940 HARVARD LAW REVIEW Great Britain, as an ally of ours," and "to make us a little bit slack in our loyalty to Great Britain in this great catastrophe." On the other hand it is hardly necessary to argue that the Black- stonian definition gives very inadequate protection to the freedom of expression. A death penalty for writing about socialism would be as effective suppression as a censorship .^^ Cooley's comment on Blackstone is unanswerable : ^^ . . . "The mere exemption from previous restraints cannot be all that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a b3rword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harm- less publications, . . . Their purpose [of the free-speech clauses] has evidently been to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. . . . The evils to be pre- vented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens." If we turn from principles to precedents, we find several decisions which declare the constitutional guarantee of free speech to be violated by statutes and other governmental action which imposed no previous restraint but penalized pubHcations after they were made.^^ And most of the decisions in which a particular statute
- ^ "Free speech, like every form of freedom, goes in danger of its life in war time.
The other day in Russia an Englishman came on a street-meeting shortly after the first revolution had begmi. An extremist was addressing the gathering and telling them that they were fools to go on fighting, that they ought to refuse and go home, and so forth. The crowd grew angry, and some soldiers were for making a rush at him; but the chairman, a big burly peasant, stopped them with these words: 'Brothers, you know that our country is now a country of free speech. We must Usten to this man, we must let him say anything he will. But, brothers, when he's finished, we'll bash his head in!'" John Galsworthy, "American and Briton," 8 Yale Rev. 27 (October, 191 8).
- ' CooLEY, Constitutional Limitations, 7 ed., 603, 604.
- Louthan v. Commonwealth, 79 Va. 196 (1884) — statute pimishing school super-
intendent for political speeches; Atchison, etc. Ry. v. Brown, 80 Kans. 312, 102 Pac.
