concurring.
I am in hearty agreement with the conclusion of the Court that this prosecution for a seditious libel was unconstitutional. Yet I feel that the gloss which the Court has put on “the freedom of speech” in the First Amendment to reach that result (and like results in other cases) makes that basic guarantee almost unrecognizable.1
Recently in New York Times Co. v. Sullivan, 376 U. S. 254, a majority of the Court held that criticism of an *81official for official conduct was protected from state' civil libel laws by the First and Fourteenth Amendments, unless there was proof of actual malice. Id.¡ at 279. We now hold that proof .of actual malice is relevant to seditious libel — that seditious libel will lie for a knowingly false statement, or one made with reckless disregard of the truth.
If malice is' all that is-needed, inferences from facts as found by the jury will easily oblige. How can we sit in review on a cold record.and find no evidence of malice (cf. New York Times Co. v. Sullivan, 376 U. S., at 285-288) when it is the commonplace of life that heat and passion subtly turn to malice in actual fact? If “reckless disregard of the truth” is the basis of seditious libel, that nebulous standard could be easily met. The presence of “actual malice” is made critical in seditious libel, as well as in civil actions involving charges against public officials, when in truth there is nothing in. the Constitution about it, any more than there is about “clear and present danger.”
While the First Amendment remains the same, the gloss which the Court has written on it in this field of the discussion of public issues robs it of much vitality.
Why does “the freedom of speech” that the Court is willing to protect turn out to be so pale and tame?
It is because, as my Brother Black has said,2 the Bill of Rights is constantly watered down through judi*82cial “balancing” of what the Constitution says and what judges think is needed for a well-ordered society.
As Irving Brant recently said: “The balancing test developed in recent years by our Supreme Court does not disarm the Government of power to trench upon the field in which the Constitution says ‘Congress shall make no law.’ The balancing test does exactly what is done by its spiritual parent, the British ‘common law of seditious libel,’ under which (to repeat the words of May), ‘Every one was a libeler who outraged the sentiments of the dominant party.’ ” Seditious Libel: Myth and Reality, 39 N. Y. U. L. Rev. 1, 18-19 (1964).
Beauharnais v. Illinois, 343 U. S. 250, a case decided by the narrowest of margins, should be overruled as a misfit in our constitutional system and as out of line with the dictates of the First Amendment. I think it is time to face the fact that the only fine drawn by the Constitution is between “speech” on the one side and conduct or overt acts on the other. The two often do blend. I have expressed the idea before: “Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it.” Roth v. United States, 354 U. S., at 514 (dissenting opinion). Unless speech is so brigaded with overt acts of that kind there is nothing that may be punished; and no semblance of such a case is made out here.
I think little need be added to what Mr. Justice Holmes said nearly a half century ago:
“I wholly disagree with the argument of the Government that the First Amendment left the common *83law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798,3 by repaying fines that it imposed.” Abrams v. United States, 250 U. S. 616, 630 (dissenting opinion).
The philosophy of the Sedition Act of 1798 which punished “false, scandalous and malicious”-writings (1 Stat. 596) is today allowed to be applied by the States. Yet Irving Brant has shown that seditious libel was “entirely the creation of the Star Chamber.” 4 It is disquieting to know that one of its instruments of destruction is abroad in the land today.
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS, CONCURRING.
Excerpt from Madison’s Address, January 23, 1799:
“The sedition act. presents a scene which was nevér expected by the early friends of the Constitution. It was then admitted that the State sovereignties were only diminished by powers specifically enumerated, or necessary to carry the specified powers into effect. Now, Federal authority is deduced from implication; and from the *84existence of State law, it is inferred that Congress possess a similar power of legislation; whence Congress will be endowed with a power of legislation in all cases whatsoever, and the States will be stripped of every right reserved, by the concurrent claims of a paramount Legislature.
“The sedition act is the offspring of these tremendous pretensions, which inflict a death-wound on the sovereignty of the States.
