In a meeting which attracted considerable public attention,
petitioner addressed a large audience in an auditorium outside of
which was an angry and turbulent crowd protesting against the
meeting. He condemned the conduct of the crowd outside and
vigorously criticized various political and racial groups.
Notwithstanding efforts of a cordon of police to maintain order,
there were several disturbances in the crowd. Petitioner was
charged with violation of an ordinance forbidding any "breach of
the peace," and the trial court instructed the jury that any
misbehavior which "stirs the public to anger, invites dispute,
brings about a condition of unrest, or creates a disturbance"
violates the ordinance. Petitioner did not except to that
instruction, but he did maintain at all times that, as applied to
his conduct, the ordinance violated his right of free speech under
the Federal Constitution. He was convicted on a general verdict,
and his conviction was affirmed by an intermediate appellate court
and by the Supreme Court of the State.
1. As construed by the trial court and applied to petitioner,
the ordinance violates the right of free speech guaranteed by the
First Amendment, made applicable to the States by the Fourteenth
Amendment. Pp. 337 U. S. 4
2. It is immaterial that petitioner took no exception to the
instruction, and that, throughout the appellate proceedings, the
state courts assumed that the only conduct punishable and punished
under the ordinance was conduct constituting "fighting words,"
Page 337 U. S. 2
since the verdict was a general one, and it cannot be said that
petitioner's conviction was not based upon the instruction quoted
above. Stromberg v. California, 283 U.
. Pp. 337 U. S. 5
400 Ill. 23, 79 N.E.2d 39, reversed.
Petitioner was convicted in a state court of violating a city
ordinance forbidding any breach of the peace. The Illinois
Appellate Court affirmed. 332 Ill.App. 17, 74 N.E.2d 45. The
Supreme Court of Illinois affirmed. 400 Ill. 23, 79 N.E.2d 39. This
Court granted certiorari. 335 U.S. 890. Reversed,
337 U. S. 6
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner after jury trial was found guilty of disorderly
conduct in violation of a city ordinance of Chicago, *
and fined. The
case grew out of an address he delivered in an auditorium in
Chicago under the auspices of the
Page 337 U. S. 3
Christian Veterans of America. The meeting commanded
considerable public attention. The auditorium was filled to
capacity, with over eight hundred persons present. Others were
turned away. Outside of the auditorium, a crowd of about one
thousand persons gathered to protest against the meeting. A cordon
of policemen was assigned to the meeting to maintain order, but
they were not able to prevent several disturbances. The crowd
outside was angry and turbulent.
Petitioner, in his speech, condemned the conduct of the crowd
outside and vigorously, if not viciously, criticized various
political and racial groups whose activities he denounced as
inimical to the nation's welfare.
The trial court charged that "breach of the peace" consists of
any "misbehavior which violates the public peace and decorum", and
"misbehavior may constitute a breach of the peace if it stirs
the public to anger, invites dispute, brings about a condition of
unrest, or creates a disturbance, or if it molests the inhabitants
in the enjoyment of peace and quiet by arousing alarm."
Petitioner did not take exception to that instruction. But he
maintained at all times that the ordinance, as applied to his
conduct, violated his right of free speech under the Federal
Constitution. The Judgment of conviction was affirmed by the
Illinois Appellate Court (332 Ill.App. 17, 74 N.E.2d 45) and by the
Illinois Supreme Court. 396 Ill. 41, 71 N.E.2d 2; 400 Ill. 23, 79
N.E.2d 39. The case is here on a petition for certiorari, which we
granted because of the importance of the question presented.
The argument here has been focused on the issue of whether the
content of petitioner's speech was composed of derisive, fighting
words, which carried it outside the scope of the constitutional
guarantees. See Chaplinsky v. New Hampshire, 315 U.
; Cantwell v. Connecticut, 310 U.
, 310 U. S. 310
We do not reach that question, for there is a preliminary question
that is dispositive of the case.
Page 337 U. S. 4
As we have noted, the statutory words "breach of the peace" were
defined in instructions to the jury to include speech which "stirs
the public to anger, invites dispute, brings about a condition of
unrest, or creates a disturbance. . . ." That construction of the
ordinance is a ruling on a question of state law that is as binding
on us as though the precise words had been written into the
ordinance. See Hebert v. Louisiana, 272 U.
, 272 U. S. 317
Winters v. New York, 333 U. S. 507
333 U. S.
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
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 may
strike at prejudices and preconceptions and have profound
unsettling effects as it presses for acceptance of an idea. That is
why freedom of speech, though not absolute, Chaplinsky v. New
315 U. S. 571
-572, is nevertheless protected against
censorship or punishment, unless shown likely to produce a clear
and present danger of a serious substantive evil that rises far
above public inconvenience, annoyance, or unrest. See Bridges
v. California, 314 U. S. 252
314 U. S. 262
Craig v. Harney, 331 U. S. 367
331 U. S. 373
There is no room under our Constitution for a more restrictive
view. For the alternative would lead to standardization of
Page 337 U. S. 5
either by legislatures, courts, or dominant political or
The ordinance as construed by the trial court seriously invaded
this province. It permitted conviction of petitioner if his speech
stirred people to anger, invited public dispute, or brought about a
condition of unrest. A conviction resting on any of those grounds
may not stand.
The fact that petitioner took no exception to the instruction is
immaterial. No exception to the instructions was taken in
Stromberg v. California, 283 U. S. 359
a judgment of conviction based on a general verdict under a state
statute was set aside in that case because one part of the statute
was unconstitutional. The statute had been challenged as
unconstitutional, and the instruction was framed in its language.
The Court held that the attack on the statute as a whole was
equally an attack on each of its individual parts. Since the
verdict was a general one, and did not specify the ground upon
which it rested, it could not be sustained. For one part of the
statute was unconstitutional, and it could not be determined that
the defendant was not convicted under that part.
The principle of that case controls this one. As we have said,
the gloss which Illinois placed on the ordinance gives it a meaning
and application which are conclusive on us. We need not consider
whether as construed it is defective in its entirety. As construed
and applied, it at least contains parts that are unconstitutional.
The verdict was a general one, and we do not know on this record
but what it may rest on the invalid clauses.
The statute, as construed in the charge to the jury, was passed
on by the Illinois courts and sustained by them over the objection
that, as so read, it violated the Fourteenth Amendment. The fact
that the parties did not dispute its construction makes the
adjudication no less
Page 337 U. S. 6
ripe for our review, as the Stromberg
indicates. We can only take the statute as the state courts read
it. From our point of view, it is immaterial whether the state law
question as to its meaning was controverted or accepted. The pinch
of the statute is in its application. It is that question which the
petitioner has brought here. To say, therefore, that the question
on this phase of the case is whether the trial judge gave a wrong
charge is wholly to misconceive the issue.
