CHAPTER VII

FREEDOM AND INITIATIVE IN THE SCHOOLS

The _Liberty_ is likely to survive longer than anything else that

I have written, because it is a kind of philosophic textbook of

a single truth, which the changes progressively taking place in

modern society tend to bring out into ever stronger relief: the

importance, to man and society, of a large variety in types of

character, and of giving full freedom to human nature to expand

itself in innumerable and conflicting directions.—JOHN STUART

MILL, _Autobiography_.

The state which refrains from fighting revolutionary doctrines by

force except in times of clear and present danger is not helpless, for

besides abolishing some causes of discontent, it can employ education

to establish among its citizens faith in progress through law. If,

however, the advocates of revolution by violence should share in

the control of education, the state would seem to be surrendering

its last stronghold. Such a possibility is indicated to many by the

presence of radicals among public school teachers. The situation is

complicated by factors which lie outside the province of this book,

like the claim of teachers to participate in deciding the dismissal

of one of their number. Questions of the fitness of some particular

teacher to teach, instead of being settled purely on their merits, have

become storm-centers of conflict for employees, trade unions, and the

press. On one side, some teachers who are dismissed for good reasons

are believed by their friends to be ousted for political or economic

views. On the other side, the authorities assert that any one who holds

certain views is _ipso facto_ unfit to teach. For example, Dr. John

L. Tildsley, while Associate Superintendent of Schools in New York,

declared,[559] “that men or women who are _Marxian Socialists_, who

believe in the Communist Manifesto, have no right to be in the school

system because such teachers believe in the overturn by force of those

elements on which our civilization is based.” The student of freedom of

speech is concerned with the comparative redness of these proscribed

views, and with the question whether a teacher is to be dismissed for

merely believing in them or only if he expresses them to his classes.

The following reflections grow out of the New York controversy, but

merely endeavor to suggest some controlling principles. Since the

problem does not involve the legal questions which have received

attention in previous chapters, it may be helpful, at the cost of some

repetition, to restate in non-technical language the main conclusions

of this book.

[559] The Public and the Schools, May 17, 1919, Public Education Assn.,

N. Y.

When I heard Dr. Tildsley say he believed in freedom of speech I felt

glad that we stood in the same position. But when he went on and said

no one who favored Marxian Socialism should teach in the schools, it

seemed to me a little like a character in James Russell Lowell, a

gentleman of the _Biglow Papers_, who said: “I du believe in Freedom’s

cause, Ez fur away as Payris is.” Or something like the Irishman who

inquired of his friend, “What is this Socialism that I hear so much

about?” Mike said, “Why, Pat, don’t you know what that is? If you had

a million dollars, you would give me half, wouldn’t you?” “Sure, I

would!” “Well, that’s Socialism.” Pat said, “That is a grand thing!

Tell me some more about it.” “Well,” replied Mike, “If you had ten

dollars, you would give me half, wouldn’t you?” “I would not! I’ve got

ten dollars!”

We all believe in freedom of speech, but the question is, do we believe

in it when it is disagreeable to us? After all, if freedom of speech

means anything, it means a willingness to stand and let people say

things with which we disagree, and which do weary us considerably.

A good deal of the public discussion on the matter turns on the use

of the word “rights.” Those who want to speak freely insist on the

right of freedom of speech; and, on the other hand, those who wish to

restrict speakers talk of the right of the government to carry on

war and the right of the government to maintain order, and there we

have a deadlock. Each side says it is in the right, and that does not

bring us anywhere at all. I think we will do well to get away from this

word “right” entirely, and look at it from another point of view, not

from the legal point of view, but simply from the point of view of the

individual human being who wants to speak and the great group of human

beings which constitute the society in which he speaks. That is, we

have his individual interests and the interests of society at large.

First, we have the individual interest in freedom of speech. “Good,” as

Emerson says, “does not mean good to eat and good to wear.” It means

to live our own lives as fully as we can and to bear witness to the

truth for which we came into the world. I did intend at this point to

quote from _Jean-Christophe_, by Romain Rolland, but this is one of the

proscribed books for recommending which to his pupils a teacher was

dismissed from the New York high schools, and so I will refrain. But

instead, I will take a book which was written three thousand years ago,

which is fairly safe—the _Apology of Socrates_:

If in acquitting me you should say: “We will not put faith this

time, O Socrates, in your accusers, but will let you go, on the

condition, however, that you no longer spend your time in this

search nor in the pursuit of wisdom, and that if you are caught

doing either again you shall die”—if, I say, you were to release

me on these conditions, I should say to you: “Athenians, I love

and cherish you, but shall obey the God rather than you; and as

long as I draw breath and have the strength, I shall never cease

to follow philosophy and to exhort and persuade any one of you

whom I happen to meet. For this, be assured, the God commands;

and I believe that there has never been a greater good in the

state than this my service to the God; for I do nothing but

go about persuading you, both young and old, not to let your

first thought be for your body or your possessions, nor to care

for anything so earnestly as for your soul.” And, Athenians, I

should go on to say: “Either hearken to my accusers or not, and

either acquit me or not; but understand that I shall never act

differently, even if I have to die for it many times.”

That is the individual interest in free speech. Over against that we

have to set the social interests—the interest in the safeguarding of

the government and the nation from foreign attack, the interest in

order, without which all our individual interests would be lost, the

interest in moral and decent living, and the interest in the training

of the young, which is the main thing that we have to consider here.

As between that individual interest and those social interests, it

seems easy to conclude that the individual interest should always give

way; that, as is often said, freedom of speech means liberty, not

license; that we must not advocate anything that is wrong, anything

which interferes with the social interests in order, and so on. But we

have to remember that not only do we have the social interest in order,

and in the education of the young, and in morals, but that freedom of

speech is itself a social interest; that one of the purposes for which

society exists just as much as for the maintenance of order is the

discovery and the spread of truth.

Another member of the Lowell family, now President of Harvard, said

in his report to the Corporation on the subject of freedom of speech,

which every Harvard professor can regard as a Magna Charta:

Education has proved, and probably no one would now deny, that

knowledge can advance, or at least can advance most rapidly,

only by means of an unfettered search for truth on the part of

those who devote their lives to seeking it in their respective

fields, and by complete freedom in imparting to their pupils the

truth that they have found. This has become an axiom in higher

education, in spite of the fact that a searcher may discover

error instead of truth, and be misled, and mislead others,

thereby. We believe that if enough light is let in, the real

relations of things will soon be seen, and they can be seen in no

other way.

We cannot be sure that any statement is either wholly true or wholly

false. We cannot separate the truth at once. We have to leave the

separation on the whole to time. Any subject may have some bad

features, but we must let the wheat grow with the tares until the time

comes when the crop is ripe, and we can decide between them. If what is

said does dangerously and directly interfere with those other social

interests in order and in education of the young, then speech must be

restrained. But until that time comes—and we ought to be sure that it

has come—we should be very careful how we interfere. Because it is

by the contest of argument that the truth is found. Argument on one

side and argument on the other is the best way that we have on earth

to bring about truth. Once force is thrown into the scale, once the

pressure of government is used on one side or the other, it becomes

simply a matter of chance on which side it is used, and then the

natural ability to decide the matter by argument is altogether gone. I

say it is just a matter of chance. For instance, force here is to be

thrown against Marxian Socialism, a doctrine with which I do not at all

agree; but, in North Dakota it is to be thrown on the side of something

that comes pretty near Marxian Socialism. Under a populist régime in

Kansas the State issued textbooks that had to be used in the schools,

which devoted more time to the “crime of ’73,” by which free silver was

abolished, than to the Civil War. It just depends on what government

you have. The administration in Washington is now publishing textbooks

for use in the schools.[560] When we have a Republican administration

we may have a different kind of textbook. Therein lies the difficulty

with Dr. Tildsley’s argument that teachers must teach and think

according to the decision of a majority in Congress. It is true that

a majority decision is the best way of determining how the government

shall act, but it is not the best way of deciding what is right. We

have to act on the decision of the majority, but the minority are not

thereby precluded from doubting the wisdom of the decision, and it may

eventually be that they will again become the majority and will put an

end to that particular measure.

[560] “A Case of Federal Propaganda in our Public Schools,” Natl.

Industrial Conference Board, Feb., 1919.

If the majority of Congress declares war, the minority must realize

that we are at war, but they are not necessarily bound to believe

that the war is right, and why should they not endeavor to stop it by

argument when they believe that it has gone far enough? Once again, we

have got to balance the interests in this matter—the public interest

in the discovery of truth against the public interest in the education

of the young and protection against invasion. And it is very necessary

that the balancing should be done by people who realize the importance

of freedom of speech. Freedom of speech ought to weigh very heavily in

the scale.

It is all very well to say that religious views should be free; that

scientific investigation should be free; but that political opinion

cannot be free, because that is dangerous; that Marxian Socialism

is so dangerous that it cannot be free. Three centuries ago, people

felt just as strongly about religious views and about scientific

investigation as they do now about political investigation. They

felt just as sure that any view which was not in accord with the

orthodox religion would unsettle the very foundations of morality,

and that consequently no one should teach in the schools who was not

an orthodox Christian. And they felt just as sure about scientific

investigation; that if a man said the earth went around the sun, he

should not be trusted anywhere. If they felt so strongly about it

then, and were wrong, how can we be sure that we are right if we feel

the same way about political investigation? On that we must have just

as much freedom of investigation as in the old days was necessary for

scientific discoveries. It is easy enough to think that everything that

is different from ourselves must necessarily be dangerous. It is easy

to believe that political ideas which are different from our own must

necessarily advocate the use of force. We say, how could Socialism come

into existence except by violence, because it is so objectionable. I

do not believe in it, and hope it will not come into existence. But I

do not see why it may not be adopted by popular suffrage, the same as

other ideas. We ought not to assume it can only win by violence, simply

because it differs from our views. In the old days they used to get

rid of objectionable persons on the ground that they would overthrow

society. They got rid of Socrates by saying he was a corrupter of the

youth. They got rid of Jesus by saying he planned to upset the Roman

state, and they said it is more expedient that one man should die than

that the people should perish. It is more expedient, now, that one man

should be put in prison or lose his job—it is just the same argument

we use—than that the people should perish. But let us be sure that the

people, after all, are going to perish.

In war time, the problem is perhaps peculiar. Everybody is very much

occupied. We haven’t time to think things over, and people will say,

“We don’t care what sort of war it is. My country, right or wrong. Let

us go ahead.” It is something like the colored man who went with his

son to rob a hen coop, and sent his son inside. The boy turned and

stuck his head out of the door and said, “Father, am dis right?” And

the father said, “Dat am a great moral question. We will argue it out

at home dis evening. You get busy and hand out dem chickens.”

I think this war was right, but the people who opposed it, who were

wrong this time, may be right next time, as they were right in the

Mexican War. They may be right next time, and we ought to be careful

how we require every person who teaches in the schools to support every

war that is going on. But now we have peace. We cannot postpone the

discussion of problems until the “war” is over. We shall have to meet

them as they arise. Dr. Tildsley spoke of our being under the spell of

words. There is one word we are all under the spell of at the present

time, and that is, Americanism. What does it mean? We are afraid of

something. We were afraid of Germany, but we got over that. What is it

we are scared about now? We are scared of Russia. Why? Is it because

Russia has a different political system from ours? She had a different

political system under the Czar, and we were perfectly willing to

discuss his system. Is it because the people have a tremendous control

there? We have been perfectly willing to discuss the initiative and the

referendum for years. Is it because they have a restrictive franchise

there? We have a restrictive franchise in certain states where half

the adult population is not allowed to vote. In Rhode Island, where I

used to live, the men who are most scared of Bolshevism are the men

who are most ready to keep the property franchise under which people

who have less than $134 cannot vote for many important offices. What

we are really scared of is not something political; it is economic. We

are afraid of a system which takes property from the people who have

inherited it or who have earned it, and that is an economic question.

It is not Americanism against something else. It is simply a choice

of two economic systems, and we have got to have that controversy

discussed if we are going to decide it rightly.

If Americanism means anything, it means free speech, right from the

start. The Pilgrims came to Massachusetts to get it, and Roger Williams

left Massachusetts, not only because he had his own religious views

but because he attacked property rights in land not purchased from

the Indians. Thomas Jefferson is usually considered a good American,

but he said things about the desirability of rebellion that would

make us all shudder. Alexander Hamilton argued for free speech

here in New York, and James Russell Lowell called the Mexican War

murder. The abolitionists, men whom we all honor to-day, believed in

Americanism—freedom to criticise the government of their day and the

institutions of property of their day, which included a tremendous form

of property—the property in negro slaves. I believe in private property

myself, but because I believe in it I want to know why it ought to be

supported.

And now, for the problem as it affects teachers. There are two views of

teaching. One regards teaching as a sort of handing out canned goods

to the pupils, so much canned goods, so much knowledge. Well, if it

is a canned goods business, we may need a Pure Food Law to make sure

the children get the right brand of “corn.” But this is not the real

theory. That was held by President Gilman of Johns Hopkins, when he

took Professor Gildersleeve into a bare room and said, “Now, radiate.”

We have got to have the kind of teachers that radiate. For that we not

only need contented teachers, but we must have teachers who think for

themselves.

In a pamphlet issued in the New York school controversy, the “Reply of

the Superintendents,” is a statement that teachers should be obedient,

and to support it a quotation about the sort of obedience that is

necessary in the army and navy. Of course, teachers to some extent

have to obey, but the kind of obedience we ought to get from them is

far from the kind they get in the army and navy. In an autocracy, they

might get along without teachers of independence. But this country has

to be run by the people in it, and they are the people who are taught

in the schools; and if the teachers cannot think for themselves, the

pupils cannot think for themselves. They cannot discuss merely the

questions of the past. They must discuss the critical problems of the

present time if they are to solve them.

