Beauharnais v. Illinois

ILLINOIS. BEAUHARNAIS April 1952. 28, 1951. Decided Argued November No. With for petitioner. the cause A. Albert argued Alfred Levy. Monte Herbert brief was him on the Illi- of Attorney General Wines, Assistant William C. the him on respondent. With for the cause nois, argued T. General, John Elliott, Attorney A. were Ivan brief I. Zemel. Albert General, Coburn, Attorney Assistant the of opinion delivered Frankfurter Justice Mr. Court. in the information upon was convicted petitioner

The 224a of violating § of Chicago of Court Municipal 1, Div. 1949, c. Stat,, Ill. Rev. Code, Criminal Illinois provides: The section $200. was fined He § 471. corpora- firm or any person,

“It shall be unlawful advertise sale, sell, or offer for manufacture, tion to in public place present any or exhibit publish, or picture, play, any lithograph, moving this state por- exhibition or sketch, publication or which drama unchastity, or lack criminality, trays depravity, color, creed citizens, any race, of a class of virtue exhibition ex- publication which said or religion or religion race, color, creed poses citizens produc- or which is derision, obloquy contempt, . . peace or riots. of breach of tive violating liberty challenged the statute as Beauharnais guaranteed against the States press and of the speech Amendment, the Fourteenth Clause of the Due Process implicit in under the restrictions vague, as too Illi Clause, support same conviction for crime. The rejected nois courts these contentions and sustained de Ill. E. fendant’s conviction. 408 97 N. 2d 343. We granted questions certiorari view of the serious raised concerning imposed by the limitations the Fourteenth power punish Amendment on the of State to utterances promoting among religious groups. friction racial and 342 U. S. 809. information, generally cast the terms of the stat-

ute, charged that unlawfully Beauharnais “did . . . ex- hibit in public places lithographs, publications por- tray depravity, criminality, unchastity or lack of virtue of citizens of Negro exposes race and color and which [sic] citizens of Negro Illinois race and contempt, color to derision, or obloquy . . . .” lithograph complained of was a leaflet forth a setting petition calling on the Mayor City Chicago Council of “to halt the further encroachment, harassment and invasion of people, white their property, neighborhoods and persons, by the Ne- gro . . . .” Below awas call for “One million self re- specting people white in Chicago to . . unite . .” with the statement added that “If persuasion and the need to pre- vent the white race from becoming mongrelized by the negro will not us, unite aggressions then the . . . rapes, robberies, knives, guns and marijuana of the negro, surely will.” This, with more similar language, if not violent, so concluded with an attached application for membership in the White Circle League of America, Inc.

The testimony at trial was substantially undisputed. From it the jury could find that Beauharnais was president of the White Circle League; at that, a meeting on January 6, 1950, passed he out bundles of the litho- graphs in question, together with other literature, to vol- for unteers distribution on downtown Chicago street cor- ners the following day; that he carefully organized that distribution, giving detailed instructions for it; and that in on 7 in January the leaflets were fact distributed ac- plan court, with his and instructions. The to- cordance gether charges like, with other on burden of and the proof “if jury you defendant, Joseph told the find . . . that the Beauharnais, sale, did . . . manufacture, sell, or offer in publish, present any public place advertise or or exhibit lithograph . . . then are to find you the defendant guilty . . . .” He refused to charge jury, as re- quested by defendant, they order to convict must find “that complained likely article a produce present clear and danger of serious substan- tive evil that rises far public inconvenience, above an- noyance Upon or unrest.” in- this evidence and these structions, jury brought the conviction here for review.

The statute before us is not catchall enactment left Thorn at large by the State court which it. applied Cf. Alabama, Connecticut, hill v. Cantwell v. 88; U. S. specifically S. It is a law directed at a U. evil, language drawing history prac its from defined jurisdic in Illinois and in more than a of other tice score meaning Supreme tions a confirmed Court of that in upholding not, therefore, State this conviction. We do it as an parse grammarians the statute as or treat abstract animating it in the lexicography. exercise We read States, Nash United usage, context of well-defined determines 373, U. S. and State court construction which Hampshire, v. New 312 Cox for us. U. S. meaning its Hampshire, v. New 315 S. 569; Chaplinsky U. 568. us that 224a “is a Supreme § Court tells Illinois 512, 517, law.” Ill. 97 N. E. 2d

form of criminal libel 408 defendant, Supreme 346. The the trial court and the 343, consistently treated it as such. The defendant Court tending prove parts the truth of of the offered evidence and the courts below utterance, disposed considered 254 precedents.1 in libel ordinary

this offer terms criminal truth, with but 224a does not deal the defense of Section Art. “in all for Constitution, II, 4, § the Illinois trials libel, criminal, truth, published both civil and when good justifiable ends, with motives and for shall be a suf- Stat., 1949, 38, ficient also Ill. 404. § defense.” See Rev. c. in a mat- Similarly, deciding the action of the trial court utterance, leaving ter of law the libelous character of the jury only question publication, to the follows the in prosecutions settled rule for other libel Illinois and States.2 Moreover, Supreme Court’s characterization prohibited by the words the statute as those “liable to cause violence and disorder” paraphrases traditional justification punishing criminally, for libels their namely “tendency peace.” cause breach of the

Libel of an individual crime, common-law Indeed, law, thus criminal the colonies. at common good truth or motives was no In defense. the first dec- after adoption Constitution, ades this was judicial changed by decision, statute or constitution States, any suggestion most but nowhere was there that 512, 518, 343, requires 1 408 Ill. 97 N. E. 2d 346-347. Illinois law prevail, defense truth all facts in the utterance publication. People together good must be shown with motive for v. Strauch, People Fuller, 220, 126; 116, E. v. Ill. 93 N. Ill. Ogren Printing Co., 336; Star 405, N. E. cf. v. 288 Ill. Rockford 123 N. E. 587. 2See, g., Sterman, e. State 569, 222; v. State v. 199 Iowa 202 N. W. Howard, Ogren 312, 313, 807-808; 169 N. C. E. 84 S. cf. v. Rockford Printing Co., supra. Star 3See, g., People Spielman, e. 466, 469; 318 Ill. 149 N. E. Odgers, (6th 368; ed.), Libel and Slander 19 A. L. R. Some hold, however, injury reputation, States libel, as in civil tendency peace, gravamen to breach of the is the of the offense. Tanenhaus, Libel, See Group Q. 261, 35 Cornell L. 273 and n. 67.

