does not tend to induce the soldier to
desert from the service of his country. And what considerations
can be more awful than these?...

The House of Parliament is the proper place for the discussion
of subjects of this nature.... It is said that we have a right
to discuss the acts of our legislature. That would be a large
permission indeed. Is there, gentlemen, to be a power in the
people to counteract the acts of the parliament, and is the
libeller to come and make the people dissatisfied with the
government under which he lives? This is not to be permitted to
any man,—it is unconstitutional and seditious.

[59] 31 How. St. Tr. 495, 535 (1811).

The same emphasis on bad tendency appears in Lord Ellenborough’s charge at Leigh Hunt’s trial, although it failed to secure his conviction.

Can you conceive that the exhibition of the words “One Thousand
Lashes,” with strokes underneath to attract attention, could be
for any other purpose than to excite disaffection? Could it have
any other tendency than that of preventing men from entering into
the army?[60]

[60] 31 How. St. Tr. 367, 408, 413 (1811).

The same desire to nip revolution in the bud was shown by the Scotch judges who secured the conviction of Muir and Palmer for advocating reform of the rotten boroughs which chose the House of Commons and the extension of the franchise, sentences of transportation for seven and fourteen years being imposed.[61]

The right of universal suffrage, the subjects of this country
never enjoyed; and were they to enjoy it, they would not long
enjoy either liberty or a free constitution. You will, therefore,
consider whether telling the people that they have a just right
to what would unquestionably be tantamount to a total subversion
of this constitution, is such a writing as any person is entitled
to compose, to print, and to publish.

[61] 2 May, _Constitutional History_, 38–41, on the trials of Muir and Palmer. Philip A. Brown, _The French Revolution in English History_, 97. Fourteen years appears to have been the longest sentence for sedition imposed in Scotland during the French wars. Four years was the longest in England. See note 157 in Chapter II, _infra_, for sentences under the Espionage Act. Compare with these charges that of Van Valkenburgh, J., in United States _v._ Rose Pastor Stokes, _infra_, and the remarks of Judge Clayton in the Abrams trial in Chapter III.

American sentiment about sedition trials was decisively shown by an expedition to New South Wales to rescue Muir, a sort of reverse deportation.

In the light of such prosecutions it is plain that the most vital indication that the popular definition of liberty of the press, unpunishable criticism of officials and laws, has become a reality, is the disappearance of these doctrines of bad tendency and presumptive intent. In Great Britain they lingered until liberalism triumphed in 1832,[62] but in this country they disappeared with the adoption of the free speech clauses.

[62] That they may not have wholly disappeared even yet is indicated by the definition of sedition in Stephen’s _Digest of Criminal Law_, which should have no application to American law. See also House Judiciary Hearings on S. 3317 etc., 66th Cong., 2d Sess., p. 277.

The revival of those doctrines is a sure symptom of an attack upon the liberty of the press.

Only once in our history prior to 1917 has an attempt been made to apply those doctrines. In 1798 the impending war with France, the spread of revolutionary doctrines by foreigners in our midst, and the spectacle of the disastrous operation of those doctrines abroad,—facts that have a familiar sound to-day—led to the enactment of the Alien and Sedition Laws.[63] The Alien Law allowed the President to compel the departure of aliens whom he judged dangerous to the peace and safety of the United States, or suspected, on reasonable grounds, of treasonable or secret machinations against our government. The Sedition Law punished false, scandalous, and malicious writings against the government, either House of Congress, or the President, if published with intent to defame any of them, or to excite against them the hatred of the people, or to stir up sedition or to excite resistance of law, or to aid any hostile designs of any foreign nation against the United States. The maximum penalty was a fine of two thousand dollars and two years’ imprisonment. Truth was a defense, and the jury had power to determine criminality as under Fox’s Libel Act. Despite the inclusion of the two legal rules for which reformers had contended, and the requirement of an actual intention to cause overt injury, the Sedition Act was bitterly resented as invading the liberty of the press. Its constitutionality was assailed on that ground by Jefferson, who pardoned all prisoners when he became President, Congress eventually repaid all the fines, and popular indignation at the Act and the prosecutions wrecked the Federalist party. In those prosecutions words were once more made punishable for their judicially supposed bad tendency, and the judges reduced the test of intent to a fiction by inferring the bad intent from this bad tendency.

