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Subject Area: Law
Topic: The American Revolution and Constitution

§ 81.: Police supervision prohibited by the constitutions.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 81.

Police supervision prohibited by the constitutions.—

A popular government, and hence freedom from tyranny, is only possible when the people enjoy the freedom of speech, and the liberty of the press. If the individual is not free to publish by word of mouth or writing, or through the press, the complaints of encroachments of the government or of individuals upon his rights and liberties, he is deprived of his liberty, and he is not a freeman. Even if there were no special constitutional restrictions upon the governmental control of these rights, the State regulation would be unconstitutional, which denied the right of the individual to publish what he pleases, or which prohibited the publication of newspapers or other periodicals or books, on the general ground that they would involve the deprivation of liberty and the right to pursue happiness.

But the liberty of speech and of the press is not to be confounded with a licentiousness and a reckless disregard of the rights of others. No one can claim the right to slander or libel another, and the constitutions do not permit or sanction such wrongful acts. Liberty of speech and of the press, therefore, means the right to speak or publish what one pleases, the utterance of which does not work an injury to any one, by being false. The common law provided for the due punishment of such trespasses upon the right to reputation, and ordinarily these remedies, which prevail generally, afford sufficient protection to the individual and the public. But sometimes, and oftener in these later days, when the press has acquired extraordinary power, these remedies prove ineffectual. The tendency of the press, at least of this country, is to publish sensational, and oftener false, accounts of individual wrongs and immoralities, to such an extent that newspapers too often fall properly within the definition of obscene literature. If possible, the publication of such matter should be suppressed, or at least published in such a way, as to do little or no harm to the morals of the community.1

Then again, we have newspapers, in whose columns we find arguments and appeals to passion, designed to incite the individual who may be influenced thereby to the commission of crimes, appeals to “dynamiters,” socialists and nihilists, and all other classes of discontents, who believe the world has been fashioned after a wrong principle, and needs to be remodeled. Of course, those who do these reprehensible things may be punished for each overt act.

But the only effective remedy would be the establishment of a censorship over the press, by which such publication may be prevented, instead of being punished after the evil has been done. Under the general constitutional provisions, this supervision of the press would be permissible, and would not infringe the liberty of the individual. It would be only such a restraint upon the liberty of speech and of the press, as would promote public welfare, and would be sanctioned as an exercise of the police power of the government. But such a control of the press would be very liable to abuse, and through it the absolute suppression of the press would be rendered possible, if the government should fall into the hands of designing men; and at all events it would be an effective engine of oppression.

Profiting by their experience in the colonial days, when the English government exercised a control over the press, sometimes to the extent of prohibiting the publication of the paper, and always to the extent of suppressing all protests and arguments against England’s oppressive acts; our forefathers provided by constitutional provisions, both in the Federal and in the State constitutions, that the liberty of speech and of the press shall not be abridged by any law. The provision varies in phraseology in the different constitutions, but the limitation upon the power of government is the same in all cases. While this constitutional provision prohibits all control or supervision of the press in the way of a license or censorship, the slanderer or libeler may still be punished. He suffers the penalty inflicted by the law for the abuse of his privilege. The opinion of Chief Justice Parker of Massachusetts has been frequently quoted, and generally recognized as presenting the correct construction of this constitutional provision. In Commonwealth v. Blanding,1 he says: “Nor does our constitution or declaration of rights abrogate the common law in this respect, as some have insisted. The sixteenth article declares that ‘liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this Commonwealth. The liberty of the press, not its licentiousness: this is the construction which a just regard to the other parts of that instrument, and to the wisdom of those who founded it, requires. In the eleventh article, it is declared that ‘every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for injuries or wrongs which he may receive in his person, property, or character;’ and thus the general declaration in the sixteenth article is qualified. Besides, it is well understood and received as a commentary on this provision for the liberty of the press, that it was intended to prevent all such previous restraints upon publications as had been practiced by other governments, and in early times here to stifle the efforts of patriots towards enlightening their fellow-subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep firearms, which does not protect him who uses them for annoyance or destruction.”1 But it has been held that the constitutional prohibition of the censorship of the press does not inhibit the imposition of a license tax upon newspapers.2

But while all previous restraints are forbidden by this provision of the constitution, the permissible restraints upon the freedom of speech and of the press are not confined to responsibility for private injury. All obscene or blasphemous publications may be prohibited, as tending to do harm to the public morals. So, likewise, may the publication of all defamatory statements, whether true or false, concerning private individuals, in whom the public have no concern, be prohibited, as was the case at common law, and is now in some of the States; on the ground that such publications do no good, and excite breaches of the peace. In neither case is there any private injury inflicted, but the harm to the public welfare is the justification of the prohibition.

“The constitutional 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 offense, or as, by their falsehood and malice, they may injuriously affect the standing, reputation, or pecuniary interests of individuals.”1

So, also, is it not to be inferred from the prohibition of a censorship of the press, that the press can, without liability for its wrongful use, make use of the constitutional privilege for the purpose of inciting the people to the commission of crime against the public. The newspapers of anarchists and nihilists cannot be subjected to a censorship, or be absolutely suppressed; but if the proprietors should in their columns publish inflammatory appeals to the passion of discontents, and urge them to the commission of crimes against the public or against the individual, they may very properly be punished, and without doubt the right to the continued publication may be forfeited as a punishment for the crime.