255 Today, every of libel be abolished.4 American the crime of Colum- forty-eight States, District jurisdiction —the libels di- punish and Puerto bia, Alaska, Hawaii Rico— well-defined at individuals.5 “There are certain rected 4 History development Warren, of this see For a brief account Bar, correspondence between Chief the American 236-239. See also Cushing Adams, published 27 of Massachusetts and John Justice Q. (Oct. 1942). explained in letter to L. 11-16 Jefferson Mass. Adams, September 11, 1804, down the Abigail to strike dated over all restraint from the Alien and Act would not “remove Sedition virtue, whelming confounding vice and of slander which is all torrent fully power The to do that truth and falsehood the US. all United See Dennis v. by legislatures.” possessed state the several States, Freedom, 494, 522, Miller, 168- 341 U. S. n. See Crisis provisions criminal libel in Edward Liv 169, See also as to 231-232. System Louisiana, 2 ingston’s of Penal Law for Works famous draft Livingston 100-108. of Edward 5 punished law, eight offense is as at common with In States the Roberts, (Del.) enactment. State legislative 450, v. 2 Marv. 43 A. out Commonwealth, Robinson Ky. 350, 907; 222 Cole 252; v. 300 S. W. State, Canter, Commonwealth 644, 433; A. v. 269 v. 108 Md. 71 Mass. Burnham, Spear, State v. 359, 790; 34; State N. E. v. 9 N. H. 13 Payne, Sutton, State v. State 324; 12, 116; 52 A. R. I. Vt. “libel” 102, jurisdictions other make 104 S. E. 288. Twelve

W. Va. Code, 1940, by statute, defining without the term. Ala. a crime Ann., 1949, 65-4-28; 14, Comp. D. C. § 347; Tit. Alaska Laws § Ann., 836.01; Code, 1940, 1944, Ind. § 22-2301; Fla. Stat. Burns § Code, 1942, Stat., Stat., 1933, 10-3201; § 2268; Neb. Rev. Miss. § Stat., Ann., 1939, 1943, § 28-440; § 2:146-1; N. N. C. Gen. J. Stat. Stat., Code, 1939, 13383; 14-47; Page’s Wis. Ohio Gen. § § twenty Thus, Wyo. Comp. Stat., 1949, § 348.41; § 9-1601. case-by-case jurisdictions punish “libel” as defined American development. common-law jurisdictions sought the common-law remaining have to cast been statutory Two formulas have form of words.

definition in a them, accepted jurisdictions, among have Illinois popular. Eleven following: minor variations the with defamation, expressed by printing, or either is a malicious

“A libel memory like, tending of one or the to blacken the signs pictures, speech, prevention narrowly and limited classes to thought have never been punishment and the lewd problem. These include any raise Constitutional and insult- obscene, profane, libelous, very words—those which their utter- ing 'fighting’ or an injury inflict or tend to incite immediate breach ance well that peace. It has been observed such utter- integrity, reputa dead, impeach honesty, or who is or to virtue alive, thereby publish of one is to or the natural defects who tion contempt, ridicule, injury.” expose public hatred, or financial him to Ann., Stat., 1936, 38, Ariz. Ill. Ann. c. Code Smith-Hurd § 1947, 1939, Stat., § 41-2401; Deering’s § 43.3501; Ark. Cal. Penal Ann., 1935, 48, Code, 1949, § 248; § 199; Code Colo. Stat. c. Ga. 1947, 18-4801; Ann., 1936, 26-2101; Code, Idaho Smith-Hurd § § Stat., 1936, 38, 402; Codes, 1947, 94-2801; Ann. Ill. c. Mont. Rev. § § Comp. Laws, 1929, 10110; Penal, 1937, Codigo § 243; P. R. Nev. § Ann., 1943, 103-38-1; Virgin Code, 1921, Code cf. Utah Islands § IV, 5, Tit. c. 36.§ version, again variations, The other with minor has found favor jurisdictions. twelve

“A person, public by any libel is a malicious defamation made printing, writing, sign, picture, representation effigy, tending or provoke expose public hatred, him contempt to wrath or him to or ridicule, deprive or public him of the benefits of confidence and intercourse; any social or defamation, public malicious made as afore- said, designed vilify memory dead, to blacken and of one who is tending provoke surviving to scandalize or his relatives friends.” Ann., 1949, § 737.1; Stat., 1935, 2401;

Iowa Code Kan. Gen. § 21 - Code, 1943, 740-47; Stat., 1944, Dart’s La. Crim. Art. Me. Rev. c. 117, § 30; Stat., 1949, § 619.51; Stat., 1949, Minn. Mo. Rev. 559.410; McKinney’s Laws, Code, 1340; N. Y. Penal N. D. Rev. § § Code, 1943, 12-2801; Ann., 1936, 21, § 771; Okla. Stat. Tit. § Ann., 1945, 18, § 4412; Purdon’s Pa. Code, Stat. Tit. Williams Tenn. 1934, 11021, 11022; Remington’s Stat., 1932, Wash. Rev. §§ §2424. remaining jurisdictions nine have definitions of criminal libel pattern. which fall into no Stat., 1949, common See Conn. Gen. § 8518; Laws, 11450; 1945, Comp. Laws, 1948, Hawaii Rev. Mich. § § 750-370; Stat., 1941, §§ 41-2701, 41-2708; N. M. Comp. Ore. Laws, 1940, Code, § 23-437; 1942, 1395; Code, S. C. S. D. § ideas, part any exposition are no essential anees step social value as a to truth slight are of such clearly out- may benefit that be derived from them morality. interest in order and weighed by the social epithets personal any proper abuse is not ‘Resort information or safe- opinion sense communication of Constitution, punishment and its as a guarded by the question act would raise no under instru- criminal Connecticut, 309-310.” ment.’ Cantwell 310 U. S. the views of a unanimous Court in Chaplinsky Such were at Hampshire, supra, v. New 571-572.6 falsely charge will that it is libelous gainsay No one a being rapist, robber, another with carrier of knives and Stat., 1948, Code, 13.3401; 1269, 1275; Tex. Vernon’s Arts. Va. § 1950, 18-133. § homogeneity statutory

Our examination of the of these definitions might begin of criminal libel well and end with the words “virtue” thirty-two jurisdictions, Of twelve outlaw statements and “ridicule.” these, impeaching another; of of and fifteen the “virtue” eleven twenty-six prohibit tending bring in utterances another more— all— “public into ridicule.” definition, applicable twenty jurisdic- For the common-law in the above, Digest Hand, J., L. v. tions first noted see in Grant Reader’s 733, 735, Assn., speaks defining F. he “in 2d where of libel ac- rubric, consisting with the as cordance usual utterances ‘hatred, contempt, scorn, obloquy shame,’ and the like.” Cf. arouse Restatement, Torts, 559, (b); Odgers, comment Libel and Slander § (6th (4th ed.), 16-17; Newell, ed.), Slander and Libel 1-2. cursory

Even examination of these a enactments and common-law pronouncements Illinois, using §224a, demonstrates that a form invoked of libel to of words which the familiar common law prohibited The Illinois define the utterances. defendant and the seen, courts, upon we have understood this and it. acted States, guarantee speech In all but five the constitutional of free every person explicitly qualified by holding “responsible him 331, right.” Pennekamp Florida, v. the abuse that See 328 U. S. 356, Kentucky 1799, n. 5. See Jefferson in Resolutions 1798 and 540-541, prepared, but 4 Elliot’s Debates an undated draft 1801, Library used, Message Congress, for his December guns, marijuana. precise question and user of before us, then, protection “liberty” is whether the Due prevents Process Clause of the Fourteenth Amendment State from punishing such libels—as criminal libel has defined, been limited and time constitutionally recognized out of at designated mind —directed collectivities and fla- grantly disseminated. There is even however authority, dubious, that such utterances were also crimes at common law.7 certainly jurisdic- It is clear that some American tions punishment ordinary have sanctioned their under criminal say, libel statutes.8 cannot however, We question is concluded by history practice. But if an utterance directed at an may object individual be the of criminal sanctions, deny we cannot to a power State punish the same at group, utterance directed a defined say unless we can purposeless this is wilful and restriction unrelated to peace well-being State.

