The Washington times., 1921-03-08
|PRESS1L|BERTy1
|S.DEALTBLOW
Supreme Court Rules BurIeson
Right In Barring Berger's
Newspaper.
BY NORMAN HAPGOoD.

Dy NORMAN HAPGOOD.
The Supreme Court OF the United
States has handed out q severe blow
to freedom Of the press. The case
Ii the Milwaukee Leader against
Burleson. It Is one of the most i'm
portant decisions ever rendered. II
confirms the former Postmaster
Generals claim to complete censor
ship. apparently in peace as we'll as
In war, and on all sorts of subjects.
1t brings out most vehement dis
sants from Justices Holmes and
Brandeis.
"A ROSE ON ANTIETEM DAY.
These two justices have stood to-
gether against the extreme assaults
on liberty induced by the psychology
of war. Justice Holmes today cele-
brates his eightieth birthday. Some
of hip most powerful opinions III de-
fense of liberty have been delivered
In the last few years. He fought In
the civil war.
On the ann.v ersary of the bittle of
Antietam. september 16. every year
the Chief Justice presents him with
rose. In that battle Justice Holmes
was wounded while facing the regi-
ment in which Chief Justice White
was serving In the Southern army.
The most reactionary opinions OF
the court arc written by Justice Nc
Reynolds. When Justice Brandeis
launched into his vigorous dissent.
Justice McReyLolds left the court and
waited until Justice Brandeis had nm
ished. He has done the same thing
before on dissents by Justice Bran
deis.
Justice Holmes opinion was a short
but very feeling agreement with the
longer opinion of Justice Brandeis.
He frankly accused the majority Of a
"quibble."
"a QUIDBLE,, SAYS HOLMES.
Except by a bubble. he declared,
the powers claimed for the Postmas-
ter General could not be found In the
statuteL he said:
"TheSUnited States can give UP
the Postoffce whenever IL sees mt. but
as long as IL continues to control II
It. Is essential to free speech that there
be no arbitrary discrimination.
The power claimed by the Post
hmaster General interferes win every
sacred right. 1t is untusfined by the
the freedom which even during tho
war Congress refused to infringe
Congress during the war refused TO
grant the powers here worked out by
Implication.
The opinion thus vigorously con-
demned was delivered by Justice
Clarke. He secited the Postma ster
Generals opinion that during the war
the Leader had accused our Govern
ment of being piutocratic, President
Wilson of being an autocrat. Congress
of being subservient, the allies OF be-
ing imperialistic.
Justice Clarke did not go at length
into the law. but bore down heavily
on giving aid and comfort to the
enemy. and indicated that the Con-
stitution was not intended to protect
those who obstructed the war and
failed to admire our institutions. To
use his words:
THE Constitution was adopted to
preserve our Government, not to
serve ass protecting screen for
those who under pretense OF criti-
cism seek to destroy IT."
Justice Clarke held that the long
continued and persistent policy Of the
Milwaukee Leader in such charges as
these, and in such statements as that
Germany would be willing to make
peace upon reasonable terms. was in
tentionally giving aid and comfort to
the enemy and systematically en-
deavoring to obstruct the draft.
Therefore, he held that the Post
master-General could assume that this
policy would be continued, and there
fore could properly refuse the privi-
| lege of second-class rates for the fu-
ture.
The Postmaster-Gens based his
charges not only on extracts from the
newspapers but on the opinions OF
various citizens in Milwaukee, taken
in secret session by employees of the
Postoffice Department. that the
tendency and character OF the Leader
| were such as to interfere with the
prosecution OF the war
JUSTICE BRANDEIs DIssENTs.
Justice Brandeis began by showing
| that this case presents no question
| peculiar to war. "It Is important be
cause what we decide may detesmint
| in large measure whether in time OF
peace our press shall be free"
The Postmaster General, the Justic,
pointed out, denied newspaper posta
rates to the Leader because he die
not like its warsopinions, but IL the
authority he claimed exists he coult
use 1t on q whole tribe Of subjects.
| Decency Is one test: libel, another
urging to violence. another; lotteries
another; advertising liquor. another
He has a right to suppress a particu
lar issue for infringing the law OF
any OF these points. What he claim.
Is to decide that the publication 1.
sure to go on committing the same
evil SO he can kill 1t by Withdrawing
the second class privilege.
Justice Brandeis first shows that nc
statute confers this power. Then he
shows that until now the opposite
law was definitely accepted. In 1890
Tolstofs book. Kreutxer Sonnata, was
excluded from the mails because the
Postmaster Generals employees or he
himself. thought IL was Indecent.
when this was followed, however
by an attemptto prevent serial pub
ication In . Newspaper. President
Harrisons Attorney General declared
such a step illegal, as only those is