Appellant, a Ku Klux Klan leader, was convicted under the Ohio
Criminal Syndicalism statute for
"advocat[ing] . . . the duty, necessity, or propriety of crime,
sabotage, violence, or unlawful methods of terrorism as a means of
accomplishing industrial or political reform"
and for
"voluntarily assembl[ing] with any society, group or assemblage
of persons formed to teach or advocate the doctrines of criminal
syndicalism."
Neither the indictment nor the trial judge's instructions
refined the statute's definition of the crime in terms of mere
advocacy not distinguished from incitement to imminent lawless
action.
Held: Since the statute, by its words and as applied,
purports to punish mere advocacy and to forbid, on pain of criminal
punishment, assembly with others merely to advocate the described
type of action, it falls within the condemnation of the First and
Fourteenth Amendments. Freedoms of speech and press do not permit a
State to forbid advocacy of the use of force or of law violation
except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such
action.
Whitney v. California, 274 U.
S. 357, overruled.
Reversed.
PER CURIAM.
The appellant, a leader of a Ku Klux Klan group, was convicted
under the Ohio Criminal Syndicalism statute for "advocat[ing] . . .
the duty, necessity, or propriety
Page 395 U. S. 445
of crime, sabotage, violence, or unlawful methods of terrorism
as a means of accomplishing industrial or political reform" and
for
"voluntarily assembl[ing] with any society, group, or assemblage
of persons formed to teach or advocate the doctrines of criminal
syndicalism."
Ohio Rev.Code Ann. § 2923.13. He was fined $1,000 and sentenced
to one to 10 years' imprisonment. The appellant challenged the
constitutionality of the criminal syndicalism statute under the
First and Fourteenth Amendments to the United States Constitution,
but the intermediate appellate court of Ohio affirmed his
conviction without opinion. The Supreme Court of Ohio dismissed his
appeal
sua sponte "for the reason that no substantial
constitutional question exists herein." It did not file an opinion
or explain its conclusions. Appeal was taken to this Court, and we
noted probable jurisdiction.
393 U. S. 94
(196). We reverse.
The record shows that a man, identified at trial as the
appellant, telephoned an announcer-reporter on the staff of a
Cincinnati television station and invited him to come to a Ku Klux
Klan "rally" to be held at a farm in Hamilton County. With the
cooperation of the organizers, the reporter and a cameraman
attended the meeting and filmed the events. Portions of the films
were later broadcast on the local station and on a national
network.
The prosecution's case rested on the films and on testimony
identifying the appellant as the person who communicated with the
reporter and who spoke at the rally. The State also introduced into
evidence several articles appearing in the film, including a
pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood
worn by the speaker in the films.
One film showed 12 hooded figures, some of whom carried
firearms. They were gathered around a large wooden cross, which
they burned. No one was present
Page 395 U. S. 446
other than the participants and the newsmen who made the film.
Most of the words uttered during the scene were incomprehensible
when the film was projected, but scattered phrases could be
understood that were derogatory of Negroes and, in one instance, of
Jews. [
Footnote 1] Another
scene on the same film showed the appellant, in Klan regalia,
making a speech. The speech, in full, was as follows:
"This is an organizers' meeting. We have had quite a few members
here today which are -- we have hundreds, hundreds of members
throughout the State of Ohio. I can quote from a newspaper clipping
from the Columbus, Ohio, Dispatch, five weeks ago Sunday morning.
The Klan has more members in the State of Ohio than does any other
organization. We're not a revengent organization, but if our
President, our Congress, our Supreme Court, continues to suppress
the white, Caucasian race, it's possible that there might have to
be some revengeance taken."
"We are marching on Congress July the Fourth, four hundred
thousand strong. From there, we are dividing into two groups, one
group to march on St. Augustine, Florida, the other group to march
into Mississippi. Thank you. "
Page 395 U. S. 447
The second film showed six hooded figures one of whom, later
identified as the appellant, repeated a speech very similar to that
recorded on the first film. The reference to the possibility of
"revengeance" was omitted, and one sentence was added: "Personally,
I believe the nigger should be returned to Africa, the Jew returned
to Israel." Though some of the figures in the films carried
weapons, the speaker did not.
The Ohio Criminal Syndicalism Statute was enacted in 1919. From
1917 to 1920, identical or quite similar laws were adopted by 20
States and two territories. E. Dowell, A History of Criminal
Syndicalism Legislation in the United States 21 (1939). In 1927,
this Court sustained the constitutionality of California's Criminal
Syndicalism Act, Cal.Penal Code §§ 11400-11402, the text of which
is quite similar to that of the laws of Ohio.