Illinois did not look beyond have to her own borders tragic experience or await of the last three dec- Congress Papers, Jefferson Vol. Leaf 20569. In Carlson Cali fornia, 106, 112, 310 U. S. we noted that the statute there invalidated exceptions respect made “no with to the truthfulness and restraint conveyed of the information . . . .” 7Compare reports King 138, 166, v. 2 Osborne in Barn. K. B. Eng. 406, 425; Rep. 503, (c), Eng. 94 2 Rep. 705, 717; Swans. n. 36 *230, Eng. Rep. (1732). present Attorney W. Kel. 25 584 The Gen England eral of special asserted that case this obviated the need of group legislation Times, libel for Great Britain. See The [London] 26, 1952, p. 2, Odgers, March (6th col. 4. See also Libel and Slander ed.), 369; Tanenhaus, Group Q. Libel, 261, L. 35 Cornell 267-269. 8 leading People One of the Spielman, cases arose in Illinois. 482, (1925), Ill. 149 N. sustaining 318 E. 466 a conviction for libel on Legion. members of the American The authorities are collected Tanenhaus, and Group Libel, Q. discussed in 261, 35 Cornell L. 269-

259 to that wilful of falsehood purveyors ades9 conclude con- cerning religious groups promote racial and strife and tend powerfully adjustments to obstruct the manifold required free, for ordered life in a metropolitan, polyglot commu- nity. Lovejoy From the murder of the abolitionist in 1951, 1837 the Cicero riots of Illinois has been the scene races, of exacerbated tension between often into flaring outbreaks, many In violence and destruction.10 of these utterances of the in so the question, character here legislature significant Illinois could a conclude, played part.11 The law at a time passed 29, 1917, was on June struggling when the State was to assimilate vast numbers of new in inhabitants, yet concentrated discrete racial or national religious groups foreign-born brought — it by great the crest of the wave of and Ne- immigration, groes jobs attracted in war by plants and the allure-

9See, g., Loewenstein, Legislative e. Control of Political Extrem European Democracies, 725; ism in 38 Col. L. Rev. 591 and Ries man, Democracy Defamation, 727, 42 Col. L. Rev. 1085 and 1282; Act, 6, 1936, VI, Public Order 1 Edw. VIII and Geo. e. (5th 1936); 49-193, H. C. Deb. 1349-1473 ser. 318 H. C. Deb. 581-710, 1659-1785, (5th 1936); 2781-2784 ser. H. L. Deb. 741- (5th 1936). 773, 961-972 ser. generally Chicago Relations, See The Commission on Race The Negro passim Chicago, 1-78, (University Press, Chicago 1922); 5, Rep. Research Memorandum No. First Annual Ill. Inter (1944). Racial Comm’n 11 May 28, 1917, Louis, Illinois, The riot in preceded East St. by violently inflammatory speech unemployed workmen prominent lawyer Report Special of the town. Committee by Congress Investigate Authorized Riots, the East St. Louis H. R. Cong., 11; Chicago Doc. No. 65th 2d Sess. Commission on Race Relations, Negro Chicago, id., 75. And see at 118-122 groups literature circulated real estate associations other dur ing bombings leading up Chicago the series of to the riots of 1919. For the propaganda pro Commission’s comments on the role of moting id., frictions, race see at 638-639.

260 in earlier, years Nine northern claims.12 ments to be sat, is said what legislature city where very people, of six the lives had cost race riot northern first citizens and shocked homeless Negroes hundreds left Less of the State.13 the borders beyond far into action enacted, East St. Louis bill was than a month before only outbreak, four to an rioting, prelude day’s had seen it led to bloody law, so bill became after the days bombings A had series investigation.14 Congressional in the awful later years two was to culminate begun which days for seven in its Chicago grip riot which held race Metropolis, 8, be Cayton, show that Black Tables in Drake Chicago foreign-born in increased number 1900 and 1920 the tween y3 States census Negro population trebled. United by over and the growth as a whole following for the State population figures show counties: selected entailing great population movements vast For account of these an Metropolis, Cayton, Black maladjustments, see Drake social Negro Relations, The on Race 8-18, 31-65; Chicago Commission Riots, Chicago 9-30. Sandburg, Race Chicago, 79-105; The Carl Independent North, Walling, 65 The in the See Race War founding of the (1908). apparently led to the National This article People. Ovington, How for the of Colored Association Advancement People Advancement of Colored for the the National Association (1914). Chicago on Began, See also Commission Race 8 Crisis 184 Relations, Chicago, Negro 67-71. by Congress

Report to In Special Committee Authorized vestigate Riots, Cong., No. 65th the East St. Louis H. R. Doc. Louis, 14 Crisis 219 2d also The Massacre of East St. Sess. See (1917).

261 and be- summer of 1919.15 Nor has tension violence in in limited groups tween the defined the statute been Negroes. and Illinois to clashes between whites obligato In of history frequent the face of this and its deny we would religious propaganda, extreme racial and say legislature to that the Illinois was without experience in or defama- seeking ways reason to curb false malicious religious groups, public places of racial and made tion powerful emotional means calculated have on to whom it “There impact presented. those speech and are limits to the exercise of these liberties [of in these from the press]. danger of the The times coercive of who in the delusion of racial or reli- activities those gious would incite and breaches of the conceit violence peace deprive right order to others of their equal liberties, emphasized by the exercise of their events familiar all. of those transgressions These other may limits the States This was appropriately punish.” in 1940. conclusion, again Court, of a unanimous Connecticut, supra, Cantwell at 310. may legislation

It be this argued, weightily, help matters; will not tension and on occasion 15Chicago Relations, Negro Chicago, on Commission Race 122-133. not,” question The utterances here in "are as a detached student problem noted, daily grist vituperative political has “the of they frothy lunatics, represent imaginings debate. Nor do gossip country Rather, they sys the ‘idle’ of a town. indicate the concerning tematic avalanche of falsehoods which are circulated groups, up various classes and races which make the countries of the Riesman, Democracy western world.” and Defamation: Control of Libel, Group Rev., L. Col. at 727. Professor Riesman continues: purposeful nothing new, “Such attacks are . . course. . What is new, however, public opinion is the existence of a mobile as the con trolling politics, systematic manipulation force in and the of that opinion by Id., the use of calculated falsehood and vilification.” at must be groups religious racial between

violence than society in our embedded deeply more traced causes Only those Know-Nothings.17 modern rantings solu- a confident will have humility lacking responsible attribut- the frictions intractable as problems tion for being This religion. race, color able to differences deny judiciary to for the it would be out of bounds so, unre- it is not policy, provided legislature choice explicit some problem and not forbidden lated to the legislative That the power. limitation on State’s evil, might in practice mitigate remedy might only would manifest once problems, raise new itself for price paid of reform. It is the to be paradox more the in to deal legislative trial-and-error inherent efforts of government issues. “The science with obstinate social that sciences; if, indeed, most abstruse of all can is the but principles, a science which has few fixed be called in little more than the exercise of a practically consists as discretion, applied exigencies sound to the of the state experiment.” It of Anderson they arise. science Dunn, 204, Certainly v. 6 Wheat. 226. the Due Process require legislature does not to be in the van- Clause guard especially young of sciences as as human science— Texas, Tigner ecology anthropology. cultural See 310 U. S.

