Page images
[blocks in formation]

When a state conviction is challenged here on the ground that free speech has been abridged, this Court must first decide whether the portion of the statute upon which the charge is based is so broad "as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech.” Winters v. New York, 333 U. S. 507, 509. In the Winters case we set aside the conviction because the indefinite character of the statutory language, as construed by the Court of Appeals of New York, was so broad that protected speech was prohibited. This Court reversed, even though it assumed that Winters' conduct could constitutionally be punished by a statute expressing its prohibitions in reasonably narrow and definite form.?

This requirement means that when the verdict and judgment flow, as here, from the information as a whole, each and every portion of the statute upon which the information was drawn must be constitutional. In Stromberg v. California, 283 U.S. 359, Stromberg had been convicted in the California courts for violating a statute of that state forbidding the display of a red flag. On appeal, this Court did not consider whether Stromberg's conduct, as shown by the record, was protected by the Constitution. Instead, despite the fact that the second and third clauses of the California statute were unquestionably valid under the Federal Constitution, this Court

7 See 333 U. S., at 520. Cf. Thornhill v. Alabama, 310 U. S. 88; Herndon v. Lowry, 301 U. S. 242, 263-264.

8 283 U. S., at 361:

"Any person who displays a red flag, banner or badge or any flag, badge, banner, or device of any color or form whatever 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 or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character is guilty of a felony." Then $ 403a of the Calif. Penal Code.

[blocks in formation]

reversed the state court because its conviction of Stromberg might have been based upon the first clause, holding that “if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.” 9 The first clause, forbidding a display of a red flag as a symbol of opposition to organized government, was deemed invalid because it was so broad that it permitted “punishment of the fair use of [the] opportunity [for free political discussion, and was therefore] repugnant to the guaranty of liberty contained in the Fourteenth Amendment." Id. at 369.

The judgment in this present case followed from a determination of judge and jury that petitioner's publication of the lithograph violated the statute. From the general verdict of guilty, nothing appears to show what particular words of the statute the Illinois courts determined the lithograph offended. This conviction must stand or fall upon a determination whether all definitions of the acts proscribed by the statute and charged in the information may be banned under the principles of the First Amendment, for, as the foregoing discussion shows, it is impossible to tell upon what phrase of the statute petitioner's conviction was based. Our examination can begin and end with the inquiry as to what meaning lies in the act's declaration, as charged in the information, that it is unlawful to portray in a lithograph a "lack of virtue of a class of citizens . . . which ... exposes [them to] derision, or obloquy.”

The majority opinion asserts that Illinois has given sufficiently clear and narrow meaning to the words “virtue," "derision” and “obloquy” by characterizing $ 224a as "a form of criminal libel law." But the mere description of this statute as a criminal libel law does not


9 283 U. S. at 368. See also Williams v. North Carolina, 317 U.S. 287, 291-292. Cf. Thomas v. Collins, 323 U. S. 516, 529; Cramer v. United States, 325 U. S. 1, 36, n. 45.

[blocks in formation]

clarify the meaning of these vague words in the statute. To say that the mere presence of the word “virtue” in the individual libel statute 19 makes its meaning clear in the group libel statute is a non sequitur. No case is cited which defines and limits the meaning of these words. Reliance is also placed by the Court upon Illinois' unfortunate experience with clashes between races. How that experience gives content to the vague words is not explained. The opinion further relies upon "the clarifying construction and fixed usage which govern the meaning of the enactment before us." (Emphasis added.) No opinions containing such clarification are cited. In addition to the case before us, we find only two reported adjudications on § 224a in the Illinois courts." Without caviling that one of these cases is so recent that it follows the instant case in the reports, certainly neither of them contains any words which give that "clarifying construction" claimed for Illinois law.