Whitney v.
California, 274 U. S. 357
(1927). The Court upheld the statute on the ground that, without
more, "advocating" violent means to effect political and economic
change involves such danger to the security of the State that the
State may outlaw it.
Cf. Fiske v. Kansas, 274 U.
S. 380 (1927). But
Whitney has been thoroughly
discredited by later decisions.
See Dennis v. United
States, 341 U. S. 494, at
341 U. S. 507
(1951). These later decisions have fashioned the principle that the
constitutional guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy of the use of force
or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to
incite or produce such action. [
Footnote 2] As we
Page 395 U. S. 448
said in
Noto v. United States, 367 U.
S. 290,
367 U. S.
297-298 (1961),
"the mere abstract teaching . . . of the moral propriety or even
moral necessity for a resort to force and violence is not the same
as preparing a group for violent action and steeling it to such
action."
See also Herndon v. Lowry, 301 U.
S. 242,
301 U. S.
259-261 (1937);
Bond v. Floyd, 385 U.
S. 116,
385 U. S. 134
(1966). A statute which fails to draw this distinction
impermissibly intrudes upon the freedoms guaranteed by the First
and Fourteenth Amendments. It sweeps within its condemnation speech
which our Constitution has immunized from governmental control.
Cf. Yates v. United States, 354 U.
S. 298 (1957);
De Jonge v. Oregon, 299 U.
S. 353 (1937);
Stromberg v. California,
283 U. S. 359
(1931).
See also United States v. Robel, 389 U.
S. 258 (1967);
Keyishian v. Board of Regents,
385 U. S. 589
(1967);
Elfbrandt v. Russell, 384 U. S.
11 (1966);
Aptheker v. Secretary of State,
378 U. S. 500
(1964);
Baggett v. Bullitt, 377 U.
S. 360 (1964).
Measured by this test, Ohio's Criminal Syndicalism Act cannot be
sustained. The Act punishes persons who "advocate or teach the
duty, necessity, or propriety" of violence "as a means of
accomplishing industrial or political reform"; or who publish or
circulate or display any book or paper containing such advocacy; or
who "justify" the commission of violent acts "with intent to
exemplify, spread or advocate the propriety of the doctrines of
criminal syndicalism"; or who "voluntarily assemble" with a group
formed "to teach or advocate the doctrines of criminal
syndicalism." Neither the indictment nor the trial judge's
instructions to the jury in any way refined the statute's bald
definition of the crime
Page 395 U. S. 449
in terms of mere advocacy not distinguished from incitement to
imminent lawless action. [
Footnote
3]
Accordingly, we are here confronted with a statute which, by its
own words and as applied, purports to punish mere advocacy and to
forbid, on pain of criminal punishment, assembly with others merely
to advocate the described type of action. [
Footnote 4] Such a statute falls within the
condemnation of the First and Fourteenth Amendments. The contrary
teaching of
Whitney v. California, supra, cannot be
supported, and that decision is therefore overruled.
Reversed.
[
Footnote 1]
The significant portions that could be understood were:
"How far is the nigger going to -- yeah."
"This is what we are going to do to the niggers."
"A dirty nigger."
"Send the Jews back to Israel."
"Let's give them back to the dark garden."
"Save America."
"Let's go back to constitutional betterment."
"Bury the niggers."
"We intend to do our part."
"Give us our state rights."
"Freedom for the whites."
"Nigger will have to fight for every inch he gets from now
on."
[
Footnote 2]
It was on the theory that the Smith Act, 54 Stat. 670, 18 U.S.C.
§ 35, embodied such a principle and that it had been applied only
in conformity with it that this Court sustained the Act's
constitutionality.
Dennis v. United States, 341 U.
S. 494 (1951). That this was the basis for
Dennis was emphasized in
Yates v. United States,
354 U. S. 298,
354 U. S.
320-324 (1957), in which the Court overturned
convictions for advocacy of the forcible overthrow of the
Government under the Smith Act, because the trial judge's
instructions had allowed conviction for mere advocacy, unrelated to
its tendency to produce forcible action.
[
Footnote 3]
The first count of the indictment charged that appellant
"did unlawfully by word of mouth advocate the necessity, or
propriety of crime, violence, or unlawful methods of terrorism as a
means of accomplishing political reform. . . ."