In England there is a leisure class to carry on the government. We

cannot depend on that. Now, to what branch of citizens should we turn

more for help in these matters than the teachers? And there is no class

of people who are more injured by repression than teachers. If you

say to any other man that he must not express his ideas on political

questions, he can at least devote himself to his job, but if you

confine the teacher in his thinking, what do you leave him? That is his

job, to think.

People say that the teacher is employed by the government, and ought to

agree with the government which pays him. The courts are just as much

a part of the government as the schools—more so, for we have private

schools, but we do not have private courts. Do we say that every one

in the court must agree with the government? Do we say that the judges

must always decide in favor of the government? Not at all! They often

decide against it. We retain lawyers to defend criminals whom the

government accuses. It is even suggested we should have one lawyer to

do so all the time. Progressive manufacturing corporations employ men

just to criticise the products of the corporation and see how they can

be better made. The teacher may be serving the state even while he

criticises it.

Of course, we have special considerations in the schools. We have this

social interest in favor of the education of children. We cannot let

everything be said in the schools that we might let be said outside.

A teacher might be allowed to stand on his head at home, but not in

school. In the same way there is much he ought not to do there in the

way of free speech. If he taught that all boys and girls at sixteen

were of a proper age to marry, he certainly ought to lose his position.

He must adapt his discussion to the maturity of the pupils before him.

And we certainly can require concentration on his subject; we can

require judgment; we ought to demand of a teacher that he should be a

master of his subject and a man of sound common sense.

But, on the other hand, you cannot control the mind of an expert. You

cannot stand over Galileo and say “Use your telescope, but do not find

that the earth goes around the sun.” You cannot stand over Pasteur and

say, “Investigate spontaneous generation, but do not discover that

spontaneous generation exists.” You cannot stand over a man that deals

with economics and say, “Find out that economics exists according to

this or that system”; or, if he deals with history, say to him, “Find

out that the men who are in power in Russia are a gang of thugs.” If

he finds it out, all right; but you cannot force him to do so, and you

cannot force him to teach lies. Outside of the classroom he should be

even more free. There he is a citizen, and as the New York Constitution

says, every citizen may safely speak, write, and publish his sentiments

on all subjects, being responsible for the abuse of that right; and no

law shall be passed to restrain or abridge the liberty of speech or of

the press.

Be sure that the right is abused. Be sure that freedom of speech

weighs much in the scale. I think if every board which had to pass on

the removal of a teacher would first read Milton’s _Areopagitica_ and

Mill on _Liberty_, that some of the decisions would be very different;

because they would see that, after all, freedom of speech is just as

important as the maintenance of order.

Why are we so worried? Why are we so scared? Have we no confidence in

the arguments that can be used against these radical ideas? Parents

argue on the other side, and we have with us the army and the police,

and everybody who has a savings bank account or a life insurance

policy. After all, the dangers of rebellion are not very great, unless

our case is very weak, and I do not think it is.

Finally, repression will produce just the kind of spirit in the

teachers that we want to get rid of—that is, the revolutionary spirit.

The French experience in this matter has been very instructive.[561]

There the government threw its force against religion. Teachers were

dismissed because they went to church. Teachers were dismissed for

attacking the Prefect of their department. The state held a general

inquisition into the opinions of all the teachers, a cabinet minister

saying, “The government will not surrender the right to know the

attitude of its servants toward the republic.” And they even had a

law that government officials, including teachers, should wear a

cheerful countenance on national holidays. What was the result? The

teachers of France, although by birth, by training, by disposition

affiliated with the middle class rather than the working class, have

formed a revolutionary trade-union and affiliated themselves with the

syndicalist organizations of France.

[561] H. J. Laski, _Authority in the Modern State_, c. V.

It is all very well to say that we ought to be loyal to the state. What

do we mean by the state? After all, it comes right straight down to the

government that we deal with, and the government comes down to the men

that we deal with, which means the educational authorities, and those

who have power to put us in prison, and if those men do not stand for

the best things we stand for,—for the development of mind and spirit

and the search for truth, we begin to wonder whether, after all, that

government ought to endure, and whether we do not want a government

which will stand for the things that we believe in. So it becomes

important that the men who constitute the government, who, after all,

are really the state, should stand for these things. We cannot love

the state as a mystical unity, when that unity as we actually face it

prevents us from living a true human life. So that, in order to make

people loyal to the state, you must make the state a sort of thing that

they want to be loyal to.

We have got to take risks. Of course, it is not perfectly safe to allow

teachers to be free. There ought to be this balancing of youth against

truth. But there are plenty of risks that we take in life. We let our

children go on the street although they may be run over by automobiles

and trolley cars. We do not keep them home until they are twenty-one

years of age. In the same way, we might like to leave them until a

little later before we discuss some of these economic problems, but

then they are out at work, and it is too late. We have got to take them

when we can get them. And even if an occasional teacher does speak

very radically, that does not mean that high school students will

believe all he says. If we go back to the time when we were sixteen, we

remember the keenness with which we discussed those problems. We did

not take everything the teacher said for granted, and the more he said,

the more we were likely to oppose him.

We cannot lead sterilized lives. Think of the chances America took by

allowing people with very little education to vote, and yet that is a

risk we are ready to run. Democracy is not a water-tight compartment.

It is a great adventure, and in order to prepare people for that

adventure we have to teach them to think for themselves on the problems

they will have to face when they grow up. It is not simply teaching

them the ideals of the day,—we must train them to make the ideals of

to-morrow.

APPENDIX I

BIBLIOGRAPHY ON FREEDOM OF SPEECH

Note: This Bibliography is far from a complete list of even

the modern material in the English language. No Continental

literature is included and information about religious liberty

must be sought elsewhere. The purpose is to cover only the topics

of the book.

A. GENERAL AND HISTORICAL (CHAPTER I)

The legal meaning of freedom of speech cannot properly be determined

without a knowledge of the political and philosophical basis of

such freedom. Four writings on this problem may be mentioned as

invaluable: Plato’s _Apology of Socrates_; Milton’s _Areopagitica_;

the second chapter of Mill, _On Liberty_; and Walter Bagehot’s essay,

“The Metaphysical Basis of Toleration.” The second chapter of J. F.

Stephen, _Liberty, Equality, Fraternity_, has an important critique

on Mill. See, also, J. B. Bury, _A History of Freedom of Thought_,

the first and last chapters; Grote, _Plato_, Chap. VI; Graham Wallas,

_The Great Society_, 195–98. The relation of freedom of thought to

political progress is discussed by same, “The Price of Intolerance,”

125 _Atlantic_ 116 (January, 1920); H. J. Laski, _Authority in the

Modern State_, passim; same, “The Temper of the Present Time,”

21 _New Republic_ 335 (February 18, 1920). Francis Hackett, “The

Invisible Censor,” 21 _New Republic_ 11 (December 3, 1919), sketches

the psychology of suppression. For a caustic point of view, see

Fabian Franklin, “Some Free Speech Delusions,” 2 _Unpopular Rev._

223 (October, 1914). The difficulties of the problem as seen from

actual experience on both sides are presented in Viscount Morley’s

_Recollections_.

By far the best textbook on this and the other civil rights is

Cooley, _Constitutional Limitations_, 7th ed.; Dicey, _The Law of the

Constitution_, 8th ed., Chaps. VI and VII gives the English law of

freedom of speech and assembly.

The best discussion of the legal meaning of “Freedom of the Press in

the United States” will be found in an article under that name by Henry

Schofield, in 9 _Publications of the American Sociological Society_ 67

(1914). This volume is devoted entirely to “Freedom of Communication,”

and contains several valuable papers on different aspects of the

problem. Other general legal articles are: “The Jurisdiction of the

United States over Seditious Libel,” H. W. Biklé, 41 _Am. L. Reg._ (N.

S.) 1 (1902); “Restrictions on the Freedom of the Press,” 16 _Harv.

L. Rev._ 55 (1902); “Free Speech and Free Press in Relation to the

Police Power of the State,” P. L. Edwards, 58 _Cent. L. J._ 383 (1904);

“Freedom of Speech and of the Press,” 65 _Univ. of Pa. L. Rev._ 170

(1916); Joseph R. Long, “The Freedom of the Press,” 5 _Va. L. Rev._ 225

(1918). Freedom of speech is discussed by Dean Pound as an interest of

the individual in his “Interests of Personality,” 28 _Harv. L. Rev._

445, 453 (1915); and as an alleged bar to injunctions of libel in his

“Equitable Relief against Defamation and Injuries to Personality,” 29

_Harv. L. Rev._ 640, 648 (1916). For the technique of political trials,

see Robert Ferrari, “Political Crime and Criminal Evidence,” 3 _Minn.

L. Rev._ 365 (1919); “Political Crime,” 20 _Col. L. Rev._ 308 (1920);

“The Trial of Political Criminals Here and Abroad,” 66 _Dial_ 647

(June 28, 1919). Much useful material is collected in the writings of

Theodore Schroeder, of which a bibliography by N. E. Sankey-Jones is

published by the New York Free Speech League, 1919. Recent articles by

him are “A Psychologic Study of Judicial Opinions,” 6 _Cal. L. Rev._ 89

(1918); “Political Crimes Defined,” 18 _Mich. L. Rev._ 30 (1919).

_Origins of the First Amendment_:

The history of freedom of speech in America has not yet been fully

investigated, but Clyde A. Duniway, _The Development of Freedom of the

Press in Massachusetts_, Cambridge, Harvard University Press, 1906, is

extremely useful for the Colonial period. Max Farrand, _Records of the

Federal Convention_, gives material on the proposed free speech clause,

II, 334, 340, 341, 545; III, 122, 256, 290, 595, 599, 609. The state

debates on this clause are in _Elliot’s Debates_ (2d ed., 1836), I,

359, 360, 362, 369, 371, 375; II, 424, 511, 537; III, 411, 414, 415,

431, 551; IV, 159, 175, 209, 301, 302. J. B. McMaster and F. D. Stone,

_Pennsylvania and the Federal Convention, 1787–1788_, Hist. Soc. of

Penn., 1888, has contemporary press discussion.

_English History and Law_:

Much light is thrown on the problem by sedition trials in England,

before our Revolution and during the French Revolution. The best

account of these is in T. Erskine May, 2 _Constitutional History of

England_, 2d ed., 1912, Chaps. IX-X, summarized by Charles A. Beard

in 16 _New Republic_ 350 (October 19, 1918). See, also, 2 Stephen,

_History of the Criminal Law_, Chap. XXIV; Graham Wallas, _Life of

Francis Place_, N. Y., 1919; Philip A. Brown, _The French Revolution

in English History_, London, 1918; G. O. Trevelyan, _The Early History

of Charles James Fox_, relates Wilkes and Junius controversies. See

bibliography in J. F. Rhodes, _History of the United States_, IV, 233

note.

For the modern law: F. M. Anderson, “The Law of Sedition in the

British Empire,” _House Judiciary Hearings_, p. 273; H. J. Laski, “The

Fundamental Law in England,” 31 _Harv. L. Rev._ 296 (1917). Canada:

A. V. Thomas, “Quoting Isaiah in Winnipeg,” 110 _Nation_ 850 (January

3, 1920); J. A. Stevenson, “A Set-back for Reaction in Canada,” 110

_ibid._ 292 (March 6).

_Sedition Act of 1798_:

Frank Maloy Anderson, “The Enforcement of the Alien and Sedition

Laws,” Ann. Rep. Am. Hist. Assn. (1912) 115; same, “Contemporary

Opinion of the Virginia and Kentucky Resolutions,” 5 _Am. Hist. Rev._

45 (1900); Albert J. Beveridge, _Life of John Marshall_, vols. II and

III, _passim_, is vivid and collects much contemporary material. The

four reported prosecutions are in Wharton’s _State Trials_,—Lyon, 333

(1798); Cooper, 659 (1800); Haswell, 684 (1800); Callender, 688 (1800).

Wharton, 23, narrates the events leading up to these statutes; see,

also, Channing and other standard histories. For references to the

Sedition Act in Jefferson’s letters, see the edition of _Paul Leicester

Ford_, VII, 245: “The object of that [the bill] is the suppression of

the whig presses;” VII, 246; VII, 266, on unconstitutionality; VII,

283, “The alien and sedition laws are working hard;” VII, 289, 311,

336, 350, 354, 355, 356, on popular opposition to the acts; VII, 367,

371, 483, on continuation of Sedition Law by Congress; VIII, 54, 56

ff., 308 ff., on unconstitutionality and pardons; IX, 456, on dismissal

of prosecutions. Madison’s Report on the Virginia Resolutions is

reprinted in _Elliot’s Debates_.

_Reference Books_:

Soule’s _Lawyer’s Reference Manual_, for abbreviations of legal reports.

_New York Times Index_, issued quarterly, is very valuable for finding

press accounts of prosecutions, etc.

