1. A federal constitutional question going to the validity of a
conviction of crime under a state statute was not decided on an
appeal to the state supreme court because not properly raised
(
see Herndon v. Georgia, 295 U. S. 441).
Afterwards, that court considered the question and decided it
against the convict, in a habeas corpus proceeding.
Held,
that the scope of habeas corpus, in the circumstances, was a local
question, and that the ruling on the federal question was open to
review by this Court. P.
301 U. S.
247.
2. A state statute punishing as a crime the acts of soliciting
members for a political party and conducting meetings of a local
unit of that party, where one of the doctrines of the party,
established by reference to a document not shown to have been
exhibited to anyone by the accused, may be said to be ultimate
resort to violence in the indefinite future against organized
government, unwarrantably invades the liberty of free speech and so
violates the Fourteenth Amendment. P.
301 U. S.
260.
3. The power of a State to abridge freedom of speech and of
assembly is the exception, rather than the rule; and the penalizing
even of utterances of a defined character must find its
justification in a reasonable apprehension of danger to organized
government. The limitation upon individual liberty must have
appropriate relation to the safety of the State. Legislation which
goes beyond this need violates the Constitution. P.
301 U. S.
258.
4. The affirmance by the Supreme Court of a State of a
conviction under a statute as having support in the evidence
necessarily construes the statute as authorizing punishment for the
act so proven. P.
301 U. S.
255.
5. Section 56 of the Penal Code of Georgia, as construed by the
Supreme Court of the State, punishes, as an attempt to incite to
insurrection, any attempt to induce others to join in any combined
resistance to the lawful authority of the State. As an element, the
accused must have contemplated resistance by force, but in this
respect he may be found guilty if he intended that an
insurrection
"should happen during any time within which he might reasonably
expect his influence to continue to be directly
Page 301 U. S. 243
operative in causing such action by those whom he sought to
induce."
Held, that the statute, as construed and applied in
this case, is repugnant to the Fourteenth Amendment in that it
furnishes no sufficiently ascertainable standard of guilt and
interferes unduly with freedom of speech and of assembly. Pp.
301 U. S. 253,
301 U. S.
261.
12 Ga. 582, 186 S.E. 429, reversed.
Appeals from judgments, rendered on cross-appeals, in a habeas
corpus proceeding. The court below sustained the trial court in
deciding that the criminal statute involved did not infringe
liberty of speech and assembly, but differed with its holding that
the statute was too vague and indefinite, and reversed its decision
discharging the appellant here.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The appellant claims his conviction in a state court deprived
him of his liberty contrary to the guarantees of the Fourteenth
Amendment. He assigns as error the action of the Supreme Court of
Georgia in overruling his claim and refusing him a discharge upon
habeas corpus. The petition for the writ, presented to the superior
court of Fulton county, asserted the appellant was unlawfully
detained by the appellee as sheriff under the supposed authority of
a judgment pronouncing him guilty of attempting to incite
insurrection, as defined in Section 56 of the Penal Code (Code
1933, § 26-902), and sentencing him to imprisonment
Page 301 U. S. 244
for not less than eighteen nor more than twenty years. Attached
were copies of the judgment and the indictment and a statement of
the evidence upon which the verdict and judgment were founded. The
petition alleged the judgment and sentence were void and
appellant's detention illegal because the statute under which he
was convicted denies and illegally restrains his freedom of speech
and of assembly and is too vague and indefinite to provide a
sufficiently ascertainable standard of guilt, and further alleged
that there had been no adjudication by any court of the
constitutional validity of the statute as applied to appellant's
conduct. A writ issued. The appellee answered, demurred specially
to, and moved to strike, so much of the petition as incorporated
the evidence taken at the trial. At the hearing, the statement of
the evidence was identified, and was conceded by the appellee to be
full and accurate. The court denied the motion to strike, overruled
the special demurrer and an objection to the admission of the trial
record, decided that the statute, as construed and applied in the
trial of the appellant did not infringe his liberty of speech and
of assembly, but ran afoul of the Fourteenth Amendment because too
vague and indefinite to provide a sufficiently ascertainable
standard of guilt, and ordered the prisoner's discharge from
custody. The appellee took the case to the Supreme Court of
Georgia, assigning as error the ruling upon his demurrer, motion,
and objection, and the decision against the validity of the
statute. The appellant, in accordance with the state practice, also
appealed, assigning as error the decision with respect to his right
of free speech and of assembly. The two appeals were separately
docketed, but considered in a single opinion which reversed the
judgment on the appellee's appeal and affirmed on that of the
appellant, [
Footnote 1]
concluding:
"Under
Page 301 U. S. 245
the pleadings and the evidence, which embraced the record on the
trial that resulted in the conviction, the court erred, in the
habeas corpus proceeding, in refusing to remand the prisoner to the
custody of the officers."
The federal questions presented, and the manner in which they
arise, appear from the record of appellant's trial and conviction
embodied in the petition, and from the opinions of the state
Supreme Court in the criminal proceeding.
At the July term, 1932, of the Superior Court of Fulton County,
an indictment was returned charging against the appellant an
attempt to induce others to join in combined resistance to the
lawful authority of the state with intent to deny, to defeat, and
to overthrow such authority by open force, violent means, and
unlawful acts; alleging that insurrection was intended to be
manifested and accomplished by unlawful and violent acts. The
indictment specified that the attempt was made by calling and
attending public assemblies and by making speeches for the purpose
of organizing and establishing groups and combinations of white and
colored persons under the name of the Communist Party of Atlanta
for the purpose of uniting, combining, and conspiring to incite
riots and to embarrass and impede the orderly processes of the
courts and offering combined resistance to, and, by force and
violence, overthrowing and defeating the authority of the state;
that, by speech and persuasion, the appellant solicited and
attempted to solicit persons to join, confederate with, and become
members of the Communist Party and the Young Communist League and
introduced into the state and circulated, aided, and assisted in
introducing and circulating, booklets, papers, and other writings
with the same intent and purpose. The charge was founded on § 56 of
the Penal Code, one of four related sections. Section 55 defines
insurrection, § 56 defines an attempt to incite insurrection, § 57
prescribes the death
Page 301 U. S. 246
penalty for conviction of the offenses described in the two
preceding sections unless the jury shall recommend mercy, and § 58
penalizes, by imprisonment, the introduction and circulation of
printed matter for the purpose of inciting insurrection, riot,
conspiracy, etc. The sections are copied in the margin. [
Footnote 2]
The appellant was brought to trial and convicted. He appealed on
the ground that, under the statute as construed by the trial court
in its instructions to the jury, there was no evidence to sustain a
verdict of guilty. The Supreme Court affirmed the judgment upon a
broader and different construction of the act. [
Footnote 3] The appellant moved for a rehearing,
contending,
inter alia, that, as so construed, the statute
violated the Fourteenth Amendment. The court refused to pass upon
the constitutional questions thus raised, elaborated and explained
its construction of the statute in its original opinion, and
denied
Page 301 U. S. 247
a rehearing. [
Footnote 4]
The appellant perfected an appeal to this court claiming that he
had timely raised the federal questions and we, therefore, had
jurisdiction to decide them. We held we were without jurisdiction.
