When there are inherent in an appeal to this Court from a
judgment of the highest court of a state questions of state law
which were not presented to, or considered by, the highest court of
the state, this Court will vacate the judgment and remand the cause
to that court for consideration of those questions of state law.
Pp.
333 U. S.
96-98.
110 Utah 533, 175 P.2d 724, vacated and remanded.
The Supreme Court of Utah affirmed a conviction of appellants
for conspiracy "to commit acts injurious to public morals" in
violation of the Utah Code Ann., 1943, § 103-11-1. 110 Utah 533,
175 P.2d 724.
Judgment vacated and cause remanded, p.
333 U. S.
98.
MR. JUSTICE JACKSON delivered the opinion of the Court.
The appellants sought review by this Court of a decision by the
Supreme Court of Utah on the ground that the State convicted them
in violation of the Fourteenth
Page 333 U. S. 96
Amendment to the Federal Constitution. In the trial court, a
motion to dismiss the charge at the close of the evidence broadly
indicated reliance on the Fourteenth as well as the First
Amendment, and such reliance was indicated in requests for
instructions. A preliminary motion to quash the information was
stated in broad terms which it is claimed admitted argument of any
federal grounds. Trial resulted in conviction, and the Supreme
Court of the State overruled all constitutional objections and
affirmed.
On argument in this Court, inquiries from the bench suggested a
federal question which had not been specifically assigned by
defendants in this Court, nor in any court below, although general
transgression of the Fourteenth Amendment had been alleged. This
question is whether the Utah statute, for violation of which the
appellants are amerced, is so vague and indefinite that it fails
adequately to define the offense or to give reasonable standards
for determining guilt. The question grew out of these
circumstances:
Defendants were tried on an information which charged violation
of § 103-11-1, Utah Code Ann.1943, in that they conspired "to
commit acts injurious to public morals as follows: . . . " It then
specified acts which amount briefly to conspiring to counsel,
advise, and practice polygamous or plural marriage, and it set
forth a series of overt acts in furtherance thereof. The Supreme
Court considered that the prosecution was under Paragraph (5) of
103-11-1 which, so far as relevant, defines conspiracy,
"(5) To commit any act injurious to the public health, to public
morals, or to trade or commerce, or for the perversion or
obstruction of justice or the due administration of the laws. . .
."
It is obvious that this is no narrowly drawn statute. We do not
presume to give an interpretation as to what
Page 333 U. S. 97
it may include. Standing by itself, it would seem to be warrant
for conviction for agreement to do almost any act which a judge and
jury might find at the moment contrary to his or its notions of
what was good for health, morals, trade, commerce, justice, or
order. In some States the phrase "injurious to public morals" would
be likely to punish acts which it would not punish in others
because of the varying policies on such matters as use of
cigarettes or liquor and the permissibility of gambling. This led
to the inquiry as to whether the statute attempts to cover so much
that it effectively covers nothing. Statutes defining crimes may
fail of their purpose if they do not provide some reasonable
standards of guilt.
See, for example, United States v. Cohen
Grocery Co., 255 U. S. 81.
Legislation may run afoul of the Due Process Clause because it
fails to give adequate guidance to those who would be law-abiding,
to advise defendants of the nature of the offense with which they
are charged, or to guide courts in trying those who are
accused.
When the adequacy of this statute in these respects was
questioned, the State asked and was granted reargument here.
Rehearing convinces us that questions are inherent in this appeal
which were not presented to or considered by the Utah Supreme Court
and which involve determination of state law. We recognize that the
part of the statute we have quoted does not stand by itself as the
law of Utah, but is part of the whole body of common and statute
law of that State, and is to be judged in that context. It is
argued that, while Paragraph (5) as quoted is admittedly very
general, the present charge is sustainable under Paragraph (1)
thereof, which makes a crime of any conspiracy to commit a crime,
and that the sweep of Paragraph (5) is or may be so limited by its
context or by judicial construction as to supply more definite
standards for determining guilt. It is also said that the point, so
far
Page 333 U. S. 98
as this case is concerned, has been waived or lost because there
was no timely or sufficient assignment of it as ground for
dismissal to comply with state practice. We believe we should not
pass upon the questions raised here until the Supreme Court of Utah
has had opportunity to deal with this ultimate issue of federal law
and with any state law questions relevant to it.
