* Together with No. 771, Misc., Epton v. New York,
appeal from the same court.
** It is true that some of the acts relied upon by the State to
establish the existence of a conspiracy to riot consisted of
speeches made by Epton. Like my Brother DOUGLAS, I think it is at
least arguable that a State cannot convict a man of criminal
conspiracy without first demonstrating some constitutionally
unprotected overt act in furtherance of the alleged unlawful
agreement. But the State in these cases presented proof that Epton
had actively participated in the formation of a group dedicated to
armed revolt against the police under the direction of "block
captains" and with the assistance of "terrorist bands," equipped
with Molotov cocktails that Epton himself had explained how to use.
In the context of this record, activities such as these can make no
serious claim to constitutional protection.
MR. JUSTICE DOUGLAS, dissenting.
I would hear argument in these cases, since I am of the opinion
that all questions presented, including those under the first count
of the indictment for conspiring to riot, present substantial
In the first count, the State alleged the commission of 15 overt
acts by Epton in furtherance of the alleged conspiracy to riot. The
alleged acts consisted in part of speeches made by Epton and his
participation in the preparation and distribution of certain
leaflets. Such activities, of course, are normally given the
protection of the First Amendment, with exceptions not now
Page 390 U. S. 31
necessary to state. See Yates v. United States,
354 U. S. 298
Dennis v. United States, 341 U. S. 494
Terminiello v. Chicago,
337 U.S. l; Thomas v.
Collins, 323 U. S. 516
Bridges v. California, 314 U. S. 252
Gitlow v. New York, 268 U. S. 652
268 U. S. 672
(dissenting opinion); Abrams v. United States,
250 U. S. 616
250 U. S. 624
(dissenting opinion); Schenck v. United States,
249 U. S. 47
Chaplinsky v. New Hampshire, 315 U.
; Feiner v. New York, 340 U.
, 340 U. S. 329
Under New York law, a conviction for conspiracy requires both an
agreement to commit an unlawful act and at least one overt act in
furtherance of that agreement. [Footnote 1
] Whether the overt act required to convict a
defendant for conspiracy must be shown to be constitutionally
unprotected presents an important question. An argument can, of
course, be made that overt acts are used only to demonstrate the
existence of a conspiracy, and to draw reasonable inferences as to
the intent of the alleged conspirator.
Although the Court has indicated that the overt act requirement
of the treason clause ensures that "thoughts and attitudes alone
cannot make a treason" (Cramer v. United States,
325 U. S. 1
325 U. S. 29
has never decided whether activities protected by the First
Amendment can constitute overt acts for purposes of a conviction
for treason. The matter was adverted to in Cramer v. United
"Thus, the crime of treason consists of two elements: adherence
to the enemy and rendering him aid and comfort. A citizen
intellectually or emotionally may favor the enemy and harbor
sympathies or convictions disloyal to this country's policy or
interest, but so long as he commits no act of aid
Page 390 U. S. 32
and comfort to the enemy, there is no treason. On the other
hand, a citizen may take actions which do aid and comfort the enemy
-- making a speech critical of the government or opposing its
profiteering, striking in defense plants or
essential work, and the hundred other things which impair our
cohesion and diminish our strength -- but, if there is no adherence
to the enemy in this, if there is no intent to betray, there is no
(Italics added.) Id.
at 329 U. S. 29
In the same case, the four dissenters noted that:
"It is plain . . . that the requirement of an overt act is
designed to preclude punishment for treasonable plans or schemes or
hopes which have never moved out of the realm of thought or
at 329 U. S.
The lower federal courts have considered the question in a few
cases, the most exhaustive treatment probably being found in
Chandler v. United States,
171 F.2d 921 (C.A. 1st
Cir.1948). Treason, of course, is not the charge here. Yet the use
of constitutionally protected activities to provide the overt acts
for conspiracy convictions might well stifle dissent and cool the
fervor of those with whom society does not agree at the moment.
Society, like an ill person, often pretends it is well or tries to
hide its sickness. From this perspective, First Amendment freedoms
safeguard society from its own folly. As long as the exercise of
those freedoms is within the protection of the First Amendment, the
question is presented whether this Court should permit criminal
convictions for conspiracy to stand when they turn on that
The issue, then, is whether Epton's speeches and his
participation in the preparation and distribution of leaflets can
be used as overt acts in a conspiracy charge without a requirement
that they must first be found constitutionally unprotected.
Page 390 U. S. 33
Yates v. United States, 354 U.
