938 HARVARD LAW REVIEW subject to a problematical limit, it is necessary to determine where the line runs between utterance which is protected by the Con- stitution from governmental control and that which is not. Many attempts at a legal definition of that line have been made/^ but two mutually inconsistent theories have been especially successful in winning judicial acceptance, and frequently appear in the Espion- age Act cases. One theory construes the First Amendment as enacting Black- stone's statement that "the liberty of the press . . . consists in laying no previous restraints upon publications and not in freedom from censure for criminal matter when published." ^* The Hne where legitimate suppression begins is fixed chronologically at the time of publication. The government cannot interfere by a censor- ship or injunction before the words are spoken or printed, but can punish them as much as it pleases after publication, no matter how harmless or essential to the public welfare the discussion may be. This Blackstonian definition found favor with Lord Mansfield,^^ and is sometimes urged as a reason why libels should not be en- joined. ^^ It was adopted by American judges in several early prosecutions for libel,^^ one of which was in Massachusetts,^^ whence Justice Holmes carried it into the United States Supreme Court.^^ Fortunately he has now repudiated this interpretation of freedom of speech,^" but not until his dictum had had considerable influence, particularly in Espionage Act cases.^^ Of course if the First Amend- " See a discussion by Dean Pound of two views besides Blackstone's in 29 Harv. L. Rev. 640, 651. The view mentioned as Story's is really that of St. George Tucker, whom Story was criticising. 2 Story, Constitution, § 1886. " 4 Blackstone, Commentaries, 151.
- King V. Dean of St. Asaph, 3 T. R. 428, 431 (1789): "The liberty of the press
consists in printing without any previous licence, subject to the consequence of law." " See Roscoe Pound, "Equitable Relief against Defamation and Injuries to Per- sonality," 29 Harv. L. Rev. 651. Recent Federal cases are American Malting Co. v. Keitel, 209 Fed. 351 (C. C. A. 2d, 1913); Willis v. O'Connell, 231 Fed. 1004 (S. D. Ala. 1916). " Respublica i;. Oswald, i Dall. (U. S.) 319, 325 (Pa., 1788), McKean, J.; Trial of William Cobbett, for Libel, Wharton's State Trials, 322, 323 (Pa., 1797), McKean, J.; Respublica v. Dennie, 4 Yeates (Pa.) 267, 269 (1805). See Schofield in 9 Proc Am. Sociol. Soc. 69. " Commonwealth v. Blanding, 3 Pick. (Mass.) 304, 313 (1825). ^' Patterson v. Colorado, 205 U. S. 454, 462 (1907). 2° Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247, 249 (1919). ^ Masses Pub. Co. v. Patten, 246 Fed. 24, 27 (C. C. A. 2d, 1917); United States v. Coldwell, Bull. Dept. Just., No. 158 (D. C. R. I.) 4-