B. THE WAR (CHAPTERS II AND III)

Important decisions under the U. S. Espionage Act are printed in the

Federal (Fed.) and United States Supreme Court Reports (U. S.). The

latter are in public and university libraries. The Bulletins of the

Department of Justice on the Interpretation of War Statutes (cited

herein as Bull. Dept. Just.), Nos. 1–204, contain many charges not

otherwise reported. Appendix II, _infra_, tells where all reported

prosecutions can be found. Supreme Court records and briefs are in

the Harvard Law School Library. The cases before July, 1918, are

collected by Walter Nelles, _Espionage Act Cases, with Certain Others

on Related Points_, Natl. Civil Liberties Bureau, N. Y. This has some

state cases, and gives a careful analysis of the decisions. The Bureau

has also published _War-time Prosecutions and Mob Violence_, involving

the rights of free speech, free press, and peaceful assemblage (from

April 1, 1917, to March 1, 1919), containing an annotated list of

prosecutions, convictions, exclusions from the mail, etc. It has

prepared in MSS. “A Memorandum Concerning Political Prisoners Within

the Jurisdiction of the Department of Justice in 1919,” for the

Attorney General; and “Memorandum to the President of the United States

as to Persons Imprisoned for Violation of the War Laws” (copies in

Harvard Law School Library).

The enforcement of the Espionage Act and similar statutes is officially

summarized in the Reports of the Attorney General for 1917, 1918, and

1919, with lists of prosecutions and results, and circulars issued to

district attorneys. See, also “Suggestions of Attorney-General Gregory

to Executive Committee in Relation to the Department of Justice,” 4

_Am. Bar. Assn. J._ 305 (1918). An invaluable account of the war work

of the Department is, John Lord O’Brian, “Civil Liberty in War-time,”

52 _Rep. N. Y. Bar Assn._ 275 (1919). A military view of censorship is

“The Proper Relations between the Army and the Press in War,” Army War

College, November, 1915.

_The American Labor Year-Book_, 1919–20, Rand School, N. Y., narrates

several prosecutions in detail.

The issues involved in the current decisions are presented in

non-technical form by these articles: “Freedom of Speech,” Z. Chafee,

Jr., 17 _New Republic_, 66 (November 16, 1918); Ralph Barton Perry in a

book review, 7 _Yale Rev._ 670 (April, 1918); “The Supreme Court _vs._

the Supreme Court,” 22 _New Republic_ 235 (April 21, 1920).

_Legal Articles on the War_:

“Freedom of Speech and of the Press,” W. R. Vance, 2 _Minn. L. Rev._

239 (1918); “The Espionage Act Cases,” 32 _Harv. L. Rev._ 417 (1919);

“Threats to Take the Life of the President,” 32 _Harv. L. Rev._

724 (1919); “The Vital Importance of a Liberal Construction of the

Espionage Act,” Alexander H. Robbins, 87 _Cent. L. J._ 145 (1918);

“Sufficiency of Indictments under the Espionage Act,” 87 _Cent. L. J._

400 (1918). The Espionage Act is one of the topics covered by Judge

Charles M. Hough, “Law in War Time—1917,” 31 _Harv. L. Rev._ 692, 696

(1918). Thomas F. Carroll, “Freedom of Speech and of the Press in War

Time,” 17 _Mich. L. Rev._ 621 (1919); Z. Chafee, Jr., “Freedom of

Speech in War Time,” 32 _Harv. L. Rev._ 932 (1919).

_Treason_:

Charles Warren, “What Is Giving Aid and Comfort to the Enemy?”, 27

_Yale L. Rev._ 331 (1918).

_Post-office_:

“Federal Interference with the Freedom of the Press,” Lindsay Rogers,

23 _Yale L. J._ 559 (1914), substantially reprinted as Chapter IV

of his _Postal Power of Congress_, Baltimore, John Hopkins Press,

1916; R. E. Cushman, “National Police Power under the Postal Clause

of the Constitution,” 4 _Minn. L. Rev._ 402 (1920); William Hard,

“Mr. Burleson, Espionagent,” 19 _New Republic_ 42 (May 10, 1919), and

“Mr. Burleson, Section 481½ B,” 19 _New Republic_ 76 (May 17, 1919);

“Burleson and the Call,” 22 _New Republic_ 157 (January 7, 1920);

“The Call,” 1 _Review_ 652 (December 13, 1919). For examples of war

censorship and legal discussion of Title XII of the Espionage Act,

Carroll, _op. cit._, in 17 _Mich. L. Rev._ 629.

_Particular Cases under the Espionage Act and State War Acts_:

_Abrams_ (Chapter III):

The principal sources are the _Transcript of Record_, Supreme Court

of the United States, October Term, 1919, No. 316, Jacob Abrams _et

al._, Plaintiffs-in-Error, _v._ The United States; the two briefs;

and the opinions of the court in 40 Sup. Ct. Rep. 17 (1919), also

reprinted in “The Espionage Act Interpreted,” 20 _New Republic_ 377

(November 26, 1919). Transcript and briefs are in the library of the

Law School of Harvard University. It has not been thought necessary

to give references to the _Record_ except for significant passages.

Some information about the trial not contained in the _Record_ is

taken from current issues of the _New York Times_ and the _New York

Call_, or from personal conversation and correspondence; the sources

of such unofficial data are indicated in every instance, and have been

carefully checked from the Stenographic Minutes of the trial, in the U.

S. Attorney’s office, N. Y., where they were very kindly placed at my

disposal. See also Palmer Deportations Testimony, 173.

For criticism of the trial, see the pamphlet, _Sentenced to Twenty

Years Prison_, published by the Political Prisoners Defense and Relief

Committee, New York, 1919; “Our Ferocious Sentences,” 107 _Nation_ 504

(November 2, 1918).

Comment in support of the majority opinion of the Supreme Court

will be found in a note, “The Espionage Act and the Limits of Legal

Toleration,” 33 _Harv. L. Rev._ 442 (January, 1910); and in articles,

“Justice Holmes’s Dissent,” 1 _Review_ 636 (December 6, 1919); John

H. Wigmore, “Freedom of Speech and Freedom of Thuggery,” 14 _Ill. L.

Rev._ 539. The minority opinion is supported by a note, “Free Speech in

Time of Peace,” in 29 _Yale L. J._ 337 (January, 1920); and 14 _Ill.

L. Rev._ 601; and articles “The Call to Toleration,” 20 _New Republic_

360 (November 20, 1919), “What Is Left of Free Speech,” Gerard C.

Henderson, 21 _New Republic_ 50 (December 10, 1919).

_Berger_ (see under Legislative Exclusion).

_Debs_:

David Karnsner, _Debs, his Authorized Life and Letters from Woodstock

Prison to Atlanta_, N. Y., 1919. Reviewed by Harry Salpeter, “Martyr

or Felon?”, 110 _Nation_ 520 (April 17, 1920). Scott Nearing, “The

Debs Decision,” Rand School, N. Y., 1919, contains Debs’ addresses

at Canton and in the court-room. “The Law of the Debs Case and

Freedom of Speech,” 19 _New Republic_ 13 (May 3, 1919); followed by

correspondence, _ibid._, 151 (May 31). “The Trial of Eugene Debs,” Max

Eastman, _The Liberator_ (November, 1918), gives another defendant’s

impression.

_I.W.W._ (see under Radical Activities).

_Nearing_:

Scott Nearing, “The Great Madness: a Victory for the American

Plutocracy,” Rand School, N. Y., 1917.

_O’Hare_:

“The Conviction of Kate Richards O’Hare and North Dakota Politics,”

Natl. Civil Liberties Bureau, N. Y.; “The Kate O’Hare Booklets,”

published by Frank P. O’Hare, St. Louis.

_Syracuse Socialist Case of 1920_ (Steene, Hotze, and Preston): 21 _New

Republic_ 302 (February 11, 1920); “Bringing the Constitution into

Disrepute,” _ibid._ 330 (February 18, 1920).

_Townley_:

C. R. Johnson, “The Conviction of Townley,” 20 _New Republic_ 18

(August 6, 1919); Judson King, “The Prosecution of Mr. Townley,” 109

_Nation_ 143 (August 2, 1919); “The Trial of Townley and Gilbert,” 1

_Review_ (July 26, 1919). An impartial account of the Non-Partisan

League is Arthur Ruhl, “The North Dakota Idea,” _Atlantic Monthly_

(May, 1919).

C. RADICAL ACTIVITIES IN THE UNITED STATES AND PEACE-TIME RESTRICTIONS

UPON FREEDOM OF SPEECH (CHAPTERS IV AND V)

_Backgrounds_:

All consideration of governmental activity against radicalism should

be preceded by an inquiry into the nature and purposes of the various

radical movements, which must be carefully kept distinct. Bertrand

Russell, _Proposed Roads to Freedom: Socialism, Anarchism and

Syndicalism_, N. Y., 1919, is a fair-minded survey though opposed to

the present system. Among books on Russia are E. H. Wilcox, _Russia’s

Ruin; Russian-American Relations_, ed. Cumming and Pettit. See, also,

under I.W.W., _infra_.

On anarchy legislation of the past and similar problems, Ernst

Freund, _The Police Power_, §§ 471–484. F. T. Hill, _Famous Battles

of the Law_, narrates the Chicago affair of 1886. Concrete data on

the handling of radical meetings before the war are furnished by

Arthur Woods, _Policeman and Public_, New Haven, 1919; and J. F.

Rhodes, _History of the United States_, Vol. VIII, N. Y., 1919. The

work of the New York Bomb Squad is told by Tunney and Hollister in

_Throttled_, Boston, 1919.

_Blasphemy_:

Austin W. Scott, “The Legality of Atheism,” 31 _Harv. L. Rev._ 289

(1917).

_Sex topics_:

Theodore Schroeder, _Obscene Literature and Constitutional Law_, N. Y.,

1911, and other writings by him; J. C. Ruppenthal “Criminal Statutes

on Birth Control,” 10 _J. Cr. L. & Crim._ 48 (1919); and see P. _v._

Byrne, 163 N. Y. Supp. 680, 682.

_Moving-picture Censorship_:

Amy Woods, “Boston and the ‘Movie’ Censorship,” 44 _Survey_ 108 (April

17, 1920).

_Strikes and Labor Troubles_:

The ability of freedom of speech to withstand such strains has not been

sufficiently studied. William Hard has written a series of articles

on Passaic: “America in Passaic,” 22 _New Republic_ 182 (April 7,

1920); “Learn from Passaic,” 22 _ibid._ 213 (April 14); “They Must

Have Espionage,” 22 _ibid._ 248 (April 21). On the Steel Strike, see

S. Adele Shaw, “The Makings for Revolution,” 20 _ibid._ 52 (August 13,

1919); W. Z. Foster, _The Great Steel Strike_; The Interchurch Report

on the Steel Strike of 1919.

_Proposed Federal Sedition Bills and National Conditions_:

Four official reports have been published, which are valuable not only

in relation to this topic, but also for information about deportations,

state legislation, radical activities, and the work of the Department

of Justice. These are: (1) _Bolshevik Propaganda, Hearings before a

Subcommittee of the Committee on the Judiciary_, United States Senate,

Sixty-fifth Congress, Third Session and thereafter, pursuant to Senate

Resolutions 439 and 469 Washington, 1919. This is the report of the

Overman Committee, and contains the testimony of Raymond Robins and

others on Russian internal affairs. Cited as Bolshevik Propaganda in

this book.

(2) Investigation Activities of the Department of Justice, Letter from

the Attorney General transmitting in Response to a Senate Resolution

of October 17, 1919, a Report on the Activities of the Bureau of

Investigation of the Department of Justice against Persons advising

Anarchy, Sedition, and the Forcible Overthrow of the Government,

Sen. Doc. No. 153, 66th Cong., 1st Sess., Wash., 1919. Cited as

Investigation Activities in this book.

(3) Rule Making in Order the Consideration of S. 3317, Hearings before

the Committee on Rules, House of Representatives, 66th Cong., 2d Sess.,

on H. Res. 438, Wash., 1920. Cited as House Rules Hearings in this book.

(4) Sedition, Hearing before the Committee on the Judiciary, House of

Representatives, 66th Cong., 2d Sess., on S. 3317, H. R. 10650 and

12041, Serial 16, February 4 and 6, 1920. Wash., 1920. This contains

official publications of the Communist parties, etc. Cited as House

Judiciary Hearings in this book.

See also copies of the various bills and the proposed amendments; also

House Judiciary Report submitting Graham Bill, H. R. Report No. 542,

66th Cong., 2d Sess.; also Reports listed under _Deportations_.

Among articles in periodicals on these bills and the “red hysteria,”

are: Frank I. Cobb, “The Press and Public Opinion,” 21 _New Republic_

144 (December 31, 1919); Z. Chafee, Jr., “Legislation Against Anarchy”

(Overman Bill), 19 _ibid._ 379 (July 23, 1919); “A New Alien and

Sedition Law,” 20 _ibid._ 366 (November 26, 1919); Swinburne Hale, “The

‘Force and Violence’ Joker,” 21 _ibid._ 231 (January 21, 1920); “The

Red Hysteria” (Harvard Liberal Club Dinner), 21 _ibid._ 249 (January

28); William Hard, “Perhaps the Turn of the Tide” (House Rules hearings

on Graham Bill), 21 _ibid._ 313 (February 11); “What Is Attorney

General Palmer Doing?” (circular letter by him), 110 _Nation_ 190

(February 14); “The Issue of Free Speech,” 1 _Review_ 634 (December 6,

1919); “Mock-Hysteria,” 2 _Review_ 43 (January 17, 1920); “What Shall

We Do with the Direct Actionist?”, 89 _Cent. L. J._ 313 (1919); Walter

Lippman and Z. Chafee, Jr., “Free Speech and Free Press as Factors in

International Affairs,” League of Free Nations Bulletin, March, 1920.