[
Footnote 5] Upon his
commitment to serve his sentence he sought the writ of habeas
corpus.
In the present proceeding, the Superior Court and Supreme Court
of Georgia have considered and disposed of the contentions based
upon the Federal Constitution. The scope of a habeas corpus
proceeding in the circumstances disclosed is a state, and not a
federal, question, and, since the state courts treated the
proceeding as properly raising issues of federal constitutional
right, we have jurisdiction, and all such issues are open here. We
must, then, inquire whether the statute, as applied in the trial,
denied appellant rights safeguarded by the Fourteenth
Amendment.
The evidence on which the judgment rests consists of appellant's
admissions and certain documents found in his possession. The
appellant told the state's officers that, some time prior to his
arrest, he joined the Communist Party in Kentucky and later came to
Atlanta as a paid organizer for the party, his duties being to call
meetings, to educate and disseminate information respecting the
party, to distribute literature, to secure members, and to work up
an organization of the party in Atlanta; and that he had held or
attended three meetings called by him. He made no further admission
as to what he did as an organizer, or what he said or did at the
meetings. When arrested, he carried a box containing documents.
After he was arrested, he conducted the officers to his room, where
additional documents and bundles of newspapers and periodicals were
found which
Page 301 U. S. 248
he stated were sent him from the headquarters of the Communist
Party in New York. He gave the names of persons who were members of
the organization in Atlanta, and stated he had only five or six
actual members at the time of his apprehension. The stubs of
membership books found in the box indicated he had enrolled more
members than he stated. There was no evidence that he had
distributed any of the material carried on his person and found in
his room, or had taken any of it to meetings, save two circulars or
appeals respecting county relief which are confessedly
innocuous.
The newspapers, pamphlets, periodicals, and other documents
found in his room were, so he stated, intended for distribution at
his meetings. These the appellee concedes were not introduced in
evidence. Certain documents in his possession when he was arrested
were placed in evidence. They fall into five classes: first,
receipt books showing receipts of small sums of money, pads
containing certificates of contributions to the Communist Party's
Presidential Election Campaign Fund, receipts for rent of a post
office box, and Communist Party membership books; secondly, printed
matter consisting of magazines, pamphlets, and copies of the "Daily
Worker," styled the "Central Organ of the Communist Party," and the
"Southern Worker," also, apparently, an official newspaper of the
party; thirdly, two books, one "Life and Struggles of Negro
Toilers," by George Padmore, and the other "Communism and
Christianism Analyzed and Contrasted from the Marxian and Darwinian
Points of View," by Rt. Rev. William Montgomery Brown, D.D.;
fourthly, transcripts of minutes of meetings apparently held in
Atlanta; fifthly, two circulars, one of which was prepared by the
appellant and both of which had been circulated by him in Fulton
county. All of these may be dismissed as irrelevant except those
falling within the first and second
Page 301 U. S. 249
groups. No inference can be drawn from the possession of the
books mentioned, either that they embodied the doctrines of the
Communist Party or that they represented views advocated by the
appellant. The minutes of meetings contain nothing indicating the
purposes of the organization or any intent to overthrow organized
government; on the contrary, they indicate merely discussion of
relief for the unemployed. The two circulars, admittedly
distributed by the appellant, had nothing to do with the Communist
Party, its aims or purposes, and were not appeals to join the
party, but were concerned with unemployment relief in the county
and included appeals to the white and negro unemployed to organize
and represent the need for further county aid. They were
characterized by the Supreme Court of Georgia as "more or less
harmless."
The documents of the first class disclose the activity of the
appellant as an organizer, but, in this respect, add nothing to his
admissions.
The matter appearing upon the membership blanks is innocent upon
its face, however foolish and pernicious the aims it suggests.
Under the heading "What is the Communist Party?" this appears:
"The Party is the vanguard of the working class, and consists of
the best, most class-conscious, most active, the most courageous
members of that class. It incorporates the whole body of experience
of the proletarian struggle, basing itself upon the revolutionary
theory of Marxism and representing the general and lasting
interests of the whole of the working class, the Party personifies
the unity of proletarian principles, of proletarian will and of
proletarian revolutionary action."
"We are the Party of the working class. Consequently, nearly the
whole of that class (in time of war and civil war, the whole of
that class) should work under the guidance of our Party, should
create the closest contacts with our Party. "
Page 301 U. S. 250
This vague declaration falls short of an attempt to bring about
insurrection either immediately or within a reasonable time, but
amounts merely to a statement of ultimate ideals. The blanks,
however, indicate more specific aims for which members of the
Communist Party are to vote. They are to vote Communist for:
"1. Unemployment and Social Insurance at the expense of the
State and employers."
"2. Against Hoover's wage-cutting policy."
"3. Emergency relief for the poor farmers without restrictions
by the government and banks; exemption of poor farmers from taxes
and from forced collection of rents or debts."
"4. Equal rights for the Negroes and self-determination for the
Black Belt."
"5. Against capitalistic terror: against all forms of
suppression of the political rights of the workers."
"6. Against imperialist war; for the defense of the Chinese
people and of the Soviet Union."
None of these aims is criminal upon its face. As to one, the
fourth, the claim is that criminality may be found because of
extrinsic facts. Those facts consist of possession by appellant of
booklets and other literature of the second class illustrating the
party doctrines. The state contends these show that the purposes of
the Communist Party were forcible subversion of the lawful
authority of Georgia. They contain,
inter alia, statements
to the effect that the party bases itself upon the revolutionary
theory of Marxism, opposes "bosses' wars," approves of the Soviet
Union, and desires the "smashing" of the National Guard, the
C.M.T.C., and the R.O.T.C. But the state especially relies upon a
booklet entitled "The Communist Position on the Negro Question," on
the cover of which appears a map of the United States having a dark
belt across certain Southern states and the
Page 301 U. S. 251
phrase "Self-Determination for the Black Belt." The booklet
affirms that the source of the Communist Slogan "Right of
Self-Determination of the Negroes in the Black Belt" is a
resolution of the Communist International on the Negro question in
the United States adopted in 1930, which states that the Communist
Party in the United States has been actively attempting to win
increasing sympathy among the negro population, that certain things
have been advocated for the benefit of the Negroes in the Northern
states, but that, in the Southern portion of the United States, the
Communist slogan must be "The Right of Self-Determination of the
Negroes in the Black Belt." The resolution defines the meaning of
the slogan as:
"(a) Confiscation of the landed property of the white landowners
and capitalists for the benefit of the negro farmers . . . Without
this revolutionary measure, without the agrarian revolution, the
right of self-determination of the Negro population would be only a
Utopia or, at best, would remain only on paper without changing in
any way the actual enslavement."
"(b) Establishment of the State Unity of the Black Belt. . . .
If the right of self-determination of the Negroes is to be put into
force, it is necessary wherever possible to bring together into one
governmental unit all districts of the South, where the majority of
the settled population consists of negroes. . . ."