But it is said that, throughout the appellate proceedings, the
Illinois courts assumed that the only conduct punishable and
punished under the ordinance was conduct constituting "fighting
words." That emphasizes, however, the importance of the rule of the
case. Petitioner was not convicted under a
statute so narrowly construed. For all anyone knows, he was
convicted under the parts of the ordinance (as construed) which,
for example, make it an offense merely to invite dispute or to
bring about a condition of unrest. We cannot avoid that issue by
saying that all Illinois did was to measure petitioner's conduct,
not the ordinance, against the Constitution. Petitioner raised both
points -- that his speech was protected by the Constitution; that
the inclusion of his speech within the ordinance was a violation of
the Constitution. We would, therefore, strain at technicalities to
conclude that the constitutionality of the ordinance, as construed
and applied to petitioner, was not before the Illinois courts. The
record makes clear that petitioner at all times challenged the
constitutionality of the ordinance as construed and applied to
"All persons who shall make, aid, countenance, or assist in
making any improper noise, riot, disturbance, breach of the peace,
or diversion tending to a breach of the peace, within the limits of
the city . . . shall be deemed guilty of disorderly conduct, and
upon conviction thereof, shall be severally fined not less than one
dollar nor more than two hundred dollars for each offense."
Municipal Code of Chicago, 1939, § 193-1.
MR. CHIEF JUSTICE VINSON, dissenting.
I dissent. The Court today reverses the Supreme Court of
Illinois because it discovers in the record one sentence in the
trial court's instructions which permitted
Page 337 U. S. 7
the jury to convict on an unconstitutional basis. The offending
sentence had heretofore gone completely undetected. It apparently
was not even noticed, much less excepted to, by the petitioner's
counsel at the trial. No objection was made to it in the two
Illinois appellate tribunals which reviewed the case. Nor was it
mentioned in the petition for certiorari or the briefs in this
Court. In short, the offending sentence in the charge to the jury
was no part of the case until this Court's independent research
ferreted it out of a lengthy and somewhat confused record. I think
it too plain for argument that a reversal on such a basis does not
accord with any principle governing review of state court decisions
heretofore announced by this Court. Certainly, Stromberg v.
California, 283 U. S. 359
(1931), as MR. JUSTICE FRANKFURTER demonstrates, offers no
precedent for today's action.
It will not do to say that, because the Illinois appellate
courts affirmed the petitioner's conviction in the face of a
constitutional attack, they necessarily must have approved the
interpretation of the Chicago ordinance contained in the unnoticed
instruction. The fact is that the Illinois courts construed the
ordinance as punishing only the use of "fighting words." Their
opinions plainly show that they affirmed because they thought that
the petitioner's speech had been found by the jury to come within
that category.* Their action was not, and cannot here be taken to
be, an approval of the ordinance "as construed" by the instruction,
because the record clearly shows that the case was treated on
appeal, both by counsel and by the courts, as if no such
instruction existed. This Court can reverse the conviction because
of the instruction only if we are to say that every time a
Page 337 U. S. 8
court affirms a conviction, it necessarily must approve of every
unnoticed and unobjected-to error which we may discover in the
record. If such is the doctrine of this case, I feel compelled to
register my emphatic dissent.
The instruction informed the jury that they could return a
verdict of guilty if they found that the petitioner's speech was
one which "stirs the public to anger, invites dispute, brings about
a condition of unrest, or creates a disturbance." If the
petitioner's counsel, who carefully made other constitutional
objections throughout the proceedings below, had brought any issue
here as to the constitutional validity of that instruction, I would
agree with the Court's decision. But the record gives me no basis
on which to believe that the Illinois courts would not also have so
decided if that issue had been presented to them.
The Court, as I understand it, does not reach the issue which
the parties argued here -- whether a properly instructed jury could
constitutionally have found from the conflicting evidence in the
record that, under the circumstances, the words in the petitioner's
speech were "fighting words" to those inside the hall who heard
them. Certainly the Court does not decide whether the violent
opposition of those outside the hall, who did not hear the speech,
could constitutionally warrant the conviction of the petitioner in
order to keep the streets from becoming ideological battlegrounds.
Since neither of these constitutional issues is decided by the
Court, I think that it is not within my province to indicate any
opinion concerning them. See Rescue Army v. Municipal
Court, 331 U. S. 549
331 U. S. 568
* The opinions arc reported at 332 Ill.App. 17, 74 N.E.2d 45,
and at 400 Ill. 2.3, 79 N.E.2d 39. See particularly
Ill.App. at pp. 23 and 38; 400 Ill. at p. 33.
MR. JUSTICE FRANKFURTER, dissenting.
For the first time in the course of the 130 years in which State
prosecutions have come here for review, this Court is today
reversing a sentence imposed by a State court
Page 337 U. S. 9
on a ground that was urged neither here nor below and that was
explicitly disclaimed on behalf of the petitioner at the bar of
The impropriety of that part of the charge which is now made the
basis of reversal was not raised at the trial, nor before the
Appellate Court of Illinois. The fact that counsel for Terminiello
wholly ignored it is emphasized by the objections that he did make
in relation to other instructions given and not given. On appeal to
the Supreme Court of Illinois, counsel still failed to claim as
error that which this Court, on its own motion, now finds violative
of the Constitution. It was not mentioned by the Illinois Supreme
Court in its careful opinion disposing of other claims, and it was
not included in the elaborate petition for rehearing in that court.
Thus, an objection, not raised by counsel in the Illinois courts,
not made the basis of the petition for certiorari here -- not
included in the "Questions Presented," nor in the "Reasons Relied
On for the Allowance of the Writ" -- and explicitly disavowed at
the bar of this Court, is used to upset a conviction which has been
sustained by three courts of Illinois.
Reliance on Stromberg v. California, 283 U.
, for what is done today is wholly misplaced.
Neither expressly nor by implication has that decision any bearing
upon the issue which the Court's opinion in this case raises,
namely, whether it is open for this Court to reverse the highest
court of a State on a point which was not brought before that
court, did not enter into the judgment rendered by that court, and
at no stage of the proceedings in this Court was invoked as error
by the State court whose reversal is here sought. The
case presented precisely the opposite situation.
In that case, the claim which here prevailed was a ground of
unconstitutionality urged before the California court; upon its
rejection by that court it was made the basis of appeal
Page 337 U. S. 10
to this Court; it was here urged as the decisive ground for the
reversal of the California judgment.
case dealt with a statute which
proscribed conduct in a threefold way. The information upon which a
verdict of guilty was secured was couched in the threefold terms of
the statute, and in that form submitted to the jury. A general
verdict followed. It was urged throughout the proceedings, and
finally at the bar of this Court, that one of the proscriptions of
the statute was invalid under the Fourteenth Amendment. That view
was sustained. All that the case holds is that, where the validity
of a statute is successfully assailed as to one of three clauses of
a statute and all three clauses were submitted to the jury, the
general verdict has an infirmity, because it cannot be assumed that
the jury convicted on the valid portions of the statute, and not on
the invalid. There was no question in that case of searching the
record for an alleged error that at no time was urged against the
State judgment brought here for review.
