I am constrained to believe that the equal division of opinion herein is not due to a divergence of views as to the applicable law, but rather to an application of the law. A lack of unanimity results from the relative importance attached respectively to the war effort as a temporary but sacrificial means, and to personal liberty *Page 42 which is its sacred end. I must confess that I see a greater danger to free speech from the controlling opinion than I can find to the war effort by the frail opinions of appellant whose inconsequence is attested by the revulsion awakened in his accusers. Nor can I detect any menace to our democratic institutions in the abstruse writings in the disseminated literature whose esoteric complexities transcend the comprehension of those who would be the likeliest to succumb to simple sophistries or who would most readily find incompatible a loyalty both to God and to country. While this literature is cast in a religious mold and propagated as a religious creed, I do not feel it necessary to invoke the right of religious freedom to justify my dissent. Literature of the type and content here exhibited has been many times held not to be hurtful to the morals or the general welfare nor seditious in character. State v. Meredith, 197 S.C. 351, 15 S.E.2d 678; Donley v. City of Colorado Springs, D.C., 40 F. Supp. 15; People v. Northum,41 Cal.App.2d 284, 106 P.2d 433; Zimmerman v. Village of London, D.C., 38 F. Supp. 582; Oney v. Oklahoma City, 10 Cir.,120 F.2d 861; State v. Aspelin, 118 Wn. 331, 203 P. 964.
In the dissent in Cummings v. State, 194 Miss. 59,11 So.2d 683, this day decided, it was thought not inappropriate to review familiar but fundamental constitutional principles, which, because elemental, are too infrequently rehearsed.
In declaring their freedom, the founders of our republic sought to justify in their course "a decent respect to the opinions of mankind." Its continued prosperity is not to be achieved by withholding a like respect for the opinions of its own kind. The state is never called upon to indulge in mere resentment. It has no standard save the morals, peace, and safety of its people. Miss. Const., Sec. 18. The federal courts have no common-law jurisdiction of what is a mere slander or libel against the *Page 43 United States in a supposed violation of the peace and dignity of its sovereign power. United States v. Hudson, 7 Cranch, 32, 3 L.Ed. 259. A fortiori the state courts have not. The shore line which marks the ceaseless conflict between the tides of tyranny and the coasts of democracy suffers a fluctuating fate. There are times of high threat and seasons of ebbing power. It was but natural that there should recur periods of definite invasion and recession due to local and transitory influences. At epic intervals the tides are suddenly and effectively thrust back by the downrushing collapse of orderly democracy whose sustaining patience is undermined by the ruthless erosion of gradual and persistent encroachment, and freedom extends its frontiers in a veritable cataclysm of revolution. Only when the state has laid down its sea-wall of positive law can it say to the citizen, "Thus far shall thou go and no farther." But such bulwark is given permanent stability only when reinforced with the requirement that its limitation be marked by an actual overthrow by force or violence. State v. Aspelin, supra; McKee v. State,219 Ind. 247, 37 N.E.2d 940; Bridges v. California,314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192. "The danger line . . . is reached when one strikes at the very foundation of organized society by inciting rebellion in an attempt to destroy it." Commonwealth v. Widovich, 295 Pa. 311, 145 A. 295, 298, certiorari denied, 280 U.S. 518, 50 S.Ct. 66, 74 L.Ed. 588. "The evil itself must be `substantial,' . . . it must be `serious' . . . And even the expression of `legislative preferences or beliefs' cannot transform minor matters of public inconvenience or annoyance into substantive evils of sufficient weight to warrant the curtailment of liberty of expression." (Citing authority.) Bridges v. California, supra [314 U.S. 252, 62 S.Ct. 193, 86 L.Ed. 192]. An ultimate result envisaged by an advocate and by him however hopefully predicted or zealously espoused is too vague and indefinite to constitute that *Page 44 "clear and present danger" to peace, morals, and safety which justifies judicial restraint of this freedom. Fiske v. Kansas,274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108; De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484; Near v. State of Minnesota,283 U.S. 697, 51 L.Ed. 625, 75 L.Ed. 1357; Schenck v. United States,299 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; State v. Sentner, 230 Iowa 590,298 N.W. 813.