[63] Act of June 25, 1798, 1 Stat. at L., 570; Act of July 14, 1798, 1 Stat. at L., 596. See Bibliography for other references on these Acts.

Whether or not the Sedition Act was unconstitutional, and on that question Jefferson seems right, it surely defeated the fundamental policy of the First Amendment, the open discussion of public affairs. Like the British trials, the American sedition cases showed, as Professor Schofield demonstrates,[64] “the great danger ... that men will be fined and imprisoned, under the guise of being punished for their bad motives, or bad intent and ends, simply because the powers that be do not agree with their opinions, and spokesmen of minorities may be terrorized and silenced when they are most needed by the community and most useful to it, and when they stand most in need of the protection of the law against a hostile, arrogant majority.” When the Democrats got into power, a common-law prosecution for seditious libel was brought in New York against a Federalist who had attacked Jefferson. Hamilton conducted the defense in the name of the liberty of the press.[65] This testimony from Jefferson and Hamilton, the leaders of both parties, leaves the Blackstonian interpretation of free speech in America without a leg to stand on. And the brief attempt of Congress and the Federalist judges to revive the crime of sedition had proved so disastrous that it was not repeated during the next century.

[64] Schofield, _op. cit._, 91, and 92 note.

[65] People _v._ Croswell, 3 Johns. Cas. 337 (1804). New York had then no constitutional guarantee of liberty of the press, but Hamilton urged that under that right at common law truth was a defense and the jury could decide on criminality. He defined liberty of the press as “The right to publish, with impunity, truth, with good motives, for justifiable ends though reflecting on government, magistracy, or individuals.” See Schofield, _op. cit._, 89 ff., for criticism of this definition as not in the common law and as too narrow a definition of the conception of free speech. However, it is embodied in many state constitutions and statutes. Two out of four judges agreed with Hamilton.

The lesson of the prosecutions for sedition in Great Britain and the United States during this revolutionary period, that the most essential element of free speech is the rejection of bad tendency as the test of a criminal utterance, was never more clearly recognized than in Jefferson’s preamble to the Virginia Act for establishing Religious Freedom.[66] His words about religious liberty hold good of political and speculative freedom, and the portrayal of human life in every form of art.

To suffer the civil Magistrate to intrude his powers into the
field of opinion, and to restrain the profession or propagation
of principles on supposition of their ill tendency, is a
dangerous fallacy, which at once destroys all religious liberty,
because he being of course judge of that tendency, will make
his opinions the rule of judgment, and approve or condemn the
sentiments of others only as they shall square with or differ
from his own.

[66] Act of December 26, 1785, 12 Hening’s _Statutes at Large of Virginia_ (1823), c. 34, page 84. Another excellent argument against the punishment of tendencies is found in Philip Furneaux, _Letters to Blackstone_, 2 ed., 60–63, London, 1771; quoted in State _v._ Chandler, 2 Harr. (Del.) 553, 576 (1837), and in part by Schofield, _op. cit._, 77.

Although the free speech clauses were directed primarily against the sedition prosecutions of the immediate past, it must not be thought that they would permit unlimited previous restraint. They must also be interpreted in the light of more remote history. The framers of those clauses did not invent the conception of freedom of speech as a result of their own experience of the last few years. The idea had been gradually molded in men’s minds by centuries of conflict. It was the product of a people of whom the framers were merely the mouthpiece. Its significance was not fixed by their personality, but was the endless expression of a civilization.[67] It was formed out of past resentment against the royal control of the press under the Tudors, against the Star Chamber and the pillory, against the Parliamentary censorship which Milton condemned in his _Areopagitica_, by recollections of heavy newspaper taxation, by hatred of the suppression of thought which went on vigorously on the Continent during the eighteenth century. Blackstone’s views also had undoubted influence to bar out previous restraint. The censor is the most dangerous of all the enemies of liberty of the press, and ought not to exist in this country unless made necessary by extraordinary perils.