In the Stromberg
case, an error that was properly urged
was sustained. In this case, a claim that was not urged but was
disavowed is transmuted into a claim denied.
Only the uninformed will deride as a merely technical point
objection to what the Court is doing in this case. The matter
touches the very basis of this Court's authority in reviewing the
judgments of State courts. We have no authority to meddle with such
a judgment unless some claim under the Constitution or the laws of
the United States has been made before the State court whose
judgment we are reviewing and unless the claim has been denied by
that court.* How could there have been a
Page 337 U. S. 11
denial of a federal claim by the Illinois courts, i.e.,
that the trial judge offended the Constitution of the United States
in what he told the jury, when no such claim was made? The relation
of the United States and the courts of the United States to the
States and the courts of the States is a very delicate matter. It
is too delicate to permit silence when a judgment of a State court
is reversed in disregard of the duty of this Court to leave
untouched an adjudication of a State unless that adjudication is
based upon a claim of a federal right which the State has had an
opportunity to meet and to recognize. If such a federal claim was
neither before the State court nor presented to this Court, this
Court unwarrantably strays from its province in looking through the
record to find some federal claim that might have been brought to
the attention of the State court, and, if so brought, fronted, and
that might have been, but was not, urged here. This is a court of
review, not a tribunal unbounded by rules. We do not sit like a
kadi under a tree dispensing justice according to considerations of
Freedom of speech undoubtedly means freedom to express views
that challenge deep-seated, sacred beliefs, and to utter sentiments
that may provoke resentment. But those indulging in such stuff as
that to which this proceeding gave rise are hardly so deserving as
to lead this Court to single them out as beneficiaries of the
Page 337 U. S. 12
departure from the restrictions that bind this Court in
reviewing judgments of State courts. Especially odd is it to bestow
such favor not for the sake of life or liberty, but to save a small
amount of property -- $100, the amount of the fine imposed upon the
petitioner in a proceeding which is civil, not criminal, under the
laws of Illinois, and thus subject only to limited review. City
of Chicago v. Terminiello,
400 Ill. 23, 29, 79 N.E.2d 39, 43.
This Court has recognized that fines of this nature are not within
provisions of the Constitution governing federal criminal
prosecutions. See Hepner v. United States, 213 U.
The importance of freedom of speech, of course, cannot be
measured by dollars and cents. A great principle may be at stake,
as in the Case of the Ship Money,
though the issue arise
over the payment of a few shillings' tax. Were the Court to sustain
the claim urged throughout these proceedings, in Illinois and here,
namely, that a law is unconstitutional when it forbids
Terminiello's harangue in the circumstances of its utterance, it
would be immaterial that only $100 is involved. But to inject an
error into the record in order to avoid the issue on which the case
was brought here -- for certainly relief from the payment of a fine
of $100 could not alone have induced this Court to excogitate a
defect in the judgment which counsel thoughtfully rejected and
which three State courts did not consider -- hardly raises the
objection to the dignity of such a principle. If the Court
refrained from taking phrases out of their environment and finding
in them a self-generated objection, it could not be deemed to have
approved of them even as abstract propositions.
On the merits of the issue reached by the Court, I share MR.
JUSTICE JACKSON's views. For I assume that the Court does not mean
to reject, except merely for purposes of this case, the basic
principle that guides scrutiny of
Page 337 U. S. 13
a charge on appeal. I assume, that is, that a charge is not to
be deemed a bit of abstraction in a non-existing world; the
function which a charge serves is to give practical guidance to a
jury in passing on the case that was unfolded before it -- the
particular circumstances in their particular setting.
MR. JUSTICE JACKSON and MR. JUSTICE BURTON join this
"Our power of review in this case is limited not only to the
question whether a right guaranteed by the Federal Constitution was
denied, Murdock v. City of Memphis,
20 Wall. 590; Haire v. Rice, 204 U. S.
, 204 U. S. 301
; but to the
particular claims duly made below, and denied. Seaboard Air
Line Ry. v. Duvall, 225 U. S. 477
, 225 U. S.
-488. We lack here the power occasionally exercised
on review of judgments of lower federal courts to correct in
criminal cases vital errors, although the objection was not taken
in the trial court. Wiborg v. United States, 163 U. S.
, 163 U. S. 658
Clyatt v. United States, 197 U. S. 207
, 197 U. S.
-222. This is a writ of error to a state court.
Because we may not enquire into the errors now alleged, I concur in
affirming the judgment of the state court."
Concurring opinion of Mr. Justice Brandeis, joined by Mr.
Justice Holmes, in Whitney v. California, 274 U.
, 274 U. S. 380
MR. JUSTICE JACKSON, dissenting.
The Court reverses this conviction by reiterating generalized
approbations of freedom of speech with which, in the abstract, no
one will disagree. Doubts as to their applicability are lulled by
avoidance of more than passing reference to the circumstances of
Terminiello's speech and judging it as if he had spoken to persons
as dispassionate as empty benches, or like a modern Demosthenes
practicing his Philippics on a lonely seashore.
But the local court that tried Terminiello was not indulging in
theory. It was dealing with a riot, and with a speech that provoked
a hostile mob and incited a friendly one, and threatened violence
between the two. When the trial judge instructed the jury that it
might find Terminiello guilty of inducing a breach of the peace if
his behavior stirred the public to anger, invited dispute, brought
about unrest, created a disturbance or molested peace and quiet by
arousing alarm, he was not speaking of these as harmless or
abstract conditions. He was addressing his words to the concrete
behavior and specific consequences disclosed by the evidence. He
was saying to the jury, in effect, that, if this particular speech
added fuel to the situation already so inflamed as to threaten to
get beyond police control, it could be punished as inducing a
breach of peace. When the light of the evidence not recited by the
Court is thrown upon the Court's opinion, it discloses that
underneath a little issue of
Page 337 U. S. 14
Terminiello and his hundred-dollar fine lurk some of the most
far-reaching constitutional questions that can confront a people
who value both liberty and order. This Court seems to regard these
as enemies of each other, and to be of the view that we must forego
order to achieve liberty. So it fixes its eyes on a conception of
freedom of speech so rigid as to tolerate no concession to
society's need for public order.
An old proverb warns us to take heed lest we "walk into a well
from looking at the stars." To show why I think the Court is in
some danger of doing just that, I must bring these deliberations
down to earth by a long recital of facts.
Terminiello, advertised as a Catholic Priest but revealed at the
trial to be under suspension by his Bishop, was brought to Chicago
from Birmingham, Alabama, to address a gathering that assembled in
response to a call signed by Gerald L. K. Smith, which, among other
". . . The same people who hate Father Coughlin hate Father
Terminiello . They have persecuted him, hounded him, threatened
him, but he has remained unaffected by their anti-Christian
campaign against him. You will hear all sorts of reports concerning
Father Terminiello. But remember that he is a Priest in good
standing, and a fearless lover of Christ and America."