The second count charged that appellant "did unlawfully
voluntarily assemble with a group or assemblage of persons formed
to advocate the doctrines of criminal syndicalism. . . ." The trial
judge's charge merely followed the language of the indictment. No
construction of the statute by the Ohio courts has brought it
within constitutionally permissible limits. The Ohio Supreme Court
has considered the statute in only one previous case,
State v.
Kassay, 126 Ohio St. 177, 184 N.E. 521 (1932), where the
constitutionality of the statute was sustained.
[
Footnote 4]
Statutes affecting the right of assembly, like those touching on
freedom of speech, must observe the established distinctions
between mere advocacy and incitement to imminent lawless action,
for, as Chief Justice Hughes wrote in
De Jonge v. Oregon,
supra, at
299 U. S. 364:
"The right of peaceable assembly is a right cognate to those of
free speech and free press, and is equally fundamental."
See
also United States v. Cruikshank, 92 U. S.
542,
92 U. S. 552
(1876);
Hague v. CIO, 307 U. S. 496,
307 U. S. 513,
307 U. S. 519
(1939);
NAACP v. Alabama ex rel. Patterson, 357 U.
S. 449,
357 U. S.
460-461 (1958).
MR. JUSTICE BLACK, concurring.
I agree with the views expressed by MR. JUSTICE DOUGLAS in his
concurring opinion in this case that the "clear and present danger"
doctrine should have no place
Page 395 U. S. 450
in the interpretation of the First Amendment. I join the Court's
opinion, which, as I understand it, simply cites
Dennis v.
United States, 341 U. S. 494
(1951), but does not indicate any agreement on the Court's part
with the "clear and present danger" doctrine on which
Dennis purported to rely.
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, I desire to enter a
caveat.
The "clear and present danger" test was adumbrated by Mr.
Justice Holmes in a case arising during World War I -- a war
"declared" by the Congress, not by the Chief Executive. The case
was
Schenck v. United States, 249 U. S.
47,
249 U. S. 52,
where the defendant was charged with attempts to cause
insubordination in the military and obstruction of enlistment. The
pamphlets that were distributed urged resistance to the draft,
denounced conscription, and impugned the motives of those backing
the war effort. The First Amendment was tendered as a defense. Mr.
Justice Holmes, in rejecting that defense, said:
"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."
Frohwerk v. United States, 249 U.
S. 204, also authored by Mr. Justice Holmes, involved
prosecution and punishment for publication of articles very
critical of the war effort in World War I.
Schenck was
referred to as a conviction for obstructing security "by words of
persuasion."
Id. at
249 U. S. 206.
And the conviction in
Frohwerk was sustained because "the
circulation of the paper was
Page 395 U. S. 451
in quarters where a little breath would be enough to kindle a
flame."
Id. at
249 U. S.
209.
Debs v. United States, 249 U.
S. 211, was the third of the trilogy of the 1918 Term.
Debs was convicted of speaking in opposition to the war where his
"opposition was so expressed that its natural and intended effect
would be to obstruct recruiting."
Id. at
249 U. S.
215.
"If that was intended, and if, in all the circumstances, that
would be its probable effect, it would not be protected by reason
of its being part of a general program and expressions of a general
and conscientious belief."
Ibid.
In the 1919 Term, the Court applied the
Schenck
doctrine to affirm the convictions of other dissidents in World War
I.
Abrams v. United States, 250 U.
S. 616, was one instance. Mr. Justice Holmes, with whom
Mr. Justice Brandeis concurred, dissented. While adhering to
Schenck, he did not think that, on the facts, a case for
overriding the First Amendment had been made out:
"It is only the present danger of immediate evil or an intent to
bring it about that warrants Congress in setting a limit to the
expression of opinion where private rights are not concerned.
Congress certainly cannot forbid all effort to change the mind of
the country."
Id. at
250 U. S.
628.
Another instance was
Schaefer v. United States,
251 U. S. 466, in
which Mr. Justice Brandeis, joined by Mr. Justice Holmes,
dissented. A third was
Pierce v. United States,
252 U. S. 239, in
which, again, Mr. Justice Brandeis, joined by Mr. Justice Holmes,
dissented.
Those, then, were the World War I cases that put the gloss of
"clear and present danger" on the First Amendment. Whether the war
power -- the greatest leveler of them all -- is adequate to sustain
that doctrine is debatable.
