country's benefit, in the making of Federal laws and in the conduct of the government, necessarily includes the right to speak or write about them; to endeavor to make his own opinion concerning laws existing [338] or contemplated prevail; and, to this end, to teach the truth as he sees it. Were this not so "the right of the people to assemble

has power to raise an army and naval forces by conscription when public safety demands, may, to avert a clear and present danger, prohibit interference by persuasion with the process of either compulsory or voluntary enlistment. As an incident of its power to declare war, it may, when the public safety demands, require from every citizen full support, and may, to avert a clear and present for the purpose of petitioning Condanger, prohibit interference by persuasion with the giving of such support. But Congress might conclude that the most effective Army or Navy would be one composed wholly of men who had enlisted with full appreciation of [337] the limitations and obligations which the service imposes, and in the face of efforts to discourage their doing so.1 It might conclude that the most effective Army would be one composed exclusively of men who are firmly convinced that war is sometimes necessary if honor is to be preserved, and also that the par ticular war in which they are engaged is a just one. Congress, legislating for a people justly proud of liberties theretofore enjoyed, and suspicious or resent ful of any interference with them, might conclude that, even in times of grave danger, the most effective means of securing support from the great body of citizens is to accord to all full freedom to criticize the acts and administration of their country, although such freedom may be used by a few to urge upon their fellow citizens not to aid the government in carrying on a war which reason or faith tells them is wrong, and will, therefore, bring misery upon their country.

The right to speak freely concerning functions of the Federal government is a privilege or immunity of every citizen of the United States, which, even before the adoption of the 14th Amendment, a state was powerless to curtail. It was held in Crandall v. Nevada, 6 Wall. 35, 44, 18 L. ed. 745, 747, that the United States has the power to call to the seat of government or elsewhere any citizen to aid it in the conduct of public affairs; that every citizen has the correlative right to go there or anywhere in the pursuit of public or private business; and that "no power can exist in a state to obstruct this right which would not enable it to defeat the purpose for which the government was established." The right of a citizen of the United States to take part, for his own or the 1 See General John A. Logan, “The Volunteer Soldier of America," pp. 89-91; Col. F. N. Maude in Contemporary Review, v. 180. p. 37.

gress for a redress of grievance or for anything else connected with the powers or duties of the national government" would be a right totally without substance. See United States v. Cruikshank, 92 U. S. 542, 552, 23 L. ed. 588, 591; Slaughter-House Cases, 16 Wall. 36, 79, 21 L. ed. 394, 409. Full and free exercise of this right by the citizen is ordinarily also his duty; for its exercise is more important to the nation than it is to himself. Like the course of the heavenly bodies, harmony in national life is a resultant of the struggle between contending forces. In frank expression of conflicting opinion lies the greatest promise of wisdom in governmental action; and in suppression lies ordinarily the greatest peril. There are times when those charged with the responsibility of government, faced with clear and present danger, may conclude that suppression of divergent opinion is imperative; because the emergency does not permit reliance upon the slower conquest of error by truth. And in such emergencies the power to suppress exists. But the responsibility for the maintenance of the Army and Navy, for the conduct of war and for the preservation of government, both state and Federal, from "malice domestic and foreign levy," rests upon Congress. It is true that the states have the power of self-preservation inherent in any government to suppress insurrection and repel invasion; and to that end they may maintain such a force of militia as Congress may prescribe and arm. Houston v. Moore, 5 Wheat. 1, 5 L. ed. 19. But the duty of preserving the state governments falls ultimately upon the Federal government (Luther v. Borden, 7 How. 1, 77, 12 L. ed. 581, 613; Prize Cases, 2 Black, 635, 668, 17 L. ed. 459, 476; Texas v. White, 7 Wall. 700, 727, 19 L. ed. 227, 238). And the superior responsibility carries with it the superior right. The states act only under the express direction of Congress. See National Defense Act, June 3, 1916, chap. 134, 39 Stat. at L. 166, Comp. Stat. § 1715 a, 9 Fed. Stat. Anno. 2d ed. p. 925; [339] Selective Service Act, May 18, 1917,