[67] 1 Kohler, _Lehrbuch des Bürgerlichen Rechts_, I, § 38.

Moreover, the meaning of the First Amendment did not crystallize in 1791. The framers would probably have been horrified at the thought of protecting books by Darwin or Bernard Shaw, but “liberty of speech” is no more confined to the speech they thought permissible than “commerce” in another clause is limited to the sailing vessels and horse-drawn vehicles of 1787. Into the making of the constitutional conception of free speech have gone, not only men’s bitter experience of the censorship and sedition prosecutions before 1791, but also the subsequent development of the law of fair comment in civil defamation, and the philosophical speculations of John Stuart Mill. Justice Holmes phrases the thought with even more than his habitual felicity.[68] “The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil.”

[68] Gompers _v._ United States, 233 U. S. 604, 610 (1914).

It is now clear that the First Amendment fixes limits upon the power of Congress to restrict speech either by a censorship or by a criminal statute, and if the Espionage Act exceeds those limits it is unconstitutional. It is sometimes argued that the Constitution gives Congress the power to declare war, raise armies, and support a navy, that one provision of the Constitution cannot be used to break down another provision, and consequently freedom of speech cannot be invoked to break down the war power.[69] I would reply that the First Amendment is just as much a part of the Constitution as the war clauses, and that it is equally accurate to say that the war clauses cannot be invoked to break down freedom of speech. The truth is that all provisions of the Constitution must be construed together so as to limit each other. In a war as in peace, this process of mutual adjustment must include the Bill of Rights. There are those who believe that the Bill of Rights can be set aside in war time at the uncontrolled will of the government.[70] The first ten amendments were drafted by men who had just been through a war. The Third and Fifth Amendments expressly apply in war. A majority of the Supreme Court declared the war power of Congress to be restricted by the Bill of Rights in _Ex Parte_ Milligan,[71] which cannot be lightly brushed aside, whether or not the majority went too far in thinking that the Fifth Amendment would have prevented Congress from exercising the war power under the particular circumstances of that case. If the First Amendment is to mean anything, it must restrict powers which are expressly granted by the Constitution to Congress, since Congress has no other powers.[72] It must apply to those activities of government which are most liable to interfere with free discussion, namely, the postal service and the conduct of war.

[69] United States _v._ Marie Equi, Bull. Dept. Just., No. 172, 21 (Ore., 1918), Bean, J.

[70] Henry J. Fletcher, “The Civilian and the War Power,” 2 _Minn. L. Rev._ 110, expresses this view. See also Ambrose Tighe, “The Legal Theory of the Minnesota ‘Safety Commission’ Act,” 3 _Minn. L. Rev._ 1.

[71] 4 Wall. (U. S.) 2 (1866). The judges all agreed that Congress had not authorized the trial of the petitioner by a military tribunal. The majority, per Davis, J., took the ground that the government cannot have recourse to extraordinary procedure until there are extraordinary conditions to justify it and that under the Bill of Rights the decision of Congress that such procedure is necessary can be reviewed by the courts. The minority, per Chase, C. J., declared that Congress is sole judge of the expediency of military measures in war time, and that the war power is not abridged by any Amendment. The majority view on this matter may be accepted by one who questions their opinion that military tribunals are never justified outside the theater of active military operations in a place where the civil courts are open. It may be that military tribunals are necessary where the machinery of the civil courts cannot adequately meet the situation (3 _Minn. L. Rev._ 9), but the civil courts must eventually decide whether their machinery was adequate or not. Otherwise, in any war, no matter how small or how distant, Congress could put the whole country under military dictatorship.

[72] United States Constitution, Art. I, § 1: “All legislative powers herein granted shall be vested in a Congress.” Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.”

