Public Questions [excerpt]

     Soon after the assassination of President McKinley the notorious anarchist Herr Most was arraigned in the Court of Special Sessions. I was presiding at the time. It was a source of regret to my associates and myself that he had been brought before us. We were vaguely impressed with the idea that there was no law by which he could be convicted. To have him arraigned and dismissed as having committed no offence seemed intolerable. On the other hand, to convict him without legal justification would not conform to the views of any truly patriotic citizen. It fell to my lot to examine the law touching his case. The question haunted me for two weeks in all my leisure moments, and it was with no little difficulty that I finally solved the problem to at least my own satisfaction. I could find nothing in the law reports that would throw even the slightest light upon the question. The public views touching the freedom of the press were hazy, and may be said to be firmly set against any improper restraint upon it. The question was to distinguish between the article in Most’s paper and the proper freedom of the press. I finally worked the problem out to my satisfaction, and defined the line to be that freedom of the press found its limit when the press advocated the commission of a crime for the purpose of attaining a political end. [57][58] It seems to me that this is a perfectly clear and defensible position. The Most case will be heard on appeal very soon. I believe that in the opinion that I wrote I blazed the way for further legislation, and that in the end the State legislatures, and perhaps the federal government, will find a clear line for legislation on this extremely important subject. If the result of my study and investigation shall have attained that end, it will be in accordance with my views and reflections while writing that opinion. I give this opinion in full in this book, as I regard it a public question of the highest importance and entitled to a place here.