Long ago recognized rights this Court that the economic may depend an individual the effectiveness of their rights group, though enforcement on even not for- mally corporate, belongs. which he American Found- Council, v. Tri-City group-pro- ries S. 184. Such U. behalf of may, tection on the individual for all we know, part be a need not confined to the that a union plays trade in effectuating rights abstractly recognized belonging as

17See, g., Hand, J., symposium Saturday e. L. in a in The Review Literature, 15, 1947, pp. 23-24; Report Mar. of the Committee Defamation, (1948). on the Law of Cmd. to con- competence not within our members. It is

to its depend- to the deny firm or claims social scientists or re- position of his racial ence of the individual on the however, be community. would, in the It ligious group authority of our scope outside the dogmatism, quite arrant that deny for us to powers State, on the passing warrantably that a legislature may believe the Illinois dig- and the job opportunities and his educational man’s depend reputation him as much on the nity may accorded group willy-nilly to which he religious racial are being so, on his own This we belongs, as merits. concededly punish- precluded saying speech from at cannot be immediately able when directed individuals if at with whose groups position outlawed directed inex- society may esteem the affiliated individual be tricably involved. warned that to the Illinois open

We are choice abused, legislature may may here be the law be dis- criminatorily prohibiting libel of a creed or enforced; group, told, step prohibiting a racial we are is but a from abused, political party.18 Every power may libel of a be for possibility poor denying but the of abuse is a reason power adopt against Illinois the to measures criminal of law. Anglo-American libels sanctioned centuries authority this Court sits” it retains and “While exercises nullify to on of action which encroaches freedom utter- 18 emphasis attempt It deserves that there is no such in this stat religion” “race, color, The ute. rubric creed which describes the type group punishable, libel of is which has attained too fixed a meaning permit political groups brought to be within it. If a sought political parties, quite statute to outlaw libels of different problems thing, For not now before us would be raised. one the indispensable whole of fair comment democratic doctrine the People Fuller, supra, political process play. would come into See v. 338-339; Pratt, 553, 125, E., v. at 87 N. at Commonwealth 208 Mass. 105, are, parties, public men, N. E. like 95 106. Political as it were, public property. dis- Of course libel. punishing guise the under

anee as the as well right, and the be denied cussion cannot not be be stifled. must duty, of criticism by the us, as construed before statute scope ~~The the conduct court, that of the contention disposes Illinois judges that is ill-defined by the law so prohibited acting in cannot and men in the statute juries applying them. guide adequate from it standards draw the usage govern which and fixed clarifying construction present, were not so before us the enactment meaning of law held invalid New York found, the Court York, Nor, thus con S. 507. U. v. New Winters general the act so broad limited, strued statutory in the an indictment drawn guilty verdict on constitutionally on predicated been might have language here score, the conviction re On this conduct. protected Stromberg California, v. upset those from viewed differs Alabama, S. v. U. 359, Thornhill S.U. 1. Even the latter Chicago, 337 S. case U. Terminiello unconstitutionality of statute is not hold that did e it raises a ruckos. speech prohibited by stablishedbecause within the con- clearly while it was suggested It is utterance if punish this of Illinois power stitutional partic- in this safeguarded, properly were proceeding rights Illinois denied defendant ular case argued it is Specifically, Due Process Clause commands. at the permitted to raise trial that the defendant was in a criminal libel constitutionally guaranteed defenses (2) justification truth; defense of prosecution: (1) the (3) privilege its comment”; as “fair the utterance redressing grievances. as a means for instructions, evidence, requests by proffer Neither the defendant seek nor motion or after verdict did before “fair privileged. utterance as comment” or as justify his a his urged ground reversing as for Nor has the defendant

CO to make opportunity that his in Court this conviction a so, And whether below. was denied those defenses uncon- religious group is libel of a racial or for prosecution the defend- deny did where the State stitutionally invalid Certainly the before us.19 is not opportunities ant such patent what is justifying the burden of may State cast of hypo- The benefits upon the defamer. defamation upon us, pressed below or defenses, never raised thetical in abstract. are not to be invoked many Illinois in common with truth, As to the defense of utterance showing only requires States be made facts, publication but also that state Ill. justifiable Const., and for ends.” good “with motives if the defense necessary Art. 4.20 Both elements are II, § been called “the common sense prevail. is What has regard with law,” formulated, of American criminal necessary prosecutions, in libel in the safeguards criminal 8, Art. has been 1821, VII, § New York Constitution of adopted teaching century terms Illinois. The country a half of libel in this prosecutions criminal evidently Indeed, protected by such defenses are Illinois law. Const., II, 17, guaranteeing right people Ill. See Art. § grievances. People Fuller, apply for redress of And see Ill. 116, 336, 338-339, E. 87 N. on the defense of “fair comment” prosecutions. criminal libel present constitution, adopted is Illinois’ third. The preserved types prose first two the defense of in certain of libel truth prosecutions publication papers investigating cutions: “In for the officers, acting public capacity, the official conduct of or of men in a published or where proper public information, the matter may given truth thereof be in evidence. And in all indictments for jury right libels the determining shall have the both the law and the fact under the direction of the court as in other cases.” Ill. Const., 1818, VIII, 23; Const., 1848, XIII, Art. Ill. Art. 24. The § § requirement good combined justifiable of truth and motives and ends, suits, adopted available as a defense in all libel with the Constitution of 1870.

266 that Illinois to hold if we were board by go

would re- this combined making rights her not within was proof offer that defendant’s Assuming quirement. not it did adequate,21 was the defense a part directed exact.22 Illinois could requirement satisfy the entire area of con- within the being utterances Libelous for either unnecessary, it is speech, stitutionally protected behind the issues courts, consider us or for the State no one Certainly danger.” present “clear and phrase may be example, for speech, that obscene would contend of such circumstances. showing only upon punished in the same class. seen, we have Libel, as denying in the Constitution find no warrant We But the law here under attack.23 power pass Illinois the 21 (1) frequent more to show that crimes were Defendant offered by Negroes heavily populated in those where whites than in districts by (2) allegedly predominated; specific committed three crimes (3) Negroes Negroes; property values declined when moved neighborhood. showing is It is doubtful whether such a into defamatory allegations lithograph in the circulated as the extensive by the defendant. put questions attorney a few to the defendant on The defense elaborating the witness stand which tended toward his motives in circulating lithograph complained objections of. When to these questions sustained, proof made, were no offer of was in contrast to permit ques the rather elaborate offer which followed the refusal to tioning tending Indeed, to show the truth of the matter. in that itself, despite detail, offer its considerable no mention was made of necessary good justifiable element of motive or ends. In event, question testimony going of exclusion of this to motive was court, appeal not raised motion in Illinois, the trial on before us. Jersey The law struck Jersey down the New court in New Klapprott, 127 N. quite J. L. A. 2d different than the limited, one before statute, by us and was not as is the Illinois con usage. Indeed, struction emphasized in that case the court that “It libel,” is not a case of history and contrasted the at common law of prosecutions spoken criminal for written and defamation. it not —that our find- repeating although it bears should — car- constitutionally objectionable that the law is not ing of the wisdom of the implication approval ries no may raise efficacy. questions or of its These legislation not for us, in our minds as well as others. It is doubts are not however, legislative judgment. to make the We to those doubts into fundamental law. liberty at erect

