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YALE 
LAW JOURNAL 



Vol. XXIII MAY, 1914 No. 7 

FEDERAL INTERFERENCE WITH THE FREEDOM 
OF THE PRESS 

At rare intervals in the history of the United States, Congress 
has passed laws, measures have been proposed, and executive 
orders have been issued which have more or less directly affected 
the freedom of the press, guaranteed against abridgment by the 
second clause of the first amendment to the Federal Constitu- 
tion. 1 The extent to which this limitation has been ignored is a 
moot question. On the one hand we have the confident assertion 
of Von Hoist that "the freedom of the press has become a part of 
the flesh and blood of the American people to such an extent, and 
is so conditioned by the democratic character of their political 
and social life, that a successful attack on it, no matter what legal 
authority it might have on its side, is impossible. Even the gi- 
gantic power of slavocracy gave the battle up as hopeless after 
the first onslaught." 2 

On the other hand, Hannis Taylor in his recent work on the 
American Constitution remarks that "little need be said as to the 
clause forbidding Congress to pass any law 'abridging the free- 
dom of the press,' as that clause has been removed from the Con- 
stitution, so far as the mails are concerned, by the judgment ren- 
dered in 1892, In Re Rapier." 3 And this extreme view may be 

1 "Congress shall make no law * * * abridging the freedom of speech, 
or of the press." An executive order, deriving its validity from an act 
of Congress, would, of course, be illegal if abridging the liberty of the 
press, even though the act itself did not. 

2 Von Hoist, Constitutional History of the U. S., II, 127 (1879). 

3 Taylor, The Origin and Growth of the American Constitution, 230 
(1911). 



5 6o YALE LAW JOURNAL 

said to have received some support from a decision last year by 
the Supreme Court which upheld the power of Congress to com- 
pel newspapers to publish certain information concerning their 
internal affairs, under penalty, for refusal, of being denied the 
advantages of the low second-class rates. 4 

This paper will attempt a determination of the correct view 
as to the inviolability or abrogation of the constitutional guaran- 
tee and will therefore consider briefly the incidents in which the 
freedom of the press has been an issue. 

I. ADOPTION AND MEANING OF THE LIMITATION. 

In the convention which framed the Federal Constitution, Mr. 
Pinckney, on August 20, 1787, submitted a number of proposi- 
tions, among which was a guarantee that "the liberty of the Press 
shall be inviolably preserved." 5 The propositions were referred 
to the Committee of Detail. The question again came up for 
consideration on September 14, when Mr. Pinckney and Mr. 
Gerry "moved to insert a declaration that the liberty of the Press 
should be inviolably observed." This motion was lost, Mr. Sher- 
man remarking that "it is unnecessary — The power of Congress 
does not extend to the Press." 8 

During the discussion of the Constitution by the States, how- 
ever, the absence of a guarantee of the freedom of the press was 
constantly adverted to. Speaking in the South Carolina House of 
Representatives, Mr. C. C. Pinckney said: 

"With regard to the liberty of the press, the discussion of that 
matter was not forgotten by the members of the Convention. It 
was fully debated, and the impropriety of saying anything about 
it in the Constitution clearly evinced. The general government 
has no powers but what are expressly granted to it ; it therefore 
has no power to take away the liberty of the press. That invalu- 
able blessing, which deserves all the enconiums the gentleman has 
justly bestowed upon it, is secured by all our state constitutions ; 
and to have it mentioned in our general Constitution would per- 

4 Lewis Publishing Co. v. Morgan, 229 U. S. 288 (1913.). 

5 Farrand, Records of the Federal Convention, II, 334, 341. 

8 Farrand, Records, II 617, 618; in Pinckney's plan there was a limi- 
tation upon Congress to preserve the freedom of the press. Farrand, III, 
599, 609, A motion was made in the convention to appoint a committee to 
prepare a bill of rights and was unanimously rejected. Farrand, II, 582. 



THE FREEDOM OF THE PRESS 561 

haps furnish an argument, hereafter, that the general government 
had a right to exercise powers not expressly delegated to it." 7 

A different theory was advanced by Hamilton, who, answering 
the objection that the Constitution contained no bill of rights, and 
treating specifically the absence of any provision safeguarding 
the press, asked: 

"What signifies a declaration that 'the liberty of the press shall 
be inviolably preserved' ? What is the liberty of the press ? Who 
can give it any definition which would not leave the utmost lati- 
tude for evasion ? I hold it to be impracticable ; and from this I 
infer that its security, whatever fine declarations may be inserted 
in any constitution respecting it, must altogether depend on pub- 
lic opinion, and on the general spirit of the people and of the 
government. * * * * " 8 

A proposal to guarantee the freedom of the press was part of 
the plan for a Bill of Rights which Madison introduced in Con- 
gress on June 8, 1789." Such a federal provision had been sug- 
gested by three ratifying conventions and similar limitations were 
contained in the constitutions of nine of the states. 10 Madison's 

7 Farrand, Records, III, 256; Elliot, Debates, IV, 315, 316. Mr. Pinck- 
ney obviously overlooked the possibility that the freedom of the press 
might incidentally be limited through the exercise by Congress of one of 
its delegated powers, a possibility which became stronger when the doctrine 
of implied powers was developed. 

8 The Federalist, No. 84. In a footnote, Hamilton scouts the idea that 
the liberty of the press may be affected by duties on publications which 
might be "so high as to amount to a prohibition. * * * We know that news- 
papers are taxed in Great Britain, and yet it is notorious that the press no- 
where enjoys greater liberty than in that country." The extent of duties, 
if levied, "must depend on legislative discretion, regulated by public opin- 
ion. * * * It would be quite as significant to declare that the government 
ought to be free, that taxes ought not to be excessive, etc., as that the lib- 
erty of the press ought not to be restrained." Newspapers were in fact 
taxed during the Civil War, and revenue to the amount of $980,089 was 
raised by this means. Lalor, Encyclopaedia of Political Science, (Press) 
III, 321 (1890). Commenting upon Hamilton's position, Story remarked: 

"The want of a bill of rights, then, is not either an unfounded or illu- 
sory objection. The real question is not, whether every sort of right or 
privilege or claim ought to be affirmed in a constitution ; but whether such, 
as in their own nature are of vital importance and peculiarly susceptible 
of abuse, ought not to receive this solemn sanction." Story, Commen- 
taries, III, 721. 