"(c) Right of Self-Determination. This means complete and
unlimited right of the negro majority to exercise governmental
authority in the entire territory of the Black Belt, as well as to
decide upon the relations between their territory and other
nations, particularly the United States. . . . First of all, true
right of self-determination means that the negro majority and not
the white minority in the entire territory of the
administratively
Page 301 U. S. 252
united Black Belt exercises the right of administering
governmental, legislative, and judicial authority. At the present
time, all this power is concentrated in the hands of the white
bourgeoisie and landlords. It is they who appoint all officials, it
is they who dispose of public property, it is they who determine
the taxes, it is they who govern and make the laws. Therefore, the
overthrow of this class rule in the Black Belt is unconditionally
necessary in the struggle for the negroes' right to
self-determination. This, however, means at the same time the
overthrow of the yoke of American imperialism in the Black Belt on
which the forces of the local white bourgeoisie depend. Only in
this way, only if the negro population of the Black Belt wins its
freedom from American imperialism even to the point of deciding
itself the relations between its country and other governments,
especially the United States, will it win real and complete
self-determination. One should demand from the beginning that no
armed forces of American imperialism should remain on the territory
of the Black Belt."
Further statements appearing in the pamphlet are:
"Even if the situation does not yet warrant the raising of the
question of uprising, one should not limit oneself at present to
propaganda for the demand 'Right to Self-Determination', but should
organize mass actions, such as demonstration, strikes, tax boycott
movements,"
etc.
"One cannot deny that it is just possible for the negro
population of the Black Belt to win the right to self-determination
during capitalism; but it is perfectly clear and indubitable that
this is possible only through successful revolutionary struggle for
power against the American bourgeoisie, through wresting the
negroes' right of self-determination from American imperialism.
Thus, the slogan of right to self-determination is a real slogan of
National Rebellion which, to be considered as such, need
Page 301 U. S. 253
not be supplemented by proclaiming struggle for the complete
separation of the negro zone, at least not at present."
There is more of the same purport, particularly references to
the "revolutionary trade unions in the South," "revolutionary
struggle against the ruling white bourgeoisie," and "revolutionary
program of the Communist Party."
There is no evidence the appellant distributed any writings or
printed matter found in the box he carried when arrested, or any
other advocating forcible subversion of governmental authority.
There is no evidence the appellant advocated, by speech or written
word, at meetings or elsewhere, any doctrine or action implying
such forcible subversion. There is evidence tending to prove that
the appellant held meetings for the purpose of recruiting members
of the Communist Party and solicited contributions for the support
of that party and there is proof of the doctrines which that party
espouses. Appellant's intent to incite insurrection, if it is to be
found, must rest upon his procuring members for the Communist Party
and his possession of that party's literature when he was
arrested.
Section 55 of the Georgia Penal Code defines insurrection as
"combined resistance to the lawful authority of the State, with
intent to the denial thereof, when the same is manifested or
intended to be manifested by acts of violence. [
Footnote 6]"
The appellant was not indicted under this section. Section 58
denounces the introduction, printing, or circulation, or assisting
to print or circulate any document "for the purpose of inciting
insurrection." The appellant was not indicted under this
section.
Section 56, under which the indictment is laid, makes no
reference to force or violence except by the phrase
Page 301 U. S. 254
"combined resistance to the lawful authority of the State." The
Supreme Court evidently importing from the similar phraseology in §
55 the additional element contained in that section, namely,
"manifested or intended to be manifested by acts of violence," has
decided that intended resort to force is an essential element of
the offense defined by § 56.
To ascertain how the act is held to apply to the appellant's
conduct, we turn to the rulings of the state courts in his case.
The trial court instructed the jury:
"In order to convict the defendant, . . . it must appear clearly
by the evidence that immediate serious violence against the State
of Georgia was to be expected or advocated."
The jury rendered a verdict of guilty. In the Supreme Court, the
appellant urged that the evidence was wholly insufficient to
sustain the verdict under the law as thus construed. That court
sustained the conviction by construing the statute thus:
"Force must have been contemplated, but, as said above, the
statute does not include either its occurrence or its imminence as
an ingredient of the particular offense charged. . . . Nor would it
be necessary to guilt that the alleged offender should have
intended that an insurrection should follow instantly or at any
given time, but it would be sufficient that he intended it to
happen at any time, as a result of his influence, by those whom he
sought to incite. [
Footnote
7]"
"Upon application for rehearing the court further elaborated its
views as to the meaning of the statute:"
"Force must have been contemplated, but the statute does not
include either its occurrence or its imminence as an ingredient of
the particular offense charged. Nor would it be necessary to guilt
that the alleged offender
Page 301 U. S. 255
should have intended that an insurrection should follow
instantly or at any given time, but, as to this element, it would
be sufficient if he intended that it should happen at any time
within which he might reasonably expect his influence to continue
to be directly operative in causing such action by those whom he
sought to induce. [
Footnote
8]"
The affirmance of conviction upon the trial record necessarily
gives § 56 the construction that one who seeks members for or
attempts to organize a local unit of a party which has the purposes
and objects disclosed by the documents in evidence may be found
guilty of an attempt to incite insurrection.
The questions are whether this construction and application of
the statute deprives the accused of the right of freedom of speech
and of assembly guaranteed by the Fourteenth Amendment, and whether
the statute, so construed and applied, furnishes a reasonably
definite and ascertainable standard of guilt.
The appellant, while admitting that the people may protect
themselves against abuses of the freedom of speech safeguarded by
the Fourteenth Amendment by prohibiting incitement to violence and
crime, insists that legislative regulation may not go beyond
measures forefending against "clear and present danger" of the use
of force against the state. For this position, he relies upon our
decisions under the Federal Espionage Acts [
Footnote 9] and cognate state legislation. These made
it criminal willfully to cause or to attempt to cause, or incite or
attempt to incite, insubordination, disloyalty, mutiny, or refusal
of duty in the military or naval forces of the United States or
willfully to obstruct or attempt to obstruct the recruiting or
enlistment service of the United States or to conspire
Page 301 U. S. 256
for these purposes. We sustained the power of the government or
a state to protect the war operations of the United States by
punishing intentional interference with them. We recognized,
however, that words may be spoken or written for various purposes,
and that willful and intentional interference with the described
operations of the government might be inferred from the time,
place, and circumstances of the act.
"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 has a right to prevent. It is a question of proximity
and degree. [
Footnote
10]"
The legislation under review differs radically from the
Espionage Acts in that it does not deal with a willful attempt to
obstruct a described and defined activity of the government.
The state, on the other hand, insists that our decisions uphold
state statute making criminal utterances which have a "dangerous
tendency" towards the subversion of government. It relies
particularly upon
Gitlow v. New York, 268 U.
S. 652. There, however, we dealt with a statute which,
quite unlike § 56 of the Georgia Criminal Code, denounced as
criminal certain acts carefully and adequately described. We
said:
"And a State may penalize utterances which openly advocate the
overthrow of the representative and constitutional form of
government of the United States and the several States, by violence
or other unlawful means. . . ."