Affirmed. Douglas Black, Mr. Justice Mr. Justice with whom concurs, dissenting. pun- is here because Illinois inflicted criminal

This case of causing on Beauharnais for the distribution ishment rests on city Chicago. in the of The conviction leaflets contents, time, place not on the manner or the leaflet’s organization of an of distribution. Beauharnais is head segregation of opposes amalgamation that and favors discussion, assembly After an people. white and colored and council petition mayor of decided to group his mem- Chicago pass segregation. of to laws for Volunteer agreed corners, to on street solicit group bers of the stand authorities, petitions city to addressed to the signers giving group, leaflets information about the its distribute program In out this plans. carrying beliefs and its of this handed out a leaflet which was the basis solicitor only parts prosecution. opinion quotes Since the Court appendix I am all of it as an to leaflet, including of the dissent, post, p. this

I. group making genuine That Beauharnais his were their petition representatives effort to elected is not dis- puted. Rights Even as far back as the Bill of “It Mary Right exacted William & said: is the of the Subjects petition King, to and all Commitments and 1 And 178 illegal.” are petitioning for such

Prosecutions Continental of the Rights the Declaration years ago his that day of that the monarch to Congress proclaimed assemble, to peaceably right had “a subjects American King; petition grievances, of their consider and com- proclamations, prohibitory all prosecutions, independence After illegal.” same, are for the mitments com- unequivocal first as the stated won, Americans no make "Congress shall Rights: Bill of of their mand press; of the speech, the freedom abridging . law . . assemble, and peaceably people right or the grievances.” for a redress the Government petition pos- Amendment could First distortion, this Without power has Congress to hold so as sibly be read Congress petitioning and others Beauharnais punish authorities. Chicago petition sought here they have And 252, 277. S. California, U. g., Bridges See e. Four- prior cases that in a number have held we of specific prohibitions makes Amendment teenth to the states.3 applicable equally First Amendment the Court holdings, how does prior In of these view punish people today that states can holding justify its to be safe- vital freedoms intended exercising the for The Amendment? by the First suppression from guarded acts simply to; the Court are not referred prior holdings is Amendment the First assumption on the bland respect It is not even accorded irrelevant. wholly I logically, suppose, follows mention. This passing of a (1689). Mary, Sess. 1 1 William & c. Congress Eighth of Continental of Resolution Co., 233, 244, 245, g., Grosjean v. Press 297 U. S. 3 E. American State, 444, 450; Griffin, Schneider v. 308 U. S. 249; Lovell 303 U. S. v. 88, 95; District Alabama, Minersville 147, 160; v. 310 U. S. Thornhill Barnette, 593; v. Gobitis, Education 310 U. S. Board v. of 516, 529-530, concurring Collins, 624, 639; v. 323 U. S. S. Thomas U. Florida, Pennekamp 331, 349. opinion, 545; v. 328 U. S. appears to which doctrine recent constitutional

from of notions civi this Court’s solely by laws state measure g., e. reasonableness, See, etc. decency,” of lized “canons this “rea 165, 169. Under 342 U. S. California, v. Rochin Amendment First abridging laws state test, sonableness” basis.” “rational to have a if found are sustained freedoms Barnette, 624, 639, 319 U. S. But in Board Education of we said: it is im- parties of the arguments weighing

“In process clause the due between distinguish portant for an instrument as Amendment Fourteenth of the First Amendment of the transmitting principles for its own applied it is in which and those cases with legislation The test of sake. c.ollides with it also collides Amendment, because Fourteenth than definite is much more First, of the the principles involved. is the Fourteenth only when the test clause process the due vagueness of Much the First of specific prohibitions when the disappears regu- of a State right its standard. become include, well utility may public a late, example, concerned, power test process far the due so legislature restrictions which all impose But free- adopting. basis’ for a ‘rational may have assembly, and speech press, doms such slender infringed on worship may not be grounds.” to the freedoms First Amendment

Today’s degrades case the new certainty “rational basis” level. It is now liberty protection far process” “due coverall offers less compelling to our former cases than would adherence com- First Amendment unequivocal to abide states abridged. shall not be mand that its defined freedoms doc- holding here and the constitutional '"The Court’s assembly, petition, rights trine behind it leave mercy of state at the completely almost press speech and “al- say I agencies. judicial and executive, legislative, may these freedoms state curtailment because most” conclude of this Court majority if a be still invalidated or is reason,” “without is infringement a particular that to the unrelated restriction purposeless and “a wilful en- But lest this of the State.” being and well peace and to how hope too much give couragement should from freedoms these basic might protect this Court when legislatures that state invasion, we are cautioned state “legisla- to make “experiment” free to must be left be may told that mistakes We are judgments. tive” public opin- curbing during legislative process made not leave fortunately does In event the Court ion. such matter, for that curbed, us mistakenly those or must be sought be Consolation can unadvised. legislative that in reflection state philosophical found paid to be price in “is the stifling speech press error legislative efforts for the trial-and-error inherent My own belief is deal with social issues.” obstinate with the duty legislature charged no is with vested public what issues Americans can discuss. power decide not the choice, individual’s country In a free is the freedom of experimentation curbing state’s. State in a startling frightening doctrine expression I people. country its self-government dedicated punish can holding that either state or nation reject the public in matters of concern. having say for their .people II. it a makes upheld by statute Court

The Illinois crime: corporation,”

1. firm or “any person, for “manufacture, sell, sale, or offer advertise any public place,” publish, present or exhibit 3. any “lithograph include [construed printed moving drama or matter], picture, play, sketch,”

4. portrays “depravity, criminality, unchas- tity, or of virtue,” lack

5. of “a of citizens, any race, color, class of creed or religion,” exposes

6. and “contempt, derision, such class to or obloquy,” productive or “is peace breach of the

riots.” This statute imposes censorship state over theater, moving pictures, radio, television, leaflets, magazines, books and newspapers. No doubt the statute is broad enough to make “publication, sale, presenta- criminal the many tion or exhibition” of great world’s classics, both secular religious.

The Court expansive censorship by condones this state painstakingly analogizing it to law of criminal libel. As a result of this refined statute analysis, the Illinois emerges labeled a “group libel law.” may This label make the Court’s holding palatable more for those who but it, sustain the sugar-coating does not make the censor- ship deadly. less However tagged, the Illinois law is not that criminal libel which has been “defined, limited and constitutionally recognized time out of mind.”4 For as finding kinship The Court’s of a close between “criminal libel” and “group libel” because both contain the word “libel” and have some factors common is Stanhope reminiscent what Earl said in 1792 discussing Mr. Fox’s arguing jury Libel Bill. He was that a laymen might likely protect liberty more judges, judges than because prone rely heavily were put case, too on word books. “He brought that an using action for a libel was for word, a modern not any grammar glossary, to be found in saying viz. for that a man great bore;’ jury laugh 'a ground prosecu would at such a tion, judges grammars but the glossaries, would turn to their provided has crime recognized”