The jury may have considered that this call attempted to
capitalize the hatreds this man had stirred and foreshadowed, if it
did not intend to invite, the kind of demonstration that
Terminiello's own testimony shows the conditions under which he
spoke. So far as material, it follows:
". . . We got there [the meeting place] approximately fifteen or
twenty minutes past eight. The car stopped at the front entrance.
There was a
Page 337 U. S. 15
crowd of three or four hundred congregated there shouting and
cursing and picketing. . . ."
"When we got there, the pickets were not marching; they were
body to body, and covered the sidewalk completely, some on the
steps, so that we had to form a flying wedge to get through. Police
escorted us to the building, and I noticed four or five others
"They called us 'God damned Fascists, Nazis, ought to hang the
so and sos.' When I entered the building, I heard the howls of the
people outside. . . . There were four or five plain clothes
officers standing at the entrance to the stage, and three or four
at the entrance to the back door."
"The officers threatened that, if they broke the door again,
they would arrest them, and every time they opened the door a
little to look out, something was thrown at the officers, including
ice-picks and rocks."
"A number of times, the door was broken, was partly broken
through. There were doors open this way, and they partly opened,
and the officers looked out two or three times, and each time,
ice-picks, stones and bottles were thrown at the police at the
door. I took my place on the stage; before this, I was about ten or
fifteen minutes in the body of the hall."
"I saw a number of windows broken by stones or missiles. I saw
the back door being forced open, pushed open."
"The front door was broken partly open after the doors were
closed. There were about seven people seated on the stage. Smith
opened the meeting with prayer, the Pledge of Allegiance to the
Flag and singing of America. There were other speakers who spoke
before me, and before I spoke, I heard things happening in the hall
and coming from the outside. "
Page 337 U. S. 16
"I saw rocks being thrown through windows, and that continued
throughout at least the first half of the meeting, probably longer,
and again attempts were made to force the front door, rather, the
front door was forced partly. The howling continued on the outside,
cursing could be heard audibly in the hall at times. Police were
rushing in and out of the front door, protecting the front door,
and there was a general commotion, all kinds of noises and violence
-- all from the outside."
"Between the time the first speaker spoke and I spoke, stones
and bricks were thrown in all the time. I started to speak about 35
or 40 minutes after the meeting started, a little later than nine
o'clock. . . ."
The court below, in addition to this recital, heard other
evidence that the crowd reached an estimated number of 1,500.
Picket lines obstructed and interfered with access to the building.
The crowd constituted "a surging, howling mob hurling epithets" at
those who would enter, and "tried to tear their clothes off." One
young woman's coat was torn off, and she had to be assisted into
the meeting by policemen. Those inside the hall could hear the loud
noises and hear those on the outside yell, "Fascists," "Hitlers"
and curse words like "damn Fascists." Bricks were thrown through
the windowpanes before and during the speaking. About 28 windows
were broken. The street was black with people on both sides for at
least a block either way; bottles, stink bombs and brickbats were
thrown. Police were unable to control the mob, which kept breaking
the windows at the meeting hall, drowning out the speaker's voice
at times, and breaking in through the back door of the auditorium.
About 17 of the group outside were arrested by the police.
Knowing of this environment, Terminiello made a long speech,
from the stenographic record of which I omit
Page 337 U. S. 17
relatively innocuous passages and add emphasis to what seems
"Father Terminiello: Now, I am going to whisper my greetings to
you, Fellow Christians. I will interpret it. I said, 'Fellow
Christians,' and I suppose there are some of the scum got in by
mistake, so I want to tell a story about the scum:
". . . And nothing I could say tonight could begin to express
the contempt I have for the slimy scum
that got in by
". . . The subject I want to talk to you tonight about is the
attempt that is going on right outside this hall tonight,
the attempt that is going on to destroy America by
. . ."
"My friends, it is no longer true that it can't happen here. It
is happening here, and it only depends upon you, good people, who
are here tonight, depends upon all of us together, as Mr. Smith
said. The tide is changing, and if you and I turn and run from that
tide, we will all be drowned in this tidal wave of Communism which
is going over the world."
". . . I am not going to talk to you about the menace of
Communism, which is already accomplished, in Russia, where from
eight to fifteen million people were murdered in cold blood by
their own countrymen, and millions more through Eastern Europe at
the close of the war are being murdered by these murderous
Russians, hurt, being raped and sent into slavery. That is what
they want for you, that howling mob outside.
"I know I was told one time that my winter quarters were ready
for me in Siberia. I was told that. Now, I am talking about the
fifty-seven varieties that we have in America, and we have
fifty-seven varieties of pinks and reds and pastel shades in this
country, and all of it can be traced back to the
Page 337 U. S. 18
twelve years we spent under the New Deal, because that was the
build-up for what is going on in the world today."
"* * * *"
"Now, Russia promised us we would ga [sic
] back to the
official newspaper of Russia. Primarily, it was back about 1929.
They quoted the words of George E. Dimitroff, who at that time was
the Executive Secretary of the Communist International. I only
quote you this one passage. I could quote thousands of paragraphs
for you. Let me quote you: 'The worldwide nature of our program is
not mere talk, but an all embracing blood-soaked reality.' That
is what they want for us, a blood-soaked reality, but it was
promised to us by the crystal gazers in Washington,
know what I mean by the 'crystal gazers,' I presume."
"First of all, we had Queen Eleanor. Mr. Smith said, 'Queen
Eleanor is now one of the world's communists.' She is one who said
this -- imagine, coming from the spouse of the former President of
the United States for twelve long years -- this is what she said:
'The war is but a step in the revolution. The war is but one step
in the revolution, and we know who started the war.'"
"Then we have Henry Adolph Wallace, the sixty million job
magician. You know we only need fifty-four million jobs in America,
and everybody would be working. He wants sixty million jobs,
because some of the bureaucrats want two jobs apiece. Here he is,
what he says about revolution: 'We are in for a profound
revolution. Those of us who realize the inevitableness of the
revolution, and are anxious that it be gradual and bloodless
instead of somewhat bloody. Of course, if necessary, we will have
it more bloody.
Page 337 U. S. 19
"And then Chief Justice Stone had this to say: 'A way has been
found for the effective suppression of speeches and press and
religion, despite constitutional guarantee,' -- from the Chief
Justice, from the Chief Justice of the United States."
"Now, my friends, they are planning another ruse, and if it ever
happens to this cou-try [sic
], God help America. They are
going to try to put into Mr. Edgar Hoover's position a man by the
name of George Swarzwald.
