The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-11-30
He Holds That Congress Lacks
Constitutional Power.
VIOLATES TWO AMENDMENTS
Both the First and the Fifth
Are Cited.
Arguments VIII Be Heard ON
Case Next Monday.

Washington. Nov. S0.-Former As
sistant Attorney General James NJ.
Beck fled today in the supreme court
his brief in the case brought by the
Lewis Publishing company to test the
constitutionality of the newspaper pub
licity law.
The brief discusses fully the power
of the federal government indirectly
to censor the press through the regu-
lation of the mails and reviews at
length the struggle in England and
America to free the press from re-
straint and the meaning OF the 6rst
amendment forbidding any abr1dgement
of the freedom Of the press
Mr.. Beck argues that as the consti-
tuition did not expressly give any pow
er TO regulate Journalism, any attempt
ed regulation can only be justified as
necessary and proper means to carry
out some federal function
He denies that the regulation OF
newspaper ownership and the enforc-
ed publicity Of its business can be an
appropriate means of carrying out the
federal power over the mails.
The brief reviews ell of the decis-
ions OF the supreme court numbering
over 20, in which congressional acts
have been invalfdated by the supreme
COuTI LOT want OF CONSTITUTIONAL power
and IL claims that the present law is
within the doctrine of those decisions.
MI Beck strongly denounced the idea
that congress can so use its powers
as to accomplish unconstitutional ends.
This the brief calls 'nulIiication by in
direction and it cites the commodities
clause of the Hepburn bill, Senator
Beveridge's child labor bill and the
present newspaper law as striking ex-
Fmples of an attempted perversion of
federal power to accomplish Interior
and unconstitutional ends.
Freedom of the Press.
After reviewing the struggle which
led, both in England and America to
the freedom of the press. he asserts
that such liberty consists not only in
freedom FROM a absolute prohibition but
also OF exemption from any burden
some or unreasonable restraint
Any undue burden upon writing or
publication or other restriction of the
fun right to print and circulate is an
abrtdgement Of the press and con-
trary to the first amendment
The brief argues that the enforced
publication of newspaper comDanvsg
circulation and the publishers cred
1-ors would unduly. burden the power
of the weak newspaper to compete
with the stronger and in many cases
drive the weak newspapers to the
He further argues that at the tfne
the first amendment was adopted the
lmpersonal dissemination of ideas was
generally recognized in discussion. The
letters or Junius," are cited. as also
the fact that the constitution ffSaIf
would never have been adopted had ~
not been for the federa1fst paper. pub
dShed anonymously by Hamilton.
Madison and Jay.
Violate Fifth Amendment.
An attempt to compel newspsper +o
disclose either its owners or its cre5f-
ters, or TO compel ii to mark as an az
vertfsement matter which II has rTIh
lished for consideration, restricts the
freedom OF discussion and fs contrarv
TO the custom of fmpersonaI vvrftfDS
winch prevailed generally In England
and america when the constitution was
framed The brief further argues that
the appropriation of the newspaper col
1mns to enforce the policy Of pobIic4ty.
without compensation, violates fhe
Fifth amendment, in taking property
without due process OF law
Mr.. Beck argues that the law has ffe
merit of sincerity. In that It makes no
nypocr1ttcal pretense to being a means
90 carry out any constitutional power.
He quotes the debates of congress as
showing that the authors Of the bflI.
Senators Bourne and Reed. and Reprs-
Henry Barnhardt. ana
others, all admitted that the purpose of
the act was to compel a public dfscIos-
are of ownership OF newspapers and OF
the influence which dictated their
policies
The Supreme court has specially set
Monday next for the argument of this
test case 1t IS expected Robert c.
Morris will open the case for the. news
papers. Solicitor General BuIIitt Will
speak for the government and James N
Beck win make the closing argument
for the newspaper press