“constitutionally charges against malicious, scurrilous false, punishment scope limited This groups. huge against individuals, importance. no small of libel is criminal law of of the expression speech of punishment state It has confined more than nothing involving of areas narrowest to of of the law expansion Every feuds. private purely of of matters discussions punish as to so libel criminal area invasion corresponding a means public concern First Amendment. by the expression free to dedicated be- libel of criminal scope expand to Prior efforts met with usually not have boundaries its traditional yond was such libel” “Seditious acclaim. popular widespread in particularly day, have its and it did expansion an Amend- First But the Chamber. of Star English Court And country. for this libel seditious repudiated ment discus- parliamentary through the glance only need one to in England in passed Libel Law of Fox’s sion even country in that libel odor of criminal the bad sense only. individuals against charges when confined Hampshire, v. New Chaplinsky on The Court’s reliance had Hampshire New misplaced. 568, is also S.U. insulting words to direct it an offense making law a state had vio- Chaplinsky public on a street. an individual at “face-to-face.” a man names calling vile that law lated “fight- of such that the use in that context out pointed We of exposition ideas. of part not an essential ing” words was “fight- are in their context here words used Whether so or doubtful, whether is but the same sense ing” words in say they it, not find such being would could to meet able with not boar, they which no bore,’ found a wild phrase great had as 'a but be, boar four yet as a had meant; it could wild it not doubt mean, legged animal; must then was a two it legs, and a man disposition, was a in wicked plaintiff like a boar was wild hanged.” Hansard, Par- libel, let the defendant be and therefore liamentary History p. 1412. England, More- to or about individuals. not addressed they are adopted means also the used here the leaflet

over, their efforts interest enlist group an assembled were words fighting And enacted. legislation have inter- public of wide on arguments questions part but assembly, petition, Freedom importance. est aby practice greatly abridged could be press speech ser- editorial, speech, every scrutinizing meticulously or three two to extract matter printed other mon or libel.” “group hang charges on words which naughty on inroads broad makes no such case Chaplinsky Mur- Justice Nothing Mr. freedoms. Amendment First other case that case wrote for the Court phy any such justifies inference. libel giving majority history I misread

Unless than status respectable and more expansive scope a more For in Chamber. the Star it ever accorded even was any to publicity give it held to be punishable here is any or sketch, drama or moving picture, play, picture, offen- unduly find judge may a matter which printed words, In other religion. race, color, creed any sive to that of laws the enactment in for or arguing against dan- very it is now differently huge groups, may affect of the of one say something indeed to critical gerous firm can be corporation” any “person, And groups. firm or cer- “Person, corporation” for this crime. tried radio or tele- newspaper, a publisher, book tainly includes a preacher. or even station, candidate vision group latter say that none this easy enough It is And under the Illinois Act. against been proceeded have tempers But emotions bubble they yet. have not — the kind here religious controversies, in flare racial in easy any court, good It would not be for involved. from it this Act so as to exclude conscience, narrow Furthermore, persons I have mentioned. of those get jury except not trial under the Act even could tried simply the court Here, publication. the bare fact as to if had he guilty that Beauharnais jury charged by judge Such trial leaflet. distribution caused by in 1792 England in outlawed jury was than rather Law. Fox’s Libel - censorship of state system aup This Act sets envisioned government of free the kind at war with mo- Rights. Bill of of our adoption those who forced good. been to do may have state law behind the tives making opin- most laws about can be said But the same urges indicates History as crimes. punishable ions even books and burning of led to the good to do have of “witches.” burning to the can conceal purely legal on a level rationalization

No a constant present this one laws like the fact state and reli- speech, press threat to freedom overhanging ex- publicly for punished Beauharnais is gion. Today Ironically segregation. in favor of strong views pressing Chicago, of crime Beauharnais, convicted enough, many other reception a hero’s probably given would be itself. More- parts Chicago if localities, some Beauharnais law that makes over, the same kind state be in Illinois can advocating segregation criminal in other states for advo- people jail utilized to send Beauharnais nonsegregation. What cating equality arguments with usual compared said in his leaflet is-mild of racial controversies. on both sides are petition are told that freedom of and discussion We “while this Court sits.” This case raises con- danger no who for peacefully petition doubt. Since those siderable protected in the law are not to be “while this changes agree who is? I do not that the Constitution sits,” Court assembly, speech, press or wor- petition, leaves freedom mercy case-by-case, day-by-day majority of a ship at the I supposed people rely had that our could of this Court. commands, the Constitution’s rather freedom on their than on the grace this Court on an individual case basis. To say legislative that a body can, ap- with this Court’s proval, it a petition make crime to for and publicly discuss proposed legislation seems as farfetched to me as it would be say valid law punish could be enacted to a candidate for telling President for people his views. I think the First with Amendment, Fourteenth, “abso- lutely” forbids such laws without “ifs” or “buts” “whereases.” Whatever the if danger, any, public such discussions, it is a danger the Founders deemed out- weighed by danger incident to stifling thought and speech. The Court does not act on this view of the Founders. It calculates what it danger deems to be the of public discussion, holds the scales are tipped on the side suppression, state and upholds state censorship. This method of decision protection offers little to First Amend- ment liberties “while this Court sits.”

If there be minority groups who hail holding this their victory, they might consider the possible relevancy of this remark: ancient

“Another such I victory and am undone.” appendix to opinion of Mr. Justice see [For Black, post, p. 276.] dissenting opinion of Mr.

[For see post, Reed, Justice p. 277.] dissenting opinion of Mr. Justice

[For see Douglas, post, p. 284.] dissenting opinion of Mr.

[For see Jackson, Justice post, p. 287.] BLACK. MR. JUSTICE OF TO OPINION

APPENDIX Douglas Reed, Mr. Justice with whom Justice Mr. joins, dissenting. for- Fourteenth Amendment of our Constitution

The or liberty a state of any person deprived bids that be law. This Illinois con- property process without due of peti- $200. The subjects petitioner viction to a fine of on the challenges validity tioner the of the sentence ground 224a, that his Division of conviction under § proc- the Illinois Criminal Code1 violates substantive due ess. The the issue thus: petition phrases certiorari ap- ... or “Is the Illinois statute ... as construed . plied infringes upon . . invalid . . . because it the guarantee speech, press constitutional of free and of as- Fourteenth Amendment? semblage guaranteed” by the Supreme upheld The Court of Illinois conviction petitioner charged: of under an information which January 7, 1950, City

“that defendant on at the of Chicago, unlawfully publish, present did and exhibit in public places, publications which lithographs, portray depravity, criminality, unchastity or lack of of Negro virtue citizens of race and color and which exposes citizens of Illinois of the Negro race and any person, corporation shall be unlawful for firm or “It to manu facture, sell, publish, present sale, or offer for or advertise or exhibit any place any public lithograph, moving picture, play, in this state sketch, portrays publication depravity, or which drama or exhibition criminality, unchastity, citizens, any or of lack virtue a class race, color, religion publication creed or or which said exhibition any exposes race, color, religion contempt, the citizens of creed or derision, obloquy productive peace or which is of breach of the Any violating person, corporation provi firm or or riots. section, guilty misdemeanor, upon of this shall sions be thereof, punished by fifty conviction shall be a fine of not less than ($50.00), ($200.00).” dollars nor more than two dollars hundred bO more which obloquy, derision, contempt,

color hereto attached A, in Exhibit fully appears thereof.” part and made finding jury justify was sufficient The evidence referred lithograph caused Beauharnais in public and distributed published to be information in- general certain find under so jury did places. essen- but jurors attitude proper as to structions instruction: following under specifically tially and find you if jury instructs The Court “(1) Joseph Beau- defendant, that the the evidence from manufac- January 7, 1950 about on or harnais, did pre- publish, sale, for advertise or offer sell, ture, lithograph, the public place exhibit sent as Peo- in this case in evidence allowed which was to find the are you then 3, Number Exhibit ples $50.00 less than and fine him guilty defendant $200.00.” than nor more but decided jury to the not leave did judge the