_State Sedition and Syndicalism Laws_:

“Criminal Syndicalism,” 20 _Colum. L. Rev._ 232 (1920); letter in 110

_Nation_ 202 (February 14, 1920). _California_, Perry L. Edwards,

“Criminal Syndicalism—Back-firing Against Industrial Unrest by

the Legislature of California,” 89 _Cent. L. J._ 336 (1919); “The

Conviction of Anita Whitney,” Clare Shipman, 110 _Nation_ 365 (March

20, 1920). _Connecticut_, “‘The Most Brainiest Man,’” 110 _ibid._ 510

(April 17). _Massachusetts_, Z. Chafee, Jr., “Warns of Anti-Anarchy

Bill,” _Boston Sunday Advertiser_, April 13, 1919. _New Jersey_, H.

E. Cory, “The Intellectuals and the Wage Workers,” N. Y., 1919 (p.

208 on Boyd case). _New York_, Swinburne Hale, “Criminal Anarchy,”

21 _New Republic_ 270 (January 28, 1920); [McAdoo decision against

Gitlow and Larkin], House Judiciary Hearings, p. 155; A. Giovannitti,

“Commercialism on Trial,” _Liberator_, March, 1920 (Gitlow trial).

_Oregon_, “American by Decree” (foreign language press), 22 _New

Republic_ 262 (April 28, 1920).

See U. S. official reports, _supra_, and Appendix V, _infra_.

_Industrial Workers of the World_:

There are two studies by scholars. Paul Frederick Brissenden: _The

I.W.W.: A Study of American Syndicalism_. Colum. Univ. Studies in

History, etc., vol. 83, 2d ed., N. Y., 1920. Carleton H. Parker: “The

I.W.W.,” _Atlantic Monthly_, 651 (November, 1917), reprinted in his

_The Casual Laborer and Other Essays_, N. Y., 1920.

For the Chicago trial, see U. S. _v._ W. D. Haywood _et al._ Bull.

Dept. Just., No. 175; Evidence and Cross-Examination of W. D. Haywood

[in same]; Evidence and Cross-Examination of J. T. (Red) Doran [in

same]; Indictment [in same], I.W.W. Pub. Bureau, Chicago.; “The

Truth about the I.W.W.”, Natl. Civil Liberties Bureau, N. Y.; “The

Persecution of the Radical Labor Movement in the United States.” N. Y.

Defense Committee of the I.W.W., N. Y.

The Sacramento trial is discussed in “Ol’ Rags and Bottles,” 108

_Nation_ 114 (January 25, 1919); _American Labor Year-Book_, 1919–20,

100 and 107, has accounts of Chicago and Sacramento trials.

For the Washington situation, see [Washington Injunction Against

Membership in the I.W.W.], 109 _Nation_ 843 (_January 3, 1920_);

Jerrold Owen: “Centralia,” _American Legion Weekly_, December 12,

1919; Anna Louise Strong, “Centralia: An Unfinished Story,” 110

_Nation_ 508 (April 17, 1920); E. M., “Centralia,” 22 _New Republic_

217 (April 14, 1920). Ole Hanson, _Americanism vs. Bolshevism_.

_Deportation of Aliens_ (Chapter V):

The best review of the procedure is by Assistant Secretary of

Labor Louis F. Post, “Administrative Decisions in Connection with

Immigration,” 10 _Am. Pol. Sci. Rev._ 251 (1916). Recent legal

articles: Howard L. Bevis, “The Deportation of Aliens,” 62 _U. of Pa.

L. Rev._ 97 (1920); “Deportation of Seditious Aliens,” 23 _Law Notes_

(N. Y.) 64 (1919); “Deportation of Aliens who Advocate the Overthrow

of Government by Force,” 89 _Cent. L. J._ 369 (1919). John Lord

O’Brian, “The Menace of Administrative Law,” address to Maryland Bar

Association; June, 1920.

Original sources: The administrative hearings are largely buried in

the files of the immigration officials. A few cases are extracted in

Charles Recht, “American Deportation and Exclusion Laws,” League for

Democratic Control, Boston, 1919, and “The Anarchist Deportations,”

21 _New Republic_, 96 (December 24, 1919). The whole procedure in

the Communist raids is exhaustively shown by the record in Katzeff

_v._ Skeffington (Colyer case) in the United States District Court in

Boston. The _Federal Reporter_ contains several recent decisions on

the deportation of radicals. The decision of Secretary of Labor Wilson

on the Communist Party is in _House Judiciary Hearings_ (p. 17), which

also gives the platform, manifesto, etc., of this and the Communist

Labor Party. Much of the same material with a history of the creation

of the two parties is also accessible in _American Labor Year-Book_,

1919–20. Part of the decision of Assistant Secretary Post on the raid

cases is in “On Behalf of Louis F. Post,” 22 _New Republic_ 264 (April

28, 1920). The most valuable document in the raids is Judge Anderson’s

decision in the Colyer case, in the _Federal Reporter_, 265 Fed. 17.

The history of left-wing Socialism is also narrated by an impartial

observer, Gordon S. Watkins, “The Present Status of Socialism in the

United States,” 124 _Atlantic_ 821 (December, 1919); and in H. W.

Laidler, “Socialism in Thought and Action.”

Congressional reports of especial value, 66th Congress, 2d Session,

1920: (1) Three pamphlets of Hearings before a Subcommittee of the

House Committee on Immigration and Naturalization, “Communist and

Anarchist Deportation Cases” “I.W.W. Deportation Cases,” “Communist

Labor Party Deportation Cases,” all cited herein as _House Immigration

Hearings_. These contain many administrative decisions, but not the

complete records. (2) “Investigation of Administration of Louis F.

Post, Assistant Secretary of Labor, in the Matter of Deportation of

Aliens, Hearings before the Committee on Rules, etc., on H. Res. 522,”

2 parts; cited herein as _Post Deportations Testimony_. (3) “Attorney

General A. Mitchell Palmer on charges made against the Department of

Justice by Louis F. Post and others, Hearings before the Committee on

Rules, etc.,” Part I; cited herein as _Palmer Deportations Testimony_.

Much important testimony from the Colyer case, including the official

instructions, is in the pamphlet, “To the American People. Report upon

the Illegal Practices of the United States Department of Justice,” by

12 lawyers, National Popular Government League, Washington, May, 1920;

cited herein as _Illegal Practices_.

Popular articles on the “Buford” and the January raids are: “The

Deportation,” 1 _Review_ 695 (December 27, 1919); “The Raid on the

Reds,” 2 _Review_ 22 (January 10, 1920); “Deporting a Political Party,”

21 _New Republic_ 186 (January 14, 1920). Ernst Freund, “Burning

Heretics,” 21 _ibid._ 266 (January 28, 1920); “A Federal Judge Speaks

Up” (Bourquin, J., in _Re_ Jackson), 22 _ibid._ 135 (March 31);

“Deportations and the Law,” 110 _Nation_ 131 (January 31); F. R.

Barkley, “Jailing Radicals in Detroit,” 110 _ibid._ 136; F. C. Howe,

“Lynch Law and the Immigrant Alien,” 110 _ibid._ 194 (February 14);

“Another Man Without a Country,” 110 _ibid._ 289 (March 6); Lincoln

Colcord, “Martens and Our Foreign Policy” (correspondence of Secretary

Wilson and John E. Milholland), 110 _ibid._ 324 (March 13); Winthrop D.

Lane, “The Buford Widows,” 43 _Survey_ 391 (January 10); “Aliens and

Sedition in the New Year,” 43 _ibid._ 422 (January 13); Sidney Howard,

“The Colyer Trial Opens,” 44 _Survey_ 105 (April 17). See, also, some

of the articles on the red hysteria, etc.

Accounts of the New England raids from the point of view of the aliens

are, “The Soviet of Deer Island, Boston Harbor, January-February, 1920,

by One of the Members,” Boston Branch of Am. Civil Liberties Union;

“Deported via Deer Island,” MSS. report prepared for the Bureau.

_Searches and Seizures_ (Chapters V and VI):

“The Case of the Rand School,” published by the School, N. Y., 1919;

“The Truth about the Lusk Committee,” Nation Press, N. Y., 1920;

“Whose Home Will Be Safe?”, 19 _New Republic_ 303 (July 9, 1919); Anna

L. Strong, “A Newspaper Confiscated—and Returned,” 109 _Nation_ 738

(December 13, 1919).

D. POWER OF A LEGISLATURE TO EXCLUDE OR EXPEL FOR OPINIONS (CHAPTER VI)

For the English law, T. Erskine May, _Parliamentary Practice_, 12th

ed., London, 1917; same, _Constitutional History of England_, vol.

I, for Wilkes, and also G. O. Trevelyan, _Early History of Charles

James Fox_, and Macaulay’s second _Essay on Chatham_. Justin McCarthy,

_History of Our Own Times_, vol. III, for Bradlaugh.

For Congress, Asher Hinds, _Precedents of the House of Representatives

of the United States_, Washington, 1907. This contains many Senate

cases. See, also, Webb & Pierce, Compilation of Senate Election Cases,

1789–1913, Washington, 1913. Other Congressional compilations may be

useful. Massachusetts cases are collected by Cushing, Loring, and

Russell; New York, by Armstrong.

_Berger_:

Victor L. Berger, Hearings before the Special Committee appointed under

the Authority of House Resolution No. 6 concerning the Right of Victor

L. Berger to be Sworn in as a Member of the Sixty-sixth Congress, 2

vols., Wash., 1919. (These contain records of the prosecution and

_Milwaukee Leader_ case.) Cited herein as _Berger Hearings_.

Ho. Cal. No. 91, 66th Cong., 1st Sess., Report No. 413, Case of Victor

L. Berger of Wisconsin. Cited herein as _Berger Report_.

“Victor L. Berger,” _Socialist Review_, (February, 1920); “The Berger

Victory,” 109 _Nation_ 820 (December 27, 1919); for account of the

trial from the side of the defense, _American Labor Year-Book_,

1919–20, 97–100.

_New York Socialists_:

The record of the investigation was printed by the Assembly. Briefs

include, Brief of Special Committee appointed by the Association of the

Bar of the City of New York (January 20, 1920); Outline of the Evidence

taken before the Judiciary Committee to and including February 5, 1920,

with a discussion of some conclusions to be drawn therefrom [against

Socialists and signed by Attorney-General and associate counsel]; Brief

for the Socialist Assemblymen, March 15, 1920; Brief for the Judiciary

Committee, March 24, 1920.

Articles in periodicals (all in 1920): “The Issues in the Fight at

Albany,” 2 _Review_ 121 (February 7); “Hillquit on the Socialist

Programme,” 2 _Review_ 193 (February 28); “Governor Smith’s

Opportunity,” 2 _Review_ 421 (April 24); “Speaker Sweet Does His Bit,”

22 _New Republic_ 210 (January 21); “The Mob in High Places,” 22 _New

Republic_ 279 (February 4); “Up to the Voters,” 22 _New Republic_ 200

(April 14) [Lusk Bills]; 22 _New Republic_ 171 (April 7); “Minority

Rights at Albany,” 110 _Nation_ 288 (March 6); Lewis S. Gannett, “The

Socialists’ Trial at Albany: A Summary,” 110 _Nation_ 361 (March 20);

Loula D. Lasker, “Back in the Districts: What New York Assemblymen’s

Constituents Are Thinking,” 53 _Survey_ 767 (March 20); Robert Minor,

“Dissolving the Duma at Albany,” _Liberator_ (March 20).

E. SCHOOLS

Henry R. Linville, John L. Tildsley, and Z. Chafee, Jr., “The Schools

and the Issue of Freedom,” in leaflets, “The Public and the Schools,”

published by Public School Education Assn., N. Y., May 3, 17, 24, 1919.

Various pamphlets have been issued on both sides of the controversies

in New York and Washington, and several articles printed in the

_Nation_.

APPENDIX II

INDEX OF REPORTED CASES UNDER THE ESPIONAGE ACTS OF 1917 AND 1918

This index is meant to include all Espionage Act cases involving

freedom of speech which are contained in the following reports,

abbreviated as shown:

Bulletins of the Department of Justice on the Interpretation of War

Statutes (B);

Federal Reporter (F), containing cases in the Circuit Court of Appeals,

and occasionally in the District Courts;

United States Reports (U. S.), containing Supreme Court decisions;

One case is officially reported only in Report of the Attorney General

for 1918 (A), which gives facts of many more.

Some recent Supreme Court cases are in the Supreme Court Reporter

(Sup.).

A few cases are from Nelles, Espionage Act Cases (N).

So far as practicable I have indexed not only the defendant who gives

his name to the case but every defendant. This seemed undesirable in

the cases of the 93 I.W.W.’s in the Haywood case and the 27 Socialists

in the Baltzer case. Consequently, while there are 184 persons indexed

below, 118 more should be added to give the total number of persons

whose prosecutions are reported, making 302 in all. Besides these many

Espionage Act cases have never been reported. Notes of these are in

_War-time Prosecutions and Mob Violence_, which contains the facts of

many others. The total number of persons convicted is reported as 877,

with 285 cases still pending on June 30, 1919. The Attorney General’s

Reports for 1918 and 1919 show that there were 988 cases commenced in

1917–18, and 968 in 1918–19. Out of these 1,956 cases only a small

fraction are reported anywhere.

In each instance I have given the defendant’s name, the state where he

was prosecuted (omitting United States Districts within a state), a

reference to the report, the result of the case, and the sentence.

Abbreviations are:

C., conviction.

Acq., acquittal.

Acq. d., acquittal directed.

Ind., indictment.

Aff., affirmed by Circuit Court of Appeals or Supreme Court.

Rev., reversed by Circuit Court of Appeals or Supreme Court.