The majority certainly do not supply that construction by intimating that the publications prohibited by $ 224a are only those "liable to cause violence and disorder." Moreover, that phrase was used by the Illinois court, not to limit the prohibition of $ 224a, but to describe the lithograph published by Beauharnais. See 408 Ill., at 517, 97 N. E. 2d, at 346. The quoted language does not limit the statutory words "virtue," "derision” or "obloquy." 12

10 Smith-Hurd Ill. Ann. Stat., 1936, c. 38, § 402, quoted in majority opinion at n. 5.

11 People v. Simcox, 379 Ill. 347, 40 N. E. 2d 525; People v. White Circle League, 408 III. 564,97 N. E. 2d 811 (1951). See also Fox Film Corp. v. Collins, 236 Ill. App. 281; Bevins v. Prindable, 39 F. Supp. 708, aff'd 314 U.S. 573.

12 Indeed, if the Illinois courts had been inclined to interpret their statute as this Court now interprets it, they could have done so only by reading out of their statute the disjunctive clause “or which

[blocks in formation]

The Court speaks at length of the constitutional power of a state to pass group libel laws to protect the public peace. This dissent assumes that power. What is under discussion is whether the conviction of Beauharnais on a general charge of violation of the statute can stand when the statute contains without statutory or judicial definition words of such ambiguous meaning and uncertain connotation as "virtue," "derision," or "obloquy." The Court does not attempt to speak specifically as to that contention.

The importance of a definite ruling on that point is manifest. Racial, religious, and political biases and prejudices lead to charge and countercharge, acrimony and bitterness. If words are to be punished criminally, the Constitution at least requires that only words or expressions or statements that can be reasonably well defined, or that have through long usage an accepted meaning, shall furnish a basis for conviction.13

These words—"virtue," "derision,” and “obloquy”— have neither general nor special meanings well enough known to apprise those within their reach as to limita

is productive of breach of the peace or riots.” (Quoted at p. 251 of majority opinion.) If the Illinois courts were inclined to read this disjunctive as a conjunctive, they would presumably have reversed Beauharnais' conviction, for the information in this case did not charge that publication of his lithograph would be productive of breach of the peace or riots.

13“. . . the constitution never intended to invest judges with a discretion which cannot be tried and measured by the plain and palpable standard of law .... On a special verdict for murder, the life of the prisoner does not depend upon the religious, moral, or philosophical ideas of the judges . ... [I]f he is condemned ... his conduct is brought to a precise, clear, intelligible standard, and cautiously measured by it: it is the law, therefore, and not the judge, which condemns him. ..." Argument in the King's Bench in the Dean of St. Asaph's case (1783– 1784). 21 Howell's State Trials 847, 1006.

DOUGLAS, J., dissenting.

343 U.S.

tions on speech. Compare Connally v. General Construction Co., 269 U. S. 385, 391–392. Philosophers and poets, thinkers of high and low degree from every age and race have sought to expound the meaning of virtue, but each teaches his own conception of the moral excellence that satisfies standards of good conduct. Are the tests of the Puritan or the Cavalier to be applied, those of the city or the farm, the Christian or non-Christian, the old or the young? Does the Bill of Rights permit Illinois to forbid any reflection on the virtue of racial or religious classes which a jury or a judge may think exposes them to derision or obloquy, words themselves of quite uncertain meaning as used in the statute? I think not. A general and equal enforcement of this law would restrain the mildest expressions of opinion in all those areas where “virtue” may be thought to have a role. Since this judgment may rest upon these vague and undefined words, which permit within their scope the punishment of incidents secured by the guarantee of free speech, the conviction should be reversed.

MR. JUSTICE Douglas, dissenting.

Hitler and his Nazis showed how evil a conspiracy could be which was aimed at destroying a race by exposing it to contempt, derision, and obloquy. I would be willing to concede that such conduct directed at a race or group in this country could be made an indictable offense. For such a project would be more than the exercise of free speech. Like picketing, it would be free speech plus.

I would also be willing to concede that even without the element of conspiracy there might be times and occasions when the legislative or executive branch might call a halt to inflammatory talk, such as the shouting of "fire" in a school or a theatre.

My view is that if in any case other public interests are to override the plain command of the First Amendment,

« PreviousContinue »