The majority opinion asserts that freedom of speech is not the most important constitutional right of the citizen. Avoiding direct dispute, it is nevertheless appropriate to consider whether it is not in fact the keystone of the arch through which our people have passed and through which posterity is to pass in its pursuit of happiness. Of the "four freedoms" of late enunciated as essentials of the American way of life, all involve freedom of expression. Freedom from want implies freedom to voice our needs; freedom from fear assumes a freedom to cry out if need be; freedom of religion involves the freedom to hear, to think, and to teach. The freedom from fear must include freedom from any basis for fear that forces both without and within our borders may destroy or impair fundamental liberties. This is indispensable in a democracy if the other freedoms are to be vouchsafed self-expression. Historical reference confirms the observation that democracies not only are fearful for their liberties, but in no unreal sense fear liberty. The people free to choose their form of government are left free to work out their own political "salvation in fear and trembling." But it is more important that they are free to work it out than that they must do so under fear. A citizenship which is immoderately apprehensive for its powers and their hazards is apt to define unity in terms of unanimity and to manifest its fears in an unreasoning tendency to crush divergent ideas by the sheer weight of *Page 45 majority power. Zeal is apt to be an outstanding attribute of the minority, while intolerance is best nurtured in a dominating majority which would better exhibit its confidence in a democratic way of life by a patriotism which includes both confidence and courage. Courts should, if necessary, borrow such courage from the one and vigilance from the other, for it is that other whose fears are enhanced by the menace of destruction, and which finds more frequent occasion to raise the banner of freedom to justify its cause and to wield its sword in its defense. Liberty is not self-executing. "The secret of liberty is courage. A certain penumbra of contingent anarchy always confronts the state but this is entirely desirable since the secret of liberty is always, in the end, the courage to resist." Laski, Liberty in the Modern State, p. 80. It is seen, therefore, that public policy is after all a political consensus in which the ideals and prejudices of the individual become pertinent data. Courts should not attempt to imprison human personality, nor immure the creatures of conscience within its own sanctuary. We find here the spectacle of a citizen, who having released from this novel bondage a few despised opinions, is judicially held as hostage for a period which could extend for ten years. We must train our anxieties, therefore, not only upon a fancied future effect of appellant's utterances, but upon the present effect of suppressing his right to speak.
This court would display neither courage nor viligance in refusing to mask itself against prejudices so thoroughly diffused as to become atmospheric, lest it as a defender of constitutional liberty constitute itself an accessory to intolerance. Nor may it import into the discussion any matters save those presented by the record. In the arena of political discussion, it is more often the persecuted minorities who are the aggressors, and who as complainants seek the courts, which, as unbiased champions of their rights, must assume, if only to ignore, *Page 46 the irrelevant possibility that in the midst of arms the laws are apt to be silenced by an unwonted clamor and that the barbed barricades which a war hysteria erects against the following of its prescribed course will not deal less kindly with judicial vestments. "A court in the discharge of duty under our system is required to be oblivious to public clamor, partisan demands, notoriety, or personal popularity and to interpret the law fearlessly and impartially so as to promote justice, inspire confidence and serve the public welfare." State ex rel. Wilson v. Russell, 146 Fla. 539, 1 So.2d 569, 570. "Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth. Noxious doctrines in those fields may be refuted and their evil averted by the courageous exercise of the right of free discussion." Thornhill v. State of Alabama,310 U.S. 88, 60 S.Ct. 736, 741, 84 L.Ed. 1093.
I approve also the language of Justice Brandeis in his concurring opinion in Whitney v. People of State of California,274 U.S. 357, 375, 47 S.Ct. 641, at page 648, 71 L.Ed. 1095, when it was said: "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion."
"Since the general civilization of mankind I believe there have been more instances of the abridgement of the freedom of the people by the gradual and silent encroachments of those in power than by violent and sudden usurpation." Madison, Speech in Va. Convention, June 16, 1778. Later echoes are heard in the statement by *Page 47 R.Y. Hayne in the debate with Webster: "There are two distinct orders of men — the lovers of freedom and the advocates of power," and in Justice Brandeis' dissent in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 573, 72 L.Ed. 944, 66 A.L.R. 376: "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
This court, functioning under a Constitution which declares that the people can abolish their own form of government (Miss. Const., Art. 3, Sec. 6; see also Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066), must view a conflict of mere notions with complacency. It is not unreasonable to assume that the appellant as a citizen free to express opinions of right and wrong and of policy and impolicy, and even to manifest an unwarranted pessimism in rueful prophecy, could consistently be given the floor in the forum of popular discussion to charge his accusers in turn with a form of unAmericanism which denies to him that freedom of opinion which is its identifying symbol. There have appeared in our press conscientious objections to the privileges accorded to conscientious objectors to combat service. In turn there has been outspoken and conscientious objection to those who would deny to the critics of those so exempted the right to calumniate them. The ramifications of this self-energizing process in their sum are after all only public opinion of which free speech is its genius. It has of late become current wisdom that there is such a thing as a damaging optimism which may be as justly denounced as a despairing pessimism. If the former does not slow the wheels of war industry it destroys their traction. Despair is apt to expend its last ounce of energy, while blind optimism is apt to withhold its first. The Constitution does not exact wisdom of the citizen but concedes his right to folly. That opinions weaken our war effort is no test of their legal culpability. In the recent message of the President to the seventy-eighth *Page 48 Congress, he said: "But there has been some criticism based on guess-work and even on malicious falsification of fact. Such criticism created doubts and fears and weakens our total effort." The opinions and decisions of the President himself find daily dissent in the outspoken criticism of the columnist and of the advertiser.