Page 395 U. S. 452
The dissents in
Abrams, Schaefer, and
Pierce
show how easily "clear and present danger" is manipulated to crush
what Brandeis called "[t]he fundamental right of free men to strive
for better conditions through new legislation and new institutions"
by argument and discourse (
Pierce v. United States, supra,
at
252 U. S. 273)
even in time of war. Though I doubt if the "clear and present
danger" test is congenial to the First Amendment in time of a
declared war, I am certain it is not reconcilable with the First
Amendment in days of peace.
The Court quite properly overrules
Whitney v.
California, 274 U. S. 357,
which involved advocacy of ideas which the majority of the Court
deemed unsound and dangerous.
Mr. Justice Holmes, though never formally abandoning the "clear
and present danger" test, moved closer to the First Amendment ideal
when he said in dissent in
Gitlow v. New York,
268 U. S. 652,
268 U. S.
673:
"Every idea is an incitement. It offers itself for belief, and,
if believed, it is acted on unless some other belief outweighs it
or some failure of energy stifles the movement at its birth. The
only difference between the expression of an opinion and an
incitement in the narrower sense is the speaker's enthusiasm for
the result. Eloquence may set fire to reason. But whatever may be
thought of the redundant discourse before us, it had no chance of
starting a present conflagration. If, in the long run, the beliefs
expressed in proletarian dictatorship are destined to be accepted
by the dominant forces of the community, the only meaning of free
speech is that they should be given their chance and have their
way."
We have never been faithful to the philosophy of that
dissent.
Page 395 U. S. 453
The Court, in
Herndon v. Lowry, 301 U.
S. 242, overturned a conviction for exercising First
Amendment rights to incite insurrection because of lack of evidence
of incitement.
Id. at
301 U. S.
259-261.
And see Hartzel v. United States,
322 U. S. 680. In
Bridges v. California, 314 U. S. 252,
314 U. S.
261-263, we approved the "clear and present danger" test
in an elaborate dictum that tightened it and confined it to a
narrow category. But in
Dennis v. United States,
341 U. S. 494, we
opened wide the door, distorting the "clear and present danger"
test beyond recognition. [
Footnote
2/1]
In that case, the prosecution dubbed an agreement to teach the
Marxist creed a "conspiracy." The case was submitted to a jury on a
charge that the jury could not convict unless it found that the
defendants "intended to overthrow the Government as speedily as
circumstances would permit.'"
Id. at
341 U. S.
509-511. The Court sustained convictions under that
charge, construing it to mean a determination of
""whether the gravity of the
evil,' discounted by its
improbability, justifies such invasion of free speech as is
necessary to avoid the danger." [Footnote 2/2]"
Id. at
341 U. S. 510,
quoting from
United States v. Dennis, 183 F.2d 201,
212.
Out of the "clear and present danger" test came other offspring.
Advocacy and teaching of forcible overthrow of government as an
abstract principle is immune from prosecution.
Yates v. United
States, 354 U. S. 298,
354 U. S. 318.
But an "active" member, who has a guilty knowledge and intent of
the aim to overthrow the Government
Page 395 U. S. 454
by violence,
Noto v. United States, 367 U.
S. 290, may be prosecuted.
Scales v. United
States, 367 U. S. 203,
367 U. S. 228.
And the power to investigate, backed by the powerful sanction of
contempt, includes the power to determine which of the two
categories fits the particular witness.
Barenblatt v. United
States, 360 U. S. 109,
360 U. S. 130.
And so the investigator roams at will through all of the beliefs of
the witness, ransacking his conscience and his innermost
thoughts.
Judge Learned Hand, who wrote for the Court of Appeals in
affirming the judgment in
Dennis, coined the "not
improbable" test, 183 F.2d 201, 214, which this Court adopted and
which Judge Hand preferred over the "clear and present danger"
test. Indeed, in his book, The Bill of Rights 59 (1958), in
referring to Holmes' creation of the "clear and present danger"
test, he said, "I cannot help thinking that, for once, Homer
nodded."
My own view is quite different. I see no place in the regime of
the First Amendment for any "clear and present danger" test,
whether strict and tight, as some would make it, or free-wheeling,
as the Court in
Dennis rephrased it.
When one reads the opinions closely and sees when and how the
"clear and present danger" test has been applied, great misgivings
are aroused. First, the threats were often loud, but always puny,
and made serious only by judges so wedded to the
status
quo that critical analysis made them nervous. Second, the test
was so twisted and perverted in
Dennis as to make the
trial of those teachers of Marxism an all-out political trial which
was part and parcel of the cold war that has eroded substantial
parts of the First Amendment.
Action is often a method of expression, and within the
protection of the First Amendment.