Thus, publication law, that the matter of as a himself, doubtless was complaint No the statute. violated lithograph method trial. of this state made the infor- quash filed motion trial, petitioner At instruction. specific to the above objected and mation “not instruction a peremptory for also moved He notwithstanding the verdict. judgment for guilty” court, by trial overruled were these All contentions pleaded precisely show a does not although the record and, is 224a ground § on the to the conviction objection of Illi- Court Supreme nonetheless the unconstitutional, the statute contention petitioner’s nois treated 2 343, 512, 514, N. E. 2d 344-345. People Beauharnais, Ill. 97 v. 408 lithograph re is the to in the information Exhibit A referred People’s Exhibit 3. jury as to the instructions ferred to too vague by virtue of that fact was so broad that it abridged free speech violation of the Fourteenth Amendment.3 The petition brings certiorari these questions here.

In out carrying obligation its to conform legal state administration to the “fundamental principles of liberty justice” imposed on the states the Fourteenth Amendment,4 this Court has steadily affirmed that general principle against abridgment of free speech, pro tected the First Amendment, is included in the com mand of the Fourteenth.5 important So to a constitu tional democracy right is the of discussion that any challenge to legislative abridgment of those privileges of a free people calls for judicial careful appraisal.6 It is speech when an becomes incitement to crime that right freely exhort may be abridged. American Com munications Douds, Assn. v. 339 U. S. 382, 395; Herndon v. Lowry, 301 S. 242, U. 512, Ill. 517, at 515-516 and 343, 97 N. E. 2d at 345-346. highest

If the question court the state properly treats federal it, before question, question decides the here, reviewable regardless of the manner in which it was raised in the inferior courts Whitney state. See California, U. S. and cases there cited. Louisiana, 4 Hebert v. 312, 272 316; U. S. Palko v. Connecticut, 319;

302 U. S. California, Adamson v. 46, 332 U. S. 66. 5 York, Gitlow v. 652, New 666, 672; 268 U. S. Minnesota, Near v. 697, 707; 283 Pennekamp Florida, U. S. v. 331, 328 U. S. 6 Jonge Oregon, De v. 299 U. S. 365: greater importance “The the of safeguarding community the from incitements to the by overthrow of our violence, institutions force and imperative the more preserve is the need to inviolate the constitutional rights speech, press of free assembly free and free in order to main- opportunity political tain the for discussion, free to the end that government may responsive be people will of the the and that changes, desired, may by if peaceful be obtained means. Therein security Republic, very lies the of the the foundation of constitutional government.”

280 the here on challenged is conviction a state When Court this abridged, been has speech free that ground upon the statute portion the whether decide first

must within to permit “as broad is so is based charge the which of incidents punishment the language of its scope the free guarantee of the protection the within fairly In 507, 509. York, 333 U. S. v. New Winters speech.” the because conviction the aside we set case Winters the con- as language, statutory of the character indefinite sowas York, of New Appeals the Court by strued Court This prohibited. was speech protected that broad conduct that Winters’ it assumed though even reversed, express- a statute by punished constitutionally be could and definite reasonably narrow prohibitions its ing form.7 verdict when the means requirement

This a as information here, from flow, as judgment upon statute of the every portion each whole, In constitutional. must be drawn information been Stromberg had S. California, 283 U. Stromberg v. a violating statute courts California in the convicted On flag.8 aof red display forbidding state of that Stromberg’s whether not consider did Court this appeal, protected record, was as shown conduct, the second the fact despite Instead, Constitution. unques- were statute California third clauses Court Constitution, this Federal under tionably valid 88; Alabama, U. S. Thornhill S., 520. Cf. 333 U. at See 242, 263-264. Lowry, S. 301 U. Herndon v. U.S., at 361: flag, any badge or flag, or displays red banner “Any person who any public any whatever color or form banner, or device badge, or on assembly, from public any meeting place or place or opposition symbol or emblem sign, building house, or window to anarchistic stimulus an government or as invitation organized character is of a seditious propaganda that an aid or as action Penal Code. Calif. felony.” Then 403a of guilty of a § reversed the state court because its conviction Strom- berg might have been based the first upon clause, holding “if that any the clauses question is invalid under the Federal Constitution, upheld.” conviction cannot be The first clause, forbidding a display of red flag aas symbol of opposition to organized government, was deemed invalid because it was so broad permitted that it “punishment of the fair use of opportunity free [the] [for political discussion, and was repugnant to the therefore] guaranty of liberty contained the Fourteenth Amend- ment.” Id. at 369. judgment

The in this present case followed from a de- termination of judge and jury petitioner’s publica- tion 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 deter- mined the lithograph offended. This conviction must stand or fall upon a determination whether all definitions proscribed the acts by the statute and charged in the information may be banned under principles First for, as Amendment, the foregoing shows, discussion it is impossible 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 act’s declaration, as charged in the information, it is unlawful to portray in a lithograph a “lack of virtue a class of citizens . . . which . . . exposes derision, or obloquy.” [them to] majority opinion asserts that Illinois has given

sufficiently clear and narrow meaning to the words “virtue,” “derision” and “obloquy” by characterizing § 224a “a form criminal libel law.” But the mere description of statute this as a criminal libel law does not

9283 U. S. at 368. See also Williams v. North Carolina, 317 U. S. 287, 291-292. Cf. Collins, Thomas v. 516, 529; U. S. Cramer v. States, United U. S. n. 45.

282 statute. in the words vague these meaning the

clarify “virtue” word of the presence mere that the say To meaning clear makes its libel statute10 the individual case No seguitur. ais non statute libel group the words. these meaning of the limits defines cited which un- Illinois’ upon Court by the placed is also Reliance How races. between clashes with experience fortunate is not vague words to the gives content experience that clarify- “the upon relies further opinion The explained. mean- the govern which usage ing construction fixed added.) (Emphasis us.” before enactment ing of In cited. are clarification containing such opinions No reported two only find us, we case before to the addition With- courts.11 Illinois in the 224a §on adjudications cases is so recent of these' one caviling that out neither certainly reports, in the instant case it follows “clarifying give words which contains of them law. Illinois claimed construction” that construction supply certainly do not majority The by 224a § prohibited publications intimating that the and disorder.” to cause violence only those “liable are not court, Illinois by the was used phrase Moreover, that to describe but 224a, §of the prohibition to limit at Ill., See 408 by Beauharnais. published lithograph does language quoted at 346. The 2d, N. E. 517, 97 “derision” or “virtue,” statutory words limit 12 “obloquy.” 10 quoted majority 402, Stat., 1936, c. Ill. Ann. § Smith-Hurd opinion at n. 5. People 525; v. White E. 2d Simcox, N. 11 People 379 Ill. v. Fox Film (1951). also E. See League, 564, N. 2d 811 408 Ill. Circle Prindable, Supp. 39 F. 281; v. Collins, App. Bevins Corp. 236 Ill. 708, aff’d 314 U. S. interpret their been inclined Indeed, if Illinois had courts they done so it, could interprets have as this now statute Court disjunctive “or clause reading their statute only by out of speaks length Court at power constitutional of a to pass group state protect libel laws to public peace. This dissent assumes that power. What is under discussion is whether the conviction of on Beauharnais general charge violation of the statute can stand when the statute contains without statutory judicial defini- tion words of ambiguous such meaning and uncertain connotation as “virtue,” “derision,” or “obloquy.” The Court does not attempt speak specifically as to that contention.