9 1 Annals of Congress, 431 (1789). 

10 Elliott, II, 552; III, 659; Thorpe, Constitutional History, I, 204. 



562 YALE LAW JOURNAL 

proposal was amended until it provided that "the freedom of 
speech and of the press * * * * shall not be infringed" 
and its language was further modified until it took the form in 
which it became a part of the Constitution. 

Concerning the meaning of the amendment at the time of its 
adoption, there has been little, if any, controversy. Blackstone 
had announced a generally accepted rule when he had said that 
the liberty of the press "consists in laying no previous restraint 
upon publications, and not in freedom from censure for criminal 
matter when published. Every freeman has an undoubted right 
to lay what sentiments he pleases before the public ; to forbid this, 
is to destroy the freedom of the press ; but if he publishes what is 
improper,, mischievous, or illegal, he must take the consequence 
of his own temerity. * * * * To punish (as the law does at 
present) any dangerous or offensive writings, which, when pub- 
lished, shall, on a fair and impartial trial be adjudged of a per- 
nicious tendency, is necessary for the preservation of the peace 
and good order, of government and religion, the only foundations 
of civil liberty." 11 

Alexander Hamilton, in the celebrated case of People v. Cros- 
well, laid down this rule, which has since become a classic : 

"The liberty of the press consists, in any idea, in publishing the 
truth, from good motives and for justifiable ends, though it re- 
flect on the government, on magistrates, or individuals. * * * 
It is essential to say, not only that the measure is bad and deleter- 
ious, but to hold up to the people who is the author, that, in th : s 
our free and elective government, he may be removed from the 
seat of power." 12 

And Story was of the opinion that the guarantee "is neither 
more nor less, than an expansion of the great doctrine, recently 
brought into operation in the law of libel, that every man shall be 
at liberty to publish what is true, with good motives, and for 
justifiable ends." 13 

11 Cooky's Blackstone, Book IV, pp. 151, 152. Lord Kenyon's view 
was practically the same. He said : "A man may publish anything which 
twelve of his countrymen think is not blamable, but he ought to be pun- 
ished if he publishes what is blamable." Rex -v. Cuthill, 27 St. Trials, 675. 

12 3 Johns (N. Y.), 337 (1798) ; Hamilton's Works (Lodge's Edition), 
VII, 339. 

13 Story, Commentaries, III, 732. To the same effect is Kent, Comm., 
II, Lee. 24. A different contention, however, seems to have been made by 
Tucker, Bl. Comm., II, App., Note G, 11-30. 



THE FREEDOM OF THE PRESS 563 

The amendment has never been before the Supreme Court of 
the United States in such a manner that a comprehensive consid- 
eration of its meaning and effect has been given, but in Patterson 
z Colorado 1 * the court incidentally held that "the main purpose 
of such constitutional provisions is 'to prevent all such previous 
restraints upon publications as had been practised by other gov- 
ernments', and they do not prevent the subsequent punishment of 
such as may be deemed contrary to the public welfare." 11 

It seems to have been settled, then, that freedom of the press 
does not mean license; it applies only to previous restraints and 
that not absolutely. In the civil law of libel, at the time of the 
adoption of the Constitution, the one publishing had to answer for 
personal wrongs, and the criminal law could punish for obscene, 
immoral, blasphemous or seditious writings. To the latter extent, 
therefore, there could be, and, in fact, were, previous restraints. 18 

II. SEDITIOUS AND ANARCHISTIC PUBLICATIONS. 

It was not long before this new limitation figured in the causes 
celebres of the day as a result of the so-called Sedition Act, 
passed by Congress on July 14, 1798. This was an outgrowth of 
the Federalist plan to provide a more adequate army and navy 
and to check the utterances of the many alien journalists who 
were free to the point of scurrility in their criticisms of the ad- 
ministration and their approval of the most abhorrent features of 
the French Revolution. The Act provided for the punishment of 
any person who printed or uttered "any false, scandalous, and 
malicious writing, or writings, against the Government of the 
United States, or either House of the Congress of the United 
States, or the President of the United States, with intent to de- 
fame * * * * or to bring them, or either of them, into 

"205 U. S. 458, 462 (1907). 

15 But see Mr. Justice Harlan's dissent, and also Respublica v. Oswald, 
I Dall. 319 (1788). In V. S. v. Cruikshank, 92 U. S. 542, 552, (1876), the 
court held that, "The First Amendment to the Constitution, * * * like the 
other amendments proposed and adopted at the same time, was not in- 
tended to limit the powers of the State Governments in respect to their 
own citizens, but to operate upon the National Government alone. 'The 
scope and application of these amendments are no longer subjects of dis- 
cussion here.' They left the authorityof the States just where they found 
it, and added nothing to the already existing powers of the United States." 
This case affirmed Barron v. Baltimore, 7 Pet. 243 (1833). 

16 See Patterson, Liberty of the Press, Speech, and Public Worship, p. 
61 et seq., (1880). 



564 YALE LAW JOURNAL 

contempt or disrepute, or to excite against them, or either of 
them the hatred of the good people of the United States, or to 
stir up sedition within the United States, or to excite any unlaw- 
ful combinations therein for opposing or resisting any law of the 
United States, or any act of the President of the United States, 
done in pursuance of any such law, or of the powers vested in 
him by the Constitution of the United States, or to resist, oppose, 
or defeat any such law or act, or to aid, encourage, or abet any 
hostile designs of any nation against the United States, their peo- 
ple or government." 17 

The question of the constitutionality of this act, which never 
came before the Supreme Court of the United States, but was up 
held by lower tribunals, has two phases: (1) has the Federal 
Government the power to punish for seditious utterances? and 
(2) would such action be an abridgment of the liberty of the 
press ? 