This trial was not conducted in federal court nor for violation
of federal law. It is a prosecution by the State, in its courts, to
vindicate its own laws. Our sole concern with it is to see that no
conviction contrary to a valid objection raised under the
Fourteenth Amendment is upheld. What the statutes of a State mean,
the extent to which any provision may be limited by other Acts or
by other parts of the same Act, are questions on which the highest
court of the State has the final word. The right to speak this word
is one which State courts should jealously maintain and which we
should scrupulously observe. In order that the controversy may be
restored to the control of the Supreme Court of Utah, its present
judgment is vacated and the cause is remanded for proceedings not
inconsistent herewith.
Vacated and remanded.
MR. JUSTICE BLACK concurs in the result.
MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MURPHY concur, dissenting.
I would make a different disposition of the case. I think a
deeper vice infects these convictions than their apparent
invalidity for vagueness of the Utah statute, first suggested on
the original argument here, even if further construction by the
Utah courts might possibly remove that ground for reversal. The
crucial question, which the case was brought to this Court to
review, is
Page 333 U. S. 99
whether the state supreme court has construed the Utah statute
to authorize punishment for exercising the right of free speech
protected by the First and Fourteenth Amendments to the Federal
Constitution.
The statute which appellants have violated provides that it
shall be a crime for two or more persons to conspire "to commit any
act injurious . . . to public morals." The opinion of the state
supreme court construes these words to apply to conduct which
induces people to enter into bigamous relationships and, more
particularly, to the advocacy of the practice of polygamy. It held
that the appellants were properly convicted because the evidence
proved that they were parties to "an agreement to advocate,
counsel, advise and urge the practice of polygamy and unlawful
cohabitation by other persons."
Although the entire record of the trial has not been brought
here, it is clear that some appellants urged certain particular
individuals to practice polygamy. [
Footnote 1] For present purposes, I assume that such
direct and personalized activity amounting to incitation to commit
a crime may be proscribed by the state. However the charge was not
restricted to a claim that appellants had conspired to urge
particular violations of the law. Instead, the information as
construed by the state court broadly condemned the conspiracy to
advocate and urge the practice of polygamy. [
Footnote 2] This advocacy was at least in part
conducted in religious meetings where, although pressure may also
have been applied to individuals, considerable general discussion
of
Page 333 U. S. 100
the religious duty to enter into plural marriages was carried
on. [
Footnote 3]
Neither the statute, the information, nor the portions of the
charge to the jury which are preserved in the printed record
distinguish between the specific incitations and the more
generalized discussions.
Cf. Thomas v. Collins,
323 U. S. 516.
Thus, the trial and convictions proceeded on the theory that the
statute applied indiscriminately to both types of activity. This is
made doubly clear by the fact that the state supreme court set
aside the convictions of several defendants who had done no more
than attend meetings, give opinions on religious subjects, and
criticize legislation. [
Footnote
4] By setting aside these convictions, that court indicated
that it did not consider every discussion of polygamy, or
attendance at meetings where the practice is advocated, to be "an
act injurious to the public morals." Such a limitation on the scope
of the statute was unquestionably required
Page 333 U. S. 101
by the Federal Constitution. But, as I read the opinion of the
state court, it did not make a further limitation also required by
the First and Fourteenth Amendments. The Utah statute was construed
to proscribe any agreement to advocate the practice of polygamy.
[
Footnote 5] Thus, the line was
drawn between discussion and advocacy.
The Constitution requires that the statute be limited more
narrowly. At the very least, the line must be drawn between
advocacy and incitement, and even the state's power to punish
incitement may vary with the nature of the speech, whether
persuasive or coercive, the nature of the wrong induced, whether
violent or merely offensive to the mores, and the degree of
probability that the substantive evil actually will result.
See
Bridges v. California, 314 U. S. 252,
314 U. S.
262-263.
It is axiomatic that a democratic state may not deny its
citizens the right to criticize existing laws and to urge that they
be changed. And yet, in order to succeed in an effort to legalize
polygamy it is obviously necessary to convince a substantial number
of people that such conduct is desirable. But conviction that the
practice is desirable has a natural tendency to induce the practice
itself. [
Footnote 6] Thus,
depending on where the circular reasoning
Page 333 U. S. 102
is started, the advocacy of polygamy may either be unlawful as
inducing a violation of law or be constitutionally protected as
essential to the proper functioning of the democratic process.
In the abstract, the problem could be solved in various ways. At
one extreme, it could be said that society can best protect itself
by prohibiting only the substantive evil and relying on a
completely free interchange of ideas as the best safeguard against
demoralizing propaganda. [
Footnote
7] Or we might permit advocacy of lawbreaking, but only so long
as the advocacy falls short of incitement. [
Footnote 8] But the other extreme position, that the
state may prevent any conduct which induces people to violate the
law, or any advocacy of unlawful activity, cannot be squared with
the First Amendment. At the very least, as we have indicated, under
the "clear and present danger" rule, the second alternative stated
marks the limit of the state's power as restricted by the
Amendment.
