Joseph McKenna

“ Congress, legislating for a people justly proud of liberties theretofore enjoyed and suspicious or resentful of any interference with them, might conclude that even in times of great 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 state law affects directly the functions of the federal government. It affects rights, privileges, and immunities of one who is a citizen of the United States; and it deprives him of an important part of his liberty. These are rights which are guaranteed protection by the federal Constitution; and they are invaded by the statute in question. ”

“ The prohibition imposed by section 3 is even more farreaching than that provided in sections 1 and 2. Section 3 makes it punishable to teach in any place a single person that a citizen should not aid in carrying on a war, no matter what the relation of the parties may be. Thus the statute invades the privacy and freedom of the home. Father and mother may not follow the promptings of religious belief, of conscience or of conviction, and teach son or daughter the doctrine of pacifism. If they do, any police officer may summarily arrest them. ”

“ And whether to victory or defeat depends upon their morale, the spirit and determination that animates them-whether it is repellant and adverse or eager and militant, and to maintain it eager and militant against attempts at its debasement in aid of the enemies of the United States, is a service of patriotism, and from the contention that it encroaches upon or usurps any power of Congress, there is an instinctive and immediate revolt. ”

“ Cold and technical reasoning in its minute consideration may indeed insist on a separation of the sovereignties and resistance in each to any co-operation from the other, but there is opposing demonstration in the fact that this country is one composed of many and must on occasions be animated as one, and that the constituted and constituting sovereignties must have power of co-operation against the enemies of all. Of such instance, we think, is the statute of Minnesota and it goes no farther. ”

“ 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. ”

“ Under the Minnesota law, teaching or advice that men should not enlist is made punishable although the jury should find (1) that the teaching or advocacy proved wholly futile and no obstruction resulted; (2) that there was no intent to obstruct; and the court, taking judicial notice of facts, should rule (3) that, when the words were written or spoken, the United States was at peace with all the world. ”

“ Although conditions may exist in the army or the navy which are undermining efficiency, which tend to demoralize those who enter the service and would render futile their best efforts, the state forbids citizens of the United States to advocate that men should not enlist until existing abuses or defects are remedied. The prohibition imposed by the Minnesota statute has no relation to existing needs or desires of the government. ”

“ 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. ”

“ The reason given by the speaker for advising against enlistment is immaterial. Young men, considering whether they should enter these services as a means of earning a livelihood or as a career, may not be told that, in the opinion of the speaker, they can serve their country and themselves better by entering the civil service of state or nation, or by studying for one of the professions, or by engaging in the transportation service, or in farming or in business, or by becoming a workman in some productive industry. ”

“ If it is not engaged in any war, and until it does so engage, legislation such as a belligerent sovereign might enact, is beyond its province.' These specific grounds of objection to the statute are attempted to be reinforced by analogy to the power of Congress over interstate commerce to the exclusion of the interference of the states. ”

“ It is simply a local police measure, aimed to suppress a species of seditious speech which the Legislature of the state has found objectionable. If the Legislature has otherwise power to prohibit utterances of the character of those here complained of, the fact that such suppression has some contributory effect on the federal function of raising armies is quite beside the question.'
And the state knew the conditions which existed, and could have a solicitude for the public peace, and this record justifies it. Gilbert's remarks were made in a public meeting. They were resented by his auditors. ”

“ 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 willful attempts to interfere with our conduct of the war. ”