An asterisk shows that the sentence has been shortened by the

President, and the length of the commuted sentence or date of its

expiration is added. It is possible that some commutations have been

omitted. Information as to convictions, sentences, pardons, etc.,

if not contained in the reports, has been obtained from _War-time

Prosecutions; New York Times_, May 9, 1919; and from the Attorney

General’s Report for 1919.

I. PROSECUTIONS UNDER TITLE I, SECTIONS 3 AND 4, AND TITLE XII

Abrams, J. N. Y. 250 U. S. 616 C. 20 yrs., aff.

Albers, H. Oregon B. 191; 263 F. 27 C. Aff.

American N. Y. B. 129, 252 F. 223; C. Fine $3,000

Socialist B. 192; B. 198

Society

Anderson, O. S. D. 264 F. 75 C. Aff.

Ault, E. B. Wash. 263 F. 798, 800 Ind. bad

Baer, Elizabeth Pa. B. 43; B. 194, 249 U. C. Aff.

S. 47

Balbas, _sub_

Capo

Baltzer, E., and S. D. B. 3; 248 U. S. 593 C. 1–2 yrs. Rev. on

26 others confession of

error

Bentall, J. O. Minn. B. 180, 262 F. 744 C. 5 yrs. Rev.

Berger, V. L. Illinois B. 186 C. 20 yrs.

Binder, L. N. Y. B. 117, B. 126 C.

Blodgett, D. T. Iowa N. 48 C. 20 yrs.

Bold, F. W. Oregon B. 183

Bosco, P. W. Vir. B. 71 C. 10 yrs. (*2 yrs.)

Bouldin, G. W. Texas 261 F. 674 C. Aff.

(negro)

Boutin, A. N. Y. 251 F. 313 Ind. good

Brackett, W. A. Mo. B. 170 C. $150

Brenne, R. Ohio B. 199 Acq. d.

Brinton, J. W. N. D. B. 132

Buessel, T. Conn. B. 131 C. 10 yrs. (*4/1/19)

Bunyard, C. D. Mo. B. 168 C. $200

Capers, H. Okla. B. 74

Capo, V. Balbas Porto Rico B. 30, B. 37, 257 C. 8 yrs. $4,000.

F. 17 Rev.

Carlson, J. A. Wash. B. 185

Casey, J. E. Wash. B. 78 C. 5 yrs. Rev.

Caughman, J. M. S. C. 258 F. 434 C. Rev.

Cecca, G. de N. Y. B. 119; 258 F. 855 C. 10 yrs. Rev.

Coldwell, J. M. R. I. B. 158; B. 201, 256 C. 3 yrs. Aff.

F. 805; 250 U. S.

661 (memo.)

Creo, A. N. Y. 245 F. 878, 888; B. C. Aff.

15; B. 52; 40 Sup.

205

Curran, W. C. N. Y. B. 140

Darkow, M. Pa. 248 F. 290; B. 181, C. 5 yrs. Aff.

254 F. 135; 40 Sup.

259. See B. 42

Deason, T. Texas 254 F. 259 C. Aff. 1½ yrs.

(*1 yr.)

Debs, E. V. Ohio B. 155; B. 196, 249 C. 10 yrs. Aff.

U. S. 211

Deilman, C. S. N. Y. 245 F. 878, 888; B. C. Aff.

15; B. 52; 40 Sup.

205

Dembowski, J. Mich. 252 F. 894 Ind. bad

Denson, W. A. Ala. B. 142 Acq.

Dodge, W. N. Y. B. 202; 258 F. 300; C. 6 yrs. Aff.

250 U. S. 660

(memo.)

Doe, P. B. Colo. B. 55; 253 F. 903 C. 1½ yrs. Aff.

(*5/8/19)

Doll, C. S. D. B. 5; B. 163, 253 F. C. Rev.

646

Eastman, M. N. Y. 252 F. 232 2 mistrials

Elmer, W. P. Mo. B. 171; 260 F. 646 C. $1,000. Rev.

Enfield, O. E. Okla. 261 F. 141 C. Rev.

Engdahl, J. L. Illinois B. 186 C. 20 yrs.

Equi, Marie Oregon B. 172; 261 F. 53 C. 3 yrs. $500. Aff.

Feltman, H. Ky. 264 F. 1 C. Aff.

Fisher, G. H. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev.

Fontana, J. N. D. B. 148; 262 F. 283 C. Rev.

Foster, L. Wash. B. 78 C. 5 yrs.

Frerichs, H. Neb. B. 85

Frohwerk, J. Mo. B. 128; 248 U. S. C. 10 yrs. Aff.

540; B. 197, 249 U. (*1 yr.)

S. 204

Germer, A. Illinois B. 186 C. 20 yrs.

Gneiser, G. A. W. V. B. 71

Goldsmith, C. H. Ala. B. 133

Goldstein, R. Cal. 258 F. 908. See C. 10 yrs. $5,000.

B. 33 Aff. (*3 yrs.)

Graham, J. I. Tenn. B. 120

Granzow, F. A. Iowa 261 F. 172 C. Rev.

Groeschl Ky. N. 3 Acq. d.

Grubl, F. S. D. 264 F. 44 C. Rev.

Guggolz, J. C. Cal. 262 F. 764 C. Rev.

Hall, J. K. S. C. 256 F. 748, B. 189 C. Rev.

Hall, V. Mont. 248 F. 150 Acq. d.

Hamm, E. Cal. 261 F. 907 C. Aff.

Harper, S. J. La. B. 76 Acq.

Harshfield, J. Neb. 260 F. 659 C. Rev.

Haywood, W. D., Illinois B. 175 C. 16 for 20 yrs. 33

and 92 others for 10 yrs. 30 for

5 yrs. 12 for 1

yr. 2 for 10 days.

Aff.

Head, W. J. S. D. 248 U. S. 593 C. 3 yrs. $500. Rev.

on confession of

error

Henning, J. Wis. B. 184 Ind. bad

Henricksen, H. M. Neb. B. 86 C.

Herman, E. Wash. B. 109; 257 F. 601 C. 10 yrs. Aff.

Heynacher, W. S. D. 257 F. 61 C. 5 yrs. Aff.

(*1 yr.)

Hicks, W. M. Okla. B. 160 C. 20 yrs. (*5 yrs.)

Hickson, F. C. S. C. 258 F. 867 C. Rev.

Hitchcock, A. L. Ohio B. 122 C. 10 yrs. (*2 yrs.)

Hitt, O. Colo. B. 53 Acq.

Hodges, W. Wash. B. 78 C. 5 yrs. Rev.

Hotze, W. N. Y. 263 F. 130 C. 1½ yrs.

Howenstine, F. P. Cal. 263 F. 1 C. Aff.

Huhn, W. Wyo. B. 58

Hundelshausen, H. N. J. B. 130, 251 F. 946; Mistrial; case

v. B. 156 dismissed

Kammann, C. H. Illinois 259 F. 192 C. 3 yrs., $5,000.

Rev.

Katzler, W. von N. J. B. 130, 251 F. 946; Mistrial; case

B. 156 dismissed

Kaufman, W. H. Wash. B. 134 C. 5 yrs.

Kennedy, I. Cal. 263 F. 1 C. Aff.

Kirchner, H. E. W. V. B. 69; B. 174, 255 F. C. 2 yrs. Aff.

301 (*5/8/19)

Koenig, H. C. Mo. B. 123, 166 Acq. d.

Kornmann, C. S. D. B. 89; 248 U. S. 594 C. 10 yrs. Rev. on

confession of

error

Krafft, F. N. J. B. 6, 84; 249 F. 919; C. 5 yrs., $1,000

247 U. S. 520 Aff. (*4/1/19)

Kruse, J. H. Ky. 264 F. 1 C. Aff.

Kruse, W. F. Illinois B. 186 C. 20 yrs.

Kumpula, E. Oregon 261 F. 49 C. Rev.

Lachowsky, H. N. Y. 250 U. S. 616 C. 20 yrs. Aff.

Lemke, H. Pa. 248 F. 290; B. 181, C. 2 yrs. Aff.

254 F. 135; 40 Sup.

259. See B. 42

Lipman, S. N. Y. 250 U. S. 616 C. 20 yrs. Aff.

Listman, G. B. Wash. 263 F. 798, 800 Ind. bad

Lockhart, A. P. Tenn. 264 F. 14 C. Aff.

McMillan, A. H. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev.

Mackley, H. G. Vt. B. 83 C. 15 yrs. (*3 yrs.)

Magon, R. F. Cal. 260 F. 811 C. 20 yrs. Aff.

Mamaux, J. Ohio 264 F. 816 C. Aff.

Martin, F. A. Wash. B. 78 C. 5 yrs. Rev.

Martin, R. J. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev.

Martin, W. E. Ky. B. 157

Mayer, F. Ky. B. 146, 252 F. 868 Acq. d.

Mead, W. E. Wash. B. 103; 257 F. 639 C. 5 yrs. Aff.

Miller, J. A. Colo. B. 104 C. 2 yrs. (*1 yr.)

Mills, W. T. N. D. B. 204 Acq. d.

Mullen, P. Wash. B. 78 C. 5 yrs. Rev.

Nagler, L. B. Wis. B. 127, 252 F. 217 Ind. good, C.

Nearing, S. N. Y. B. 129, 252 F. 223; Acq.

B. 192; B. 198

Nelson, C. N. Y. 245 F. 878, 888; B. C. Aff.

15; B. 52; 40 Sup.

205

O’Hare, Kate R. N. D. B. 40; B. 165, 253 F. C. 5 yrs. Aff.

538 (*5/29/20)

Olivereau, Louise Wash. B. 40 C. 10 yrs.

Pape, T. B. Illinois B. 151, 253 F. 270 Ind. bad

Partan, A. J. Oregon 261 F. 515 C. Aff.

Perry Wash. B. 78 C. 5 yrs. Rev.

Peterson, J. A. Minn. A. 52 C. 4 yrs.

Phelan, J. B. Wash. B. 78 C. 5 yrs. Rev.

Pierce, C. H. N. Y. 245 F. 878, 888; B. C. Aff.

15; B. 52; 40

Sup.—.

Preston, F. L. N. Y. 263 F. 130 C. 1½ yrs.

Prieth, B. N. J. B. 130, 251 F. 946; Mistrial; case

B. 156 dismissed

Prieth, E. S. N. J. B. 130, 251 F. 946; Mistrial; case

B. 156 dismissed

Prober, G. See N. Y. Acq.

Abrams

Pundt, G. Neb. B. 82

Ramp, F. Oregon B. 66 C.

Reitz, E. S. D. 257 F. 731 C. 5 yrs., $1,000.

Aff.

Reivo, W. N. Oregon 261 F. 515 C. Aff.

Rhuberg, J. Oregon B. 94; B. 107; 255 C. Aff.

Fed. 865

Rivera, L. Cal. 260 F. 811 C. 15 yrs. Aff.

Robison, F. H. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev.

Rosansky, H. N. Y. 250 U. S. 616 C. 3 yrs. Aff.

(*5/8/19)

Rust, F. A. Wash. 263 F. 798, 800 Ind. bad

Rutherford, J. F. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev.

Sandberg, A. Ariz. 257 F. 643 C. 2 yrs., $500.

Rev.

Sandvick, H. Alaska B. 113

Schaefer, P. Pa. 248 F. 290; B. 181, C. 1 yr. Rev.

254 F. 135; 40 Sup.

259. See B. 42

Schenck, C. T. Pa. B. 43; B. 194, 249 U. C. Aff.

S. 47

Schoberg, C. B. Ky. B. 149; 264 F. 1 C. Aff.

Schulze, C. G. Cal. 253 F. 377; 259 F. C. Aff.

189

Schumann, W. Iowa 258 F. 233; 250 U. S. C. Aff.

66 (memo.)

Schutte, B. H. N. D. 252 F. 212 Ind. bad

Seattle Union- Wash. 263 F. 798, 800 Ind. bad

Record Pub. Co.

Seebach, J. C. Minn. 262 F. 885 C. Aff.

Shaffer, F. Wash. B. 125; B. 190, 255 C. 2½ yrs. Aff.

F. 886 (*1 yr.)

Shidler, A. Nev. 257 F. 620 C. 2 yrs. $100. Aff.

Shilter, K. Cal. 257 F. 724 C. Aff.

Spillner, C. Hawaii B. 145 C. 16 yrs. (*3 yrs.)

Steene, C. W. N. Y. 263 F. 130 C. 1½ yrs.

Steimer, Molly N. Y. 250 U. S. 616 C. 15 yrs. Aff.

Stenzel, B. Iowa 261 F. 161 C. 1½ yrs., $300.

Rev.

Stephens, E. A. Cal. 261 F. 590 C. Aff.

Stephens, F. Del. B. 116, 121 Acq.

Stilson, J. V. Pa. B. 177; 40 Sup. 28 C. 3 yrs. Aff.

Stokes, Rose P. Mo. B. 106; 264 F. 18 C. 10 yrs. Rev.

Strong, Anna L. Wash. 263 F. 798, 800 Ind. bad

Sugarman, A. L. Minn. B. 12; 245 Fed. 604; C. 3 yrs. Aff.

B. 195, 249 U. S.

182

Sukys, J. Pa. B. 177; 40 Sup. 28 C. 3 mos. Aff.

Sykes, J. Cal. 264 F. 945 C. Aff.

Tanner, W. B. Colo. B. 56 Acq.

Taubert, G. H. N. H. B. 108 C. 3 yrs. (*1½ yrs.)

Tucker, I. S. J. Illinois B. 186 C. 20 yrs.

Van Armburgh, W. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev.

E.

