FREEDOM OF SPEECH IN WAR TIME 963 of criminal attempt and incitement are well settled.^® The first requirement is the intention to bring about the overt criminal act. But the law does not punish bad intention alone, or even every- thing done with a bad intention. A statute against murder will not be construed to apply to discharging a gun with the intention to kill a man forty miles away.^°° Attempts and incitement to be punish- able must come dangerously near success. A speaker is guilty of solicitation or incitement to a crime only if he would have been indictable for the crime itself, had it been committed, either as accessory or principal.^"^ Consequently, no one should have been held under clauses (2) and (3) of the Espionage Act of 191 7 who did iiot satisfy these tests of criminal attempt and incitement. As Jus- tice Holmes said in Commonwealth v. Peaslee,^^^ "It is a question of degree." We can suppose a series of opinions, ranging from "This is an unwise war" up to "You ought to refuse to go, no matter what they do to you," or an audience varying from an old women's home to a group of drafted men just starting for a training-camp. Some- where in such a range of circimistances is the point where direct causation begins and speech becomes punishable as incitement under the ordinary standards of statutory construction and the ordinary policy of free speech, which Judge Hand applied. Congress could push the test of criminality back beyond this point, although eventually it would reach the extreme limit fixed by the First Amendment, beyond which words cannot be restricted for their remote tendency to hinder the war. In other words, the ordinary tests punish agitation just before it begins to boil over; Congress could change those tests and punish it when it gets really hot, but it is unconstitutional to interfere when it is merely warm. And there is not a word in the 191 7 Espionage Act to show that Congress did change the ordinary tests or make any speech criminal except false statements and incitement to overt acts. Every word used, " cause," Rev. 491, 506, note i; but attempts to commit offences under the 1917 Espionage Act would naturally be by incitement. ^ Joseph H. Beale, "Criminal Attempts," 16 Harv. L. Rev. 491; Commonwealth v. Peaslee, 177 Mass. 267, 59 N. E. 55 (1901), Holmes, C. J.; United States v. Stephens 12 Fed. 52 (Ore. 1882), Deady, D. J. See also 32 Harv. L. Rev. 417. '"" United States v. Stephens, supra, illustrates the same principle. ^"^ See Beale, supra, 16 Harv. L. Rev. 491, 505. Under the federal statutes he would be a principal. Rev. Stat. §§ 5323, 5427, March 4, 1909, c. 321 § 332; 35 Stat. AtL. 1152; U. S. CoMP. Stat. 1918, § 10506 (Crim. Code, § 332). i°* 177 Mass. 267, 272, 59 N. E. 55 (1901). r