No one should encourage the dissemination of that which tends to weaken the morale of our people. Yet a true report of military setbacks is apt to have this effect. It is an anomally that the views of those whose high position is likely to assure universal acceptance may be expressed with a ruthless and uninhibited frankness. Dire predictions of defeat are accredited as symptoms of prophetic wisdom even though the revelations be themselves deplored. It is often those whose influence is accounted without consequence, and which therefore could be ignored, who are the favored victims of popular witchburning. The fears and mockery which their teachings foment are not unwholesome symptoms of a jealous loyalty. But the standard remains within the breast of the accuser who is apt to fall into inconsistency by seeking to pillory lesser minds not because they are hostile to the nation's welfare, but rather to the critic's views.
All the state's witnesses denied any reaction to these "teachings" except derision. Forecasts of national disaster are belied by a scorn which the witnesses considered not only deserved but applauded. No propaganda can successfully assault the reason of those whose avenues to convictions are mined with contempt. The language charged to have been used by appellant was feebly prophetic and marked by bizarre predictions whose conditional form divested them of that bold assertion which alone can dissuade opposition. The record here presented, reveals a consistent revulsion against them and belies in itself a fear of their acceptance. Yet our attention *Page 49 has been called to no case where an expression of personal opinion, short of the advocacy of disobedience to existing law or of the violent overthrow of our government, has been the basis of a successful prosecution. Nor are we aware of any case in our state under the Act of 1942 except against members of the particular cult of which appellant is a member. Our attention has not been called to any attempt by the Post Office Department to prohibit the use of the mails to this literature nor of our Federal Bureau of Investigation to suppress this sect, whose activities, however exposed to popular disapproval, have extended back for many years.
Since disloyalty may connote language or acts which go no deeper than a disapproval or lack of sympathy with governmental policy, it lacks a reasonably definite standard of guilt. A stronger and more sinister term is found in the New Mexico statute, Laws 1919, chap. 140, — the word "revolution." Yet it was there held that since it comprises both peaceful and violent means, and only the latter may constitutionally be punished, the act was void. State v. Diamond, 27 N.M. 477, 202 P. 988, 20 A.L.R. 1527. We must not interpose our own personal sentiments, however difficult it may be to render them invisible, into a realm where compulsions must remain self-imposed.
My views have been elaborated almost to the measure of dissertation. Yet we have been confronted with an occasion where an assumption that these principles were known and read of all men would seem to have been unwarranted.
The controlling opinion would avoid the impact of the foregoing decision by designating the Act of 1942 as war emergenly legislation and deducing from this circumstance altered principles for gauging its constitutionality. No loyal citizen would contest the generality that a deplorable incident of war is the derangement of social, political, and economic life and that the emergency begets *Page 50 a need for standards of conduct and exercise of restraints not applicable to times of peace. I see no reason, however, to justify a sacrifice of the freedom of speech by war when war is itself justified as a price for its maintenance. I do not gainsay the propriety, even the absolute necessity, for curbing all activities or privileges which become distorted to the point of sedition or breach of existing law. It may be that often inter arma silent leges, but courts have never recognized that in time of war the citizen must remain silent nor conscience inarticulate.
It will be found that the cases invoked to sustain the controlling view on this point deal chiefly with acts or advocacy of conduct which violates existing law, or which undermines the discipline or efficacy of our armed forces or the functioning of our military machine. Most of them involve violations of the Espionage Act of 1917 which contained positive prohibitions against definite conduct. Yet the purpose and scope of that Act is succinctly shown in 1 Bishop's Criminal Law (9 Ed.), p. 326, where it is stated: "The purpose of the espionage act passed by Congress on June 15th, 1917, was not to suppress criticism or denunciation, truth or slander, oratory or gossip, argument or loose talk but only falsehoods wilfully put forward as true with intent to interfere with army and navy operations. Remote and secondary results not intended by the defendant, arising from a fair and truthful discussion of matters of public concern do not fall within its purview. Nor is the mere abuse of the president before a number of working-men who are not in the military service an offense against it as it does not cause insubordination, disloyalty and a mutinous spirit in the military and naval forces." The Act of 1942 does not define disloyalty, and it must be conceded that neither "violence" nor "sabotage" is charged. There is "no advocacy of the cause of the enemies of the United States" nor is any other definite act specified in the statute charged save the dissemination of literature *Page 51 "which reasonably tends to create an attitude of stubborn refusal to salute . . . the flag . . . of the United States." I have taken occasion to express my views on this phase of the case in the dissenting opinion in Clem Cummings v. State, 194 Miss. 59,11 So.2d 683, this day decided.