Vevig, T. Alaska B. 162

Vogel, P. Pa. 248 F. 290; B. 181, C. 1 yr. Rev.

254 F. 135; 40 Sup.

259. See B. 42

Von Bank, H. N. D. B. 164, 258 F. 641 C. Rev.

Waechter, H. N. J. B. 130, 251 F. 946; Mistrial; case

B. 156 dismissed

Waldron, C. H. Vt. B. 79 C. 15 yrs. (*4/1/19)

Wallace, D. H. Iowa B. 4 C. 20 yrs., went

insane and died

in jail

Wehmeyer, W. F. Mo. B. 176 C. $1,000

Weinsberg, C. H. Mo. B. 123 Acq.

Weist, A. Mo. B. 169 C., $200

Werner, L. Pa. 248 F. 290; B. 181, C. 5 yrs. Aff.

254 F. 135; 40 Sup.

259. See B. 42

Wessels, G. Tex. 262 F. 389 C. Aff.

White, J. Ohio 263 F. 17 C. Aff.

Whitney, A. G. N. Y. N. 55 No. ind.

Williams, L. E. Colo. B. 118

Wimmer, P. Ky. 264 F. 11 C. Aff.

Windmueller, D. Alaska B. 112 C. 1 yr., $250

(*1 yr.)

Wishek, J. H. N. D. B. 153

Wolf, J. H. S. D. B. 81; 259 F. 388 C. 5 yrs., $1,000.

Rev.

Woodworth, C. H. N. Y. B. 119; 258 F. 855 C. 20 yrs. Rev.

Youngman, P. G. Ala. B. 137 Acq.

Zademack, C. F. Ohio B. 143 C. 5 yrs. (*1½ yrs.)

Zimmerman, J. Ind. N. 10 Acq. d.

Zittel, J. Wash. B. 90

II. SEIZURE OF MOTION PICTURE FILM UNDER TITLE XI

U. S. _v._ Motion Cal. B. 33, 252 F. 946 Upheld

Picture Film,

“The Spirit of ’76”

III. EXCLUSIONS FROM THE MAILS UNDER TITLE XII

Masses Pub. Co. N. Y. 244 Fed. 535; 245 F. Injunction refused

_v._ Patten 102; B. 7, 246 for Aug. issue

Fed. 24 B. 26 Injunction refused

for Sept. issue

Jeffersonian Pub. Ga. 245 Fed. 585 Injunction refused

Co. _v._ West

U. S. ex rel. D. C. 258 F. 282 Mandamus refused,

Milwaukee Soc. as to present and

Dem. Pub. Co. future issues

_v._ Burleson

APPENDIX III

TEXT AND CONSTRUCTION OF THE ESPIONAGE ACT OF 1918

Title I, § 3, as amended, reads as follows (Act of May 16, 1918, c.

75, § 1, _U. S. Comp. Stat._, 1918, § 10212_c_). The italicized words

punish language for remote tendencies: _Cf._ the Sedition Act of 1798.

“Whoever, _when the United States is at war_, shall willfully make or

convey false reports or false statements with intent to interfere with

the operation or success of the military or naval forces of the United

States, or to promote the success of its enemies, or shall willfully

make or convey false reports or false statements, or say or do anything

except by way of bona fide and _not disloyal_ advice to an investor

or investors, with intent to obstruct the sale by the United States

of bonds or other securities of the United States or the making of

loans by or to the United States, and whoever, when the United States

is at war, shall willfully cause, or attempt to cause, or incite or

attempt to incite, insubordination, disloyalty, mutiny, or refusal of

duty, in the military or naval forces of the United States, or shall

willfully obstruct or attempt to obstruct the recruiting or enlistment

service of the United States, and whoever, when the United States is

at war, shall willfully utter, print, write, or publish any _disloyal,

profane, scurrilous, or abusive language about the form of government

of the United States, or the Constitution of the United States, or

the military or naval forces of the United States, or the flag of the

United States, or the uniform of the Army or Navy of the United States,

or any language intended to bring the form of government of the United

States, or the Constitution of the United States, or the military

or naval forces of the United States, or the flag of the United

States, or the uniform of the Army or Navy of the United States into

contempt, scorn, contumely, or disrepute_, or shall willfully utter,

print, write, or publish any language intended to incite, provoke, or

encourage resistance to the United States, or to promote the cause

of its enemies, or shall willfully display the flag of any foreign

enemy, or shall willfully by utterance, writing, printing, publication,

or language spoken, urge, incite, or advocate any curtailment of

production in this country of any thing or things, product or products,

necessary or essential to the prosecution of the war in which the

United States may be engaged, with intent by such curtailment to

cripple or hinder the United States in the prosecution of the war, and

whoever shall willfully advocate, teach, defend, or _suggest_ the doing

of any of the acts or things in this section enumerated, and whoever

shall _by word or act support or favor the cause of any country with

which the United States is at war or by word or act oppose the cause

of the United States therein_, shall be punished by a fine of not more

than $10,000 or imprisonment for not more than twenty years, or both:

Provided, That any employee or official of the United States Government

who commits any _disloyal_ act or utters any _unpatriotic or disloyal

language_, or who, in an _abusive and violent manner criticizes the

Army or Navy or the flag of the United States_ shall be at once

dismissed from the service. Any such employee shall be dismissed by

the head of the department in which the employee may be engaged, and

any such official shall be dismissed by the authority having power to

appoint a successor to the dismissed official.”

The conspiracy, harboring, and search-warrant sections of the Act of

1917 apply to the section just quoted; and also the mail provisions,

which were amended on May 16, 1918, by the addition of a section

authorizing the Postmaster General, “upon evidence satisfactory to him

that any person or concern is using the mails” in violation of the

Espionage Act, to have all mail of every kind addressed to that person

or concern returned to the sender. (Act, May 16, 1918, c. 75, §2; _U.

S. Comp. Stat._, 1918, § 10401 d. See Carroll, in 17 _Mich. L. Rev._

689.)

Cases involving the new crimes created by the Espionage Act of 1918,

reported in the _Bulletins of the Department of Justice on the

Interpretation of War Statutes_, the _Federal Reporter_, and the _U. S.

Reports_, through 1919, are as follows:

(1) Obstruction of war loans. United States _v._ Bold, _Bull._ 183

(Ore., Wolverton, J.); United States _v._ Brackett, _Bull._ 170 (E.

D. Mo., Munger, J.); Kumpula _v._ United States, 261 Fed. 49 (C. C.

A. 9th, 1919, per Hunt, J.); Hall _v._ United States, 256 Fed. 748,

_Bull._ 189 (C. C. A. 4th, 1919, per Pritchard, J.).

(2) Disloyal, etc. language about form of government of United States.

Abrams _v._ United States, 40 Sup. Ct. Rep. 17 (1919) (Clarke, J.;

Holmes, J., dissenting.)

(3) Language intended to defame form of government. Abrams _v._ United

States, _supra_.

(4) Disloyal, etc. language about military or naval forces. United

States _v._ Buessel, _Bull._ 131 (Conn., 1918, Howe, J.); United States

_v._ Curran, _Bull._ 140 (S. D. N. Y., 1918, L. Hand, J.); United

States _v._ Martin, _Bull._ 157 (E. D. Tenn., 1918, Sanford, J.;

criticism of President’s military policy is within this clause since

he is commander-in-chief of army and navy); United States _v._ Equi,

_Bull._ 172 (Ore., 1918, Bean, J.); Partan _v._ United States, 261 Fed.

515 (C. C. A. 9th, 1919, per Hunt, J.).

(5) Language intended to defame the military or naval forces. United

States _v._ Equi, _supra_; United States _v._ Vevig, _Bull._ 162

(Alaska, 1918, Bunnell, J.); Partan _v._ United States, _supra_.

(6) Disloyal, etc. language about flag. United States _v._ Buessel,

_supra_.

(7) Language intended to defame the flag. United States _v._ Equi,

_supra_.

(8) Language intended to incite, etc. resistance to United States or

promote cause of enemies. United States _v._ Zademack, _Bull._ 143 (N.

D. Oh., 1918, Westenhaver, J.); United States _v._ Debs, _Bull._ 155

(N. D. Oh., 1918, Westenhaver, J.); United States _v._ Martin, _supra_;

United States _v._ Weist, _Bull._ 169 (E. D. Mo., 1918, Munger, J.);

United States _v._ Equi, _supra_; United States _v._ Carlson, _Bull._

185 (W. D. Wash., 1918, Neterer, J.); United States _v._ Albers,

_Bull._ 191 (Ore., 1919, Wolverton, J.); United States _v._ Dodge,

_Bull._ 202 (W. D. N. Y., 1919, Hazel, J.); 258 Fed. 300 (C. C. A. 2d,

1919, Rogers, J.); certiorari denied, 250 U. S. 660, 40 Sup. Ct. Rep.

10 (1919); Abrams _v._ United States, _supra_; Kumpula _v._ United

States, _supra_.

(9) Language urging curtailment of production of war materials. United

States _v._ Carlson, _supra_; Abrams _v._ United States, _supra_.

(10) Favor cause of enemies or oppose that of United States. United

States _v._ Buessel, _supra_; United States _v._ Zademack, _supra_;

United States _v._ Schoberg, _Bull._ 149 (E. D. Ky., 1918, Cochran,

J.); United States _v._ Bunyard, _Bull._ 168 (E. D. Mo., 1918, Munger,

J.); United States _v._ Weist, _supra_; United States _v._ Bold,

_supra_; United States _v._ Albers, _supra_; United States _v._ Dodge,

_supra_; Schulze _v._ United States, 259 Fed. 189 (C. C. A. 9th, 1919,

per Gilbert, J.); United States _v._ Brackett, _supra_; Kumpula _v._

United States, _supra_.

See also recent cases in Appendix II: Ault, Listman, Lockhart, Rust,

Seattle etc. Co., Strong, Mamaux, Wimmer.

APPENDIX IV

NORMAL LAW OF FOUR JURISDICTIONS AGAINST ACTUAL OR THREATENED VIOLENCE

(See page 165)

Massachusetts: Treason, R. L. (1902) c. 206; murder or attempt to

murder, c. 207; destruction of property by explosives, or attempt

thereto, c. 208 §§ 85, 86; indirect participation in a crime, c. 215,

§3; attempts to commit any crime, c. 215 §6; solicitation of another

to commit a crime is punishable under this section, Commonwealth _v._

Peaslee, 177 Mass. 267, and also at common law, Commonwealth _v._

Flagg, 135 Mass. 545, quoted in the text.

New York: Treason, Penal Law (1909), §§2380–2383; murder, §§1044ff.;

damage to building by explosive, §1420; manufacture, storing, or

shipping of explosives, §1894; attempt to injure building without

damage, §1895; indirect participation or attempt to commit any crime,

§§2, 260–262; solicitation of another to commit a crime is probably

punishable under this section, People _v._ Strauss, 100 Misc. 661,

and also at common law; any act seriously disturbing the person or

property of another, or seriously disturbing the public peace, §43;

this includes advocacy of revolution and assassination, People _v._

Most, 171 N. Y. 423. The N. Y. anarchy act is discussed in the body of

the book.

Washington: Treason, Remington’s Code (1915), §§2317–2319; murder,

§§2392ff.; damage by explosives, or placing them, §§2652, 2653;

unlawful making, storing, or shipping explosives, §§2403, 2504, 2506;

indirect participation in any crime, §2260; attempts toward any crime,

§2264; solicitation of another is punishable under this section,

State _v._ George, 79 Wash. 262, and also at common law. The Wash.

syndicalism and sedition acts are discussed in the body of the book.

District of Columbia: Treason, punishable under general Federal law;

murder, Code, §798; placing explosives near buildings or discharging

them, §§825a, 885; indirect participation in crime, §908; attempts,

§906; solicitation is probably a common law offense punishable under

§910.

APPENDIX V

STATE WAR AND PEACE STATUTES AFFECTING FREEDOM OF SPEECH

(Note: As some of the statutes have varying penalties, in order

to avoid confusion only the punishment for the most serious

offense is mentioned, which will indicate the relative severity

of these laws. Fines may operate as a term of imprisonment if

the defendant is obliged to work them out when too poor to

pay. An asterisk shows that this particular statute has been

discussed in a reference listed in the Bibliography. The cases

listed are only the appellate court decisions under the statutes;

many prosecutions never reach such a court. Each decision

given affirms a conviction by the trial court unless otherwise

described. “Reversed” means that a conviction was reversed on

appeal. The list ends with the year 1919.)

PART I

_Statutes against Opposition to War._ (See p. 110 of text.)

_Alaska_ Laws, 1917, c. 60 (utter any seditious matter or

tending to excite discontent, etc.; fair and honest

criticism excepted.) 1 yr. or $1,000.

_Florida_ Laws, 1917, c. 7392, No. 134 (persuading or publicly

attempting to persuade a person not to enlist in

war or when “our foreign relations tend to indicate

an impending war or state of war”).

Misdemeanor.

_Hawaii_ Laws, 1918 sp., Act 19 (“language calculated or

tending to discourage or prevent the vigorous

prosecution of the war”; “disrespect to any flag of

the United States”; “contemptuous or abusive

language about any allied nation or its flag or

uniform”; also peace clauses). 1 yr., $1,000.

_Iowa_ (See sedition statute, part II; no express war provision,

but opposition punished in:)

State _v._ Gibson, 174 N. W. 34 (1919).

_Louisiana_ Laws, 1917 sp., No. 10 (like Minn., 1917). 3 mos.-1 yr.,

$100-$500.

