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JACKSON, J., dissenting.
protection of interstate commerce. When the Federal Government puts liberty of press in one scale, it has a very limited duty to personal reputation or local tranquillity to weigh against it in the other. But state action affecting speech or press can and should be weighed against and reconciled with these conflicting social interests.
For these reasons I should not, unless clearly required, confirm to the Federal Government such latitude as I think a State reasonably may require for orderly government of its manifold concerns. The converse of the proposition is that I would not limit the power of the State with the severity appropriately prescribed for federal power.
As the principle by which to judge the constitutionality of this statute, I accept the dissent in Gitlow and the decision in Palko.
What restraints upon state power to punish criminal libel are implied by the “concept of ordered liberty”? Experience by Anglo-Saxon peoples with defamation and laws to punish it extends over centuries and the statute and case books exhibit its teachings. If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression.
Oppressive application of the English libel laws was partially checked when Fox's Libel Act of 1792 allowed the jury to determine whether an accused publication was libelous in character and more completely when Lord Campbell's Libel Act of 1843 allowed truth to be proved as a defense.
American experience teaches similar lessons. The leading state case is People v. Croswell, 3 Johns. (N. Y.) 337. JACKSON, J., dissenting.
Since, as the opinion of this Court now points out, the Jeffersonian's objection to federal sedition prosecutions was largely fear of federal usurpation of state powers over the subject, it was consistent for them to prosecute libels under state law. Croswell, publisher of the aptly named Wasp, was indicted for libeling Thomas Jefferson by representing him as unworthy of the confidence, respect, and attachment of the people. The trial judge pronounced his statements libelous as a matter of law and allowed the jury to decide no question except whether the accused had published them. The defendant was convicted and on his appeal, argued by Alexander Hamilton, the appellate court divided equally. Justice Kent, however, filed a characteristically learned and vigorous opinion that the trial court must submit the libelous character of the article and libelous intent of its printer to decision by the jury, which was entitled to determine both law and fact. The public response was such that an early session of the Legislature substantially enacted Kent's contentions. Inasmuch as no judgment had been entered upon the earlier equal division, the court at its August 1805 Term, “in consequence of this declaratory statute," unanimously awarded a new trial.10
The New York Constitution at that time contained no free speech provision but the case led to a provision included in the Constitution of 1821 which both followed Fox's Libel Act and anticipated Lord Campbell's Act and has remained in the several Constitutions of that State since:
“Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments
10 3 Johns. (V. Y.) 337, 413.
JACKSON, J., dissenting.
for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to
determine the law and the fact." 11 It would not be an exaggeration to say that, basically, this provision of the New York Constitution states the common sense of American criminal libel law. Twentyfour States of the Union whose Constitutions were framed later substantially adopted it. Twelve States provide that press and speech shall be free but there shall be responsibility for the abuse. Five others provide substantially the same but add that truth may be given in evidence in a libel prosecution. Only five States, whose Constitutions were framed earlier, were content with the generality about the free press similar to that of Massachusetts. But all of these States, apart from consti
11 Const. 1821, Art. VII, § 8; Const. 1846, Art. I, § 8; Const. 1894, Art. I, § 8; Const. 1938, Art. I, § 8.
12 Arkansas, California, Colorado, Delaware, Florida, Iowa, Kansas, Maine, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Utah, Wisconsin, and Wyoming. For citations to article and section, see n. 6, supra.
13 Arizona, Georgia, Idaho, Kentucky, Louisiana, Maryland, Michigan, Minnesota, North Carolina, Oregon, Virginia, and Washington. The Georgia provision (Const. 1877, Art. I, § 1, par. 15), representative of the rest, reads: “... any person may speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that liberty.” For citations to article and section, see n. 6, supra.
14 Alabama, Illinois, Indiana, Rhode Island, and West Virginia. For citations to article and section, see n. 6, supra.
15 Connecticut, Const. 1818, Art. I, § 6; New Hampshire, Const. 1784, Part I, Art. 22; South Carolina, Const. 1895, Art. I, § 4; Vermont, Const. 1793, c. I, Art. 13. The Massachusetts provision (Const. 1780, Part I, Art. XVI) reads as follows: “The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth."
JACKSON, J., dissenting.
tutional provision, have by decisional law recognized the validity of criminal libel prosecutions.16
Because of these safeguards, state libel laws have presented no threat to a free press comparable to that from federal sources and have not proved inconsistent with fundamental liberties. Attacks on the press by States which were frustrated by this Court in Near v. Minnesota, supra, and Grosjean v. American Press Co., 297 U. S. 233, were not by libel laws. For near a century and a half this Court's decisions left state criminal libel prosecutions entirely free of federal constitutional limitations. It is a matter of notoriety that the press often has provoked hostility, that editors have been mobbed and horsewhipped, but criminal libel prosecutions have not been frequent and, as safeguarded by state law, they have been so innocuous that chronicles of American journalism give them only passing mention."
This Court, by construction of the Fourteenth Amendment, has imposed but one addition to the safeguards voluntarily taken upon the States by themselves. It is that where expression, oral or printed, is punished, although it has not actually caused injuries or disorders but is thought to have a tendency to do so, the likelihood of such consequence must not be remote or speculative. That is the “clear and present danger" test which Mr. Justice Holmes and Mr. Justice Brandeis, eventually with support of the Court, thought implied in both the First and Fourteenth Amendments,'' although the former was
16 State v. Gardner, 112 Conn. 121, 151 A. 349; Commonwealth v. Szliakys, 254 Mass. 424, 150 N. E. 190; Noyes v. Thorpe, 73 X. H. 481, 62 A. 787; State v. Gurry, 163 S. C. 1, 161 S. E. 191; State v. Colby, 98 Vt. 96, 126 A. 510. Decisional law of other States is collected in Note, 1 Bflo. L. Rev. 258.
17 Lee, A History of American Journalism (Garden City, 1923). 18 Schenck v. United States, 249 U. S. 47, 52. 19 Gitlow v. New York, 268 U. S. 652, 672.
JACKSON, J., dissenting.
not bodily bound up in the latter. Any superficial inconsistency between applying the same standard but permitting a wider range of action to the States is resolved upon reference to the latter part of the statement of the formula: clear and present danger of those substantive evils which the legislature has a right to prevent. The evils at which Congress may aim, and in so doing come into conflict with free speech, will be relatively few since it is a government of limited powers. Because the States may reach more evils, they will have wider range to punish speech which presents clear and present danger of bringing about those evils.
In few subjects so much as libel does local law, in spite of varying historical influences, afford a consensus of American legal opinion as to what is reasonable and essential to the concept of ordered government. The boundaries are roughly outlined, to be sure, and cannot be stated or applied with mathematical precision, but those widely accepted state constitutional provisions on which is superimposed the “clear and present danger” test for “tendency' cases seem to be our best guide. I agree
with the Court that a State has power to bring classes of any race, color, creed, or religion" within the protection of its libel laws, if indeed traditional forms do not already accomplish it.20 But I am equally clear that in doing so it is essential to our concept of ordered liberty that the State also protect the accused by those safeguards the necessity for which is verified by legal history.
The Illinois statute, as applied in this case, seems to me to have dispensed with accepted safeguards for the accused. Trial of this case ominously parallels the trial of
20 It appears that group libel was not unknown to common law. See Scott, Publishing False News, 30 Can. B. Rev. 37, 42-43. .