The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-11-09

printing, books were burned as oHeno-
ers against the public welfare and the
! school histories all tell about Cover
nor Berkley's boast that free schools
and printing presses were not allowed
in Virginia. The proceedings OF the
convention which framed the con-
stitution of the United States were
conducted in secret. The provision
forbidding congress to pass any law
abridging the freedom of speech or OF
the press came into the constitution
by way of an amendment The de-
bates of the senate did not become
open to the public until 1898, and the
incident of the E1-Starred Sedition law
in our constitutional history shows
how far ideas relating to the protec-
ton of personal character and gov
ernmental institutions were then I'M
reconciled in legal theory with free
dom Of thought and expression upon
At the time the constitution of this
state was adopted some progress had
been made and some Qualification had
taken place. But statutory improve
ment had been hating and inefficient,
judicial decisions had often been
narrow, i1liberal and confusing, and
the main principles of the law of libel
remained substantially the same as
they were when Blackstone wrote. The
result is that liberty of the press is
still an underlined term, and like some
other familiar phrases of constitu-
uonal law must remain underlined.
cernible within which the liberty must
be displayed but precise rules cannot
be formulated in advance to govern
its exercise on particular occasions.
In the decision of controversies the
character, the organization, the needs
and the will of society at the present
time must be given due consideration.
The press as We know it today is al
most as modern as the telephone and
the monograph. The functions which
it performs at the present stage of our
social development, if not sub
stanttally different in kind
from what they have been, are mag
nified many fold and the opportunities
for its influence are multiplied many
times. Judicial Interpretation must
take cognizance of these facts. AS
Chief Justice Cockhurn said in de-
Gliding famous libel suit;a1a'i e.
Whatever disadvantages attach to
system of unwritten law. and of these
we are fully sensible, it has at least
this advantage. that its elasticity en-
ables those who administer it to adapt
it to the varying conditions of society,
and to the requirements and habits of
the age in which we live, so as to avoid
the Inconsistencies and injustice which
arise when the law is no longer in har-
mony with the wants and uSages and
interests of the generations to which 1t
is Immediately applied. "-(Wason V.
Walter, L. R. Q. B.. IS, SO, 1859
The constitutional guaranty clearly
means that the press shall be free from
previous government license, and the
decisions are quite uniform, but not
unanimous, that it shall be free from
court censorship through injunctions
against publication. Early writer's on
constitutional law and early cases say
that it means no more, but later COM !
mentators and later decisions maintain |
that it does mean more. Thus, Judge |
Cooley has said
But while We concede that liberty of
y, rNf Hoo. mi
complete exemption from responsibility |
for everything a citizen may say or |
publish and complete immunity to ruin |
the reputation or business of others So
far as falsehood and detraction may be |
able to accomplish that end, it is never |
theless believed that the mere exemp- |
ton from previous restraint 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 de- |
fusion, and the phrase itself a byword, |
if, while every man was at liberty to |
publish what he pleased, the public au~ |
thorities might nevertheless punish him |
for harmless publications. The |
evils to be prevented were not the CEN
sorship Of the press merely, but any ac- |
ton 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 or
their rights as citizens. The eonstitu-
tional liberty of speech and of the press.
as we understand it implies a right to
freely utter and publish whatever the
citizen may please and to be protected
against any responsibility for so doing,
except so far as such publications,
from their blasphemy, obscenity, or
scandalous character, may be a public
or as by their falsehood and
malice they may injuriously affect the
reputation. or pecuniary in
terests of individuals. % Cooley Const.
Linn. Seventh ed. 603, 604.)
This doctrine was recently authorita-
lively stated by the supreme court OF
North Carolina as follows:
I'm it's broadcast sense, freedom of the
press includes not only exemption from
but security against laws
enacted by the legislative department
Of the government, or measures re-
sorted to by either of the other
branches for the purpose of sitting just
or muzZling public opinion"
.(Cowan V. Fairbrother, lis N. c. 4O6,
30 L. R. A S29.)
Such also is the opinion of the SUI
preme court of Texas.
Whatever more than freedom from
previous license the constitutional
guaranty may include it is clear that it
1oes not grant immunity for the pub
ication of articles which imperil the
public peace by advocating the murder
IL OIliCCIS anu the QSSlI !
ion of organized society. Constitu-
,ional government may at least protect
It's own life and Johann Most was prop
erly convicted under statute designed
10 secure the public peace, because Of
IN article appearing in his newspaper.
he ''F'reiheit" inStigation revolution !
and murder, suggesting the persons to
De murdered through the positions oc-
.upied and the duties performed by
HEM advising all persons to discharge
heir duty to the human race by muir
lering those who enforce law de-