This section is from the book "The Constitutional Law Of The United States", by Westel Woodbury Willoughby. Also available from Amazon: Constitutional Law.
The prohibition laid upon Congress by the First Amendment that it shall make no law "abridging the freedom of speech, or of the press" has given rise to very few pronouncements by the Supreme Court, and in no instance, indeed, has the constitutionality of an act of Congress been seriously questioned upon this ground before that tribunal.
12 133 U. S. 333; 10 Sup. Ct. Rep. 299; 33 L. ed. 637.
13 13 Wall. 679; 20 L. ed. 666.
In United States v. Williams14 the provision of the Immigration Act of March 3, 1903, for the exclusion of aliens holding anarchistic beliefs was indeed questioned on the ground that freedom of speech and press was infringed, but the court dismissed the point with the observation that while it is true that if an alien is not permitted to enter this country, or, having entered contrary to law, is expelled therefrom, he is cut off from speaking or publishing in this country, yet the right freely to speak or publish is not infringed, for the one claiming the right "does not become one of the people to whom these things are secured by our Constitution by an attempt to enter, forbidden by law." The question thus became simply one of the right to exclude. As to this the court had no doubt in the premises of the power of Congress.
In Ex parte Jackson15 the court after holding that sealed matter in the mails may not be opened and examined, except upon a proper search warrant, go on to observe that as to printed unsealed matter, their transportation in the mails may not be so interfered with as to violate the freedom of the press, because unfettered circulation of printed matter is as essential to the freedom of the press as is the liberty of printing. Therefore, it is declared, if printed matter be excluded from the mails, its transportation in other ways may not be forbidden by Congress.16
And in Ex parte Rapier17 the court say with reference to the exclusion of lottery tickets, and advertisements thereof from the mails: "The circulation of newspapers is not prohibited, but the government declines to become an agent in the circulation of printed matter which it regards as injurious to the people. The freedom of communication is not abridged within the intent and meaning of the constitutional provision unless Congress is absolutely destitute of any discretion as to what shall or shall not be carried in the mails, and compelled arbitrarily to assist in the dissemination of matter condemned by its judgment, through the government agencies which it controls."
14 104 U. S. 279; 24 Sup. Ct. Rep. 719; 48 L. ed. 979.
15 96 U. S. 727 ; 24 L. ed. 877.
16 "Nor can any regulations be enforced against the transportation of printed matter in the mail, which is open to examination, so as to interfere in any manner with the freedom of the press. Liberty of circulating is as essential to that freedom as liberty of publishing: indeed, without the circulation, the publication would be of little value. If, therefore, printed matter be excluded from the mails, its transportation in any other way cannot be forbidden by Congress."
17 143 U. S. 110; 12 Sup. Ct. Rep. 374; 36 L. ed. 93.
The main purpose of the constitutional provisions of the First Amendment has been declared to be "to prevent all such previous restraints upon publications as had been practised by other governments, and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare." 18 In the case in which this doctrine is declared, the court held unfounded the claim of a right under the First Amendment to prove the truth* of statements contained in certain publications which had by the lower court been held to constitute a contempt of the court.
It would thus appear that the prohibition of the First Amendment relative to the abridgment of freedom of speech or press not only leaves to the federal courts the authority to grant relief to persons libeled or slandered, and to punish for contempt the publication or utterance of statements reflecting upon its own dignity or calculated to interfere with the proper and efficient administration of justice and the execution of its writs, but that it preserves, or at least does not restrict the power of Congress to declare criminal and provide punishment for the publication or open advocation of doctrines or practices calculated to destroy or interfere with the exercise of its constitutional powers.
18 Patterson v. Colorado, 205 U. S. 454; 27 Sup. Ct. Eep. 556; 51 L. ed. 879, citing Com. v. Blanding, 3 Peek, 304; Respublica v. Oswald, 1 Dall. 319. Justice Harlan dissenting, says, "I cannot assent to that view, if it be meant that the legislature may impair or abridge the rights of a free press and of free speech wherever it thinks that the public welfare requires that to be done."