Such acts or conduct must create a clear and present danger in that by force or violence the orderly processes of government will be subverted, or that its exercise of powers for the general welfare will be so hampered as to create an imminent menace to the morals, safety, or peace of the state. The most practical standard involves the advocacy of that which is criminal or unlawful either in the end or the means. This principle was adhered to in the Stromberg, Herndon, Fiske, De Jonge, Sentner, Near, Schenck Bridges cases, supra, in which there was outspoken advocacy of criminal syndicalism, communism, bolshevism, and other tenets universally deemed by loyal citizens as distinctly un-American. Yet so long as the advocacy of religious principles remains in the domain of mere discussion, it cannot constitutionally be punished as sedition. It must bear fruitage in an overt, hostile, or treasonable act. State v. Diamond, supra; Schoborg v. United States, 253 U.S. 494, 40 S.Ct. 586, 64 L.Ed. 1029; Com. v. Widovich, supra; Reynolds v. United States, 98 U.S. 145, 162, 25 L.Ed. 244; McKee v. State of Indiana, supra; Watson on the Constitution, vol. 2, p. 1379; Montesquieu, Spirit of Laws, vol. 1, p. 194; Schroeder, Constitutional Free Speech, pp. 412, 438.
War is an emergency chiefly because our liberties are at stake. There is neither logic nor law to support the view that these liberties must be surrendered in order to be saved. In a classic expression in Ex parte Milligan, 4 Wall. 2, 120, 18 L.Ed. 281, 295, the court said: "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, *Page 52 and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority." There are in fact certain constitutional rights which are illuminated by the fierce fires of war when those required to submit to equal responsibilities are given more patient hearing as to their asserted rights. It was stated in the address of the President to the Congress, January 7, 1943: "In this war of survival we must keep before our minds not only the evil things we fight against but the good things we are fighting for. We fight to retain a great past and we fight to gain a greater future." To use the phrases of war itself, liberty may not be rationed. Nor is it expendable.
The opportunity should not be waived to call attention to other significant requirements of the statute in order that they may receive an emphasis comparable to those parts stressed to sustain conviction. The statute requires that the distribution of literature and the advocacy by speech should be done not only "intentionally" but the acts or words must be "designed and calculated" to encourage violence, sabotage or disloyalty. In passing it is well to dispel a popular notion that the law can compel loyalty; it can only punish speech or acts which operate to or are intended and calculated to produce definite and prohibited acts. "Offenses against the espionage act are in the nature of attempts or efforts with specific intent to commit specific crimes which efforts fail though they are apparently adapted to accomplish the crime are of sufficient magnitude and proximity to the *Page 53 object of their operation to be reasonably calculated to excite public fear and alarm." Bishop's Criminal Law, p. 327.
War does not restrict fundamental freedoms but rather enlarges the legislative field by bringing into play new laws designed to preserve the integrity of the war effort and to protect the functioning of our army and navy. But in the end the principle remains the same. Mere opinions even though beneath contempt are nevertheless above the law.
The controlling opinion, while willing to construe the language as subversive, finds its menace in its aspect as a forbidding symbol. Of what it is a symbol must be addressed to the suspicion or prescience of the individual judge. At its worst it could be symbolic only of underlying motives or subtle purposes, which, if true, means only opinions and not acts. Criminal laws never punish mere mental traits, nor even criminal intent alone. The virtual internment of appellant on such ground would be tantamount to an arrest on suspicion, or an imprisonment in default of bond to keep the peace.
Were symbols important and relevant, apt example could be found in the fact that while the fate of the appellant is being considered our Government has adopted a new design for its postage stamps, honoring the "Four Freedoms," thereby symbolizing that it respects and protects the private opinions of the writer's message not only, but also blazons to the world its own defiant stand for a freedom of speech whereby the author can, if he so desire, shout his opinion from his own housetop.
The maxim, Salus republicae suprema lex est, is a slogan both of peace and of war. But it is not the safety of the people but of their liberties which is the supreme goal. It is in war especially that our people have heroically proved that liberty is of more value than life. It is only the traitor who purchases life at the cost of a people's liberty. *Page 54
This court should say nothing that would encourage expressions of the type here involved. Yet I do not think that the emergency is such that even those deemed Philistines by their accusers should be destroyed by crushing both them and our liberty amid the wreckage of its own temple.
Anderson, J., and Smith, C.J., concur in this opinion.