Where the highest court of the state, in overruling a demurrer,
affirmed that the Constitution of the United States guaranteed
freedom of speech, but held the statute on which the indictment was
based valid in that respect and also that it was not bad for
uncertainty, citing cases decided by this Court as authority, this
Court may gather that rights under the federal Constitution were
relied on apart from the certificate of the state court to that
effect, and there is jurisdiction under § 237, Judicial Code, to
review the judgment.
The statute of the Washington, Rem. & Bal.Code, § 2564,
denouncing the willful printing, circulation, etc., of matter
advocating or encouraging the commission of any crime or breach of
the peace or which shall tend to encourage or advocate disrespect
for law or any court or courts of justice held
not to be
unconstitutional as the same has been construed by the highest
court of that state and applied in the case of one indicted for
publishing an article encouraging and inciting that which the jury
found was a breach of state laws against indecent exposure.
Statutes should be construed, so far as they fairly may be, in
such a way as to avoid doubtful constitutional questions, and this
Court presumes that state laws will be so construed by state
If the statute attacked should be construed as going no further
than it is necessary to go in order to decide the particular case
involved within it, it cannot be condemned for want of
Laws of the description of the statute of Washington involved in
this action and prohibiting encouragement of crime are not
This Court has nothing to do with the wisdom of the defendant,
the prosecution, or the act. It is concerned only with the question
whether the statute and its application infringes the federal
71 Wash. 185 affirmed.
The facts, which involve the constitutionality under the due
process clause of the Fourteenth Amendment of
Page 236 U. S. 274
a statute of the Washington preventing the willful printing and
circulation of written matter having tendency to encourage or
advocate disrespect for the law, are stated in the opinion.
Page 236 U. S. 275
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an information for editing printed matter tending to
encourage and advocate disrespect for law, contrary to a statute of
Washington. The statute is as follows:
"Every person who shall willfully print, publish, edit, issue,
or knowingly circulate, sell, distribute or display any book,
paper, document, or written or printed matter, in any form,
advocating, encouraging or inciting, or having a tendency to
encourage or incite the commission of any crime, breach of the
peace, or act of violence, or which shall tend to encourage or
advocate disrespect for law or for any court or courts of justice,
shall be guilty of a gross
Page 236 U. S. 276
Rem. & Bal.Code, § 2564. The defendant demurred on the
ground that the act was unconstitutional. The demurrer was
overruled, and the defendant was tried and convicted. 71 Wash. 185.
With regard to the jurisdiction of this Court, it should be
observed that the supreme court of the state, while affirming that
the Constitution of the United States guarantees freedom of speech,
held not only that the act was valid in that respect, but also that
it was not bad for uncertainty, citing Waters-Pierce Oil Co. v.
Texas, 212 U. S. 86
that we gather that the Constitution of the United States, and
especially the Fourteenth Amendment, was relied upon, apart from
the certificate of the chief justice to that effect.
The printed matter in question is an article entitled, "The Nude
and the Prudes," reciting in its earlier part that "Home is a
community of free spirits, who came out into the woods to escape
the polluted atmosphere of priest-ridden, conventional society;"
that "one of the liberties enjoyed by the Homeites was the
privilege to bathe in evening dress, or with merely the clothes
nature gave them, just as they chose," but that "eventually a few
prudes got into the community and proceeded in the brutal,
unneighborly way of the outside world to suppress the people's
freedom," and that they had four persons arrested on the charge of
indecent exposure, followed in two cases, it seems, by sentences to
imprisonment. "And the perpetrators of this vile action wonder why
they are being boycotted." It goes on:
"The well merited indignation of the people has been aroused.
Their liberty has been attacked. The first step in the way of
subjecting the community to all the persecution of the outside has
been taken. If this was let go without resistance, the progress of
the prudes would be easy."
It then predicts and encourages the boycott of those who thus
interfere with the freedom of Home, concluding: "The boycott will
be pushed until these invaders will come to see the
Page 236 U. S. 277
brutal mistake of their action and so inform the people." Thus,
by indirection, but unmistakably, the article encourages and
incites a persistence in what we must assume would be a breach of
the state laws against indecent exposure, and the jury so
So far as statutes fairly may be construed in such a way as to
avoid doubtful constitutional questions, they should be so
construed, United States v. Delaware & Hudson Co.,
213 U. S. 366
it is to be presumed that state laws will be construed in that way
by the state courts. We understand the state court, by implication,
at least, to have read the statute as confined to encouraging an
actual breach of law. Therefore the argument that this act is both
an unjustifiable restriction of liberty and too vague for a
criminal law must fail. It does not appear, and is not likely, that
the statute will be construed to prevent publications merely
because they tend to produce unfavorable opinions of a particular
statute or of law in general. In this present case, the disrespect
for law that was encouraged was disregard of it -- an overt breach
and technically criminal act. It would be in accord with the usages
of English to interpret disrespect as manifested disrespect, as
active disregard going beyond the line drawn by the law. That is
all that has happened as yet, and we see no reason to believe that
the statute will be stretched beyond that point.
If the statute should be construed as going no farther than it
is necessary to go in order to bring the defendant within it, there
is no trouble with it for want of definiteness. See Nash v.
United States, 229 U. S. 373
International Harvester Co. v. Kentucky, 234 U.
. It lays hold of encouragements that, apart from
statute, if directed to a particular person's conduct, generally
would make him who uttered them guilty of a misdemeanor, if not an
accomplice or a principal in the crime encouraged, and deals with
the publication of them to a wider and less
Page 236 U. S. 278
selected audience. Laws of this description are not unfamiliar.
Of course, we have nothing to do with the wisdom of the defendant,
the prosecution, or the act. All that concerns us is that it cannot
be said to infringe the Constitution of the United States.