Laws, 1918, No. 138 (like contempt part of Espionage

Act of 1918). 5 yrs., $50-$5,000.

(See sedition statute, part II.)

_Minnesota_ Laws, 1917, c. 463 (see text; repealed by next statute).

1 yr., $100-$500.

State _v._ Holm, 139 Minn. 267; L. R. A. 1918

c. 304 (1918).

State _v._ Spartz, 140 Minn. 203 (quashed).

State _v._ Freerks, 140 Minn. 349.

State _v._ Townley, 140 Minn. 413 (quashed).

State _v._ Kaercher, 141 Minn. 186.

State _v._ Luker, 169 N. W. 700 (1918).

State _v._ Hartung, 169 N. W. 712 (1918)

(dissent).

State _v._ Gilbert, 169 N. W. 790.

State _v._ Martin, 169 N. W. 792 (dissent).

State _v._ Deike, 172 N. W. 777 (1919 reversed).

State _v._ Gilbert, 171 N. W. 798.

State _v._ Townley, 171 N. W. 930 (ind. good).

State _v._ Rempel, 172 N. W. 919 (reversed).

State _v._ Ludemann, 172 N. W. 887 (reversed).

State _v._ Rempel, 172 N. W. 888 (reversed).

State _v._ Randall, 173 N. W. 425.

Laws, 1919, c. 93 (practically all of U. S. Act of

1918, except obstructing enlistment). 20 yrs.,

$20,000.

_Montana_ Laws, 1918 sp., c. 11 (model for U. S. Act of 1918).

1–20 yrs., $200-$20,000.

State _v._ Kahn, 182 Pac. 107 (1919).

State _v._ Griffith, 184 Pac. 219 (1919) (reversed).

State _v._ Wyman, 186 Pac. 1.

State _v._ Smith, 188 Pac. 644 (1920 reversed).

State _v._ Smith, 190 Pac. 107 (reversed).

_Ex parte_ Stair, 263 Fed. 145 (habeas corpus

denied).

Laws, 1919, c. 77 (copies U. S. Act of 1917 for war,

and rest of U. S. Act of 1918 for all times). 1–20

yrs., $200-$20,000.

_Nebraska_ Laws, 1918 sp., c. 5 (very wide; punishes concealment

of knowledge that sedition has been committed;

also any violation of U. S. Act of 1917.)

20 yrs., $10,000.

Gerdes _v._ State, 175 N. W. 606 (1919) (reversed).

_New Jersey_ Laws, 1918, c. 36 (like Minn., 1917). 7 yrs., $100-$2,000.

State _v._ Tachin, 106 Atl. 145 (1919); 108 Atl.

318 (dissent).

(See sedition statute, part II).

_Texas_ Laws, 1918 (4th Called Sess.), c. 8 (like La.) 2–25

yrs.

_Ex parte_ Acker, 212 S. W. 500 (1919).

Fromme _v._ State, 212 S. W. 501.

Meyer _v._ State, 212 S. W. 504.

_Ex parte_ Meckel, 220 S. W. 81 (1920, held

unconstitutional).

3 mos.-1 yr., $100-$1,000.

_Wisconsin_ Laws, 1918 sp., c. 13 (like Minn., 1917). 1 yr., $1,000.

(Note: In addition to the sedition statutes mentioned, several states

during the period of hostilities passed criminal syndicalism laws, see

part II—Arizona, Idaho, Minnesota, Montana, South Dakota.)

PART II

_Statutes not Limited to War._ (See pp. 180–194 of text.)

A. _Red Flags and Other Insignia_:

_Arizona_ Laws, 1919, c. 11. 6 mos., $100-$300.

_California_ Laws, 1919, c. 142. Felony.

_Colorado_ Laws, 1919, c. 171. 1–10 yrs.

_Connecticut_ Public Acts, 1919, c. 35. 6 mos., $200.

New Haven Red Flag Ordinance (1919), 29 _Yale L.

Journ._ 108.

_Delaware_ Laws, 1919, c. 231. 15 yrs., $2,000.

_Idaho_ Laws, 1919, c. 96. 1–10 yrs., $1,000.

_Illinois_ Laws, 1919, p. 420, sec. 265 f. 1–10 yrs.

_Indiana_ Laws, 1919, c. 125 (preamble referring to Russia).

5 yrs., $5,000.

_Iowa_ Laws, 1919, c. 199. 6 mos., $1,000.

_Kansas_ Laws, 1919, c. 184. 18 mos.-3 yrs.

_Massachusetts_ Laws, 1913, c. 678, sec. 2 (repealed by Laws, 1915,

c. 255). 6 mos., $100.

Comm. _v._ Karvonen, 219 Mass. 30 (1914).

_Michigan_ Laws, 1919, No. 104. 5 yrs., $1,000.

_Minnesota_ Laws, 1919, c. 46. Felony.

_Montana_ Laws, 1919, c. 25. 1–5 yrs., $500.

_Nebraska_ Laws, 1919, c. 208. 5 yrs., $1,000.

_New Jersey_ Laws, 1919, c. 78. 15 yrs., $2,000.

_New Mexico_ Laws, 1919, c. 33. 6 mos., $100.

_New York_ Laws, 1919, c. 409. Misdemeanor.

_Oklahoma_ Laws, 1919, c. 133. 10 yrs., $1,000.

_Oregon_ Laws, 1919, c. 35. 10 yrs., $1,000.

_South Dakota_ Laws, 1919, c. 191. 30 days, $100.

_Utah_ Laws, 1919, c. 129. 1–10 yrs., $1,000.

_Vermont_ Laws, 1919, c. 195. 6 mos., $200.

_Washington_ Laws, 1919, c. 181. Felony.

_West Virginia_ Laws, 1919, c. 24, sec. 2. 1 yr.,

$100-$500 (first offense); 1–5 yrs. (second offense).

_Wisconsin_ Laws, 1919, c. 369. $10-$100 (30 days on default).

B. _Statutes Against Incitement to Specific Acts of Violence_:

(Note: The grouping adopted below is necessarily somewhat arbitrary.

Groups B-E run into one another, and the line between sedition and

syndicalism is not always clear.)

*_Massachusetts_ Laws, 1919, c. 191. 3 yrs., $1,000.

*_New Jersey_ Laws, 1908, c. 278. High misdemeanor.

State _v._ Boyd, 86 N. J. L. 75; 87 N. J. L. 328

(1915).

State _v._ Quinlan, 86 N. J. L. 120; 87 N. J. L.

333 (1915; with dissenting opinion).

State _v._ Scott, 86 N. J. L. 133 (1914) (reversal).

_Vermont_ Laws, 1919, No. 194 (like Mass., but has “indirectly”).

3 yrs., $1,000.

C. _Statutes Against Incitement to Crime Generally_:

_Indiana_ Laws, 1919, c. 125, sec. 2 (includes advocacy of

revolution by “general cessation of industry”).

5 yrs., $5,000.

_Washington_ Laws, 1909, c. 249, sec. 312. Gross misdemeanor.

State _v._ Fox, 71 Wash. 185 (1912).

Fox _v._ Washington, 236 U. S. 273 (1915).

_Wyoming_ Laws, 1919, c. 76. 5 yrs., $5,000.

D. _Statutes Against Criminal Anarchy_:

*_New York_ Laws, 1902, c. 371. 10 yrs., $5,000:

Von Gerichten _v._ Seitz, 94 App. Div. 130

(1904).

_Washington_ Laws, 1909, c. 249, secs. 311, 314–316. 10 yrs., $5,000.

State _v._ Lowery, 104 Wash. 520 (1918).

E. _Peace-Time Sedition Statutes_:

*_Connecticut_ Public Acts, 1919, c. 191 (public advocacy of “any

measure, doctrine, proposal or propaganda intended

to injuriously affect the government” of U. S. or

Conn.). 3 yrs., $1,000.

Public Acts, 1919, c. 312 (“abusive, disloyal, scurrilous

matter about form of government of U. S.,

military forces, etc., or matter intended to bring

them into contempt, or which creates or fosters

opposition to organized government”). 5 yrs.,

$500.

_Hawaii_ Laws, 1918 sp., Act 19 (like contempt part of Espionage

Act of 1918; also war clauses and peace

clauses). 1–10 yrs., $100-$1,000.

_Illinois_ Laws, 1919, p. 420, adding to Criminal Code secs.

265 a-g (advocacy of reformation or overthrow of

present representative form of government by violence

or other unlawful means; issuing books, etc.;

membership in society, etc.) 1–10 yrs.

_Iowa_ Laws, 1917, c. 372 (exciting or attempting to excite

insurrection or sedition, advocating subversion or

destruction by force of Ia. or U. S. government;

attempting to excite hostility or opposition to

them; membership in association, etc.). 20 yrs.,

$1,000-$10,000.

State _v._ Gibson, 174 N. W. 34 (1919).

_Louisiana_ Laws, 1917 sp., No. 24 (like Ia.). 20 yrs., $10,000.

_Montana_ Laws, 1919, c. 77 (like war-time statute, _supra_, and

U. S. Espionage Act of 1918). 1–20 yrs., $200-$20,000.

_New Hampshire_ Laws, 1919, c. 155 (advocating overthrow of government

or interference with any public or private

right whatever by force; any act which _tends_ to

encourage violation of law). 10 yrs., $5,000.

Injunction provision.

_New Jersey_ Laws, 1918, c. 44 (like Ia.). 20 yrs., $10,000.

_New York_ Laws, 1917, vol. 2, c. 416 (removal of officers, civil

service employees, and teachers for treasonable or

seditious acts or utterances).

Laws, 1918, vol. 2, c. 246 (elimination of school

textbooks containing seditious or disloyal matter).

_Pennsylvania_ Laws, 1919, No. 275 (any publication, utterance, or

conduct which _tends_ to cause any outbreak of

violence, to encourage conduct with a view of

overthrowing by force or show or threat of force the

government of U. S. or Pa., to encourage any

overt act with a view of bringing them into hatred

or contempt, or to incite harm to officials or

public property, etc. _Cf._ Palmer federal bill).

20 yrs., $100-$10,000.

_West Virginia_ Laws, 1919, c. 24 (see text). 1 yr., $100-$500 (first

offense); 1–5 yrs. (second offense).

_Criminal Syndicalism Statutes_ (substantially of a uniform type,

unless otherwise noted):

_Alaska_ Laws, 1919, c. 6. 10 yrs., $5,000.

_Arizona_ Laws, 1918 sp., c. 13 (special wording). 10 yrs.,

$5,000. Message of Governor Hunt, refusing to

sign this Act, _ibid._ 49; Senate and House

Resolutions denouncing the I.W.W.,

_ibid._ 55, 67.

*_California_ Laws, 1919, c. 188. 1–14 yrs.

_Ex parte_ McDermott, 183 Pac. 437 (1919).

_Hawaii_ Laws, 1919, c. 186. 10 yrs., $5,000.

_Idaho_ Laws, 1917, c. 145. 10 yrs., $5,000.

_Iowa_ Laws, 1919, c. 382. 10 yrs., $5,000.

_Michigan_ Laws, 1919, No. 255. 10 yrs., $5,000.

_Minnesota_ Laws, 1917, c. 215. 10 yrs., $5,000.

State _v._ Moilen, 167 N. W. 345 (1918); 1

A. L. R. 331.

_Montana_ Laws, 1918 sp., c. 7. 1–5 yrs., $200-$1,000.

_Nebraska_ Laws, 1919, c. 261. (Adds “or for profit”) 1–10

yrs., $1,000.

_Nevada_ Laws, 1919, c. 22. 10 yrs., $5,000.

_Ohio_ Laws, 1919, House Bill No. 477. 10 yrs., $5,000.

_Oklahoma_ Laws, 1919, c. 70. (Adds “or for profit.”) 10 yrs.,

$5,000.

_Oregon_ Laws, 1919, c. 12. (Adds “or for profit.”) 1–10

yrs., $1,000.

_South Dakota_ Laws, 1918, c. 38. 1–25 yrs., $1,000-$10,000.

_Utah_ Laws, 1919, c. 127. 1–5 yrs., $200-$1,000.

_Washington_ Laws, 1919, c. 3. 10 yrs., $5,000. (Repealed by the

following act.)

Laws, 1919, c. 174 (special wording, favoring “crime,

sedition, violence, intimidation or injury” as a

means of change). Felony.

Laws, 1919, c. 173 (special wording, favoring sabotage).

Felony.

INDEX OF CASES

NOTE: Prosecutions are indexed by the name of the accused,

whether conducted by the King (Rex), the Queen (Regina), the

United States, or a state (People, Commonwealth, Respublica).

All other cases are indexed by the plaintiff’s name. Important

prosecutions and election cases are also in the General Index.

Many federal and state prosecutions not discussed in this book

are indexed in Appendices II and V.

Abbott, _Re_, 320 _n._, 321 _n._

Abrams _v._ U. S., 120–160;

see General Index.

Acklen Election Case, 349 _n._

Ahearn, P. _v._, 352 _n._

Ahlers, R. _v._, 326 _n._

Albers, U. S. _v._, 57 _n._, 59 _n._

American School of Magnetic Healing _v._ McAnnulty, 105 _n._, 285 _n._

American Socialist Society _v._ U. S., 27 and _n._, 308, 356.

Aso, U. S. _v._, 167, 168 and _n._, 173.

Atchison etc. Ry. _v._ Brown, 11 _n._

August _v._ U. S., 149 _n._

Ault, U. S. _v._, 115 _n._

Bailey _v._ Alabama, 36 _n._

Baker, U. S. _v._, 101 _n._

Baltzer, U. S. _v._, 64, 65 and _n._, 88 _n._

Bancroft _v._ Frear, 320 _n._

Barker, P. _v._, 340 _n._, 342 _n._

Beatty _v._ Gillbanks, 183 and _n._

Beresford-Hope _v._ Lady Sandhurst, 319 _n._

Berger Election Case, 315–332;

see General Index.

