496
PARTISAN REVIEW
contrary. When opinions are openly expressed, a great deal hangs on the
form given them. An opinion which vindicates wholesale murder is gen–
erally regarded as being no concern of the law if it is composed in so
elaborate and technical a style that only a few will be able to perceive
its intent, these few probably being persons least likely to be moved by
it. But an opinion which is so formulated as to be, in the mind of an
average observer, an advocacy of, and an incitement to, illegal action
is
punishable by law. An opinion that urges its listeners to evade the draft,
or not to send their children to school, or to blow up banks, or to
organize a conspiracy for the violent overthrow of government, has no
right to be circulated outside of jail, and the state has every right to see
that it is circulated nowhere else. And all this, regardless of any
" clear and present danger" ; for, as our anti-trust laws maintain con–
cerning conspiracy, the very planning of it is a crime; and, as Learned
H and said of the Communist conspiracy : "The conspirators will strike
as soon as success seems possible, and obviously, no one in his senses
would strike sooner."
Nevertheless, though a government has the right to punish such
opinions, it does not follow that it is always the part of prudence to do
so. Punitive efforts in certain cases may be ineffective, and attempts at
enforcement might have disagreeable consequences; moreover, the
opinion may be so weak and transitory that it will pass of its own
accord, in which event the law can afford to wait.
It
is, as I said in
my original article to which Mr. Rovere took exception, a question of
expediency that depends upon specific circumstance.
~
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