P.
268 U. S.
668.
Page 301 U. S. 257
"By enacting the present statute, the State has determined,
through its legislative body, that utterances advocating the
overthrow of organized government by force, violence and unlawful
means, are so inimical to the general welfare and involve such
danger of substantive evil that they may be penalized in the
exercise of its police power. That determination must be given
great weight. Every presumption is to be indulged in favor of the
validity of the statute.
Mugler v. Kansas, 123 U. S.
623,
123 U. S. 661. And the case
is to be considered 'in the light of the principle that the State
is primarily the judge of regulations required in the interest of
public safety and welfare,' and that is police"
"statutes may only be declared unconstitutional where they are
arbitrary or unreasonable attempts to exercise authority vested in
the State in the public interest."
P.
123 U. S. 668.
And it was in connection with the statute there involved that the
court quoted language relied upon below and in argument here from
People v. Lloyd, 304 Ill. 23, 136 N.E. 505, to the effect
that a state is not compelled to delay adoption of such preventive
measures until the apprehended danger becomes certain. Out of
excess of caution, the distinction was again clearly drawn between
acts of the order of the Espionage Act and the New York act under
review.
". . . when the legislative body has determined generally, in
the constitutional exercise of its discretion, that utterances of a
certain kind involve such danger of substantive evil that they may
be punished, the question whether any specific utterance coming
within the prohibited class is likely, in and of itself, to bring
about the substantive evil, is not open to consideration. It is
sufficient that the statute itself be constitutional and that the
use of the language comes within its prohibition."
"It is clear that the question in such cases is entirely
different from that involved in those cases where the
Page 301 U. S. 258
statute merely prohibits certain acts involving the danger of
substantive evil, without any reference to language itself, and it
is sought to apply its provisions to language used by the defendant
for the purpose of bringing about the prohibited results. There, if
it be contended that the statute cannot be applied to the language
used by the defendant because of its protection by the freedom of
speech or press, it must necessarily be found, as an original
question, without any previous determination by the legislative
body, whether the specific language used involved such likelihood
of bringing about the substantive evil as to deprive it of the
constitutional protection."
Pp.
268 U. S.
670-671.
It is evident that the decision sustaining the New York statute
furnishes no warrant for the appellee's contention that, under a
law general in its description of the mischief to be remedied and
equally general in respect of the intent of the actor, the standard
of guilt may be made the "dangerous tendency" of his words.
The power of a state to abridge freedom of speech and of
assembly is the exception, rather than the rule, and the penalizing
even of utterances of a defined character must find its
justification in a reasonable apprehension of danger to organized
government. The judgment of the Legislature is not unfettered. The
limitation upon individual liberty must have appropriate relation
to the safety of the state. Legislation which goes beyond this need
violates the principle of the Constitution. If, therefore, a state
statute penalize innocent participation in a meeting held with an
innocent purpose merely because the meeting was held under the
auspices of an organization membership in which, or the advocacy of
whose principles, is also denounced as criminal, the law, so
construed and applied, goes beyond the power to restrict abuses of
freedom
Page 301 U. S. 259
of speech and arbitrarily denies that freedom. [
Footnote 11] And, where a statute is so
vague and uncertain as to make criminal an utterance or an act
which may be innocently said or done with no intent to induce
resort to violence or on the other hand may be said or done with a
purpose violently to subvert government, a conviction under such a
law cannot be sustained. Upon this view, we held bad a statute of
California providing that
"any person who displays a red flag, . . . in any public place
or in any meeting place or public assembly, or from or on any
house, building or window as a sign, symbol or emblem of opposition
to organized government . . . is guilty of a felony. [
Footnote 12]"
After pointing out that peaceful agitation for a change of our
form of government is within the guaranteed liberty of speech, we
said of the act in question:
"A statute which, upon its face and as authoritatively
construed, is so vague and indefinite as to permit the punishment
of the fair use of this opportunity is repugnant to the guaranty of
liberty contained in the Fourteenth Amendment."
P.
283 U. S.
369.
1. The appellant had a constitutional right to address meetings
and organize parties unless, in so doing, he violated some
prohibition of a valid statute. T he only prohibition he is said to
have violated is that of § 56 forbidding incitement or attempted
incitement to insurrection by violence. If the evidence fails to
show that he did so incite, then, as applied to him, the statute
unreasonably limits freedom of speech and freedom of assembly and
violates the Fourteenth Amendment. We are of opinion that the
requisite proof is lacking. From what has been said above with
respect to the evidence offered at
Page 301 U. S. 260
the trial, it is apparent that the documents found upon the
appellant's person were certainly, as to some of the aims stated
therein, innocent and consistent with peaceful action for a change
in the laws or the Constitution. The proof wholly fails to show
that the appellant had read these documents; that he had
distributed any of them; that he believed and advocated any or all
of the principles and aims set forth in them, or that those he had
procured to become members of the party knew or approved of any of
these documents.
Thus, the crucial question is not the formal interpretation of
the statute by the Supreme Court of Georgia, but the application
given it. In its application, the offense made criminal is that of
soliciting members for a political party and conducting meetings of
a local unit of that party when one of the doctrines of the party,
established by reference to a document not shown to have been
exhibited to any one by the accused, may be said to be ultimate
resort to violence at some indefinite future time against organized
government. It is to be borne in mind that the Legislature of
Georgia has not made membership in the Communist Party unlawful by
reason of its supposed dangerous tendency even in the remote
future. The question is not whether Georgia might, in analogy to
what other states have done, so declare. [
Footnote 13] The appellant induced others to become
members of the Communist Party. Did he thus incite to insurrection
by reason of the fact that they agreed to abide by the tenets of
the party, some of them lawful, others, as may be assumed,
unlawful, in the absence of proof that he brought the unlawful aims
to their notice, that he approved them, or that the fantastic
program
Page 301 U. S. 261
they envisaged was conceived of by any one as more than an
ultimate ideal? Doubtless circumstantial evidence might affect the
answer to the question if appellant had been shown to have said
that the Black Belt should be organized at once as a separate state
and that that objective was one of his principal aims. But here,
circumstantial evidence is all to the opposite effect. The only
objectives appellant is proved to have urged are those having to do
with unemployment and emergency relief which are void of
criminality. His membership in the Communist Party and his
solicitation of a few members wholly fails to establish an attempt
to incite others to insurrection. Indeed, so far as appears, he had
but a single copy of the booklet the state claims to be
objectionable; that copy he retained. The same may be said with
respect to the other books and pamphlets, some of them of more
innocent purport. In these circumstances, to make membership in the
party and solicitation of members for that party a criminal
offense, punishable by death in the discretion of a jury, is an
unwarranted invasion of the right of freedom of speech.
2. The statute, as construed and applied in the appellant's
trial, does not furnish a sufficiently ascertainable standard of
guilt. The act does not prohibit incitement to violent interference
with any given activity or operation of the state. By force of it,
as construed, the judge and jury trying an alleged offender cannot
appraise the circumstances and character of the defendant's
utterances or activities as begetting a clear and present danger of
forcible obstruction of a particular state function. Nor is any
specified conduct or utterance of the accused made an offense.