Bernat and Dixon, _Ex parte_, 272 _n._

Billingsley _v._ U. S., 166 _n._

Blanding, C. _v._, 8 _n._, 24 _n._

Blodgett, U. S. _v._, 62, 64.

Blount, Expulsion Case, 346 _n._

Blum, Matter of, 304 _n._

Bollman and Swartwout, _Ex parte_, 325 _n._

Bosny _v._ Williams, 236 and _n._

Boutin, U. S. _v._, 57 _n._

Boyd, S. _v._, 192 _n._

Boyd _v._ U. S., 299, 300, 303 _n._, 335 _n._

Bradlaugh Election Case, 344.

Bright Expulsion Case, 346, 347, 350 _n._

Brinton, U. S. _v._, 83.

Bryant _v._ U. S., 40 _n._

Buessel, U. S. _v._, 128 _n._

Burman, P. _v._, 183 _n._

Bush, P. _ex rel._, _v._ Thornton, 342 _n._, 347 _n._

Butler _v._ Perry, 36 _n._

Campbell _v._ Cannon, 347 _n._, 351 _n._

Cannon, Election and Expulsion Cases, 345 _n._, 347 _n._, 351 and _n._

Carlisle _v._ U. S., 326 _n._

Casement, R. _v._, 325, 326.

Chandler, S. _v._, 31 _n._

Charges to Grand Jury, 327 _n._

Chin Wah, _Re_, 241 _n._

Chin Yow _v._ U. S., 255 _n._

Clap, C. _v._, 24 _n._

Clark, S. _v._, 151 _n._

Clark, U. S. _v._, 215 and _n._

Clarke, _Ex parte_, 307 _n._

Claudius _v._ Davie, 7 _n._

Coaks, R. _v._, 319 _n._

Cobbett, Trial of, 8 _n._

Coldwell, U. S. _v._, 9 _n._

Colyer and Katzeff _v._ Skeffington, 242–249, 257, 270 and _n._, 271,

339.

Comfort _v._ Fulton, 304 _n._

Connolly _v._ Union Sewer Pipe Co., 282 _n._

Cowan _v._ Fairbrother, 12 _n._

Croswell, P. _v._, 30 and _n._

Cummings _v._ Missouri, 302 _n._, 342 _n._

Curran, U. S. _v._, 128 _n._

Cuthell, R. _v._, 58 and _n._

Dailey _v._ Superior Court, 61 _n._

Dalton, S. _v._, 344 _n._

Danbury Hatters’ Case, 53 _n._

Darmer, U. S. _v._, 110 _n._

Darwin, S. _v._, 112 _n._

Davidson _v._ New Orleans, 16 _n._

Dean of St. Asaph, R. _v._, 8 _n._, 9 _n._

Debs _v._ U. S., 90–93;

see General Index.

Dennie, Resp. _v._, 8 _n._

Denson, U. S. _v._, 57 _n._, 59 _n._

Dobbs’ Case, 150 _n._

Doe _v._ U. S., 60, 67.

Drakard, R. _v._, 27, 28.

Eastman, P. _v._, 171 _n._

Eastman, U. S. _v._, 85 _n._, 86, 126.

Ehrich _v._ Root, 306 _n._

Eisner _v._ Macomber, 106 _n._

Entinck _v._ Carrington, 298 _n._, 304.

Equi, U. S. _v._, 33 _n._, 128 _n._

Flagg, C. _v._, 165.

Fong Yue Ting _v._ U. S., 235 _n._, 241 _n._, 249 _n._

Fontana, U. S. _v._, 48 _n._

Foster, Matter of, 307 _n._

Fox, S. _v._, 188 _n._

Fox _v._ Spicer, 42 _n._

Fox _v._ Washington, 188 _n._

Fraina _v._ U. S., 13 _n._, 59 and _n._

Frank _v._ Skeffington, 252–254.

Freerks, S. _v._, 57 _n._

French _v._ Senate, 340 _n._

Fricke, U. S. _v._, 41 _n._, 326 _n._

Frishman, C. _v._, 182–185.

Frohwerk _v._ U. S., 15, 16 and _n._, 88 _n._, 90.

Furman, P. _ex. rel._, _v._ Clute, 320 _n._

Garland, _Ex parte_, 342 _n._

Gegiow _v._ Uhl, 239 _n._

Gibson, S. _v._, 111 _n._

Gillow, R. _v._, 150 _n._

Gilmore, S. _v._, 344 _n._

Goetcheus _v._ Matthewson, 342 _n._

Goldman, U. S. _v._, 13 _n._, 41 _n._, 126.

Goldsmith, U. S. _v._, 57 _n._, 59 _n._

Goldstein _v._ U. S., 10 _n._, 60, 61.

Gompers _v._ Bucks Stove and Range Co., 53 _n._

Gompers _v._ U. S., 32 _n._

Grafton _v._ Connor, 349 _n._

Granzow, U. S. _v._, 57 _n._

Grau, U. S. _ex rel._, _v._ Uhl, 272 _n._

Green _v._ Shumway, 342 _n._

Guiney _v._ Bonham, 272 _n._

Gulf etc. Ry. _v._ Ellis, 282 _n._

Haffer, P. _v._, 172 _n._

Hall, U. S. _v._, 59 _n._

Halliday, R. _v._, 42 _n._

Halter _v._ Nebraska, 112 _n._

Harris Expulsion Case, 345 _n._, 346.

Harrison, _Ex parte_, 11 _n._

Harshfield _v._ U. S., 59 and _n._, 93 _n._

Hatzel _v._ Hall, 341 _n._

Haywood, U. S. _v._, 85 _n._, 87 _n._, 163.

Head _v._ U. S., 88 _n._

Henning, U. S. _v._ 48 _n._

Herbert Expulsion Case, 345 _n._

Hiss _v._ Bartlett, 340 _n._

Hitchcock, U. S. _v._, 57 _n._

Hodges, U. S. _v._, 326 _n._

Holm, S. _v._, 111 _n._

Houston _v._ Moore, 112 _n._

Hunt, R. _v._, 27, 28, 68.

Hurtado _v._ California, 36 _n._

I. C. C. _v._ Brimson, 242 _n._

Jackson, _Ex parte_, (Fed.), 241 _n._, 242 _n._, 273 _n._, 274.

Jackson, _Ex parte_, (U. S.), 108 _n._

Ju Toy, U. S. _v._, 238 _n._, 255 and _n._

Kammann _v._ U. S., 93 _n._

Kansas _v._ Colorado, 34 _n._

Karvonen, C. _v._, 186 _n._, 187 _n._

Kaufman, U. S. _v._, 57 _n._

Kentucky _v._ Dennison, 191 _n._

Kentucky Members Election Case, 350 _n._

Kirchner, U. S. _v._, 57 _n._

Konkel _v._ S., 112 _n._

Krafft, U. S. _v._, 57 _n._

Kramer, U. S. _v._, 110 _n._

Kumpula _v._ U. S., 83 and _n._

Listman, U. S. _v._, 115 _n._

Loewe _v._ Lawlor, 53 _n._

Lopez _v._ Howe, 278–280.

Louthan _v._ C., 11 _n._

Lowery, S. _v._, 272 _n._

Low Hong, U. S. _v._, 255 _n._

Low Wah Suey _v._ Backus, 238 _n._, 239 _n._

Ludemann, S. _v._, 60 _n._

Lynch, P. _v._, 111 _n._

Lyon Expulsion Case, 329, 345.

McClure, S. _v._, 7 _n._

McCulloch _v._ Maryland, 34 _n._

McDonald, P. _v._, 303 _n._

McGrorty _v._ Hooper, 351 _n._

McKee, S. _v._, 11 _n._

McKee _v._ Young, 347 _n._, 350 _n._

McNeill, _Re_, 344 _n._

Magon _v._ U. S., 214 _n._

Mahaney, P. _v._, 341 _n._

Mamaux _v._ U. S., 80 _n._

Martin, U. S. _v._, 128 _n._

Masses Publishing Co. _v._ Patten, 46–56;

see General Index.

Maxwell _v._ Cannon, 347 _n._, 351 _n._

Meckel, _Ex parte_, 111 _n._, 192 _n._

Merryman, _Ex parte_, 34 _n._, 81 _n._

Metcalf, S. _ex rel._, _v._ Dist. Ct., 11 _n._

Miller, _In re_, 257, 261 _n._, 339.

Miller, U. S. _v._, 57 _n._

Milligan, _Ex parte_, 33 and _n._, 42 _n._, 69 _n._, 81 _n._, 96

_n._, 113, 116, 117 _n._, 325.

Milwaukee Social Dem. Pub. Co. _v._ Burleson, 316 _n._

Mitchell, _Ex parte_, 239 _n._

Moilen, S. _v._, 192 _n._, 272 _n._

Molyneux, P. _v._, 85 _n._

Moore, U. S. _v._, 150 _n._

Most, P. _v._, 205, 206.

Most, R. _v._, 205 _n._

Moy Suey _v._ U. S., 255 _n._

Moy Wing Sun _v._ Prentis, 241 _n._

Muir, R. _v._, 28, 146 _n._

Mutual Film Co. _v._ Industrial Commn., 10 _n._

Nagler, U. S. _v._, 57 _n._

Neagle, _Re_, 200.

Nearing, U. S. _v._, 27, 53 _n._, 55 _n._, 85 _n._, 125.

Nesin, P. _v._, 110 _n._

New Yorker Staats-Zeitung _v._ Nolan, 110 _n._

Nishimura Ekiu _v._ U. S., 230 _n._

Norman _v._ Mathews, 42 _n._

Ogletree _v._ S., 150 _n._

O’Hare, U. S. _v._, 83, 162.

Orear _v._ U. S., 40 _n._

Oswald, Resp. _v._, 8 _n._

Pacific Ry. Com’n, _In re_, 242 _n._

Palmer, R. _v._, 28.

Pape, U. S. _v._, 59 and 60 _n._

Patterson _v._ Colorado, 9 _n._

Peaslee, C. _v._, 53, 89.

Pembliton, R. _v._, 150 _n._

Pettine, _Ex parte_, 280 _n._, 281 _n._

Phillips, U. S. _v._, 13 _n._, 41 _n._, 79 _n._, 126.

Pierce, S. _v._, 11 _n._

Pierce, U. S. _v._, 13 _n._, 94 and _n._, 101–106, 134, 135 _n._, 285

_n._

Pioneer Press Co., S. _v._, 12 _n._

Powell Expulsion Case, 346.

Preis, _In re_, 257, 261.

Printing Co., S. _v._, 12 _n._

Public Clearing House _v._ Coyne, 108 _n._

Quinlan, S. _v._, 189 _n._

Ragan, S., _ex rel._, _v._ Junkin, 11 _n._

Rathbone _v._ Wirth, 343 _n._

Reeder, U. S. _v._, 41 _n._

Roach Election Case, 349 _n._

Roberts Election Case, 345 _n._, 347 _n._, 350 _n._, 352 and _n._

Roberts _v._ People, 150 _n._

Roberts, Resp. _v._, 326 _n._

Robertson _v._ Baldwin, 7 _n._, 36 _n._

Robinson, U. S. _v._, 41 _n._, 324 _n._, 326 _n._, 327 _n._

Rogers _v._ Common Council, 343 _n._

Rogers, U. S. _v._, 166 _n._

Ronnfeldt _v._ Phillips, 119 _n._

Russell, Bertrand, R. _v._, 2, 42 _n._, 59 and _n._

St. Louis etc. Ry. _v._ Griffin, 11 _n._

Samson _v._ Columbia, 110 _n._

Sandberg, U. S. _v._, 57 _n._, 59 _n._

Sanford _v._ Richardson, 305 _n._

Schaefer _v._ U. S., 85, 87, 94–101, 106, 218 _n._, 265 and _n._

Schenck _v._ U. S., 9 _n._, 16 _n._, 88–93;

see General Index.

Schoberg, U. S. _v._, 38 _n._, 59 _n._

Schurmann _v._ U. S., 110 _n._

Scott, S. _v._, 189 _n._

Selective Draft Law Cases, 7 _n._, 40 _n._

Shaffer, U. S. _v._, 57 _n._

Shelley’s Case, 38.

Silverthorne Lumber Co. _v._ U. S., 242 _n._, 299 _n._, 300.

Skuy _v._ U. S., 149 _n._

Smith _v._ Brown, 320 _n._, 347 _n._, 350 _n._

Smoot Election Case, 347 _n._, 352, 353.

Socialists Election Case, 332–364.

Spirit of ’76, U. S. _v._, 10, 38 _n._, 43, 60, 61.

Star _v._ Brush, 110 _n._

Star Opera _v._ Hylan, 110 _n._, 183 _n._

Stark Election Case, 347 _n._, 349, 350 and _n._

Starr, _Ex parte_, 113 _n._

Steene, U. S. _v._, 116 _n._

Stephens, U. S. _v._, 51 _n._

Stern _v._ Remick, 242 _n._

Stilson _v._ U. S., 93 and _n._

Stokes, U. S. _v._, 13 _n._, 28 _n._, 58, 59, 67, 87 _n._, 92, 118,

119.

Strong, U. S. _v._, 115 _n._

Stuppiello, U. S. _v._, 280 _n._

Sugarman _v._ U. S., 88 _n._, 89, 90.