“This government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it, would seem too apparent.”—Marshall, C. J., in McCulloch _v._ Maryland, 4 Wheat. (U. S.) 316, 405 (1819). See also Taney, C. J., in _Ex parte_ Merryman, Taney, 236, 260 (1861), and Brewer, J., in Kansas _v._ Colorado, 206 U. S. 46, 81 (1907).

The true meaning of freedom of speech seems to be this. One of the most important purposes of society and government is the discovery and spread of truth on subjects of general concern. This is possible only through absolutely unlimited discussion, for, as Bagehot points out, once force is thrown into the argument, it becomes a matter of chance whether it is thrown on the false side or the true, and truth loses all its natural advantage in the contest. Nevertheless, there are other purposes of government, such as order, the training of the young, protection against external aggression. Unlimited discussion sometimes interferes with these purposes, which must then be balanced against freedom of speech, but freedom of speech ought to weigh very heavily in the scale. The First Amendment gives binding force to this principle of political wisdom.

Or to put the matter another way, it is useless to define free speech by talk about rights. The agitator asserts his constitutional right to speak, the government asserts its constitutional right to wage war. The result is a deadlock. Each side takes the position of the man who was arrested for swinging his arms and hitting another in the nose, and asked the judge if he did not have a right to swing his arms in a free country. “Your right to swing your arms ends just where the other man’s nose begins.” To find the boundary line of any right, we must get behind rules of law to human facts. In our problem, we must regard the desires and needs of the individual human being who wants to speak and those of the great group of human beings among whom he speaks. That is, in technical language, there are individual interests and social interests, which must be balanced against each other, if they conflict, in order to determine which interest shall be sacrificed under the circumstances and which shall be protected and become the foundation of a legal right.[73] It must never be forgotten that the balancing cannot be properly done unless all the interests involved are adequately ascertained, and the great evil of all this talk about rights is that each side is so busy denying the other’s claim to rights that it entirely overlooks the human desires and needs behind that claim.

[73] This distinction between rights and interests clarifies almost any constitutional controversy. The distinction originated with von Ihering. For presentation of it in English, see John Chipman Gray, _Nature and Sources of the Law_, § 48 ff.; Roscoe Pound, “Interests of Personality,” 28 _Harv. L. Rev._ 453.

The rights and powers of the Constitution, aside from the portions which create the machinery of the federal system, are largely means of protecting important individual and social interests, and because of this necessity of balancing such interests the clauses cannot be construed with absolute literalness. The Fourteenth Amendment and the obligation of contracts clause, maintaining important individual interests, are modified by the police power of the states, which protects health and other social interests. The Thirteenth Amendment is subject to many implied exceptions, so that temporary involuntary servitude is permitted to secure social interests in the construction of roads, the prevention of vagrancy, the training of the militia or national army. It is common to rest these implied exceptions to the Bill of Rights upon the ground that they existed in 1791 and long before, but a less arbitrary explanation is desirable. Not everything old is good. Thus the antiquity of peonage does not constitute it an exception to the Thirteenth Amendment; it is not now demanded by any strong social interest. It is significant that the social interest in shipping which formerly required the compulsory labor of articled sailors is no longer recognized in the United States as sufficiently important to outweigh the individual interest in free locomotion and choice of occupation. Even treaties providing for the apprehension in our ports of deserting foreign seamen have been abrogated by the La Follette Seamen’s Act. The Bill of Rights does not crystallize antiquity. It seems better to say that long usage does not create an exception to the absolute language of the Constitution, but demonstrates the importance of the social interest behind the exception.[74]

[74] This paragraph rests on Butler _v._ Perry, 240 U. S. 328 (1916); Robertson _v._ Baldwin, 165 U. S. 275, 281 (1897); Bailey _v._ Alabama, 219 U. S. 219 (1911); Act of March 4, 1915, c. 153, § 16, U. S. Comp. Stat., 1918, § 8382 _a_; Hurtado _v._ California, 110 U. S. 516 (1884).