I think even those who were
uneducated on so-called sedition charges, that the majority of the
individuals in this department, that Christ-like men and women who
realize today what is going on in this country, men who are in this
audience today, who want to know the names of those people,
before they are outside, they want to know the names if any. Did
you hear any tonight that you recognize? Most of them probably are
imported. They are imported from Russia, certainly. If you know the
names, please send them to me immediately.
. . ."
". . . Didn't you ever read the Morgenthau plan for the
starvation of little babies and pregnant women in Germany? Whatever
could a child that is born have to do with Hitler or anyone else at
the beginning of the war? Why should every child in Germany today
not live to be more than two or three months of age? Because
Morgenthau wants it that way, and so did F.D.R. . . . You will
know who is behind it when I tell you the story
of a doctor in
Akron, Ohio. He boasted to a friend of mine within the last few
days, while he was in the service of this country as a doctor, he
and others of his kind made it a practice -- now, this was not only
one man -- made it a practice to amputate the limbs of every German
they came in contact with whenever
Page 337 U. S. 20
they could get away with it, so, that they could never carry a
gun. Imagine men of that caliber, sworn to serve this beautiful
country of ours, why should we tolerate them?
"My friends, this moment someone reminded me of the plan to
sterilize them. The nurses, they tell me are going to inject
diseases in them, syphilis and other diseases in every one that
came there all of one race, all non-Christians.
. . ."
"Now, we are going to get the threats of the people of
Argentine, the people of Spain. We have now declared, according to
our officials, to have declared Franco to have taken the place of
Hitler. Franco was the savior of what was left of
"Now, let me say, I am going to talk about -- I almost said,
about the Jews. Of course, I would not want to say that. However, I
am going to talk about some Jews. I hope that -- I am a Christian
minister. We must take a Christian attitude. I don't want you to go
from this hall with hatred in your heart for any person, for no
person. . . ."
"Now, this danger which we face -- let us call them Zionist Jews
if you will, let's call them atheistic, communistic Jewish or
Zionist Jews, then let us not fear to condemn them. You remember
the Apostles when they went into the upper room after the death of
the Master, they went in there, after locking the doors; they
closed the windows. (At this time there was a very loud noise as if
something was being thrown into the building.)"
"Don't be disturbed. That happened, by the way, while Mr. Gerald
Smith was saying 'Our Father who art in heaven;' (just then, a rock
went through the window.) Do you wonder they were persecuted in
other countries in the world?
. . . "
Page 337 U. S. 21
"You know I have always made a study of the psychology,
sociology of mob reaction. It is exemplified out there.
Remember there has to be a leader to that mob. He is not out there.
He is probably across the street, looking out the window. There
must be certain things, money, other things, in order to have
successful mob action; there must be rhythm. There must be some to
beat a cadence. Those mobs are chanting; that is the caveman's
chant. They were trained to do it. They were trained this
afternoon. They are being led; there will be
"That is why I say to you, men, don't you do it. Walk out of
here dignified. The police will protect you. Put the women on the
inside, where there will be no hurt to them. Just walk; don't stop
and argue. . . . They want to picket our meetings. They don't want
us to picket their meetings. It is the same kind of tolerance, if
we said there was a bedbug in bed, 'We don't care for you,' or if
we looked under the bed and found a snake and said, 'I am going to
be tolerant and leave the snake there.' We will not be tolerant of
that mob out there. We are not going to be tolerant any
"We are strong enough. We are not going to be tolerant of their
smears any longer. We are going to stand up and dare them to
. . ."
"So, my friends, since we spent much time tonight trying to
quiet the howling mob, I am going to bring my thoughts to a
conclusion, and the conclusion is this. We must all be like the
Apostles before the coming of the Holy Ghost. We must not lock
ourselves in an upper room for fear of the Jews. I speak of the
Communistic Zionistic Jew, and those are not American Jews. We
don't want them here; we want them to go back where they came
"* * * *
Page 337 U. S.
"Mr. Smith: I would like to ask that Miss Purcell would please
go back to the front of the building and contact the police officer
in charge of the detail. We are going to adjourn this meeting if
and when Miss Purcell comes back and reports to me that the one in
charge of the detail believes it is safe for us to go out on the
street. I am sure it is. Sit still. We are not going to have
anybody move. If there are any chiselers that want to go, we are
going to take up an offering for Father Terminiello."
"(There was further discussion to stimulate this offering which
was not reported.)"
Such was the speech. Evidence showed that it stirred the
audience not only to cheer and applaud but to expressions of
immediate anger, unrest and alarm. One called the speaker a "God
damned liar," and was taken out by the police. Another said that
"Jews, niggers and Catholics would have to be gotten rid of." One
response was, "Yes, the Jews are all killers, murderers. If we
don't kill them first, they will kill us." The anti-Jewish stories
elicited exclamations of "Oh," and "Isn't that terrible," and
shouts of "Yes, send the Jews back to Russia," "Kill the Jews,"
"Dirty kikes," and much more of ugly tenor. This is the specific
and concrete kind of anger, unrest and alarm, coupled with that of
the mob outside, that the trial court charged the jury might find
to be a breach of peace induced by Terminiello. It is difficult to
believe that this Court is speaking of the same occasion, but it is
the only one involved in this litigation.
Terminiello, of course, disclaims being a fascist. Doubtless
many of the indoor audience were not consciously such. His speech,
however, followed, with fidelity that is more than coincidental,
the pattern of European fascist leaders.
Page 337 U. S. 23
The street mob, on the other hand, included some who deny being
communists, but Terminiello testified and offered to prove that the
demonstration was communist-organized and communist-led. He offered
literature of left-wing organizations calling members to meet and
"mobilize" for instruction as pickets and exhorting followers: "All
out to fight Fascist Smith."
As this case declares a nationwide rule that disables local and
state authorities from punishing conduct which produces conflicts
of this kind, it is unrealistic not to take account of the nature,
methods and objectives of the forces involved. This was not an
isolated, spontaneous and unintended collision of political, racial
or ideological adversaries. It was a local manifestation of a
worldwide and standing conflict between two organized groups of
revolutionary fanatics, each of which has imported to this country
the strong-arm technique developed in the struggle by which their
kind has devastated Europe. Increasingly, American cities have to
cope with it. One faction organizes a mass meeting, the other
organizes pickets to harass it; each organizes squads to counteract
the other's pickets; parade is met with counter-parade. Each of
these mass demonstrations has the potentiality, and more than a
few, the purpose, of disorder and violence. This technique appeals
not to reason, but to fears and mob spirit; each is a show of force
designed to bully adversaries and to overawe the indifferent. We
need not resort to speculation as to the purposes for which these
tactics are calculated, nor as to their consequences. Recent
European history demonstrates both.
Hitler summed up the strategy of the mass demonstration as used
by both fascism and communism:
"We should not work in secret conventicles, but in mighty mass
demonstrations, and it is not by dagger and poison or pistol that
the road can be cleared for the movement, but by the conquest
of the streets.