254 U. S.

chap. 15, 40 Stat. at L. 76, Comp., [340] free to advise his fellows not to Stat. § 2044 a, 9 Fed. Stat. Anno. enter the Army or the Navy as he was 2d ed. p. 1136. The fact that they free to recommend their enlistment. may stimulate and encourage recruit- The government had exacted from ing, just as they may stimulate and American citizens no service except the encourage interstate commerce (Mo- prompt payment of taxes. Although nongahela Nav. Co. v. United States, war had been declared, such was still 148 U. S. 312, 329, 37 L. ed. 463, 469, the policy and the law of the United 13 Sup. Ct. Rep. 622), does not give States when Minnesota enacted the statthem the power by police regulations or ute here in question. otherwise to exceed the authority expressly granted to them by the Federal government. See Kurtz v. Moffitt, 115 U. S. 487, 29 L. ed. 458, 6 Sup. Ct. Rep. 148; Prigg v. Pennsylvania, 16 Pet. 539, 10 L. ed. 1060. Congress, being charged with responsibility for those functions of government, must determine whether a paramount interest of the nation demands that free discussion in relation to them should be curtailed. No state may trench upon its province.

The Minnesota statute was, when enacted, inconsistent with the law of the United States, because at that time Congress still permitted free discussion of these governmental functions. Later, and before Gilbert spoke the words complained of, the Federal Espionage Law was enacted, but the Minnesota statute was also inconsistent with it. The Federal act did not prohibit the teaching of any doctrine; it prohibited only certain tangible obstructions to the conduct of Prior to the passage of the Minnesota the existing war with the German Emstatute it had been the established policy pire, committed with criminal intent. It of the United States, departed from only was so understood and administered by once in the life of the nation, to raise the Department of Justice. Under the its military and naval forces in times of Minnesota law, teaching or advice that war, as in peace, exclusively by volun- men [341] should not enlist is made tary enlistment. Service was deemed a punishable although the jury should privilege of Americans, not a duty ex- find (1) that the teaching or advocacy acted by law. Specific provision had proved wholly futile and no obstruction been made to insure that enlistment resulted; (2) that there was no intent should be the result of free, informed, to obstruct; and the court, taking juand deliberate choice. The law of the dicial notice of facts, should rule (3) that, when the words were written or spoken, the United States was at peace with all the world. That this conflict was not merely a technical one, but a cause of real embarrassment and dan

United States left an American as

2 Act of March 3, 1863, chap. 75, 12 Stat. at L. 731, Comp. Stat. § 2308a (55). Recruiting officers were required to explain to every man before he signed the enlistment paper the nature of the service,ger to the Federal government, we learn the length of the term, the amount of pay, clothing, rations, and other allowances to which a soldier is entitled by law; and to read and explain to the applicant many of the Articles of War before administering to him the oath of enlistment. U. S. Army Regulations, 1913, ¶¶ 854, 856.

The following is contained in the instruction sent to all officers and men assigned to recruiting duty:

"All progress and success rests fundamentally on truth. Hence never resort to indirection or misrepresentation or suppression of part of the facts in order to push a wavering case over the line. Recruits signed up on misrepresented facts or partial information do not make good soldiers. They resent being fooled just as you would, and will never yield their full value to a government whose agents obtained their services in a way not fully square. Therefore tell your prospect anything he wants to know about the Army. If the real facts are not strong enough to win him, you don't want him anyway." Recruiters' Handbook, United States Army, p. 16.

4 "The general policy of the Attorney General (Mr. Gregory) toward free speech has been well understood and adhered to by his subordinates with a good deal of consistency. From the outset, recognizing that free expression of public opinion is the life of the nation, we have endeavored to impress on our subordinates the necessity of keeping within the limits of policy established by Congress, and bearing in mind at all times the constitutional guaranties. Repeatedly their attention has been called to the fact that expression of private or public opinion relating to matters of governmental policy or of political character must not be confused with wilful attempts to interfere with our conduct of the war. At all times we have had before us the dangers which follow attempts to restrain public discussion, and, so far as instructions issued by the Attorney General have been concerned, they have consistently and at all times. emphasized this general policy." John Lord O'Brian, "Civil Liberty in War Time," Report of New York State Bar Asso. vol. 42, p. 308.

from one of the officials intrusted with the administration of the Espionage Act:

"In the state of Minnesota, because of what was claimed to be either inadequate Federal law or inadequate Federal administration, state laws of a sweeping character were passed and enforced with severity. Whether justified or not in adopting this policy of repression, the result of its adoption increased discontent, and the most serious cases of alleged interference with civil liberty were reported to the Federal government from that state." 5