The First Amendment protects two kinds of interests in free speech. There is an individual interest, the need of many men to express their opinions on matters vital to them if life is to be worth living, and a social interest in the attainment of truth, so that the country may not only adopt the wisest course of action but carry it out in the wisest way. This social interest is especially important in war time. Even after war has been declared there is bound to be a confused mixture of good and bad arguments in its support, and a wide difference of opinion as to its objects. Truth can be sifted out from falsehood only if the government is vigorously and constantly cross-examined, so that the fundamental issues of the struggle may be clearly defined, and the war may not be diverted to improper ends, or conducted with an undue sacrifice of life and liberty, or prolonged after its just purposes are accomplished. Legal proceedings prove that an opponent makes the best cross-examiner. Consequently it is a disastrous mistake to limit criticism to those who favor the war. Men bitterly hostile to it may point out evils in its management like the secret treaties, which its supporters have been too busy to unearth. If a free canvassing of the aims of the war by its opponents is crushed by the menace of long imprisonment, such evils, even though made public in one or two newspapers, may not come to the attention of those who had power to counteract them until too late.[75]

[75] “Senator Borah—‘Then we had no knowledge of these secret treaties so far as our Government was concerned until you reached Paris?’

“The President—‘Not unless there was information at the State Department of which I knew nothing.’”—_N. Y. Times_, Aug. 20, 1919.

The history of the last five years shows how the objects of a war may change completely during its progress, and it is well that those objects should be steadily reformulated under the influence of open discussion not only by those who demand a military victory, but by pacifists who take a different view of the national welfare. Further argument for the existence of this social interest becomes unnecessary if we recall the national value of the opposition in former wars.

The great trouble with most judicial construction of the Espionage Act is that this social interest has been ignored and free speech has been regarded as merely an individual interest, which must readily give way like other personal desires the moment it interferes with the social interest in national safety. The judge who has done most to bring social interests into legal thinking said years ago, “I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate and often unconscious.”[76] The failure of the courts in the past to formulate any principle for drawing a boundary line around the right of free speech has not only thrown the judges into the difficult questions of the Espionage Act without any well-considered standard of criminality, but has allowed some of them to impose standards of their own and fix the line at a point which makes all opposition to this or any future war impossible. For example:

No man should be permitted, by deliberate act, or even
unthinkingly, to do that which will in any way detract from the
efforts which the United States is putting forth or serve to
postpone for a single moment the early coming of the day when the
success of our arms shall be a fact.[77]

[76] Oliver Wendell Holmes, “The Path of the Law,” 10 _Harv. L. Rev._ 457, 467.

[77] United States _v._ “The Spirit of ’76,” 252 Fed. 946. Another good example is United States _v._ Schoberg, Bull. Dept. Just., No. 149.

The true boundary line of the First Amendment can be fixed only when Congress and the courts realize that the principle on which speech is classified as lawful or unlawful involves the balancing against each other of two very important social interests, in public safety and in the search for truth. Every reasonable attempt should be made to maintain both interests unimpaired, and the great interest in free speech should be sacrificed only when the interest in public safety is really imperiled, and not, as most men believe, when it is barely conceivable that it may be slightly affected. In war time, therefore, speech should be unrestricted by the censorship or by punishment, unless it is clearly liable to cause direct and dangerous interference with the conduct of the war.

Thus our problem of locating the boundary line of free speech is solved. It is fixed close to the point where words will give rise to unlawful acts. We cannot define the right of free speech with the precision of the Rule against Perpetuities or the Rule in Shelley’s Case, because it involves national policies which are much more flexible than private property, but we can establish a workable principle of classification in this method of balancing and this broad test of certain danger. There is a similar balancing in the determination of what is “due process of law.” We can insist upon various procedural safeguards which make it more probable that a tribunal will give the value of open discussion its proper weight in the balance. Fox’s Libel Act is such a safeguard, and others will be considered in the next chapter. And we can with certitude declare that the First Amendment forbids the punishment of words merely for their injurious tendencies. The history of the Amendment and the political function of free speech corroborate each other and make this conclusion plain.