“For the honor of American understanding, we will not believe that the people have been allured into the adoption of the Constitution by an affectation of defining powers, whilst the preamble would admit a construction which would erect the will of Congress into a power paramount in all cases, and therefore limited in none. On the contrary, it is evident that the objects for which the Constitution was formed were deemed attainable only by a particular enumeration and specification of each power granted to the Federal Government; reserving all others to the people, or to the States. And yet it is in vain we search for any specified power embracing the right of legislation against the freedom of the. press.
“Had the States been despoiled of their sovereignty by the generality of the preamble, and had the Federal Government been endowed with whatever they should judge to be instrumental towards union, justice, tranquillity, common defence, general welfare, and the preservation of. liberty, nothing could have been more frivolous than an enumeration of powers.
“It is vicious in the extreme to calumniate meritorious public servants; but it is both artful and vicious to arouse the public indignation against calumny in order to conceal usurpation. Calumny is forbidden by the laws, usurpation by the Constitution. Calumny injures individuals, usurpation, States. Calumny may be redressed *85by the common judicatures; usurpation can only be controlled by the act of society. Ought usurpation, which is most mischievous, to be rendered less hateful by calumny, which, though injurious, is in a degree less pernicious? But the laws for the correction of calumny were not defective. Every libellous writing or expression might receive its punishment in the State courts, from juries summoned by an officer, who does not receive his appointment from the President, and is under no influence to court the pleasure of Government, whether it injured public officers or private citizens. Nor is there any distinction in the Constitution empowering Congress exclusively to punish calumny directed against an officer of the General Government; so that a construction assuming the power of protecting the reputation of a citizen officer will extend to the case of any other citizen, and open to Congress a right of legislation in every conceivable case which can arise between individuals.
“In answer to this, it is urged that every Government possesses an inherent power of self-preservation, entitling it to do whatever it shall judge necessary for that purpose.
“This is a repetition of the doctrine of implication and expediency in different language, and admits of a similar and decisive answer, namely, that as the powers of Congress are defined, powers inherent, implied, pr expedient, are obviously the creatures of ambition; because the care expended in defining powers would otherwise have been superfluous. Powers extracted from súch sources will be indefinitely multiplied by the aid of armies and patronage, which, with the impossibility of controlling them by any demarcation, would presently terminate reasoning, and ultimately swallow up the. State sovereignties.
“So insatiable is a love of power that it has resorted to a distinction between the freedom and .licentiousness of *86the press for the purpose of converting the third amendment* of the Constitution, which was .dictated by the most lively anxiety to preserve that freedom, into an instrument for abridging it. Thus usurpation even justifies itself by a precaution against usurpation; and thus an amendment universally designed to quiet every fear is adduced as the source of an act which has produced general terror and alarm. <
“The distinction between liberty and licentiousness is still a repetition of the Protean doctrine of implication, which is ever ready to work its ends by varying its shape. By its help, the judge as to what is licentious may escape through any constitutional restriction. Under it men of a particular religious opinion .might be excluded from office, because such exclusion would not amount to an establishment of religion, and because it might be said that their opinions are licentious. And under it Congress might denominate a religion to be heretical and licentious, and proceed to its suppression. Remember' that precedents once established are so much positive power; and that the nation which reposes on the pillow of political confidence, will sooner or later end its political existence in a deadly lethargy. Remember, also, that it is to the press mankind are indebted for having dispelled the clouds • which long encompassed religion, for disclosing her genuine lustre, and disseminating her salutary doctrines.
“The sophistry of a distinction between the liberty and the licentiousness of the press is so forcibly exposed in a late memorial from our late envoys to the Minister of the French Republic, that we here present it to you in their own words:
“ ‘The genious of the Constitution, and the opinion of the people of the United States, cannot be overruled by *87those who administer the Government. Among those principles deemed sacred in America, among those sacred rights considered as forming the bulwark of their liberty, which the Government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press. That this liberty is often carried to excess; that it has sometimes degenerated into licentiousness, is seen and lamented, but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn. However desirable those measures might be which might correct without enslaving the press, they have never yet been devised in America. No regulations exist which enable the Government to suppress whatever calumnies or invectives any individual may choose to offer to the public eye, or to punish such calumnies and invectives otherwise than by a legal prosecution in courts which are alike open to all who consider themselves as injured.’