A very curious and interesting question of constitutional law has been raised in New York, involving an alleged infringement of the freedom of speech and liberty of the press. An association of individuals had designed to honor the memory of a philanthropic lady by the erection in a public place of a statue of her, when the members of her family sought to prevent it, on the ground that their assent to the project was necessary, inasmuch as the decedent was not a public character. The association was enjoined from the making and placing on exhibition of the statue, notwithstanding their claim that it was an infringement of their constitutional right to freely speak, write and publish their sentiments on all subjects.1

It has also been claimed that police regulations, which require a permit from some public official, before it can be lawful for any one to use the parks or other public places for public assemblies and speech-making, are an infringement of the constitutional right of freedom of speech or of assembly. But the courts have held that this is only a reasonable regulation, and not the denial of the right of public assembly.2

The Postal Regulations contain provisions for preventing the use of the mails for the promotion of evil and wrong-doing, and they have been generally sustained, as being no violation of the constitutional guaranty of the freedom of speech and the liberty of the press. One regulation prohibits the transmission of obscene literature or printed or written matter, or of matter which is used in the dissemination of crime or immorality.3 But it must be shown that the packages, deposited in the mail, does contain the objectionable matter. A citizen has a right to the use of the mail for the transmission of unobjectionable matter, and he cannot be deprived of this right merely on suspicions, more or less well-grounded, that he is using the mail for an unlawful purpose. Thus, in the effort to suppress the Louisiana Lottery, an act of Congress authorized the Attorney-General—when satisfactory proof was presented to him, that a person, firm or corporation was habitually making use of the mail for the purpose of conducting a lottery or other fraudulent scheme,—to order the postmaster to return all mail matter received at his office, addressed to such person, firm or corporation. It was held that the act of Congress was constitutional so far as it applied to a corporation which was engaged in the unlawful business, and in no other lawful business. In such a case, it is to be presumed that letters and other mail matter addressed to such a corporation are intended to further the unlawful enterprise. But where the regulation is enforced against a private individual, in the case of sealed packages, there is no such strong conclusion that it contains objectionable matter, and the denial to such a person of the use of the mail for all purposes is unconstitutional. It deprives him of the undoubted right to make use of the mail for lawful purposes, and is in violation of the fourth amendment of the constitution, which secures him against unreasonable seizures of his papers.1

[1]In Kansas and Missouri the sale of newspapers, which are devoted largely to the publication of scandals, immoral occurrences, etc., is prohibited; and the constitutionality of the law has been sustained. In re Banks, 56 Kans. 242; State v. Van Wye, 136 Mo. 227. So, also, has a law been upheld in Texas, which imposed a tax upon the Sunday issues of newspapers, whether they are published within or without the State. Preston v. Finley, 72 Fed. 850; Thompson v. State, 17 Tex. App. 253; Baldwin v. State, 21 Tex. App. 591.

[1]3 Pick. 304, 313. See, also, Story on Constitution, § 1889; 2 Kent, 17; Wharton’s State Trials, 323; Respublica v. Dennie, 4 Yeates, 207 (2 Am. Dec. 402).

[1]A by-law of the Associated Press was sustained and enforced, which prohibited its members from receiving and publishing the regular news dispatches of any other news association which covered the same territory, and was organized for the purpose of supplying newspapers with telegraphic news. Mathews v. Associated Press, 61 Hun, 199; Bleistein v. Associated Press, Id.

[2]City of Norfolk v. Norfolk Landmark Co., 95 Va. 564.

[1]Cooley Const. Lim. 521 (*422). See In re Banks, 56 Kans. 242; Preston v. Finley, 72 Fed. 850; Thompson v. State, 17 Tex. App. 253; Baldwin v. State, 21 Tex. App. 591, cited in preceding note on page 229. It has been held to be lawful for State law to provide for the punishment of publishers of newspapers for publishing false reports of the proceedings of a court. State v. Faulds, 17 Mont. 140. It is also a constitutional interference with freedom of speech, for a law to prohibit the use of profane language in any public place. State v. Warren, 113 N. C. 683. It has likewise been held to be lawful, and not in violation of the constitutional guaranty of freedom of speech, to prohibit creditors from publishing the names of their debtors as bad debtors. State v. McCabe, 135 Mo. 450. On the other hand, it has been held to be unlawful for a court to prohibit the performance of a play during the pendency of a murder trial, because the play was founded upon facts which were involved in the criminal case then pending. Dailey v. Superior Court of San Francisco, 112 Cal. 94. Nevertheless, if the publication of an item constitutes a contempt of court, according to the common and statutory law, the publisher may be punished, without any interference with the constitutional guaranty of the liberty of the press. State v. Tugwell, 19 Wash. St. 238 (52 P. 1056). But a judicial officer, who is a candidate for re-election, cannot object to newspaper criticisms of his judicial acts, as constituting a case of contempt of court. State v. Circuit Court of Eau Claire County, 97 Wis. 1.

[1]Schuyler v. Curtis, 70 Hun, 598, 30 Abb. N. C. 376.

[2]Commonwealth v. Abrahams, 156 Mass. 57; Davis v. Commonwealth of Massachusetts, 167 U. S. 43.

[3]United States v. Harmon, 45 Fed. 414. In Ex parte Rapier, 143 U. S. 110, it was held to be lawful for the postal authorities to exclude from the mail newspapers which contained advertisements of the Louisiana Lottery.

[1]Hoover v. McChesney, 81 Fed. 472.