The test of guilt is thus formulated by the Supreme Court of the
state. Forcible action must have been contemplated, but it would be
sufficient to sustain a conviction
Page 301 U. S. 262
if the accused intended that an insurrection
"should happen at any time within which he might reasonably
expect his influence to continue to be directly operative in
causing such action by those whom he sought to induce."
If the jury conclude that the defendant should have contemplated
that any act or utterance of his in opposition to the established
order or advocating a change in that order, might, in the distant
future, eventuate in a combination to offer forcible resistance to
the state, or, as the state says, if the jury believe he should
have known that his words would have "a dangerous tendency," then
he may be convicted. To be guilty under the law, as construed, a
defendant need not advocate resort to force. He need not teach any
particular doctrine to come within its purview. Indeed, he need not
be active in the formation of a combination or group if he agitate
for a change in the frame of government, however peaceful his own
intent. If, by the exercise of prophesy, he can forecast that, as a
result of a chain of causation, following his proposed action a
group may arise at some future date which will resort to force, he
is bound to make the prophesy and abstain, under pain of
punishment, possibly of execution. Every person who attacks
existing conditions, who agitates for a change in the form of
government, must take the risk that, if a jury should be of opinion
he ought to have foreseen that his utterances might contribute in
any measure to some future forcible resistance to the existing
government, he may be convicted of the offense of inciting
insurrection. Proof that the accused in fact believed that his
effort would cause a violent assault upon the state would not be
necessary to conviction. It would be sufficient if the jury thought
he reasonably might foretell that those he persuaded to join the
party might, at some time in the indefinite future, resort to
forcible resistance of
Page 301 U. S. 263
government. The question thus proposed to a jury involves pure
speculation as to future trends of thought and action. Within what
time might one reasonably expect that an attempted organization of
the Communist Party in the United States would result in violent
action by that party? If a jury returned a special verdict saying
twenty years, or even fifty years, the verdict could not be shown
to be wrong. The law, as thus construed, licenses the jury to
create its own standard in each case. In this aspect, what was said
in
United States v. Cohen Grocery Co., 255 U. S.
81, is particularly apposite:
"Observe that the section forbids no specific or definite act.
It confines the subject matter of the investigation which it
authorizes to no element essentially inhering in the transaction as
to which it provides. It leaves open, therefore, the widest
conceivable inquiry, the scope of which no one can foresee and the
result of which no one can foreshadow or adequately guard against.
In fact, we see no reason to doubt the soundness of the observation
of the court below in its opinion to the effect that, to attempt to
enforce the section would be the exact equivalent of an effort to
carry out a statute which in terms merely penalized and punished
all acts detrimental to the public interest when unjust and
unreasonable in the estimation of the court and jury."
The decisions relied on by the state held the Sherman Law
furnished a reasonable standard of guilt because it made a standard
long recognized by the common law the statutory test. [
Footnote 14]
The statute, as construed and applied, amounts merely to a
dragnet which may enmesh any one who agitates for a change of
government if a jury can be persuaded that he ought to have
foreseen his words would have some
Page 301 U. S. 264
effect in the future conduct of others. No reasonably
ascertainable standard of guilt is prescribed. So vague and
indeterminate are the boundaries thus set to the freedom of speech
and assembly that the law necessarily violates the guarantees of
liberty embodied in the Fourteenth Amendment.
The judgment is reversed, and the cause is remanded for further
proceedings not inconsistent with this opinion.
Reversed.
[
Footnote 1]
182 Ga. 582, 186 S.E. 429, 430.
[
Footnote 2]
"55. Insurrection shall consist in any combined resistance to
the lawful authority of the State, with intent to the denial
thereof, when the same is manifested or intended to be manifested
by acts of violence."
"56. Any attempt, by persuasion or otherwise, to induce others
to join in any combined resistance to the lawful authority of the
State shall constitute an attempt to incite insurrection."
"57. Any person convicted of the offense of insurrection, or an
attempt to incite insurrection, shall be punished with death, or,
if the jury recommend to mercy, confinement in the penitentiary for
not less than five nor more than 20 years."
"58. If any person shall bring, introduce, print, or circulate,
or cause to be introduced, circulated, or printed, or aid or
assist, or be in any manner instrumental in bringing, introducing,
circulating, or printing within this State any paper, pamphlet,
circular, or any writing, for the purpose of inciting insurrection,
riot, conspiracy, or resistance against the lawful authority of the
State, or against the lives of the inhabitants thereof, or any part
of them, he shall be punished by confinement in the penitentiary
for not less than five nor longer than 20 years."
Georgia Code, 1933, §§ 26-901 to 26-904, inclusive.
[
Footnote 3]
Herndon v. State, 178 Ga. 832, 174 S.E. 597.
[
Footnote 4]
Herndon v. State, 179 Ga. 597, 176 S.E. 620.
[
Footnote 5]
Herndon v. Georgia, 295 U. S. 441.
[
Footnote 6]
Note 2 supra.
[
Footnote 7]
178 Ga. 832, 855, 174 S.E. 597, 610.
[
Footnote 8]
179 Ga. 597, 600, 176 S.E. 620, 622.
[
Footnote 9]
Act of June 15, 1917, c. 30, 40 Stat. 217, 219, amended by Act
of May 16, 1918, c. 75, 40 Stat. 553.
[
Footnote 10]
See Schenck v. United States, 249 U. S.
47,
249 U. S. 52;
Frohwerk v. United States, 249 U.
S. 204;
Debs v. United States, 249 U.
S. 211;
Abrams v. United States, 250 U.
S. 616;
Schaefer v. United States, 251 U.
S. 466;
Pierce v. United States, 252 U.
S. 239;
O'Connell v. United States,
253 U. S. 142;
State v. Holm, 139 Minn. 267, 166 N.W. 181;
Gilbert v.
Minnesota, 254 U. S. 325.
[
Footnote 11]
DeJonge v. Oregon, 299 U. S. 353.
[
Footnote 12]
Stromberg v. California, 283 U.
S. 359.
[
Footnote 13]
See the statutes drawn in question in
Gitlow v. New
York, 268 U. S. 652, at
268 U. S. 654,
and in
Whitney v. California, 274 U.
S. 357,
274 U. S.
359.
[
Footnote 14]
Waters-Pierce Oil Co. v. Texas, 212 U. S.
86;
Nash v. United States, 229 U.
S. 373.
MR. JUSTICE VAN DEVANTER dissenting.
I am of opinion that the Georgia statute, as construed and
applied by the Supreme Court of the state of Herndon's case,
prescribes a reasonably definite and ascertainable standard by
which to determine the guilt or innocence of the accused, and does
not encroach on his right of freedom of speech or of assembly.
It plainly appears, I think, that the offense defined in the
statute, and of which Herndon was convicted, was not that of
advocating a change in the state government by lawful means, such
as an orderly exertion of the elective franchise or of the power to
amend the State Constitution, but was that of attempting to induce
and incite others to join in combined forcible resistance to the
lawful authority of the state.
