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power, these remerlies prove ineffectual. The tendency of the press, at least of this country, is to publish sensational, and oftener false, accounts of individual wrongs and immoralities, to such an extent that newspapers too often fall properly within the definition of obscene literature. If possible, the publication of such matter should be suppressed, or at least published in such a way, as to do little or no harm to the morals of the community.
Then again, we have newspapers, in whose columns we find arguments and appeals to passion, designed to incite the individual who may be influenced thereby to the commission of crimes, appeals to "dynamiters," socialists and nihilists, and all other classes of discontents, who believe the world has been fashioned after a wrong principle, and needs to be remodeled. Of course, those who do these reprehensible things may be punished for each overt act. But the only effective remedy would be the establishment of a censorship over the press, by which such publication may be prevented, instead of being punished after the evil has been done. Under the general constitutional provisions, this supervision of the press would be permissible, and would not infringe the liberty of the individual. It would be only such a restraint upon the liberty of the speech and of the press, as would promote public welfare, and would be sanctioned as an exercise of the police power of the government. But such a control of the press would be very liable to abuse, and through it the absolute suppression of the press would be rendered possible, if the government should fall into the hands of designing men, and at all events it would be an effective engine of oppression.
Profiting by their experience in the colonial days, when the English government exercised a control over the press, sometimes to the extent of prohibiting the publication of the paper, and always to the extent of suppressing all protests and arguments again.st England's oppressive acts; our
forefathers provided by constitutional provisions, both in the Federal and in the State constitutions, that the liberty of speech and of the press shall not be abridged by any Jaw. The provision varies in phraseology in the different constitutions, but the limitation upon the power of
government is the same in all cases. While this constitutional provision prohibits all control or supervision of the press in the way of a license or censorship, the slanderer or libeler may still be punished. He suffers the penalty inflicted by the law for the abuse of his privilege. The opinion of Chief Justice Parker of Massachusetts, has been frequently quoted, and generally recognized as presenting the correct construction of this constitutional provision. In Commonwealth v. Blanding,' he says: “ Nor does our constitution or declaration of rights abrogate the common law in this respect, as some have insisted. The sixteenth article declares that • liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this Commonwealth. The liberty of the press, not its licentiousness: this is the construction which a just regard to the other parts of that instrument, and to the wisdom of those who founded it, requires. In the eleventh article, it is declared that every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for injuries or wrongs which he may receive in his person, property, or character;' and thus the general declaration in the sixteenth article is qualified. Besides, it is well understood and received as a commentary on this provision for the liberty of the press, that it was intended to prevent all such previous restraints upon publications as had been practiced by other governments, and in early times here to stifle the efforts of patriots towards enlightening their fellowsubjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire-arms, which does not protect him who uses them for annoyance or destruction.”
13 Pick. 304, 313. See, also, Story on Constitution, $ 1889; 2 Kent, 17; Wharton's State Trials, 323; Respublica v. Dennie, 4 Yeates, 207 (2 Am. Dec. 402).
But while all previous restraints are forbidden by this provision of the constitution, the permissible restraints upon the freedom of speech and of the press are not confined to responsibility for private injury. All obscene or blasphemous publications may be prohibited, as tending to do harm to the public morals. So, likewise, may the publication of all defamatory statements, whether true or false, concerning private individuals, in whom the public have no concern, be prohibited, as was the case at common law, and is now in some of the States, on the ground that such publications do no good, and excite breaches of the peace. In neither case is there any private injury inflicted, but the harm to the public welfare is the justification of the probibition.
“ The constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as, by their falsehood and malice, they may injuriously affect the standing, reputation, or pecuniary interests of individuals.” 1
So, also, is it not to be inferred from the prohibition of a censorship of the press, that the press, can without liability for its wrongful use, make use of the constitutional privilege for the purpose of inciting the people to the commission of crime against the public. The newspapers of anarchists and nihilists cannot be subjected to a censorship, or be absolutely suppressed; but if the proprietors should in their columns publish inflammatory appeals to the passion of discontents, and urge them to the commission of crimes against the public or against the individual, they may very properly be punished, and without doubt the right to the continued publication may be forfeited as a punishment for the crime.
i Cooley Const. Lim. 521 (*422).
POLICE REGULATIONS OF TRADES AND PROFESSIONS.
SECTION 85. General propositions.
86. Prohibition as to certain classes.
§ 85. General propositions. — It will probably not be disputed that every one has a right to pursue in a lawful manner, any lawful calling which he may select. The State can neither compel him to pursue any particular calling, nor prohibit him from engaging in any lawful business, provided he does so in a lawful manner. It is equally recognized as beyond dispute, that the State, in the exercise of its police power, is, as a general proposition, authorized to subject all occupations to a reasonable regulation, where such regulation is required for the protection of public interests, or for the public welfare. It is also conceded