The first question, for the purposes of this paper, needs no 
consideration, 18 for we are concerned simply with an attempt to 
determine how far Congress could go (conceding its power in the 
premises) in punishing for sedition and still keep the freedom of 
the press inviolate. An immediate difficulty which inheres in this 
problem is that of finding a definition which is satisfactory. The 
best is probably the following : 

17 1 Stat, at L. 596. 

18 The subject has been given very adequate treatment by Mr. Henry 
Wolfe Bilke in his paper on "The Jurisdiction of the United States over 
Seditious Libel", SO American Law Register, 1 (1902). Mr. Bilke says: 
"The power , to punish for seditious libel, it is submitted, results to the 
United States, first from its inherent right to adopt such measures as are 
necessary for its self preservation, and, second, from its right to adopt 
such measures as are necessary to secure its officers in the due administra- 
tion of their duties." While it is the better view that Congress has no 
powers inherent in sovereignty (see 1 Willoughby on the Constitution, 66), 
the Supreme Court apparently rested its decisions in the Chinese Exclu- 
sion cases [sub. nom. Chae Chan Ping v. U. S., 130 U. S. 581 (1888), and 
especially Fong Yue Ting v. U. S., 149 U. S. 698 (1892)] on a contrary 
theory. These cases furnish the authority for the first conclusion just 
quoted, while the case of In Re N eagle, 135 U. S. 1 (1889) is made the 
basis for the second reason why it is within the power of the United 
States to punish sedition. At the time of the passage of the act it had not 
yet been decided that the Federal Courts possessed no common law criminal 
jurisdiction. U. S. v. Hudson & Goodwin, 7 Cranch 32 (1812). The Fed- 
eralists maintained that such jurisdiction did exist, and that since sedi- 
tion was a common law offense, Congress could make it statutory and thus 
aid the courts in its punishment. 



THE FREEDOM OF THE PRESS 565 

"The essence of seditious libel may be said to be its immediate 
tendency to stir up general discontent to the pitch of illegal 
courses, that is to say, to induce people to resort to illegal meth- 
ods other than those provided by the Constitution, in order to re- 
dress the evils which press upon their minds. * * * * When- 
ever a writing is so framed as to urge strongly the people, and es- 
pecially the ignorant and turbulent portion of the people, to take 
some shorter and illegal method, not at a future time, but at 
once, of attaining the end in view, then it may be said to be a sedi- 
tious libel. And hence the construction to be put upon the lan- 
guage, unlike the general rule in most other cases, is not what 
reasonable men would understand by it, but rather what the ig- 
norant and excited people of the day would be likely to do after 
hearing or reading it. * * * * The utmost certainty attain- 
able is to say, that when a speech or a writing imputes personal 
corruption or scandalous misconduct or ignorance in such terms 
as to incite others to get rid of the obnoxious person by other and 
speedier methods than the ordinary remedies prescribed by law, 
then to that extent and no further it is a seditious libel * * * 
any excess in the degree, the adequacy, the justification of the 
language must always remain to be settled by a jury." 19 

Punishment by Congress, therefore, for utterances coming 
within the scope of this definition, would not be in violation of the 
liberty of the press, which phrase, as was pointed out earlier in 
this paper, merely denies the legislature the right to impose pre- 
vious restraints and does not require "freedom from censure for 
criminal matter when published." We may conclude, then, that 
there was little is any interference with the freedom of the. press 
by the Sedition Act. of 1798. The only respect in which the Act 
might have been declared unconstitutional was on account of its 
very broad terms, which went farther than the limits of the ac- 
cepted definition quoted above. In the United States, then, there 
is no constitutional restriction which will compel the government 
impotently to remain the subject of attacks upon its stability. 20 

19 Patterson (Liberty of the Press, etc., p. 82) gives this definition, af- 
ter an exhaustive review of the authorities. 

20 The weight of authority supports this view. See Bilke, op. cit.; 2 
Willioughby on the Constitution, 845 : Von Hoist (Constitutional History, 
I, 142) considers this law "unquestionably unconstitutional" and this view 
is supported by 2 Tucker on the Constitution, 669; Story, (Commentaries, 
III, 744) declines to express his opinion, but intimates that the Act was 



566 YALE LAW JOURNAL 

It would seem, however, as if all doubt as to the. power of Con- 
gress to punish for sedition and anarchy, has not been completely 
dissipated. As a result of the assassination of President McKin- 
ley by an anarchist, Mr. Vest introduced in the Senate on Decem- 
ber 4, 1901, a resolution instructing the Judiciary Committee "to 
inquire and report to the Senate, by bill or otherwise," as to 
"whether it is necessary and expedient to so amend the Federal 
Constitution as to empower Congress to prevent by such means 
as may be deemed necessary the teachings by anarchists of the 
doctrine that all governments should be destroyed and that to ef- 
fect this their chief rulers should be assassinated," and directing 

"That the committee shall, after due examination and inquiry, 
recommend to the Senate such amendments to the Federal Con- 
stitution or such legislation as may be necessary to prevent the 
teaching and promulgation of anarchical doctrines in the United 
States." 21 

valid. As has been remarked, the lower courts before which the Sedition 
Act came refused to declare it unconstitutional. See Trial of Matthew 
Lyon, Wharton's State Trials, 333 (1798) ; Trial of Thomas Cooper, Ibid. 
659 (1800) and Trial of James Thompson Callendar, Ibid. 688 (1800) and 
Trial of Anthony Haswell, Ibid. 684 (1800). Counsel for the traversers 
argued that the law was unconstitutional, and in the Callendar case, since 
Virginia juries had the right to determine the law and the facts, Mr. Wirt 
urged that, "if the law of Congress under which we are now indicted, be 
an infraction of the Constitution, it has not the force of a law, and if you 
were to find the traverser guilty, under such an act, you (the jurors) 
would violate your oaths." "Take your seat, sir, if you please," broke in 
Judge Chase, whose conduct during this trial was the basis of one of the 
charges when he was later impeached by the Senate. 