Section 55, 56, and 57 of the Penal Code of Georgia [
Footnote 2/1] deal with insurrection,
attempts to incite insurrection, and the punishment therefor, and
are so closely related that all evidently have a bearing on the
scope and meaning of any one of them. Section 55 denounces
insurrection and defines it as
"any combined resistance to the lawful authority of the State,
with intent to the denial thereof, when the same is manifested or
intended to be manifested by acts of violence."
Section 56 denounces
Page 301 U. S. 265
an attempt of incite insurrection and defines it as "any
attempt, by persuasion or otherwise, to induce others to join in
any combined resistance to the lawful authority of the State."
Section 57 prescribes the punishment for each of these
offenses.
While § 56 does not, in direct terms, include force or violence
as a feature of the "combined resistance to the lawful authority of
the State," the attempt to induce which it denounces, the Supreme
Court of the state has construed the section, doubtless by reason
of its relation to the others, as making intended resort to force
or violence an essential element of such "combined resistance."
[
Footnote 2/2] Therefore, the
section must be taken as if expressly embodying this construction.
It was under § 56 that Herndon was indicted, tried, and
convicted.
By the indictment, he was charged with attempting to induce
others to join in combined resistance to the lawful authority of
the state "by open force and by violent means, and by unlawful
acts," the modes of attempted inducement being specified. Upon the
trial, the court instructed the jury that neither "possession of
literature insurrectionary in its nature" nor "engaging in academic
or philosophical discussion of abstract principles of economics or
political or other subjects, however, radical or revolutionary in
their nature," would warrant a conviction, and that a verdict of
guilt could not be given unless it clearly appeared from the
evidence that "immediate serious violence against the State" was
expected or advocated by the accused.
In affirming the conviction, the Supreme Court of the state held
that, under the statute, "force must have been contemplated," but
that it is not necessary to guilt that the accused "should have
intended that an insurrection
Page 301 U. S. 266
should follow instantly or at any given time, but it would be
sufficient that he intended it to happen at any time, as a result"
of his persuasion -- the intent of the statute being "to arrest at
its incipiency any effort to overthrow the state government, where
it takes the form of an actual attempt to incite others to
insurrection."
Then, coming to consider the sufficiency of the evidence, the
Supreme Court stated:
"From what has been said, the question here is simply this: did
the evidence show that the defendant made any attempt to induce
others to come together in any combined
forcible
resistance to the lawful authority of the state?"
And the court concluded its consideration of this question by
saying,
"The jury were amply authorized to infer that
violence
was intended, and that the defendant did attempt to induce others
to combine in
such resistance to the lawful authority of
the state."
(Italics supplied.) [
Footnote
2/3]
The accused sought a rehearing, largely because of his
understanding of what was said in the court's opinion respecting
the expected time of the intended resort to force. A rehearing was
denied, and, in that connection, the court said: [
Footnote 2/4]
"The language used by this court should be considered with the
usual reasonable implications. The phrase 'at any time' as
criticized in the motion for rehearing was not intended to mean at
any time in the indefinite future, or at any possible later time,
however remote. An activity now could hardly be expected to be the
direct producing cause of an insurrection after the lapse of a
great period of time, and it was not the purpose of this court to
suggest that, as to the mental requisite, any such intent would be
a sufficient ingredient of an attempt to incite an insurrection. On
the contrary, the phrase 'at
Page 301 U. S. 267
any time' was necessarily intended, and should have been
understood, to mean within a reasonable time; that is, within such
time as one's persuasion or other adopted means might reasonably be
expected to be directly operative in causing an insurrection.
Accordingly, the statements by this court as quoted in the motion
for rehearing are to be accepted in the following sense: force must
have been contemplated, but the statute does not include either its
occurrence or its imminence as an ingredient of the particular
offense charged. Nor would it be necessary to guilt that the
alleged offender should have intended that an insurrection should
follow instantly or at any given time, but as to this element it
would be sufficient if he intended that it should happen at any
time within which he might reasonably expect his influence to
continue to be directly operative in causing such action by those
whom he sought to induce. This statement, considered with what was
said in the original decision, represents the view of this court as
to the proper construction of the statute under consideration,
and, under the statute as thus interpreted, we say, as before,
that the evidence was sufficient to authorize the conviction.
In view of what has been said above, it would seem that all
contentions made in the motion for rehearing should necessarily
fail, based as they are upon an erroneous construction of our
decision."
(Italics supplied.)
It thus is made quite plain that the case proceeded from
beginning to end, and in both state courts, upon the theory that
the offense denounced by the statute and charged in the indictment
was that of attempting to induce and incite others to join in
combined forcible resistance to the lawful authority of the state;
that the jury returned a verdict of guilty upon that the theory;
and that it was upon the same theory that the Supreme Court
held
Page 301 U. S. 268
the jury's verdict was supported by the evidence, and affirmed
the conviction.
The present appeal is not from that judgment of affirmance, but
from a judgment denying a subsequent petition for habeas corpus.
[
Footnote 2/5]
If it be assumed that, on this appeal, the evidence produced on
the trial in the criminal case may be examined to ascertain how the
statute was applied, I am of opinion, after such an examination,
that the statute was applied as if the words "combined resistance"
therein were, in letter and meaning, "combined forcible
resistance."
The evidence, all of which is embodied in the present record,
will be here stated in reduced volume without omitting anything
material.
Herndon is a negro, and a member of the Communist Party of the
U.S.A., which is a section of the Communist International. He was
sent from Kentucky to Atlanta, Ga., as a paid organizer for the
party. Atlanta is within an area where there is a large negro
population, and the Communist Party has been endeavoring to extend
its activities and membership to that population among others.
Herndon's duties as an organizer were to call and conduct meetings,
to disseminate information respecting the party, to distribute its
literature, to educate prospects and secure members, to receive
dues and contributions, and to work up a subordinate organization
of the party. He called and conducted meetings which evidently were
secret, solicited and secured members, and received dues and
contributions. He and others, when becoming members, subscribed to
an obligation saying
"The undersigned declares his adherence to the program and
statutes of the Communist International and the Communist Party of
the
Page 301 U. S. 269
U.S.A., and agrees to submit to the discipline of the party and
to engage actively in its work."
When arrested, he had under his arm a box in which he was
carrying membership and collection books which he had been using
and various pamphlets, books and documents, all pertaining to the
structure, purposes, and activities of the party. Two or three of
the papers had been prepared by him, and disclosed that he was an
active spirit in the "Section Committee" and the "Unemployment
Committee," both subordinate local agencies of the party. The
membership books, besides showing names of those whom he had
induced to become members and dates of their admission, contained
extracts from the party statutes, some of which read:
"A member of the Party can be every person from the age of
eighteen up who accepts the program and statutes of the Communist
International and the Communist Party of the U.S.A., who becomes a
member of a basic organization of the Party, who is active in this
organization, who subordinates himself to all decisions of the
Comintern and of the Party, and regularly pays his membership
dues."
