Petitioner was indicted and convicted for violating the Kentucky
common law crime of criminal libel. The indictment charged "the
offense of criminal libel" committed "by publishing a false and
malicious publication which tends to degrade or injure" three named
persons. The trial court charged that
"criminal libel is defined as any writing calculated to create
disturbances of the peace, corrupt the public morals, or lead to
any act which, when done, is indictable."
The court also charged that malice and falsity were essential
elements of the offense. The Kentucky Court of Appeals, in
affirming the conviction, ruled that breach of the peace is not a
constitutional basis for imposing criminal liability, and held that
common law criminal libel is "the publication of a defamatory
statement about another which is false, with malice."
Held:
1. Where an accused is convicted under a broad construction of a
law which would make it unconstitutional, the conviction cannot be
sustained on appeal by a limiting construction which eliminates the
unconstitutional features of the law.
Shuttlesworth v.
Birmingham, 382 U. S. 87. P.
384 U. S.
198.
2. Because the offense was defined at trial as the publication
of a writing calculated to disturb the peace, petitioner was judged
by an unconstitutionally vague standard which required calculations
as the the reaction of the audience to which the publication was
addressed.
3. Although vague laws in any setting are impermissible, laws
which touch on First Amendment rights must be carefully and
narrowly drawn. Pp.
384 U. S.
200-201.
406 S.W.2d 562 reversed.
Page 384 U. S. 196
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner was sentenced to six months in prison and fined
$3,000 for printing a pamphlet found to be prohibited by the common
law of criminal libel in Kentucky. The Kentucky Court of Appeals,
with three judges dissenting, affirmed petitioner's conviction.
405
S.W.2d 562. We granted certiorari, 382 U.S. 971, and
reverse.
Petitioner went to Hazard, Kentucky, in 1963, where a bitter
labor dispute raged, to appeal for food, clothing and aid for
unemployed miners. The challenged pamphlet, which had a limited
circulation, stated concerning Sam L. Luttrell, Chief of Police of
Hazard:
"Six weeks ago, I witnessed a plot to kill the one pro-strike
city policeman on the Hazard Force. Three of the other cops were
after him while he was on night duty. It took 5 pickets guarding
him all night long to keep him from getting killed, but they could
not prevent him from being fired, which he was three weeks ago.
Another note on the City Police: the Chief of the force, Bud
Luttrell, has a job on the side of guarding an operator's home for
$100 a week. Its against the law for a peace officer to take
private jobs."
It said concerning Charles E. Combs, the Sheriff:
"The High Sheriff has hired 72 deputies at one time, more than
ever before in history; most of them hired because they wanted to
carry guns. He, Sheriff Combs, is also a mine operator -- in a
recent Court decision, he was fined $5,000 for intentionally
blinding a boy with tear-gas and beating him while he was locked in
a jail cell with his hands cuffed. The
Page 384 U. S. 197
boy lost the sight of one eye completely, and is nearly blind in
the other. Before the trial, Sheriff Combs offered the boy $75,000
to keep it out of court, but he refused. Then, for a few thousand
dollars, Combs probably bought off the jury. The case is being
appealed by the boy to a higher court -- he wants $200,000. Combs
is now indicted for the murder of a man -- voluntary manslaughter.
Yet he is still the law in this county, and has the support of the
rich man because he will fight the pickets and the strike. The same
is true of the State Police. They escort the scabs into the mines,
and hold the pickets at gunpoint."
And it said respecting Mrs. W. P. Nolan, co-owner of the Hazard
Herald:
"The town newspaper, the
Hazard Herald, has hollered
that 'the commies have come to the mountains of Kentucky' and are
leading the strike. The Herald was the recipient of over $14,000
cash and several truckloads of food and clothing which were sent as
the result of a CBS-TV show just before Christmas. The story was on
the strike, and aid was supposed to be sent to the pickets in care
of the
Hazard Herald; however, the editor, Mrs. W. P.
Nolan, is vehemently against labor -- she has said that she would
rather give the incoming aid to the merchants in town than to the
miners. Apparently that is what she has done, for only $1,100 of
the money has come to the pickets, and none of the food and
clothes. They are now either still under lock and key or have been
given out to the scabs and others still."
The indictment charged "the offense of criminal libel" committed
"by publishing a false and malicious publication which tends to
degrade or injure" the three named
Page 384 U. S. 198
persons. The trial court charged that
"criminal libel is defined as any writing calculated to create
disturbances of the peace, corrupt the public morals, or lead to
any act, which, when done, is indictable."
The court also charged that malice is "an essential element of
this offense," and falsity as well.
The Court of Appeals, in affirming the judgment of conviction,
adopted a different definition of the offense of criminal libel
from that given the jury by the trial court. It ruled that the
element of breach of the peace was no longer a constitutional basis
for imposing criminal liability. It held that the common law crime
of criminal libel in Kentucky is "the publication of a defamatory
statement about another which is false, with malice."
We indicated in
Shuttlesworth v. Birmingham,
382 U. S. 87, that
where an accused is tried and convicted under a broad construction
of an Act which would make it unconstitutional, the conviction
cannot be sustained on appeal by a limiting construction which
eliminates the unconstitutional features of the Act, as the trial
took place under the unconstitutional construction of the Act. We
think that principle applies here. Petitioner was tried and
convicted according to the trial court's understanding of Kentucky
law, which defined the offense as "any writing calculated to create
disturbances of the peace. . . ."