Suppose one tears up his own copy of the Constitution in
eloquent protest to a decision of this Court. May he be
indicted?
Page 395 U. S. 455
Suppose one rips his own Bible to shreds to celebrate his
departure from one "faith" and his embrace of atheism. May he be
indicted?
Last Term, the Court held in
United States v. O'Brien,
391 U. S. 367,
391 U. S. 382,
that a registrant under Selective Service who burned his draft card
in protest of the war in Vietnam could be prosecuted. The First
Amendment was tendered as a defense and rejected, the Court
saying:
"The issuance of certificates indicating the registration and
eligibility classification of individuals is a legitimate and
substantial administrative aid in the functioning of this system.
And legislation to insure the continuing availability of issued
certificates serves a legitimate and substantial purpose in the
system's administration."
391 U.S. at
391 U. S.
377-378.
But O'Brien was not prosecuted for not having his draft card
available when asked for by a federal agent. He was indicted,
tried, and convicted for burning the card. And this Court's
affirmance of that conviction was not, with all respect, consistent
with the First Amendment.
The act of praying often involves body posture and movement, as
well as utterances. It is nonetheless protected by the Free
Exercise Clause. Picketing, as we have said on numerous occasions,
is "free speech plus."
See Bakery Drivers Local v. Wohl,
315 U. S. 769,
315 U. S. 775
(DOUGLAS, J., concurring);
Giboney v. Empire Storage Co.,
336 U. S. 490,
336 U. S. 501;
Hughes v. Superior Court, 339 U.
S. 460,
339 U. S. 465;
Labor Board v. Fruit Packers, 377 U. S.
58,
377 U. S. 77
(BLACK, J., concurring),
and id. at
377 U.S. 93 (HARLAN, J., dissenting);
Cox v. Louisiana, 379 U. S. 559,
379 U. S. 578
(opinion of BLACK, J.);
Food Employees v. Logan Plaza,
391 U. S. 308,
391 U. S. 326
(DOUGLAS, J., concurring). That means that it can be regulated when
it comes to the "plus" or "action" side of the protest. It can be
regulated as to
Page 395 U. S. 456
the number of pickets and the place and hours (
see Cox v.
Louisiana, supra), because traffic and other community
problems would otherwise suffer.
But none of these considerations is implicated in the symbolic
protest of the Vietnam war in the burning of a draft card.
One's beliefs have long been thought to be sanctuaries which
government could not invade.
Barenblatt is one example of
the ease with which that sanctuary can be violated. The lines drawn
by the Court between the criminal act of being an "active"
Communist and the innocent act of being a nominal or inactive
Communist mark the difference only between deep and abiding belief
and casual or uncertain belief. But I think that all matters of
belief are beyond the reach of subpoenas or the probings of
investigators. That is why the invasions of privacy made by
investigating committees were notoriously unconstitutional. That is
the deep-seated fault in the infamous loyalty security hearings
which, since 1947, when President Truman launched them, have
processed 20,000,000 men and women. Those hearings were primarily
concerned with one's thoughts, ideas, beliefs, and convictions.
They were the most blatant violations of the First Amendment we
have ever known.
The line between what is permissible and not subject to control
and what may be made impermissible and subject to regulation is the
line between ideas and overt acts.
The example usually given by those who would punish speech is
the case of one who falsely shouts fire in a crowded theatre.
This is, however, a classic case where speech is brigaded with
action.
See Speiser v. Randall, 357 U.
S. 513,
357 U. S.
536-537 (DOUGLAS, J., concurring). They are indeed
inseparable, and a prosecution can be launched for the overt
Page 395 U. S. 457
acts actually caused. Apart from rare instances of that kind,
speech is, I think, immune from prosecution. Certainly there is no
constitutional line between advocacy of abstract ideas, as in
Yates, and advocacy of political action, as in
Scales. The quality of advocacy turns on the depth of the
conviction, and government has no power to invade that sanctuary of
belief and conscience. [
Footnote
2/3]
[
Footnote 2/1]
See McKay, The Preference For Freedom, 34 N.Y.U.L.Rev.
1182, 1203-1212 (1959).
[
Footnote 2/2]
See Feiner v. New York, 340 U.
S. 315, where a speaker was arrested for arousing an
audience when the only "clear and present danger" was that the
hecklers in the audience would break up the meeting.
[
Footnote 2/3]
See MR. JUSTICE BLACK, dissenting, in
Communications Assn. v. Douds, 339 U.
S. 382,
339 U. S. 446,
339 U. S. 449
et seq.