"The strictest Party Discipline is the most solemn duty of all
Party members and all Party organizations. The decisions of the CI
and the Party Convention of the CC and of all leading committees of
the Party must be promptly carried out. Discussion of questions
over which there have been differences must not continue after the
decision has been made."
"The Party is the vanguard of the working class, and consists of
the best, most class conscious, most active, the most courageous
members of that class. It incorporates the whole body of experience
of the proletarian struggle, basing itself upon the
revolutionary theory of Marxism and representing the
general and lasting interests of the
Page 301 U. S. 270
whole of the working class. The Party personifies the unity of
proletarian principles, of proletarian will and of proletarian
revolutionary action."
The collection books contained the statement "Every dollar
collected is a bullet fired into the boss class."
The membership and collection books had been sent to Herndon
from the main office of the party in New York for use by him, and
he had been using them in securing members and in collecting dues
and contributions. With the exception of two or three papers
prepared by him and heretofore mentioned, the literature which he
was carrying under his arm when arrested had been sent to him from
the same office, together with many pamphlets, books, and other
publications, for use and distribution by him in his work as an
organizer. The literature which he had with him when arrested was
produced in evidence, and will now be described, chiefly by titles
and extracts (italics supplied).
"
APPEAL TO SOUTHERN YOUNG WORKERS"
"The Young Communist League is the champion not only of the
young white workers, but especially of the doubly oppressed negro
young workers. The Young Communist League fights against the whole
system of race discrimination, and stands for full racial,
political, economic and social equality of all workers."
"The chief aim of the Young Communist League is to organize the
young workers for a struggle against the bosses and against the
whole profit system. . . ."
"
* * * *"
"The Young Communist League fights for:"
"
* * * *"
"Full political, social and racial equality for the negro
workers."
"Against bosses' wars! Defend the Soviet Union!"
"
Smash the National Guard, the C.M.T.C. and R.O.T.C.
"
Page 301 U. S. 271
"
LIFE AND STRUGGLES OF NEGRO TOILERS"
"In no other so-called civilized country in the world are human
beings treated as badly as these 15 million negroes [in the United
States]. They live under a perpetual regime of white terror. . . .
They are absolutely at the mercy of every fiendish mob incited by
the white landlords and capitalists."
"
COMMUNISM AND CHRISTIANISM"
"Banish the Gods from the Skies and Capitalists from the Earth,
and make the World safe for Industrial Communism. . . ."
"
* * * *"
"The trouble with every reformatory socialism of modern times is
that it undertakes the impossibility of changing the fruit of the
capitalist state into that of the communistic one without changing
the political organism; but to do that is as impossible as to
gather grapes from thorns or figs from thistles. Hence, an
uprooting and replanting are necessary (
a revolution, not a
reformation) which will give the world a new tree of
state."
"Capitalism no longer grows the fruits (foods, clothes, and
houses) which are necessary to the sustenance of all the world.
Hence it must be
dug up by the roots in order that a tree
which is so organized that it will bear these necessities for the
whole world may be
planted in its place."
"The people of Russia have accomplished this
uprooting and
replanting (this
revolution) in the case of their
state, and those of every nation are destined to do the same in one
way or another, each according to its historical and economic
development,
some with much violence; most, I hope, with but
little."
"
COMMUNIST POSITION ON THE NEGRO QUESTION"
This is a booklet of several pages and bears on the front of its
cover a map of the United States showing a dark
Page 301 U. S. 272
belt stretching across considerable portions of Georgia and
eight other southern states. Parts of the text are here copied:
"The slogan of the right of self-determination occupies the
central place in the liberation struggle of the Negro population in
the Black Belt against the yoke of American imperialism. But this
slogan, as we see it, must be carried out only in connection with
two other basic demands. Thus, there are three basic demands to be
kept in mind in the Black Belt, namely, the following:"
"(a)
Confiscation of the landed property of the white
landowners and capitalists for the benefit of the negro
farmers. The land property in the hands of the white American
exploiters constitutes the most important material basis of the
entire system of national oppression and serfdom of the Negroes in
the Black Belt. More than three-quarters of all Negro farmers here
are bound in actual serfdom to the farms and plantations of the
white exploiters by the feudal system of 'sharecropping.'"
"
* * * *"
"Without this revolutionary measure, without the agrarian
revolution, the right of self-determination of the Negro population
would be only a Utopia, or, at best, would remain only on paper
without changing in any way the actual enslavement."
"(b) Establishment of the State Unity of the Black Belt. At the
present time, this Negro zone -- precisely for the purpose of
facilitating national oppression -- is artificially split up and
divided into a number of various states which include distant
localities having a majority of white population. If the right of
self-determination of the Negroes is to be put into force, it is
necessary wherever possible to bring together into one governmental
unit all districts of the South where the majority of the settled
population consists of negroes. Within
Page 301 U. S. 273
the limits of this state, there will of course remain a fairly
significant white minority which must submit to the right of
self-determination of the negro majority. . . ."
"(c) Right of Self-Determination. This means complete and
unlimited right of the negro majority to exercise governmental
authority in the entire territory of the Black Belt, as well as to
decide upon the relations
between their territory and other
nations, particularly the United States."
"
* * * *"
"Even if the situation does not yet warrant the raising of the
question of uprising, one should not limit oneself at present to
propaganda for the demand, 'Right to Self-Determination,' but
should
organize mass actions, such as demonstrations, strikes,
tax boycott movements, etc."
"
* * * *"
"A direct question of power is also the demand of confiscation
of the land of the white exploiters in the South, as well as the
demand of the negroes that the entire Black Belt be amalgamated
into a State unit."
"Hereby, every single fundamental demand of the liberation
struggle of the negroes in the Black Belt is such that -- if once
thoroughly understood by the negro masses and adopted as their
slogan -- it will lead them into the struggle for the overthrow of
the power of the ruling bourgeoisie, which is impossible without
such revolutionary struggle. One cannot deny that it is just
possible for the negro population of the Black Belt to win the
right to self-determination during capitalism; but it is perfectly
clear and indubitable that this is possible only through
successful revolutionary struggle for power against the
American bourgeoisie, through
wresting the negroes' right
of self-determination
from American imperialism. Thus, the
slogan of right to self-determination is a real slogan of
National Rebellion which, to be
Page 301 U. S. 274
considered as such, need not be supplemented by proclaiming
struggle for the complete separation of the negro zone, at least
not at present."
"(d) Communists must fight in the forefront of the national
liberation movement, and must do their utmost for the progress of
this mass movement and its revolutionization. Negro Communists must
clearly disassociate themselves from all bourgeois currents in the
negro movement, must indefatigably oppose the spread of the
influence of the bourgeois groups on the working negroes."
"
* * * *"
"Their constant call to the negro masses must be:
Revolutionary struggle against the ruling white
bourgeoisie, through a
fighting alliance with the
revolutionary white proletariat! . . ."
"
* * * *"
"We are Bolsheviks, members of a fighting Party of the working
class, who know that the only road to the
revolutionary
overthrow of capitalism and the establishment of Communism is
through welding together the iron unity of class ideology which
penetrates into our ranks, as the prerequisite to the
effective
struggle against the class enemy
physically."
