APPENDIX B

THE LEGAL SITUATION IN REFERENCE TO

FREE SPEECH AND FREE ASSEMBLAGE.

ADDRESS OF THE HON. JOSEPH BUFFINGTON BEFORE THE NEW JERSEY STATE BAR ASSOCIATION AT THE ANNUAL MEETING HELD IN THE MUSIC ROOM OF THE HOTEL CHELSEA, ATLANTIC CITY, NEW JERSEY, JUNE 12th, 1920.

MR. CHAIRMAN: I need not say, gentlemen, that I am glad to be with the New Jersey Bar Association; if I wasn't glad to be with you I wouldn't be here.

Of the many things in the public thought, it seemed to me that a brief talk about free assemblage and free speech would be timely in light of the late industrial troubles at our end of Pennsylvania, which affected the nation's supply of those basic needs of coal and steel.

During these troubles of last summer and fall, possibly some of you who only saw things at long range feared there was a denial of free assemblage and free speech in our dealing with the situation out there. I am here to meet and combat any such fear. I am here to say what was done out in that region was done in accord with the basic principles of law and order and with the rights of individuals to free speech and free assemblage. The maintenance of law and order needs no apologies. It needs simply a statement of the facts and an understanding of the local situation.

I have no thought of entering into a discussion of the merits or demerits of our industrial troubles. That is a matter which, to my mind, does not enter into the question of the basic, fundamental duty of the State, a duty which it can never shirk, side-track or pussyfoot, the absolute maintenance of public law, public order, public peace.

Now, gentlemen, we Pennsylvania people are a law and order people. We have no trouble about law and order if people from other States let us alone. And the rank and file of Penn

sylvania have been getting along pretty well when they let us alone. The trouble is you people outside don't always realize how well we have been getting along. Now, of course, there are some of us who have not automobile jobs. I belong to that class, for a Federal Judge who has an automobile would come pretty near subjecting himself to an investigation. But there is the miner who is supposed to be the victim of the capitalist. He has not had the sad lot you may picture. There is a small mine I have in mind. A hundred or more miners are employed in that mine. Thirty of them have automobiles, and they are not confined to "Henry Fords" I may say to you that in the great steel strike a man's sister appealed to me to get her brother, who had struck back to work. I was busy with court work. I couldn't see him during the daytime, and I said, "If it is not imposing on your brother I wish he would come out to my house in the evening, but I hate to have him come all that distance with the long car ride." She said, "Oh, that don't matter; he can come over in his automobile." And I found out, when he came to talk to me the whole evening, he not only had an automobile, but his wages were $15.00 per day. I speak of these things not as going into the merits or demerits of the situation, but only to let you know a few things that may make you feel a little happier when you burn your coal and let you know that not all your coal bill when you pay it goes to coal barons.

Now, this question of law and order and industrial disturbances, and the right of free assemblage and free speech, came to me in a somewhat personal way. During the preceding year one of the Justices of the Supreme Court of Pennsylvania had his house dynamited in the City of Philadelphia. In my own end of the State, Judge Thomson, United States District Judge, a man of the mildest kind, with most patient, most tender regard for the rights of everybody, who would never oppress any, was chosen as a victim. His house was mistaken for that of his neighbor, and his neighbor's house had the front blown out of it by dynamite. So when these troubles came up last fall I felt that, as senior member of the judicial family, it was my duty to be at home, and if any disturbance growing out of it came into the Federal Court, it was my business to be at the wheel. That

led me, gentlemen, to look in a preliminary way into the question of free assemblage and free speech, and as the days went on I found that those controversies did not find their way into the Federal Courts, much to my surprise, although there were plenty of non-residents of Pennsylvania who could by reason of their non-residence have had access to the Federal Courts. I scon found the reason, for when I came to examine into the fundamentals of the right of free speech and free assemblage, I found it was not a Federal right at all, but was wholly a Pennsylvania right, conferred by the Pennsylvania Constitution. I found, to my surprise, what I say here, that I am here to-day in this presence, this assemblage of Jerseymen, on Jersey soil and exercising the right of free speech and free assemblage, not because I am a citizen of the United States, not because I am a citizen of Pennsylvania, but because you are meeting here and giving me that privilege under the laws of the State of New Jersey. My speech here,, my free speech before this free assemblage, I am exercising under the law and order system of New Jersey.

So that when a man comes to me with blatant talk about exercising his Constitutional American right of free speech, or his inalienable right as a citizen of the United States, to say what he pleases and where he pleases, I am not mislead by that. My right to free assemblage and free speech comes to me on Pennsylvania soil as a Pennsylvanian, and was a right that existed before the Constitution of the United States was made. True, it was conserved by the United States agreeing not to abridge— "Congress shall make no law ******* abridging the freedom of speech ******* or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," for that negative action is the scope of Federal undertaking. But the right has its basis or foundation and enjoyment under the constitution of my own State, just as you are enjoying your New Jersey right here, and when I come in to speak here, I come bowing to the omnipotent law and order of the sovereign State of New Jersey, and the right of New Jersey to so control my free speech and free assemblage as shall not interfere with New Jersey law and order.

I found, and you will see it when you go home and look over these things-and, men of New Jersey, there never was a time in the history of things when we had more need to study, to ponder, to think and to pray over the fundamentals of Government than now. If you go into it deeply you will see where this "constitutional right of free speech and free assemblage" came from, you will find that the limit of guarantee in the Constitution of the United States was to prevent the Congress of the United States from abridging the right of free speech and free assemblage. In other words, when our National Constitution was formed, the right of free speech and free assemblage was somthing which existed beforehand by virtue of State Constitutions. It came from the Sovereign States that were in existence at the time of the forming of our Federal Constitution, and in the nature of things you can see how that was the case.

If you turn back to the Declaration of Independence, you will find that among the twenty-eight or so things which a dictatorial King was personally charged as a person in that document with, as violative of our rights as British subjects, one of them was King George's violation of the right of assemblage. It was that right of free assemblage and free speech that was denied us here as British subjects, and as citizens of these different colonies, that King George had arbitrarily interfered with, by his orders made on the other side of the Atlantic. And for this violation of our right of free speech and free assemblage, enforced by soldiers here in America, there was no remedy except that of traveling three thousand miles across the sea. And so it came about that the control of free speech and free meeting, the Constitution of Pennsylvania and the Constitution of New Jersey afterwards vested in the officers of law and order here at home and in officers whom the voters of any locality would change by ballot if they were thought to improperly forbid free assemblage or free speech. A remedy at home and by ballot was provided if the right was wrongfully withheld. And it was that denial by King George. over the seas, of free speech and assemblage, the right of the people to peaceably assemble to discuss steps of the Government or questions that concerned them, that right that was forbidden by arbitrary action, by