In the Lyon case, the court gave this instruction to the jury: "You 
have nothing whatever to do with the constitutionality or unconstitution- 
ality of the sedition' law. * * * Until this law has been declared null and 
void by a tribunal competent for the purpose, its validity cannot be dis- 
puted. Great would be the abuses were the constitutionality of every 
statute to be submitted to a jury, in each case where the statute is to be 
applied." 

These views, expressed several years before Marbury v. Madison, 1 
Cranch 137 (1803), are interesting. Some of the utterances of the indicted 
men hardly seem seditious. Callendar's alleged libel, while virulent, con- 
tained no advocacy of rebellion, or use of force, or criticism of govern- 
ment as such. His argument was an amplification of his concluding sen- 
tence : "Take your choice, then, between Adams, war and beggary, and 
Jefferson, peace and competency." 

21 35 Cong. Rec. Pt. I, p. 131. 



THE FREEDOM OF THE PRESS 567 

The resolution was passed on December 16, 22 and a bill "for the 
protection of the President of the United States and for other 
purposes" was agreed to in conference, but failed of passage. It 
provided (Sec. 7) : 

"That any person who, within the limits of the United States, 
or any place subject to the jurisdiction thereof, advocates or 
teaches the duty * ■* * * of the unlawful killing or assault- 
ing of" any officer of the United States or foreign government" 
because of his or their official character * * * * shall be 
fined not more than $5,000, or imprisoned not less than one nor 
more than twenty years, or both." 

Expressions in debate seemed to show that there was doubt as 
to the validity of the measure, but it was practically accepted 
without argument that there was no question of the freedom of 
the press, which, as the foregoing discussion has attempted to 
make clear, would not be violated by such a law as the one pro- 
posed. If Congress had passed the measure, the courts could not 
have overthrown it on this ground. 

The last attempt by Federal authorities to punish for sedition 
was made in 1908, when by direction of President Roosevelt, ac- 
tion was begun against the New York World and the Indian- 
apolis News. The indictments against the World and one of its 
editors charged that articles dealing with the purchase of the 
Panama rights of the French Company for $40,000,000 were 
libels upon the Federal Government and individuals and officials 
named as being interested, and that their purpose was "to stir up 
disorder against the people." 

Copies of the World containing the alleged libel had been cir- 
culated in the government reservation at West Point, and the in- 
dictments were therefore based upon the Act of July 7, 1898, 28 
which "instead of fixing by its own terms the punishment for 
crimes committed on such reservations which were not previ- 
ously provided for by a law of the United States, adopted and 
wrote in the state law." But, continued the Court, there was the 
"single difference that the offense, although punished as an offense 
against the United States, was nevertheless punishable only in the 
way and to the extent that it would have been punishable if the 

22 35 Cong. Rec. Pt. I, p. 314; Senate Bill, 3653. 

23 30 Stat, at L., 717. 



568 VALE LAW JOURNAL 

territory embraced by the reservation remained subject to the jur- 
isdiction of the state." 24 

The Supreme Court therefore approved the action of the lower 
tribunal quashing the indictment, holding that "adequate means 
were afforded for punishing the circulation of the libel upon the 
United States reservation by the State law and in the state courts 
without the necessity of resorting to the courts of the United 
States for redress." 

Thus ended the final attempt of the Federal Government to 
punish for sedition. 

III. THE PRESS AND THE MAILS. 

During 1836 the meaning of the phrase "liberty of the press" 
and the limitations which it might impose upon the postal regula- 
tions which Congress had the power to make, were exhaustively 
discussed in the United States Senate. The debate was precipi- 
tated when President Jackson, in his message of December 2, 
1835, asked for legislation to check the incendiary publications 
with which the Northern abolitionists were flooding the slave 
states. President Jackson wrote : 

"I must also invite your attention to the painful excitement pro- 
duced in the south, by attempts to circulate, through the mails, 
inflammatory appeals addressed to the passions of the slaves, in 
prints, and in various sorts of publications, calculated to stimu- 
late them to insurrection, and to produce all the horrors of a ser- 
vile war. * * * * 

"In leaving the care of other branches of this interesting sub 
ject to the state authorities, to whom they properly belong, it is 
nevertheless proper for Congress to take such measures as will 
prevent the post office department, which was designed to foster 
an amicable intercourse and correspondence between all mem- 
bers of the confederacy, from being used as an instrument of the 
opposite character. The general government to which the great 
trust is confided of preserving inviolate the relations created 
among the states by the Constitution is especially bound to avoid 
in its own action anything that may disturb them. I would, there- 
fore, call the special attention of Congress to the subject, and re- 
spectfully suggest the propriety of passing such a law as will 

24 United States v. Press Publishing Company, 219 U. S. 1 (1911). 
The laws of New York, 1881, Vol. 3, Ch. 8, Sec. 243, 245, provided for 
the punishment of criminal libels. 



THE FREEDOM OF THE PRESS 569 

prohibit, under severe penalties, the circulation in the southern 
states, through the mail, of incendiary publications intended to 
instigate the slaves to insurrection." 26 

This portion of the President's message was referred to a se- 
lect committee of which Calhoun was chairman, and its report 
was made on February 4, 1836. 26 The report is of such interest 
and importance, considering, practically for the first time, the con- 
stitutional questions presented, that it will justify an extended 
quotation. 

"After the most careful and deliberate investigation", said Cal- 
houn, "they [the committee] have been constrained to adopt the 
conclusions that Congress has not the power to pass such a law ; 
that it would be a violation of one of the most sacred provisions 
of the Constitution, and subversive of reserved powers essential 
to the preservation of the domestic institutions of the slavehold- 
ing states, and with them, of their peace and security." 