We must teach the Marxists
Page 337 U. S. 24
that the future master of the streets
Socialism, just as it will some day be the master of the
(Emphasis supplied.) 1 Nazi Conspiracy and Aggression
(GPO, 1946) 204, 2 id.
140, Docs. 2760-PS, 404-PS, from
" First laughed at as an extravagant figure of
speech, the battle for the streets became a tragic reality when an
began to give practical effect to
its slogan that "possession of the streets is the key to power in
the state." Ibid.
also Doc. 2168-PS.
The present obstacle to mastery of the streets by either radical
or reactionary mob movements is not the opposing minority. It is
the authority of local governments which represent the free choice
of democratic and law-abiding elements of all shades of opinion,
but who, whatever their differences, submit them to free elections
which register the results of their free discussion. The fascist
and communist groups, on the contrary, resort to these terror
tactics to confuse, bully and discredit those freely chosen
governments. Violent and noisy shows of strength discourage
participation of moderates in discussions so fraught with violence,
and real discussion dries up and disappears. And people lose faith
in the democratic process when they see public authority flouted
and impotent, and begin to think the time has come when they must
choose sides in a false and terrible dilemma such as was posed as
being at hand by the call for the Terminiello meeting: "Christian
Nationalism or World Communism -- Which?"
This drive by totalitarian groups to undermine the prestige and
effectiveness of local democratic governments is advanced whenever
either of them can win from this Court a ruling which paralyzes the
power of these officials. This is such a case. The group of which
Terminiello is a part claims that his behavior, because it involved
a speech, is above the reach of local authorities.
Page 337 U. S. 25
If the mild action those authorities have taken is forbidden, it
is plain that, hereafter, there is nothing effective left that they
can do. If they can do nothing as to him, they are equally
powerless as to rival totalitarian groups. Terminiello's victory
today certainly fulfills the most extravagant hopes of both right
and left totalitarian groups, who want nothing so much as to
paralyze and discredit the only democratic authority that can curb
them in their battle for the streets.
I am unable to see that the local authorities have transgressed
the Federal Constitution. Illinois imposed no prior censorship or
suppression upon Terminiello. On the contrary, its sufferance and
protection was all that enabled him to speak. It does not appear
that the motive in punishing him is to silence the ideology he
expressed as offensive to the State's policy or as untrue, or has
any purpose of controlling his thought or its peaceful
communication to others. There is no claim that the proceedings
against Terminiello are designed to discriminate against him or the
faction he represents or the ideas that he bespeaks. There is no
indication that the charge against him is a mere pretext to give
the semblance of legality to a covert effort to silence him or to
prevent his followers or the public from hearing any truth that is
A trial court and jury has found only that, in the context of
violence and disorder in which it was made, this speech was a
provocation to immediate breach of the peace, and therefore cannot
claim constitutional immunity from punishment. Under the
Constitution as it has been understood and applied, at least until
most recently, the State was within its powers in taking this
Rioting is a substantive evil which I take it no one will deny
that the State and the City have the right and the duty to prevent
and punish. Where an offense is
Page 337 U. S. 26
induced by speech, the Court has laid down and often reiterated
a test of the power of the authorities to deal with the speaking as
also an offense.
"The question in every case is whether the words used are
used in such circumstances
and are of such a nature
as to create a clear and present
danger that they will
bring. about the substantive evils that Congress [or the State or
City] has a right to prevent."
(Emphasis supplied.) Mr. Justice Holmes, in Schenck v.
United States, 249 U. S. 47
249 U. S. 52
one ventures to contend that the State, on the basis of this test,
for whatever it may be worth, was not justified in punishing
Terminiello. In this case, the evidence proves beyond dispute that
danger of rioting and violence in response to the speech was clear,
present and immediate. If this Court has not silently abandoned
this longstanding test and substituted for the purposes of this
case an unexpressed but more stringent test, the action of the
State would have to be sustained.
Only recently, this Court held that a state could punish as a
breach of the peace use of epithets such as "damned racketeer" and
"damned fascist," addressed to only one person, an official,
because likely to provoke the average person to retaliation. But
these are mild in comparison to the epithets "slimy scum,"
"snakes," "bedbugs," and the like, which Terminiello hurled at an
already inflamed mob of his adversaries. MR. JUSTICE MURPHY,
writing for a unanimous Court in Chaplinsky v. New
Hampshire, 315 U. S. 568
315 U. S.
"There are certain well defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting or
'fighting' words -- those which, by their very utterance, inflict
injury or tend to incite an immediate breach of the peace. It has
been well observed
Page 337 U. S. 27
that such utterances are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that
any benefit that may be derived from them is clearly outweighed by
the social interest in order and morality."
"Resort to epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no
question under that instrument."
"Cantwell v. Connecticut, 310 U. S.
, 310 U. S. 309
In the latter case Mr. Justice Roberts, for a unanimous Court,
"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. No one would have the
hardihood to suggest that the principle of freedom of speech
sanctions incitement to riot or that religious liberty connotes the
privilege to exhort others to physical attack upon those belonging
to another sect. When clear and present danger of riot, disorder,
interference with traffic upon the public streets, or other
immediate threat to public safety, peace, or order, appears, the
power of the State to prevent or punish is obvious."
, 310 U. S.
How this present decision, denying state power to punish civilly
one who precipitated a public riot involving hundreds of fanatic
fighters in a most violent melee, can be squared with those
unanimous statements of law is incomprehensible to me. And the
Court recently cited these two statements as indicating that
"The essential rights of the First Amendment, in some instances,
are subject to the elemental need for order without which the
guarantees of civil rights to others would be a mockery. "
Page 337 U. S. 28
United Public Workers v. Mitchell, 330 U. S.
, 330 U. S.
However, these wholesome principles are abandoned today, and in
their place is substituted a dogma of absolute freedom for
irresponsible and provocative utterance which almost completely
sterilizes the power of local authorities to keep the peace as
against this kind of tactics.
Before giving the First and Fourteenth Amendments to the
Constitution this effect, we should recall that our application of
the First Amendment to Illinois rests entirely on authority which
this Court has voted to itself. The relevant parts of the First
Amendment, with emphasis supplied, reads: "Congress
law . . . abridging the freedom of speech." This
restrains no authority except Congress. Read as literally as some
would do, it restrains Congress in terms so absolute that no
legislation would be valid if it touched free speech, no matter how
obscene, treasonable, defamatory, inciting or provoking. If it
seems strange that no express qualifications were inserted in the
Amendment, the answer may be that limitations were thought to be
implicit in the definition of "freedom of speech/" as then
understood. Or it may have been thought unnecessary to delegate to
Congress any power over abuses of free speech. The Federal
Government was then a new and experimental authority, remote from
the people, and it was supposed to deal with a limited class of
national problems. Inasmuch as any breaches of peace from abuse of
free speech traditionally were punishable by state governments, it
was needless to reserve that power in a provision drafted to
exclude only Congress from such a field of lawmaking.