There was no direct testimony that Herndon distributed the
literature just described. No member of the Communist Party came
forward to tell what he did in their meetings or in inducing them
to become members. Nor does this seem strange when regard is had to
the obligation taken by members and to the discipline imposed.
Nevertheless there was evidence from which distribution by him
reasonably could be inferred. It was shown that he was an active
member, was sent to Atlanta as a paid organizer, and was subject to
party discipline; also that he received the literature for
distribution in the course of his work and had copies of it,
together with current
Page 301 U. S. 275
membership and collection books, under his arm when he was
arrested; and further that he had been soliciting and securing
members, which was part of the work in which the literature was to
be used. He had declared his "adherence to the program and
statutes" of the party, and had taken like declarations from those
whom he secured as members; and this tended strongly to show not
only that he understood the party program and statutes as outlined
in the literature, but also that he brought them to the attention
of others whom he secured as members. Besides, at the trial, he
made an extended statement to the court and jury in his defense,
[
Footnote 2/6] but did not refer in
any wise to the literature or deny that he had been using or
distributing it. Thus, there was in the evidence not merely some
but adequate and undisputed basis for inferring that he had been
using the literature for the purposes for which he received it.
Evidently, and with reason, the jury drew this inference.
It should not be overlooked that Herndon was a negro member and
organizer in the Communist Party, and was engaged actively in
inducing others, chiefly southern negroes, to become members of the
party and participate in effecting its purposes and program. The
literature placed in his lands by the party for that purpose was
particularly adapted to appeal to negroes in that section, for it
pictured their condition as an unhappy one resulting from asserted
wrongs on the part of white landlords and employers, and sought by
alluring statements of resulting advantages to induce them to join
in an effort to carry into effect the measures which the literature
proposed. These measures included a revolutionary uprooting of the
existing capitalist state, as it was termed; confiscation of the
landed property of white landowners and capitalists for the benefit
of negroes; establishment
Page 301 U. S. 276
in the black belt of an independent state, possibly followed by
secession from demonstrations, strikes, and tax boycotts in aid of
this measure; adoption of a fighting the United States;
organization of mass alliance with the revolutionary white
proletariat; revolutionary overthrow of capitalism and
establishment of Communism through effective physical struggles
against the class enemy. Proposing these measures was nothing short
of advising a resort to force and violence, for all know that such
measures could not be effected otherwise. Not only so, but the
literature makes such repelling use of the terms "revolution,"
"national rebellion," "revolutionary struggle," "revolutionary
overthrow," "effective physical struggle," "smash the National
Guard," "mass strikes," and "violence," as to leave no doubt that
the use of force in an unlawful sense is intended.
The purpose and probable effect of such literature, when under
consideration in a prosecution like that against Herndon, are to be
tested and determined with appropriate regard to the capacity and
circumstances of those who are sought to be influenced. [
Footnote 2/7] In this instance, the
literature is largely directed to a people whose past and present
circumstances would lead them to give unusual credence to its
inflaming and inciting features.
And so it is that examination and consideration of the evidence
convince me that the Supreme Court of the state applied the
statute, conformably to its opinion, as making criminal an attempt
to induce and incite others to join in combined
forcible
resistance to the lawful authority of the state.
That the constitutional guaranty of freedom of speech and
assembly does not shield or afford protection for acts of
intentional incitement to forcible resistance to the lawful
authority of a state is settled by repeated decisions
Page 301 U. S. 277
of this Court, [
Footnote 2/8]
and the Georgia decisions are to the same effect. [
Footnote 2/9]
Under the statute as construed and applied, it is essential that
the accused intended to induce combined forcible resistance. The
presence of the intent aggravates the inducement and brings it more
certainly within the power of the state to denounce it as a crime
than otherwise it would be. The Supreme Court of the State, in both
of its opinions, was dealing with a statute, and a charge in which
the intent of the accused was an element of the offense. In the
original opinion, the court incautiously said "it would be
sufficient that he intended it [the combined and forcible
resistance] to happen at any time." In its opinion on rehearing, it
said the phrase "at any time" had not been intended to mean any
time in the indefinite future, and, by way of avoiding such a
meaning, the court changed that part of the original opinion by
making it read
"at any time within which he might reasonably expect his
influence to continue to be directly operative in causing such
action by those whom he sought to induce."
I do not perceive that this puts the standard of guilt at large,
or renders it inadmissibly vague. The accused must intend that
combined
forcible resistance shall proximately result from
his act of inducement. There is no uncertainty in that. The
intended point of time must be within the period during which he
"might reasonably expect" his inducement to remain
directly operative in causing the combined forcible
resistance. The words "might reasonably expect" have as much
precision as is admissible in such a matter, are not
Page 301 U. S. 278
difficult to understand, and conform to decisions heretofore
given by this Court in respect of related questions. [
Footnote 2/10] I therefore am of opinion
that there is no objectionable uncertainty about the standard of
guilt, and that the statute does not in that regard infringe the
constitutional guaranty of due process of law.
Believing that the statute under which the conviction was had is
not subject to the objections leveled against it, I think the
judgment of the Supreme Court of the state denying the petition for
habeas corpus should be affirmed.
MR. JUSTICE McREYNOLDS, MR. JUSTICE SUTHERLAND, and MR. JUSTICE
BUTLER join in this dissent.
[
Footnote 2/1]
Georgia Code 1933, §§ 26-901, 26-902, 26-903.
[
Footnote 2/2]
Carr v. State, 176 Ga. 747, 169 S.E. 201;
Herndon
v. State, 178 Ga. 832, 855, 174 S.E. 597.
[
Footnote 2/3]
Herndon v. State, 178 Ga. 832, 855, 867, 174 S.E.
597.
[
Footnote 2/4]
Herndon v. State, 179 Ga. 597, 599, 176 S.E. 620.
[
Footnote 2/5]
Lowry v. Herndon, 182 Ga. 582, 186 S.E. 429.
[
Footnote 2/6]
See Georgia Code 1933, § 38-415.
[
Footnote 2/7]
Burns v. United States, 274 U.
S. 328,
274 U. S.
335.
[
Footnote 2/8]
Gitlow v. New York, 268 U. S. 652,
268 U. S. 666,
et seq.,;
Whitney v. California, 274 U.
S. 357,
274 U. S. 371;
Fiske v. Kansas, 274 U. S. 380,
274 U. S. 385;
Stromberg v. California, 283 U. S. 359,
283 U. S. 368;
Near v. Minnesota, 283 U. S. 697,
283 U. S.
708.
[
Footnote 2/9]
Carr v. State, 176 Ga. 55, 166 S.E. 827, 167 S.E. 103;
Carr v. State, 176 Ga. 747, 169 S.E. 201.
[
Footnote 2/10]
Waters-Pierce Oil Co. v. Texas, 212 U. S.
86,
212 U. S.
108-111;
Nash v. United States, 229 U.
S. 373,
229 U. S.
376-378.