Calhoun then attempted to draw a close analogy between the 
measure suggested by Jackson and the Sedition Law. Among the 
latter's provisions, he said, was one which "inflicted punishment 
on all persons who should publish any false, scandalous, or malic- 
ious writing against the government, with intent to defame the 
same, or bring it into contempt or disrepute. Assuming this pro- 
vision to be unconstitutional, as abridging the freedom of the 
press, which no one now doubts, it will not be difficult to show that 
if, instead of inflicting punishment for publishing, the act had in- 
flicted punishment for circulating through the mails for the same 
offense, it would have been equally unconstitutional * * * * 
to prohibit circulation is, in effect, to prevent publication * * 
* * each is equally an abridgment of the freedom of the press." 

"The prohibition of any publication on the ground of its being 
immoral, irreligious, or intended to excite rebellion or insurrec- 
tion, would have been equally unconstitutional ; and, from parity 
of reason, the suppression of their circulation through the mail 
would be no less so." 27 

In conclusion, the report argued that the right "to determine 
what papers are incendiary" and to prohibit their circulation be- 
longed to the States. The bill which Calhoun introduced was, 
therefore, framed to fit this view of the situation and made it un- 

25 II Statesman's Manual, 911, 912. 

20 12 Debates of Congress, 383; Calhoun, Works, V, 191. 

27 Italics in the report are mine. 



57° YALE LAW JOURNAL 

lawful for any postmaster to receive and put in the mail any pub- 
lication addressed to a jurisdiction where its circulation was for- 
bidden. It was made a crime to deliver such prohibited mail to 
any person not "duly authorized * * * * to receive the 
same" by the local authorities, and there was a further provision 
that the laws of the United States should not be allowed to pro- 
tect any postmaster accused of violating the local laws. By this 
means Calhoun thought to preserve the liberty of the press and 
hand the matter over to the states for their settlement. 28 The 
several constitutional questions raised by the bill which then was, 
and even now would be, considered a dangerous method of deal- 
ing with the problem, caused a long drawn out debate. 

The proposed law, Webster contended, "conflicted with that 
provision in the Constitution which prohibited Congress from 
passing any law to abridge the freedom of speech or of the press. 
What was the liberty of the press"? he asked. "It was the lib- 
erty of printing as well as the liberty of publishing, in all the ordi- 
nary modes of publication ; and was not the circulation of papers 
through the mails an ordinary mode of publication ? * * * * 
Congress might, under this example, be called upon to pass laws 
to suppress the circulation of political, religious, or any other de- 
scription of publications which produced excitement in the 
States." Finally, "Congress had not the power, drawn from the 
character of the paper, to decide whether it should be carried in 
the mail or not ; for such decision would be a direct abridgment 
of the freedom of the press." 28 

Clay argued to the same effect, considering the bill uncalled 
for by public sentiment, unconstitutional, and containing "a prin- 
ciple of a most dangerous and alarming character." 80 Buchan- 
an's views, however, were different. 

"It was one thing [he said] not to restrain or punish publica- 
tions ; it was another and an entirely different thing to carry and 
circulate them after they have been published. The one is merely 
passive, the other is active. It was one thing to leave our citizens 
entirely free to print and publish and circulate what they pleased, 
and it was another thing to call upon us to aid in their circulation. 
From the prohibition to make any law 'abridging the freedom of 
speech or of the press', it could never be inferred that we must 

28 12 Debates of Congress, 383. 

29 12 Debates, 1721. 

30 12 Debates, 1728. 



THE FREEDOM OF THE PRESS 571 

provide by law for the circulation through the post office of every- 
thing which the press might publish." 81 

Objectional features other than the one which affected the lib- 
erty of the press contributed to the result that when the bill came 
up for final consideration on June 8, 1836, it failed of passage. 
The courts, therefore, were not called upon to pass upon the con- 
stitutional questions involved. 82 

As above indicated, Calhoun assumed the unconstitutionality of 
the Sedition Act. But if we deny this (and enough has been said 
to show that, leaving out of consideration the immaterial ques- 
tion of whether Congress has the power to punish for seditious 
utterances, its exercise would not, in the premises, abridge the 
freedom of the press) it therefore follows that Congress could 
punish for incendiary, inflammatory appeals whose object was to 
incite a portion of the population, the slaves, to take measures to 
secure their freedom, if the measures urged were the illegal over- 
throw of constituted authority, and prejudicial to the security of 
the Federal government, or, in short, seditious. The difficulty in 
this case was, as Senator Davis of Massachusetts pointed out, 
that, 

"Incendiary matter is anything unfavorable to slavery. The 
general principle urged by the Senator from Carolina is, that 
where the States have power to legislate, the United States are 
bound to carry into execution their laws. They have power to 
prohibit the circulation of incendiary matter, and therefore Con- 
gress ought to aid that power." 

But to this "there are insurmountable difficulties. How, and by 
whom, is this law to be executed? Who is to determine, and in 

31 12 Debates, 1724. 

32 The bill was in amended form and no longer required that the post- 
masters know the laws of the places to which the mail they received was 
directed. It was simply made an offense to deliver a publication where its 
circulation was forbidden. The analogy between Calhoun's bill and the 
recent Webb-Kenyon Act is noticeable. The purpose of each is substan- 
tially the same, although the method is slightly different. Calhoun's bill 
furnished positive legislation and attached penalties, while the Webb-Ken- 
yon Act simply excludes from interstate commerce intoxicating liquor in- 
tended to be used in violation of the law of the destination, providing no 
penalties and merely taking from the offender when the State attempts to 
punish, his hitherto valid defense that the local authority was interfering 
with interstate commerce. See my paper, 1 California Law Review, 499 
(1913). 



