942 HARVARD LAW REVIEW no right to use them so as to mjure his fellow-citizens or to endanger the vital interests of society. Immunity in the mischievous use is as incon- sistent with civil liberty as prohibition of the harmless use. . . . The liberty protected is not the right to perpetrate acts of licentiousness, or any act inconsistent with the peace or safety of the State. Freedom of speech and press does not include the abuse of the power of tongue or pen, any more than freedom of other action includes an injurious use of one's occupation, business, or property." The decisions in the war are full of similar language. ^^ Practically the same view is adopted by Cooley,^^ that the clauses guard against repressive measures by the several departments of government, but not against utterances which are a public oflFense, or which injure the reputation of individuals. "We understand liberty of speech and of the press to imply not only liberty to publish, but complete immunity from legal censure and punishment for the publication, so long as it is not harmful in its char- acter, when tested by such standards as the law affords. For these standards we must look to the common-law rules which were in force when the constitutional guaranties were established, and in reference to which they have been adopted." To a judge obliged to decide whether honest and able opposition ■ to the continuation of a war is punishable, these generalizations furnish as much help as a woman forced, like Isabella in "Measure for Measure," to choose between her brother's death and loss of honor, might obtain from the pious maxim, "Do right." What is abuse? What is license? What standards does the law afford? ^ Mayer, J., in United States v. Phillips, Bull. Dept. Just., No. 14 (S. D. N. Y., 1917), 5: "In this country it is one of our foundation stones of liberty that we may freely discuss anything we please, provided that that discussion is in conformity with law, or at least not in violation of it." Mayer, J., in United States v. Goldman, Buxl. Dept. Just., No. 41 (S. D. N. Y., 1917), 2: "No American worthy of the name believes in anything else than free speech; but free speech means, not license, not counseling disobedience of the law. Free speech means that frank, free, full, and orderly ex- pression which every man or woman in the land, citizen or alien, may engage in, in lawful and orderly fashion." Van Valkenburgh, J., in United States v. Stokes, Bull. Dept. Just., No. 106 (W. D. Mo., 1918), 12: "No one is permitted under the consti- tutional guaranties to commit a wrong or violate the law." See also United States v. Pierce, ^ULL. Dept. Just., No. 52 (S. D. N. Y., 1917), 22, Ray, J.; United States v. Nearing, Bull. Dept. Just., No. 192 (S. D. N. Y., 1917), 4, Mayer, J. ^ Cooley, Constitutional Limitations, 7 ed., 605; quoted by Hough, J., in Fraina v. United States, 255 Fed. 28, 35 (C. C. A. 2d, 1918).