The

before Gilbert spoke the words for which he was sentenced. The provisions of the Minnesota statute and its title preclude a contention that its purpose was to prevent breaches of the peace. Compare Ex parte Meckel, - Tex. Crim. Rep., 220 S. W. 81. But neither the fact that it was a police regulation (New York. C. R. Co. v. Winfield, 244 U. S. 147, 61 L. ed. 1045, L.R.A.1918C, 439, 37 Sup. Ct. Rep. 546, Ann. Cas. 1917D, 1139, 14 N. C. C. A. 680), nor the fact that it was legislation in aid of congressional action, would, if true, save the statute. For "when the United In Johnson v. Maryland, decided No- States has exercised its exclusive powers vember 8, 1920, [254 U. S. 51, ante, 126, so far as to take possession of 41 Sup. Ct. Rep. 16], this court held the field, the states can no more supplethat the power of Congress to establishment its requirements than they can post roads precluded the state from re- annul them." Pennsylvania R. Co. v. quiring of a postoffice employee using Public Service Commission, 250 U. S. the state highway in the transportation | 566, 569, 63 L. ed. 1142, 1145, 40 Sup. of mail the customary evidence of com- Ct. Rep. 36; Northern P. R. Co. v. petency to drive a motor truck, although Washington, 222 U. S. 370, 56 L. ed. the danger to public safety was obvious, 237, 32 Sup. Ct. Rep. 160. The excluand it did not appear that the Federal siveness of the power of the Federal government had undertaken to deal with government with which this state legisthe matter by statute or regulation. The lation interferes springs from the very prohibition of state action rests, as the roots of political sovereignty. court pointed out there, "not upon any states may not punish treason against consideration of degree, but upon the the United States (People v. Lynch, 11 entire absence of power on the part of Johns. 549; Ex parte Quarrier, 2 W. the states to touch the instrumentalities Va. 569), although indirectly acts of of the United States." As exclusive power over enlistments in the Army and the Navy of the United States, and the responsibility for the conduct of war, are vested by the Federal Constitution in Congress, [342] legislation by a state on this subject is necessarily void | unless authorized by Congress. It is so when Congress makes no regulation, because, by omitting to make regulations, Congress signifies its intention that, in this respect, the action of the citizen shall be untrammeled. This would be true, even if the subject in question were one over which Congress and the states have concurrent power. For where Congress has occupied a field theretofore open also to state legislation, it necessarily excludes all such. Southern R. Co. v. Reid, 222 U. S. 424, 56 L. ed. 257, 32 Sup. Ct. Rep. 140; Chicago, R. I. & P. R. Co. v. Hardwick Farmers Elevator Co. 226 U. S. 426, 57 L. ed. 284, 46 L.R.A. (N.S.) 203, 33 Sup. Ct. Rep. 174. Here Congress not only had exclusive power to act on the subject, it had exercised that power directly by the Espionage Law

treason may affect them vitally. No more may they arrogate to themselves authority to punish the teaching of pacifism which the legislature of Minnesota appears [343] to have put into that category. Compare Schaefer v. United States, 251 U. S. 466, 494, note, 64 L. ed. 360, 372, note, 40 Sup. Ct. Rep. 259.

As the Minnesota statute is, in my opinion, invalid, because it interferes with Federal functions and with the right of a citizen of the United States to discuss them, I see no occasion to consider whether it violates also the 14th Amendment. But I have difficulty in believing that the liberty guaranteed by the Constitution, which has been held to proiect against state denial the right of an employer to discriminate against a workman because he is a member of a trade union (Coppage v. Kansas, 236 U. S. 1, 59 L. ed. 441, L.R.A.1915C, 960, 35 Sup. Ct. Rep. 240), the right of a business man to conduct a private employment agency (Adams v. Tanner, 244

S. 590, 61 L. ed. 1333, L.R.A.1917F, 1163, 37 Sup. Ct. Rep. 662, Ann. Cas. 1917D, 973), or to contract outside the state for insurance of his property (Allgeyer v. Louisiana, 165 U. S. 578, 589, 41 L. ed. 832, 835, 17 Sup. Ct. Rep.

ror, hereinafter called relator, against | lator appealed to the Secretary of the the Secretary of the Interior. Interior, who, on July 28, 1916, affirmed the decision of the General Land Office, and held that "Kennedy's application, being prior in time, is also prior in right."