572 YALE LAW JOURNAL 

what manner, whether the Constitution of Massachusetts, which 
declares that all men are born free and equal, or the Declaration 
of Independence * * * * touch the subject of slavery or 
are incendiary? * * * * whoever holds this power may 
shut up the great channels of inter-communication ; may obstruct 
the great avenues through which intelligence is disseminated." 33 

Nevertheless, as the Supreme Court has often pointed out, the 
possible abuse of a power does not furnish a valid argument 
against its existence; 84 and if there had been passed a Federal 
law directed against the publication of incendiary matter, it would 
have been for the courts to determine whether they were merely 
expressions of political opinions, or really dangerous and sub- 
versive of the general government. 

It is a different question, however, which is presented when 
the power of Congress to exclude from the mails is considered, 
and the law as laid down by the Supreme Court was foreshad- 
owed in the Senatorial debate when Buchanan declared that 
"from the prohibition to make any law 'abridging the freedom of 
speech or of the press" it could never be inferred that we must 
provide by law for the circulation through the post office of 
everything the press might publish." 

On the face of it, Calhoun's argument that stoppage of circu- 
lation through the mails is tantamount to a stoppage of publica- 
tion is not conclusive. 85 While Congress has no power directly to 
legislate upon a number of subjects exclusively in the control of 
the States, such as lotteries, obscene publications, and printing in 
general, it can say that an instrument of the Federal Government 
is not to be misused by the circulation of such publications ; that 
the post office is not to be an agent in the promotion of crime, in 
the dissemination of obscene matter, and that a public institution 
need not aid incendiaries and anarchists in their endeavors to ef- 
fect the overthrow of the government itself. The guarantee of 
the freedom of the press does not take such power from Con- 
gress. Nevertheless, to deny Calhoun's argument and accept the 

38 12 Debates, 1103, 1105. 

34 1 Willoughby on the Constitution, 19, and authorities there cited. 

35 It would seem that in Ex Parte Jackson, 96 U. S. 727 (1878), an ex- 
plicit denial of Calhoun's proposition was made when the court said : "We 
do not think that Congress possesses the power to prevent the transporta- 
tion in other ways, as merchandise, of matter which it excludes from the 
mails", but this would seem to have been inferentially repudiated by the 
Lottery Case, (sub. nom. Champion v. Ames) 188 U. S. 321 (1902). 



THE FREEDOM OF THE PRESS 573 

above statment of the law is not to admit that Federal power over 
the mails is arbitrary, or that a particular exercise will be sanc- 
tioned, no matter what its purpose, intent, or effect. 86 

Although in several instances it has been almost vehemently 
urged that assailed statutes of Congress abridged the freedom of 
the press, the Supreme Court has never considered the arguments 
sufficiently well founded to merit more than a bare denial. In Ex 
Parte Jackson, the court remarked that 

"In excluding various articles from the mails the object of Con- 
gress has not been to interfere with the freedom of the press, or 
with any other rights of the people, but to refuse the facilities for 
the distribution of matter deemed injurious to the public morals. 

"Nor can any regulation be enforced against the transportation 
of printed matter in the mail, which is open to examination, so as 
to interfere in any manner with the freedom of the press. Lib- 
erty of circulation is essential to that freedom as liberty of pub- 
lishing; indeed, without the circulation the publication would be 
of little value." 37 

In the later case of In Re Rapier,™ where the issue was the 
validity of the Act of 1890, 39 denying the privileges of the post 
office to newspapers which contained lottery advertisements, the 
Court was content with a simple affirmation of the Jackson case, 
in practically identical language, but in a later decision held that 
Congress may refuse "to include in its mails such printed matter 
or merchandise as may seem objectionable to it upon the ground 
of public policy, as dangerous to its employees or injurious to 
other mail matter carried in the same packages. * * * * 

"For more than thirty years not only has the transmission of 
obscene matter been prohibited, but it has been made a crime, 
punishable by fine or imprisonment, for a person to deposit such 
matter in the mails. The constitutionality of this law we believe 
has never been attacked. The same provision was by the same 

86 In 1857, Attorney General Cushing rendered an opinion in which he 
held that "a deputy postmaster or other officer of the United States is not 
required by law to become, knowingly, the enforced agent or instrument 
of enemies of the public peace, to disseminate, in their behalf, within the 
limits of any one of the States of the Union printed matter, the design 
and tendency of which are to promote insurrection in such State." 8 
Opinions of the Attorney General, (U. S.) 489. 

"96 U. S. 727 (1878). 

as 143 U. S. 110 (1892). 

3» 26 Stat, at L. 46S. 



574 YALE LAW JOURNAL 

act extended to letters and circulars connected with lotteries and 
gift enterprises, the constitutionality of which was upheld by this 
court." 40 

But even this moderate exercise of police power over the mails 
and its justification by the Supreme Court have been objected to. 
One writer, for instance, argues that "under the pretext of regu- 
lating the mails," Congress controls "the psycho-sexual condition 
of the postal patrons." "The statute," he goes on to say, "fur- 
nishes no standard or test by which to differentiate what book is 
obscene from that which is not." 41 

Such a contention; so far as it is one of constitutional weakness 
in Congress, is plainly invalid, since immoral libels are an offence 
at the common law, "not because it is either the duty or province 
of the law to promote religion or morality by any direct means 
or punishments, but because the line must be drawn between what 
is and is not the average tone of morality which each person is 
entitled to expect at the hands of his neighbor as the basis of 
their mutual dealings." 42 The fallacy of the constitutional argu- 
ment lies in the fact that the grant of the postal power (to bor- 
row language used by the Supreme Court in a commerce case) "is 
complete in itself and that Congress, as an incident to it, may 
adopt not only means necessary but convenient to its exercise, and 
the means may have the quality of police regulations." 48 

The statutes against obscene literature and lotteries in the mails 
apply directly to the res; the punitive features may and do oper- 
ate in personam, but the right of individuals to use the mails is 
not an absolute one ; it is the right to be exercised only in moral- 
ity, and not in immorality. "It is a right given for beneficial exer- 
cise which is attempted to be perverted to and justify baneful ex- 
ercise. * * * * This constitutes the supreme fallacy of the 
plaintiffs' error. It pervades and vitiates their contentions." 44 
Or, as Senator McComas well said: 45 

4° Public Clearing House v. Coyne, .194 U. S. 497 (1904), but see 
Dunlop v. U. S., 165 U. S. 486 (1897), and U. S. v. Popper, 98 Fed. 423 
(1899). 