The Fourteenth Amendment forbade states to deny the citizen "due
process of law." But its terms gave no notice to the people that
its adoption would strip their local governments of power to deal
with such problems of local
Page 337 U. S. 29
peace and order as we have here. Nor was it hinted by this Court
for over half a century that the Amendment might have any such
effect. In 1922, with concurrence of the most liberty-alert
Justices of all times -- Holmes and Brandeis -- this Court declared
flatly that the Constitution does not limit the power of the state
over free speech. Prudential Insurance Co. v. Cheek,
259 U. S. 530
259 U. S. 543
In later years, the Court shifted its dogma, and decreed that the
Constitution does this very thing, and that state power is bound by
the same limitation as Congress. Gitlow v. New York,
268 U. S. 652
have no quarrel with this history. See Board of Education v.
Barnette, 319 U. S. 624
recite the method by which the right to limit the state has been
derived only from this Court's own assumption of the power, with
never a submission of legislation or amendment into which the
people could write any qualification to prevent abuse of this
liberty, as bearing upon the restraint I consider as becoming in
exercise of self-given and unappealable power.
It is significant that provisions adopted by the people with
awareness that they applied to their own states have universally
contained qualifying terms. The Constitution of Illinois is
representative of the provisions put in nearly all state
constitutions, and reads (Art. II, § 4): "Every person may freely
speak, write and publish on all subjects, being responsible for
the abuse of that liberty.
" (Emphasis added.) That is what I
think is meant by the cryptic phrase "freedom of speech," as used
in the Federal Compact, and that is the rule I think we should
apply to the states.
This absence from the Constitution of any expressed power to
deal with abuse of freedom of speech has enabled the Court to soar
aloof from any consideration of the abuses which create problems
for the states and to indulge in denials of local authority, some
of which seem to me improvident in the light of functions which
Page 337 U. S. 30
must be relied on to perform for our free society. Quite apart
from any other merits or defects, recent decisions have almost
completely immunized this battle for the streets from any form of
Streets and parks maintained by the public cannot legally be
denied to groups "for communication of ideas." Hague v.
CIO, 307 U. S. 496
Jamison v. Texas, 318 U. S. 413
Cities may not protect their streets from activities which the law
has always regarded subject to control, as nuisances. Lovell v.
Griffin, 303 U. S. 444
Schneider v. State, 308 U. S. 147
Cities may not protect the streets or even homes of their
inhabitants from the aggressions of organized bands operating in
large numbers. Douglas v. Jeannette, 319 U.
. As in this case, the facts are set forth fully
only in the dissent, p. 319 U. S. 166
See also Martin v. Struthers, 319 U.
. Neither a private party nor a public authority
can invoke otherwise valid state laws against trespass to exclude
from their property groups bent on disseminating propaganda.
Marsh v. Alabama, 326 U. S. 501
Tucker v. Texas, 326 U. S. 517
Picketing is largely immunized from control on the ground that it
is free speech, Thornhill v. Alabama, 310 U. S.
, and police may not regulate sound trucks and
loud-speakers, Saia v. New York, 334 U.
, though the Court finds them an evil that may be
prohibited altogether. Kovacs v. Cooper, 336 U. S.
. And one-third of the Court has gone further, and
declared that a 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 . . . ,"
and it is only we who can decide when the limit is passed.
Musser v. Utah, 333 U. S. 95
333 U. S. 102
Whatever the merits of any one of these decisions in isolation, and
there were sound reasons for some of them, it cannot be denied that
their cumulative effect has been a sharp handicap on municipal
Page 337 U. S. 31
of the streets and a dramatic encouragement of those who would
use them in a battle of ideologies.
I do not think we should carry this handicap further, as we do
today, but should adhere to the principles heretofore announced to
safeguard our liberties against abuse, as well as against invasion.
It should not be necessary to recall these elementary principles,
but it has been a long time since some of them were even mentioned
in this Court's writing on the subject, and results indicate they
may have been overlooked.
I begin with the oft-forgotten principle which this case
demonstrates, that freedom of speech exists only under law, and not
independently of it. What would Terminiello's theoretical freedom
of speech have amounted to had he not been given active aid by the
officers of the law? He could reach the hall only with their help,
could talk only because they restrained the mob, and could make his
getaway only under their protection. We would do well to recall the
words of Chief Justice Hughes in Cox v. New Hampshire,
312 U. S. 569
312 U. S.
"Civil liberties, as guaranteed by the Constitution, imply the
existence of an organized society maintaining public order without
which liberty itself would be lost in the excesses of unrestrained
abuses. . . ."
This case demonstrates also that this Court's service to free
speech is essentially negative, and can consist only of reviewing
actions by local magistrates. But if free speech is to be a
practical reality, affirmative and immediate protection is
required, and it can come only from nonjudicial sources. It depends
on local police, maintained by law-abiding taxpayers, and who,
regardless of their own feelings, risk themselves to maintain
supremacy of law. Terminiello's theoretical right to speak free
from interference would have no reality if Chicago should withdraw
its officers to some other section of the city, or if the men
assigned to the task should look the other
Page 337 U. S. 32
way when the crowd threatens Terminiello. Can society be
expected to keep these men at Terminiello's service if it has
nothing to say of his behavior which may force them into dangerous
No one will disagree that the fundamental, permanent and
overriding policy of police and courts should be to permit and
encourage utmost freedom of utterance. It is the legal right of any
American citizen to advocate peaceful adoption of fascism or
communism, socialism or capitalism. He may go far in expressing
sentiments, whether pro-Semitic or anti-Semitic, pro-Negro or
anti-Negro, pro-Catholic or anti-Catholic. He is legally free to
argue for some anti-American system of government to supersede by
constitutional methods the one we have. It is our philosophy that
the course of government should be controlled by a consensus of the
governed. This process of reaching intelligent popular decisions
requires free discussion. Hence, we should tolerate no law or
custom of censorship or suppression.
But we must bear in mind also that no serious outbreak of mob
violence, race rioting, lynching or public disorder is likely to
get going without help of some speechmaking to some mass of people.
A street may be filled with men and women, and the crowd still not
be a mob. Unity of purpose, passion and hatred, which merges the
many minds of a crowd into the mindlessness of a mob, almost
invariably is supplied by speeches. It is naive, or worse, to teach
that oratory with this object or effect is a service to liberty. No
mob has ever protected any liberty, even its own, but, if not put
down, it always winds up in an orgy of lawlessness which respects
In considering abuse of freedom by provocative utterances, it is
necessary to observe that the law is more tolerant of discussion
than are most individuals or communities. Law is so indifferent to
subjects of talk that I think of none that it should close to
Page 337 U. S. 33
social and political topics that, in other times or countries
have not been open to lawful debate may be freely discussed
Because a subject is legally arguable, however, does not mean
that public sentiment will be patient of its advocacy at all times
and in all manners. So it happens that, while peaceful advocacy of
communism or fascism is tolerated by the law, both of these
doctrines arouse passionate reactions. A great number of people do
not agree that introduction to America of communism or fascism is
even debatable. Hence, many speeches, such as that of Terminiello,
may be legally permissible, but may nevertheless, in some
surroundings, be a menace to peace and order. When conditions show
the speaker that this is the case, as it did here, there certainly
comes a point beyond which he cannot indulge in provocations to
violence without being answerable to society.