We agree with the dissenters in the Court of Appeals who stated
that:
". . . since the English common law of criminal libel is
inconsistent with constitutional provisions, and since no Kentucky
case has redefined the crime in understandable terms, and since the
law must be made on a case-to-case basis, the elements of the crime
are so indefinite and uncertain that it should not be enforced as a
penal offense in Kentucky."
The case is close to
Cantwell v. Connecticut,
310 U. S. 296,
involving a conviction of the common law crime
Page 384 U. S. 199
of inciting a breach of the peace. The accused was charged with
having played in the hearing of Catholics in a public place a
phonograph record attacking their religion and church. In
reversing, we said
"The offense known as breach of the peace embraces a great
variety of conduct destroying or menacing public order and
tranquility. It includes not only violent acts, but acts and words
likely to produce violence in others. . . . Here, we have a
situation analogous to a conviction under a statute sweeping in a
great variety of conduct under a general and indefinite
characterization, and leaving to the executive and judicial
branches too wide a discretion in its application."
Id. at
310 U. S.
308.
In
Terminiello v. Chicago, 337 U. S.
1, we held unconstitutional an ordinance which as
construed punished an utterance as a breach of the peace "if it
stirs the public to anger, invites dispute, brings about a
condition of unrest, or creates a disturbance."
Id. at
337 U. S. 3. We
set aside the conviction, saying:
"The vitality of civil and political institutions in our society
depends on free discussion. As Chief Justice Hughes wrote in
De
Jonge v. Oregon, 299 U. S. 353,
299 U. S.
365, it is only through free debate and free exchange of
ideas that government remains responsive to the will of the people
and peaceful change is effected. The right to speak freely and to
promote diversity of ideas and programs is therefore one of the
chief distinctions that sets us apart from totalitarian
regimes."
"Accordingly, a function of free speech under our system of
government is to invite dispute. It may indeed best serve its high
purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people
to anger. Speech is often provocative and challenging. It
Page 384 U. S. 200
may strike at prejudices and preconceptions and have profound
unsettling effects as it presses for acceptance of an idea."
Id. at
337 U. S. 4.
Convictions for "breach of the peace" where the offense was
imprecisely defined were similarly reversed in
Edwards v. South
Carolina, 372 U. S. 229,
372 U. S.
236-238, and
Cox v. Louisiana, 379 U.
S. 536,
379 U. S.
551-552. These decisions recognize that to make an
offense of conduct which is "calculated to create disturbances of
the peace" leaves wide open the standard of responsibility. It
involves calculations as to the boiling point of a particular
person or a particular group, not an appraisal of the nature of the
comments
per se. This kind of criminal libel "makes a man
a criminal simply because his neighbors have no self-control, and
cannot refrain from violence." Chafee, Free Speech in the United
States 151 (1954).
Here, as in the cases discussed above, we deal with First
Amendment rights. Vague laws in any area suffer a constitutional
infirmity. [
Footnote 1] When
First Amendment rights are involved, we look even more closely
lest, under the guise of regulating conduct that is reachable by
the police power, freedom of speech or of the press suffer.
[
Footnote 2] We
Page 384 U. S. 201
said in
Cantwell v. Connecticut, supra, that such a law
must be "narrowly drawn to prevent the supposed evil," 301 U.S. at
301 U. S. 307,
and that a conviction for an utterance "based on a common law
concept of the most general and undefined nature,"
id. at
301 U. S. 308,
could not stand.
All the infirmities of the conviction of the common law crime of
breach of the peace as defined by Connecticut judges are present in
this conviction of the common law crime of criminal libel as
defined by Kentucky judges.
Reversed.
MR. JUSTICE HARLAN concurs in the result.
[
Footnote 1]
International Harvester Co. of America v. Kentucky,
234 U. S. 216;
Collins v. Kentucky, 234 U. S. 634;
United States v. Cohen Grocery Co., 255 U. S.
81;
Connally v. General Construction Co.,
269 U. S. 385;
Cline v. Frink Dairy Co., 274 U.
S. 445;
Smith v. Cahoon, 283 U.
S. 553;
Champlin Refining Co. v. Commission,
286 U. S. 210;
Lanzetta v. New Jersey, 306 U. S. 451;
Wright v. Georgia, 373 U. S. 284;
Giaccio v. Pennsylvania, 382 U. S. 399.
Cf. Scull v. Virginia, 359 U. S. 344;
Raley v. Ohio, 360 U. S. 423.
[
Footnote 2]
Stromberg v. California, 283 U.
S. 359;
Herndon v. Lowry, 301 U.
S. 242;
Thornhill v. Alabama, 310 U. S.
88;
Winters v. New York, 333 U.
S. 507;
Smith v. California, 361 U.
S. 147;
Cramp v. Board of Public Instruction,
368 U. S. 278;
NAACP v. Button, 371 U. S. 415;
Baggett v. Bullitt, 377 U. S. 360;
Dombrowski v. Pfister, 380 U. S. 479.