41 Theodore Schroeder, Free Press Anthology, 171 (1909). See also 
his "Obscene" Literature and Constitutional Law (1911). 

42 Patterson, Liberty of the Press, etc., 69. 

**Hoke v. U. S., 227 U. S. 308 (1913), upholding the so-called Mann 
White Slave Act (36 Stat, at L. 825). 

44 Hoke v. U. S., supra. 

45 Speech in the Senate, Dec. 5, 1901 (35 Cong. Rec. 143). 



THE FREEDOM OF THE PRESS 575 

"It was never intended or supposed that this first amendment 
could be invoked as a protection against legislation for the pun- 
ishment of acts inimical to the peace, good order, and morals of 
society." 46 

Certain it now is, that under the decisions of the Supreme 
Court, Congress has the power to exclude from the mails "such 
printed matter or merchandise as may seem objectionable to it 
upon the ground of public policy, as dangerous to its employees 
or injurious to other mail matter carried in the same packages." 47 
This is the rule as it stands at present ; but it may well be that the 
Supreme Court has not yet laid down definite limits to Congres- 
sional power. 

The question of anarchistic publications and the post office was 
raised in March, 1908, when President Roosevelt wrote to Attor- 
ney-General Bonaparte : 48 

"By my direction the Postmaster General is to exclude La 
Questione Sociale of Paterson, N. J., from the mails, and it will 
not be admitted to the mails unless by order of the court, or un- 
less you advise me that it must be admitted." 49 

46 Special exception is taken by Mr. Hannis Taylor to the doctrines 
of the Rapier case. He says : "The Act against the circulation of immoral 
literature, which was not drawn in a paroxysm of excitement, exhausts 
the entire constitutional authority over the intellectual contents of docu- 
ments passing through the mails that Congress can exercise." And refer- 
ring to the exclusion of lottery tickets and advertisements: "This new- 
born heresy — created to meet a special emergency — will be utterly repudi- 
ated by the American people the moment when the despotic and irrespon- 
sible power over opinion with which the fiat of the Supreme Court has 
armed Congress, is applied, as it surely will be, to some subject which will 
arouse and quicken the public conscience." North American Review, De- 
cember, 1892. 

47 Public Clearing House v. Coyne, supra. 

48 60th Congress, 1st Session, Senate Doc. 426. 

49 The paper in question was undoubtedly anarchistic in its tendencies 
and certain of its sentiments were seditious libels. One editorial, for in- 
stance, contained the following: 

"Dynamite will help us to win. Two or three of us can defy a regi- 
ment of soldiers without fear. * * * Show no sympathy for any soldiers, 
even if they be sons of the people. As soon as we get hold of the police 
station it is our victory. The thing is to kill the entire force. * * * We 
must get into the armory; and in case we cannot, then we will blow it 
down with dynamite. * * * We must set fire to three or four houses in 
different locations * * * and then start a fire in the center of the city." 



576 YALE LAW JOURNAL 

In reply to the President's letter, Secretary Bonaparte wrote : 

"I am obliged to report that I can find no express provision of 
law directing the exclusion of such matter from the mails, or 
rendering its deposit in the mails an offense against the United 
States" ; but "I have the honor to advise you that it is clearly and 
fully within the power of Congress to exclude from the mails 
publications" such as La Questione Sociale, "and to make the use, 
or attempted use, of the mails for the transmission of such writ- 
ings a crime against the United States." 

What Congress thought of anarchy, Mr. Bonaparte said, was 
shown by the Act of March 7, 1907, 50 excluding and providing 
for the deportation of anarchists, and the Attorney-General made 
this implied expression of legislative opinion (even though in 
1903 Congress had expressly refused to pass a law directed 
against anarchistic publications) a sufficient basis to legalize the 
action of the President and exclude newspapers which advanced 
the opinions quoted. The Attorney-General's opinion concluded : 

"In the absence of any express provisions of law or binding ad- 
judication on this precise point, * * * * I advise you that, 
in my opinion, the Postmaster General will be justified in exclud- 
ing from the mails any issue of any periodical, otherwise entitled 
to the privileges of second class mail matter, which shall contain 
any article constituting a seditious libel and counseling such 
crimes as murder, arson, riot, and treason." 

Such action, the opinion said, would be perfectly safe, since "it 
is well settled that at common law the owner of a libelous picture 
or placard or document of any kind is entitled to no damages for 
its destruction in so far at least as its value may depend on its un- 
lawful significance." Hence the Federal statutes which provide 
punishment for postmasters who may "unlawfully detain" or 
"improperly detain" mailable matter would not operate. 51 

As a matter of fact, the newspaper was excluded for reasons 
other than its contents, but President Roosevelt transmitted the 
Attorney-General's opinion to Congress and in a special message 
said: 

50 34 Stat, at L. 908. 

51 R. S. Sees. 3890, 5471. But is this illustration on all fours with the 
question of illegally excluding La Questione Sociale? Mr. Bonaparte 
mentions the fact that while the article "constitutes a seditious libel, and 
its publication, in my opinion, is undoubtedly a crime at common law" it is 
not an "offense against the United States in the absence of some Federal 
Statute making it one." U. S. v. Hudson & Goodwin, 7 Cranch, 32 (1812). 



THE FREEDOM OF THE PRESS 577 

"Under this opinion I hold that the existing statutes give the 
President the power to prohibit the Postmaster General from be- 
ing used as an instrument in the commission of crime ; that is, to 
prohibit the use of the mails for the advocacy of murder, arson, 
and treason ; and I shall act upon such construction. Unquestion- 
ably, however, there should be further legislation by Congress in 
this matter. When compared with the suppression of anarchy, 
every other question sinks into insignificance." 