“As if we were bound to look for security from the personal probity of Congress amidst the frailties of man, and not from the barriers of the Constitution, it has been urged that the accused under the sedition act is allowed to prove the truth of the charge. This argument will not for a moment disguise the unconstitutionality of the act, if it be recollected that opinions as well as facts are made punishable, and that the truth of an opinion is not susceptible of proof. By subjecting the truth of opinion to the regulation, fine, and imprisonment, to be inflicted by those who are of a different opinion, the free range of the human mind is injuriously restrained. The sacred obligations of religion flow from the due exercise of opinion, in the solemn discharge of which man is accountable to *88his God alone; yet, under this precedent the. truth of religion itself may be ascertained, and ^its pretended licentiousness punished by a jury of a different creed from that held by the person accused. This law, then, commits the double sacrilegé of arresting reason in her progress towards perfection, and of placing in a state of danger the free exercise of religious opinions. But where does the Constitution allow Congress to create crimes and inflict punishment, provided they allow the accused to exhibit evidence in his defense? This doctrine, united with the assertion, that sedition is a common law offence, and therefore within the correcting power of Congress, opens at once the hideous volumes of penal law, and turns loose upon us the utmost invention of insatiable malice and ambition, which, in all ages, have debauched morals, depressed liberty, shackled religion, supported despotism, and deluged the scaffold with blood.” VI Writings of James Madison, 1790-1802, pp. 333-337 (Hunt ed. 1906).
The Constitution says in the First Amendment that “Congress shall make no law . . . abridging the freedom of speech”; and the. Due Process Clause of the Fourteenth Amendment puts the States under the same restraint. There is one school of thought, so far in the minority, which holds that the due process freedom of speech hpnored by the Fourteenth Amendment is a watered-down' version of - the First Amendment freedom of speech. See my. Brother Harlan in Both v. United States, 354 U. S. 476, 500-503. While that view has never .obtained, the construction which the majority has-given the First Amendment has been burdened with somewhat the same kind of qualifications and conditions.
The Bill of Rights and the Federal Government, in The Great Rights, p. 60 (Cahn ed. 1963):
“In reality this [balancing] approach returns us to the state of legislative supremacy which existed in England and which the Framers were so determined to change once and for all. On the one hand, it denies the judiciary its constitutional power to measure acts of Congress by the standards set down in the Bill of Rights. On the other-hand, though apparently reducing judicial powers by saying that acts of Congress may be held unconstitutional only when they are found to have no rational legislative basis, this approach really gives *82the Court, along with Congress, a greater power, that of overriding the plain commands of the Bill of Rights on a finding of weighty-public interest. In effect, it changes the direction of our form of government from a government of limited powers to a government in which Congress may do anything that courts believe to be ‘reasonable.’ ”
Madison’s views on the Sedition Act — -a federal enactment — are relevant here, now. that the First Amendment is applicable to the States. I have therefore appended his views as an Appendix.
39 N. Y. U. L. Rev. 1, 11. “What is called today the common-law doctrine of seditious libel is in fact the creation of the Court of Star Chamber, the most iniquitous tribunal in English history. It has been injected into the common law solely by the fiat of Coke and by subsequent decisions and opinions of English judges who perpetuated the vicious procedures by which the Star Chamber stifled criticism of the government and freedom of political opinion. If seditious libel has any genuine common-law affiliation, it is by illegitimate descent from constructive treason and heresy, both of which are totally repugnant to the. Constitution of the United States.” Brant, supra; at 5.
The First Amendment was Article Third in those submitted by Congress to the States on September 25, 1789.