' FREEDOM OF SPEECH IN WAR TIME 943 To argue that the federal Constitution does not prevent punish- ment for criminal utterances begs the whole question, for utterances within its protection are not crimes. If it only safeguarded lawful speech, Congress could escape its operation at any time by making any class of speech unlawful. Suppose, for example, that Congress declared any criticism of the particular administration in office to be a felony, punishable by ten years' imprisonment. Clearly, the Constitution must limit the power of Congress to create crimes. But how far does that limitation go? Cooley suggests that the legislative power extends only to speech which was criminal or tortious at common law in 1791. No doubt, conditions then must be considered, but must the legislature leave them unchanged for all time? Moreover, the few reported American cases before 1791 prove that our common law of sedition was exactly like that of Eng- land, and it would be extraordinary if the First Amendment enacted the English sedition law of that time, which was repudiated by every American and every liberal EngUshman, and altered by Parliament itself in the very next year, 1792.^^ Clearly, we must look further and find a rational test of what is use and what is abuse. Saying that the line Hes between them gets us nowhere. And "license" is too often "Hberty" to the speaker, and what happens to be anathema to the judge. We can, of course, be sure that certain forms of utterance, which have always been crimes or torts at common law, are not within the scope of the free speech clauses. The courts in construing such clauses have, for the most part, done little more than place obvious cases on this or that side of the line. They tell us, for instance, that Ubel and slander are actionable, or even punishable, that indecent books are criminal, that it is contempt to interfere with pending judicial proceedings, and that a permit can be required for street meetings; and on the other hand, that some criticism of the govern- ment must be allowed, that a temperate examination of a judge's opinion is not contempt, and that honest discussion of the merits of a painting causes no liability for damages. But when we ask where the line actually runs and how they know on which side of it a given utterance belongs, we find no answer in their opinions. Justice Hohnes in his Espionage Act decisions had a magnificent ^ 2 May, Constitutional History of England, Chap. IX; 2 Stephen, History OF THE Criminal Law, Chap. XXIV.