The Attorney-General, in his opinion, it may be remarked, did 
not mention the freedom of the press, and this question was hot 
involved. From what has already been said, it follows that there 
is no question of the competency of Congress to pass legislation 
designed to deny the mails to anarchistic publications. But the 
Attorney-General's argument as to the power of the President was 
not well founded; it granted to an administrative officer arbitrary 
discretion based on no explicit or implied legislative authority, 
and sanctioned the exercise of this power on the ground that no 
legal redress could be had. It is, however, simply a question of 
whether the action of the President was ultra vires, not whether 
it was an abridgment of the freedom of the press. 52 

The latest question of the freedom of the press was considered 
by the Supreme Court last year when it sustained the so-called 
"newspaper publicity law." This required publications entered as 
second-class matter (with a few exceptions) to furnish the post 
office department with, and publish semi-annually, a sworn state- 
ment of their editors and owners, in addition to marking as an 
advertisement anything for the publication of which compensa- 
tion is received. Newspapers are also required to print their cir- 
culation figures. 53 

The law was vigorously assailed as being ultra vires, as deny- 
ing due process of law and abridging the freedom of the press. 

52 In U. S. ex rel. Turner v. Williams, 194 U. S. 279 (1904), the Su- 
preme Court held that the provisions of the immigration act of 1903 (32 
Stat, at L. 1213) for the exclusion and deportation of alien anarchists did 
not violate any constitutional limitations, and that the freedom of the 
press was not involved. 

"If the word 'anarchists' should be interpreted as including aliens whose 
anarchistic views are professed as those of political philosophers innocent 
of evil intent, * * * in the light of previous decisions, the act, even in this 
aspect, would not be unconstitutional, as applicable to any alien who is 
opposed to all organized government." 

™ 37 Stat, at L. SS3, Ch. 389. 



578 YALE LAW JOURNAL 

The Supreme Court, however, sustained the statute, by a narrow 
line of reasoning. The opinion showed that in order to receive 
"entry" as second-class matter and get the benefit of the low rates, 
the publication must answer a number of questions, concerning 
ownership, editorial supervision, circulation, sample copies, and 
advertising discrimination. The Court considered the newspaper 
law as simply laying down new conditions, compliance with which 
would enable the publishers to continue "to enjoy great privileges 
and advantages at the public expense." The Court said: 

"This being true, the attack on the provision in question as a 
violation of the Constitution because infringing the freedom of 
the press and depriving of property without due process of law, 
rests only upon the illegality of the conditions which the provision 
exacts in return for the right to enjoy the privileges and advan- 
tages of the second-class mail classification. The question, there- 
fore, is only this: Are the conditions which were exacted inci- 
dental to the power exerted of conferring on the publishers of 
newspapers, periodicals, etc., the privileges of the second-class 
classification, or are they so beyond the scope of the exercise of 
that power as to cause the conditions to be repugnant to the Con- 
stitution? We say this is the question, since necessarily if the 
power exists to legislate by discriminating in favor of publish- 
ers, the right to exercise that power carries with it the authority 
to do those things which are incidental to the power itself, or 
which are plainly necessary to make effective the principal au- 
thority when exerted." 54 

Whether this reasoning seems convincing or not, it must never- 
theless be conceded that legislation to the same effect, not based 
upon the power of Congress over the mails would be unconstitu- 
tional, and that in this case, Congress has been permitted to do 
by indirection what it has not the power directly to accomplish. 
The step is a short one to requiring, for a continuance of the low 
second-class rates, that newspapers print, or refrain from print- 
ing, reading matter of a specified character. The decision, how- 
ever, lends no support to the belief that if this indirect regulation 
is carried further, or if there is a real interference with the free- 
dom of the press, the Supreme Court will not intervene. 55 

54 Lewis Publishing Co. v. Morgan, 229 U. S. 288 (1913). 

55 For a more extended discussion of this question, see my paper, 27 
Harvard Law Review, 27 (Nov. 1913). 



THE FREEDOM OF THE PRESS 579 

IV. CONCLUSIONS. 

Such are the constitutional incidents in which the liberty of the 
press has figured, and this review comes to the conclusion, that 
in no case has it been abridged. The executive order of Presi- 
dent Roosevelt to exclude La Questione Sociale from the mails 
was ultra vires, but, as Attorney-General Bonaparte cleverly 
pointed out, the injured parties had slight chance of a remedy at 
law. Certain it is that the paper in question was so seditious that 
under a state statute publication could have been stopped, and 
that an Act of Congress, forbidding such periodicals the privilege 
of the mails, would not have been in violation of the First Amend- 
ment. 

The decisions of the Supreme Court which have been quoted 
lead to no conclusion other than that any attempt on the part of 
Congress to place a previous restraint upon the press, or even to 
deny it postal facilities, for no discernible reason, would receive 
a judicial veto. The exclusion of obscene matter, lottery tickets, 
and other writings inimical to the public morals, has been clearly 
within the power of Congress, and legislation forbidding seditious 
and anarchistic publications, or banning them from the mails, 
would be constitutional. 

It is true that the recent newspaper publicity law, strictly 
speaking, is a previous restraint, but the Supreme Court consid- 
ered it as merely laying down additional and valid conditions up- 
on compliance with which, periodical publications would be per- 
mitted to continue to enjoy the great and exclusive advantages of 
second-class privileges, — a satisfactory, if not conclusive basis 
for the decision. 

Neither reason nor precedent justifies the view, eloquently 
urged by counsel in this case, that Congress by the law exercises 
"a govermental control over newspaper publishers and dictates to 
them what shall not be published and the manner, form and time 
of publishing." On the contrary, that great "palladium of lib- 
erty" — the freedom of the press — seems to be in no danger of 
demolition through Congressional action. 

Lindsay Rogers. 

Johns Hopkins University.