It seems to me that the momentum engendered by the views expressed in the controlling opinions in the companion cases (Taylor v. State, 194 Miss. 1, 11 So.2d 663, and Cummings v. State, 194 Miss. 59, 11 So.2d 683, *Page 76 decided this day) should have been checked before encompassing the appellant here.
From the pamphlet "Consolation," made the basis of a fear of revolution or sedition, it may be safely assumed that the state has culled its most potent paragraphs. These selections are set forth in the indictment and quoted in other opinions herein. In comparing these vaporings with the daily utterances of our metropolitan press and of men in high places, it becomes difficult to reconcile the internment of the one and applause of the other with an equal protection of the law.
In this connection, attention is called to the fact that part of the language charged to be subversive is quoted from the press, the Lewiston Daily Sun. No pains have been taken to disclose whether this widely distributed publication has felt the heavy hand of judicial restraint. It serves to emphasize that to invest oneself with an aura of sophistication is a guaranty of immunity. The ill-advised designation of this prohibition of the compulsory salute by pupils in schools as a "pitiful mockery of education" is hardly less positive and much less authoritative than the expression of the court in Barnette v. Board of Education, D.C., 47 F. Supp. 251, 255, (decided Oct. 6, 1942 by a three-judge federal court) that its compulsion against conscience "as a petty tyranny unworthy of the spirit of this Republic."
In addition to comments in the dissenting opinion in Cummings v. State, 914 Miss. 59, 11 So.2d 683 (decided this day) as to the effect of the war emergency, I take occasion to quote the following pertinent and persuasive paragraphs:
"In a time of crisis, particularly, when the things we hold most dear are threatened, we shall find the desire to throw overboard the habits of tolerance, almost irresistible." "I can think of no revolutionary period in history when a government has gained by stifling the opinion of men who did not see eye to eye with it; and *Page 77 I suggest that the revolutionary insistence that persuasion is futile finds little creative evidence in its support." "It is evident from our experience that to limit the expression of opinion in wartime to opinion which does not hinder its prosecution is, in fact, to give the executive an entirely free hand, whatever its policy, and to assume that, while the armies are in the field, an absolute moral moratorium is imperative. That is, surely, a quite impossible position. No one who has watched at all carefully the process of governance in time of war can doubt that criticism was never more necessary. Its limitation is, in fact, an assurance that the unity of outlook is a guarantee that mistakes will be made and wrong done. For once the right to criticize is withdrawn, the executive commits all the natural follies of dictatorship." "Freedom of speech, therefore, in war-time seems to me broadly to involve the same rights as freedom of speech in peace. It involves them, indeed, more fully because a period of national trial is one when, above all, it is the duty of citizens to hear their witness." Laski, Liberty in the Modern State, pp. 56-57, 115, 123, 124-125.
Our solicitude should include the danger that in repressing fundamental rights we may lose the war upon our own home front. The conduct of the war is, of course, directed toward its success; but success means not only winning the fight but not losing our freedoms.
I realize the difficulty of restricting the bases for decision to the particular case disclosed by the record before us, as well as the self-control necessary to exclude personal predilections from judgments which should be justified solely by the applicable law. To do otherwise is to destroy the defendant with the very sword with which she had sought to protect her rights. "A judge would err if he were to impose upon the community as a rule of life his own idiosyncrasies of conduct or belief." Cardozo, The Nature of the Judicial Process, p. 108. *Page 78
The absence of a definite legal yardstick by which to measure appellant's "disloyalty" is as important here as in the other cases mentioned. At the expense of repetition, the opinions voiced must bear fruitage in conduct, and such conduct must threaten a clear and present danger, and such danger must be that the functions of the government will be overthrown by force or violence or that mutiny or insubordination be engendered in our armed forces. "A man may have as bad a heart as he chooses, if his conduct is within the rules. In other words, the standards of the law are external standards, and, however much it may take moral considerations into account, it does so only for the purpose of drawing a line between such bodily motions and rests as it permits, and such as it does not. What the law really forbids, and the only thing it forbids, is the act on the wrong side of the line, be that act blameworthy or otherwise. Again, any legal standard must, in theory, be one which would apply to all men, not specially excepted, under the same circumstances. It is not intended that the public force should fall upon an individual accidentally, or at the whim of any body of men. The standard, that is, must be fixed. . . . Finally, any legal standard must, in theory, be capable of being known. When a man has to pay damages, he is supposed to have broken the law, and he is further supposed to have known what the law was." Holmes' Common Law, at pp. 110-111.
The Chief Justice and Justice Anderson concur in this opinion.