The Supreme Court of Utah has, in effect, adopted the third
position stated above. It affirmed the convictions
Page 333 U. S. 103
on the theory that an agreement to advocate polygamy is
unlawful. The trial court certainly proceeded on this theory, if it
did not go further and consider discussion of polygamy as injurious
to public morals as well. Therefore, even assuming that appellants
may have been guilty of conduct which the state may properly
restrain, the convictions should be set aside. A general verdict
was returned, and hence it is impossible to determine whether the
jury convicted appellants on the ground that they conspired merely
to advocate polygamy or on the ground that the conspiracy was
intended to incite particular and immediate violations of the law.
Since, therefore, the convictions may rest on a ground invalid
under the Federal Constitution, I would reverse the judgment of the
state court.
Cf. Thomas v. Collins, supra; Williams v. North
Carolina, 317 U. S. 287;
Stromberg v. California, 283 U. S. 359.
[
Footnote 1]
"At one of these meetings, one Heber C. Smith, Jr. was made the
specific object of remarks of various defendants." 10 Utah 533, 175
P.2d 724, 735.
[
Footnote 2]
Although the information in terms charged a conspiracy to
advocate and practice polygamy, the state court construed it as
though it charged a conspiracy to advocate the practice of
polygamy. 175 P.2d 724, 730.
[
Footnote 3]
"It is true . . . that at certain meetings speakers discussed
polygamy, reading from the Bible and making the claim that the
ancient polygamous marriage system was instituted of God, and that
'plural marriage is a law of God;' and that some individuals at
these meetings declared that legislation prohibiting the practice
of polygamy violates the spirit of the First Amendment to the
Federal Constitution; that some speakers denounced officials of the
Mormon Church for excommunication of people for teaching or
practicing plural marriage, stating that the leaders of said church
have 'no divine authority,' and that such church is apostate, and
that some services were conducted as 'testimonial meetings' at
which members of the congregation arose voluntarily to express
their views on any subject, and to acknowledge gratitude to
God."
175 P.2d 724, 734.
[
Footnote 4]
"If it were true that none of the defendants did anything other
than to attend meetings as indicated above [
see note 3 supra], expressing
disagreement with some other denomination, criticizing legislation,
and giving opinions on religious subjects, none of the convictions
could be upheld. The right of free speech cannot be curtailed by
indirection through a charge of criminal conspiracy."
175 P.2d 724, 734.
[
Footnote 5]
The court held
"that an agreement to advocate, teach, counsel, advise and urge
other persons to practice polygamy and unlawful cohabitation is an
agreement to commit acts injurious to public morals within the
scope of the conspiracy statute."
Utah, 175 P.2d 724, 731.
[
Footnote 6]
"Political agitation, by the passions it arouses or the
convictions it engenders, may in fact stimulate men to the
violation of law. Detestation of existing policies is easily
transformed into forcible resistance of the authority which puts
them in execution, and it would be folly to disregard the causal
relation between the two. Yet to assimilate agitation, legitimate
as such, with direct incitement to violent resistance is to
disregard the tolerance of all methods of political agitation
which, in normal times, is a safeguard of free government. The
distinction is not a scholastic subterfuge, but a hard-bought
acquisition in the fight for freedom, and the purpose to disregard
it must be evident when the power exists. If one stops short of
urging upon others that it is their duty or their interest to
resist the law, it seems to me one should not be held to have
attempted to cause its violation."
Judge Learned Hand in
Masses Pub. Co. v. Patten, 244 F.
535, 540.
[
Footnote 7]
"We have nothing to fear from the demoralizing reasonings of
some if others are left free to demonstrate their errors, and
especially when the law stands ready to punish the first criminal
act produced by the false reasonings; these are safer corrections
than the conscience of a judge."
Excerpt of letter written by Thomas Jefferson to Elijah Boardman
of New Milford, Connecticut, on July 3, 1801, quoted by Charles A.
Beard, The Nation, July 7, 1926, vol. 123, p. 8.
[
Footnote 8]
"But even advocacy of violation, however reprehensible morally,
is not a justification for denying free speech where the advocacy
falls short of incitement and there is nothing to indicate that the
advocacy would be immediately acted on."
Mr. Justice Brandeis, concurring in
Whitney v.
California, 274 U. S. 357, at
274 U. S.
376.