Determination of such an issue involves a heavy responsibility.
Courts must beware lest they become mere organs of popular
intolerance. Not every show of opposition can justify treating a
speech as a breach of peace. Neither speakers nor courts are
obliged always and in all circumstances to yield to prevailing
opinion and feeling. As a people grow in capacity for civilization
and liberty, their tolerance will grow, and they will endure, if
not welcome, discussion even on topics as to which they are
committed. They regard convictions as tentative, and know that time
and events will make their own terms with theories, by whomever and
by whatever majorities they are held, and many will be proved
wrong. But, on our way to this idealistic state of tolerance, the
police have to deal with men as they are. The crowd mind is never
tolerant of any idea which does not conform to its herd opinion. It
does not want a tolerant effort at meeting of minds. It does not
know the futility of trying to mob an idea. Released from the sense
Page 337 U. S. 34
personal responsibility that would restrain even the worst
individuals in it if alone and brave with the courage of numbers,
both radical and reactionary mobs endanger liberty, as well as
order. The authorities must control them, and they are entitled to
place some checks upon those whose behavior or speech calls such
mobs into being. When the right of society to freedom from probable
violence should prevail over the right of an individual to defy
opposing opinion presents a problem that always tests wisdom, and
often calls for immediate and vigorous action to preserve public
order and safety.
I do not think that the Constitution of the United States denies
to the states and the municipalities power to solve that problem in
the light of local conditions, at least so long as danger to public
order is not invoked in bad faith, as a cover for censorship or
suppression. The preamble declares domestic tranquility, as well as
liberty, to be an object in founding a Federal Government, and I do
not think the Forefathers were naive in believing both can be
fostered by the law.
Certain practical reasons reinforce the legal view that cities
and states should be sustained in the power to keep their streets
from becoming the battleground for these hostile ideologies to the
destruction and detriment of public order. There is no other power
that can do it. Theirs are the only police that are on the spot.
The Federal Government has no police force. The Federal Bureau of
Investigation is, and should remain, not a police, but an
investigative, service. To date, the only federal agency for
preserving and restoring order when local authority fails has been
the Army. And when the military steps in, the court takes a less
liberal view of the rights of the individual, and sustains most
arbitrary exercises of military power. See Korematsu v. United
States, 323 U. S. 214
Every failure of local authority to deal with riot problems results
in a demand for the
Page 337 U. S. 35
establishment of a federal police or intervention by federal
authority. In my opinion, locally established and controlled police
can never develop into the menace to general civil liberties that
is inherent in a federal police.
The ways in which mob violence may be worked up are subtle and
various. Rarely will a speaker directly urge a crowd to lay hands
on a victim or class of victims. An effective and safer way is to
incite mob action while pretending to deplore it, after the classic
example of Antony, and this was not lost on Terminiello. And
whether one may be the cause of mob violence by his own
personification or advocacy of ideas which a crowd already fears
and hates is not solved merely by going through a transcript of the
speech to pick out "fighting words." The most insulting words can
be neutralized if the speaker will smile when he says them, but a
belligerent personality and an aggressive manner may kindle a fight
without use of words that, in cold type shock us. True judgment
will be aided by observation of the individual defendant, as was
possible for this jury and trial court, but impossible for us.
There are many appeals these days to liberty, often by those who
are working for an opportunity to taunt democracy with its
stupidity in furnishing them the weapons to destroy it, as did
Goebbels when he said:
"When democracy granted democratic methods for us in the times
of opposition, this [Nazi seizure of power] was bound to happen in
a democratic system. However, we National Socialists never asserted
that we represented a democratic point of view, but we have
declared openly that we used democratic methods only in order to
gain the power, and that, after assuming the power, we would deny
to our adversaries without any consideration the means which were
granted to us in the times of [our] opposition."
1 Nazi Conspiracy and Aggression
(GPO, 1946) 202, Doc.
Page 337 U. S. 36
Invocation of constitutional liberties as part of the strategy
for overthrowing them presents a dilemma to a free people which may
not be soluble by constitutional logic alone.
But I would not be understood as suggesting that the United
States can or should meet this dilemma by suppression of free, open
and public speaking on the part of any group or ideology.
Suppression has never been a successful permanent policy; any
surface serenity that it creates is a false security, while
conspiratorial forces go underground. My confidence in American
institutions and in the sound sense of the American people is such
that if, with a stroke of the pen, I could silence every fascist
and communist speaker, I would not do it. For I agree with Woodrow
Wilson, who said:
"I have always been among those who believed that the greatest
freedom of speech was the greatest safety, because if a man is a
fool, the best thing to do is to encourage him to advertise the
fact by speaking. It cannot be so easily discovered if you allow
him to remain silent and look wise, but if you let him speak, the
secret is out, and the world knows that he is a fool. So it is by
the exposure of folly that it is defeated, not by the seclusion of
folly, and, in this free air of free speech, men get into that sort
of communication with one another which constitutes the basis of
all common achievement."
Address at the Institute of France, Paris, May 10, 1919. 2
Selected Literary and Political Papers and Addresses of Woodrow
But if we maintain a general policy of free speaking, we must
recognize that its inevitable consequence will be sporadic local
outbreaks of violence, for it is the nature of men to be intolerant
of attacks upon institutions, personalities and ideas for which
they really care. In
Page 337 U. S. 37
the long run, maintenance of free speech will be more endangered
if the population can have no protection from the abuses which lead
to violence. No liberty is made more secure by holding that its
abuses are inseparable from its enjoyment. We must not forget that
it is the free democratic communities that ask us to trust them to
maintain peace with liberty, and that the factions engaged in this
battle are not interested permanently in either. What would it
matter to Terminiello if the police batter up some communists or,
on the other hand, if the communists batter up some policemen?
Either result makes grist for his mill; either would help promote
hysteria and the demand for strong-arm methods in dealing with his
adversaries. And what, on the other hand, have the communist
agitators to lose from a battle with the police?
This Court has gone far toward accepting the doctrine that civil
liberty means the removal of all restraints from these crowds, and
that all local attempts to maintain order are impairments of the
liberty of the citizen. The choice is not between order and
liberty. It is between liberty with order and anarchy without
either. There is danger that, if the Court does not temper its
doctrinaire logic with a little practical wisdom, it will convert
the constitutional Bill of Rights into a suicide pact.
I would affirm the conviction.
MR. JUSTICE BURTON joins in this opinion.