, can be construed to permit constitutionally
protected activities to be used as overt acts in criminal
conspiracies. But there was a separate opinion in that case,
written by my Brother BLACK, which I joined, saying in part:
"The only overt act which is now charged against these
defendants is that they went to a constitutionally protected public
assembly where they took part in lawful discussion of public
questions, and where neither they nor anyone else advocated or
suggested overthrow of the United States Government."
at 354 U. S.
The majority in the Yates
case, however, went to some
lengths in protecting First Amendment freedoms. There advocacy was
the heart of the case, and the majority held that "advocacy" to be
an ingredient of a crime "must be of action and not merely abstract
354 U. S. 325
. The Court reversed the convictions
because the instructions to the jury did not properly delineate
that line of distinction. While the majority held that attending a
meeting could be an overt act, id.
at 354 U. S. 334
it went on to hold that the line between constitutionally protected
First Amendment rights and those that exceeded the limits must be
carefully drawn in instructions to the jury. In the present cases,
however, the trial court, in its charge to the jury, made no
qualifications whatsoever as to the permissible range of the use of
speech and publications as overt acts. There was no instruction
whatsoever that the jury would first have to determine that the
particular speech or the particular publication was not
constitutionally protected. The principle of Yates
therefore disregarded. [Footnote
Page 390 U. S. 34
Since, in my opinion, none of Epton' convictions is free of
doubt, there is no basis for applying the rule that there is no
occasion to review a conviction on one count of an indictment if
the judgment on another count is valid and the sentences are
concurrent. See Lanza v. New York, 370 U.
, 370 U. S. 146
370 U. S. 152
(separate opinion of MR. JUSTICE BRENNAN); Hirabayashi v. United
Page 390 U. S. 35
320 U. S. 81
320 U. S. 85
Whitfield v. Ohio, 297 U. S. 431
297 U. S. 438
Like my Brother STEWART, I believe that Epton's convictions for
advocating criminal anarchy and conspiracy to advocate criminal
anarchy should be reviewed by this Court to consider whether New
York's anarchy statutes, either on their face or as applied here,
pass beyond the pale of constitutionality. See Keyishian v.
Board of Regents, 385 U. S. 589
Gitlow v. New York, 268 U. S. 652
Accordingly, I would grant certiorari in No. 502, Misc., note
probable jurisdiction in No. 771, Misc., and set the cases for oral
N.Y.Pen.Law §§ 105.00-105.20 (1967). At the time of Epton's
trial, the New York law was essentially the same. N.Y.Pen.Law §§
580, 583 (1966 Cum.Supp.).
My Brother STEWART agrees that
"it is at least arguable that a State cannot convict a man of
criminal conspiracy without first demonstrating some
constitutionally unprotected overt act in furtherance of the
alleged unlawful agreement."
But he dismisses that contention in this case because, in his
view, the record demonstrates that at least some of Epton's
activities were not constitutionally protected. Perhaps my Brother
STEWART means that, although some overt acts charged were
constitutionally protected, others were not. The latter is
doubtless true. But the charge to the jury drew no such
discriminating line, and, so far as we know, the conviction may
have rested in whole or in part on overt acts which had First
Amendment protection. Because the jury rendered a general verdict
on count one, it is impossible for this Court to determine whether
a protected activity was employed to convict Epton of conspiracy to
riot. In such circumstances, our precedents indicate that the
proper procedure would be to set aside the conviction if any of the
acts submitted were constitutionally protected. See Haupt v.
United States, 330 U. S. 631
330 U. S. 641
n. 1. Cf. Yates v. United States, 354 U.
, 354 U. S.
-312; Cramer v. United States, 325 U. S.
, 325 U. S. 36
45; Stromberg v. California, 283 U.
, 283 U. S.
-368. Moreover, the approach taken by my Brother
STEWART hearkens back to the view of the Court in Dennis v.
United States, 341 U. S. 494
341 U. S.
-513, that the question of "clear and present danger"
is one of law. The Court ruled that, as long as the jury had found
the facts essential to establish the substantive crime, the
protection of the First Amendment against conviction on those facts
was a matter of law for the courts to determine. I dissented in
that case, in part on the ground that our precedents had
established that the "question of the clear and present danger,
being so critical an issue in the case, would be a matter for
submission to the jury." Id.
at 341 U. S. 587
And, as already noted, the Court in Yates v. United States
showed greater solicitude toward the role of the jury in this
sensitive First Amendment area than the Court in Dennis
this Court today. To be consistent with the the approach taken in
the jury should be instructed on all points of law
that make the difference between conviction and acquittal.