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

These “virtue,” “derision,” and “obloquy”- — n words — have general neither nor special meanings well enough known apprise those within their as to reach limitá- productive is of peace breach of the (Quoted or riots.” p. at 251 of majority opinion.) If the Illinois courts were inclined to read this disjunctive conjunctive, as a they presumably would have reversed Beauharnais’ conviction, for the information in this case did not charge publication of his lithograph productive would be of breach of peace the or riots. 13“. .. the constitution never judges intended to invest with a dis cretion which cannot be by tried and plain measured the palpable standard of law special .... On a murder, verdict for the life of the prisoner depend does upon not religious, moral, or philosophical judges ideas of the .... f he is [I] condemned ... his conduct brought precise, to a clear, intelligible standard, cautiously measured it: law, it is the therefore, and judge, which condemns him. . . .” Argument King’s in the Bench in the Asaph’s Dean of (1783- St. case 1784). 21 Howell’s State Trials Con Connally General Compare speech. on

tions Philosophers 391-392. Co., S.U. struction every from degree and low of high thinkers poets, of meaning expound sought race have age and of the moral conception own his each teaches virtue, but Are conduct. good standards that satisfies excellence applied, be the Cavalier Puritan or the tests non-Chris or the Christian farm, city or those Rights per Bill of Does the young? old or the tian, the of racial the virtue on any reflection forbid Illinois to mit think may judge a jury or which religious classes themselves words obloquy, them derision exposes I think in the statute? as used meaning uncertain quite law would of this enforcement equal A general not. all those opinion expressions the mildest restrain role. to have thought be may “virtue” where areas and unde vague upon these may rest judgment Since this punish scope within their permit words, fined speech, free guarantee secured of incidents ment be reversed. should the conviction Douglas, dissenting. Mr. Justice conspiracy a how evil showed Nazis and his Hitler by exposing a race destroying aimed at be which could be I would will- obloquy. derision, contempt, it to at a race directed conduct that such to concede ing offense. an indictable be country could made in this group the exercise than be more would project For such plus. speech be free it would picketing, Like speech. free without that even willing to concede be I also would and oc- times might be there conspiracy the element might branch or executive legislative when the casions shouting talk, such as inflammatory a halt call theatre. or a in a of “fire” school are interests public in case other that if is My view Amendment, First of the command plain to override peril of speech must be clear and present, leaving no room for argument, raising no doubts as to the necessity of curbing speech in prevent order to disaster.

The First Amendment is couched absolute terms— freedom of speech shall not be abridged. Speech has preferred position1 therefore as contrasted to some other civil rights. For example, privacy, equally sacred to is some, protected Fourth only Amendment against unreasonable searches and seizures. There is room for regulation of the ways and means of invading privacy. No such leeway granted is the invasion of the right of free speech guaranteed by the First Amendment. Until re- cent years that had been the course and direction of con- stitutional law. Yet recently the Court in this other cases2 has engrafted right of regulation onto the First Amendment by placing in the hands the legisla- tive branch the right to regulate “within reasonable lim- its” right of free speech. This to me is an ominous and alarming trend. The free trade ideas which the Framers of the Constitution visualized disappears. In its place there substituted a orthodoxy new orthodoxy —an that changes with the whims of the age or the an day, orthodoxy which the majority by solemn judgment pro- claims to be essential to the safety, welfare, security, morality, health of society. speech Free in the con- stitutional sense disappears. Limits are drawn —limits dictated expediency, political opinion, prejudices or some other desideratum of legislative action.

An aspect historic of judicial issue supremacy was the extent legislative judgment be would v. Pennsylvania, Murdock 105, 115; U. S. Thomas v. Collins, 516, 530; 323 U. S. York, 334 U. S. Saia New 2Dennis v. United States, 494; 341 U. S. v. Feiner 340 York, New U. S. 315. Cf. Breard v. 341 Alexandria, 622; U. S. American Communications n. v. Douds, Ass 382; 339 U. S. Osman v. Douds, 339 U. S. 846.

286 con- vague legislation. field of social in the

supreme down to strike were used Clause Due Process tours improvident.3 and unwise to be the Court deemed laws relating In matters been reversed. has trend That health conditions, and labor industrial finance, business, the granted nowis leeway great welfare, public and in the Constitution guarantee nois for there legislature,4 regulation against preserved be quo will the status on however, rests speech, of Freedom government. Amendment The First basis. constitutional a different free and the press, of freedom speech, of that freedom says nega- That is a abridged. not be shall religion of exercise department every and of each part on the power of tion of exercise free press, free speech, Free government. of above and they are apart; separate religion placed are regula- subject are they power; police beyond houses, slums, apartment factories, in manner of tion oil, and like. production speech places in cases in other this

The Court white Today a control. legislative an expanding under language unseemly protesting man stands convicted covenants. invalidating restrictive decisions our against de- a court for be before will haled Negro Tomorrow laborers Farm heated terms. law in nouncing lynch from drifting hands up with compete field who the West mi- orientals; pressure who feel Mexico; whites going to members employment finds nority which in the caught these are religious group dominant —all argument even Debate today’s decision. mesh dispassionate. always calm are not courtroom alike. Intem- and audiences sway speakers Emotions Kansas, 45; Coppage v. York, 198 U. S. Lochner v. New 350. 1; 277 U. S. McBride, Ribnik v. S.U. v. 502; Co. York, West Coast Hotel v. U. S. 4 Nebbia New U. S. Co., v. 379; Union Northwestern 300 U. S. Parrish, Lincoln 342 U. S. Missouri, 525; Day-Brite Lighting, Inc.

perate speech is a distinctive characteristic of man. Hot- heads blow off and release destructive energy in the proc- ess. They shout and rave, exaggerating weaknesses, magnifying error, viewing with alarm. So it has been from the beginning; and so it will be throughout time. Framers the Constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for restrained speech and thought against the abuses liberty. They chose liberty. That should be our choice today no matter how distasteful to us the pamphlet of Beauharnais be. may It is true that this is only de- one cision which may later be distinguished or confined to narrow limits. But it represents a philosophy at war with the First Amendment —a constitutional interpreta- tion puts speech free under legislative thumb. It reflects an influence moving ever deeper into our society. It is notice legislatures to the they that have the power to control unpopular blocs. It a warning to every minority that when the guarantees Constitution speech free it does not mean what it says.

Mr. Justice Jackson, dissenting.

An Illinois Act, construed Supreme its Court to abe “group libel” statute, has been used punish criminally author distributor of an obnoxious leaflet attack- ing Negro race. He answers that, as applied, the Act denies a liberty secured to him by the Due Process Clause of the Fourteenth Amendment. What is the liberty which that clause underwrites?

The spectrum of views expressed by my seniors shows that disagreement as to the scope and effect of this Amendment underlies this, as it has many another, divi- sion of the Court. All agree that the Fourteenth Amend- ment does confine the power of the State to make printed metes derive are to we Whence criminal.

words the confusion subject ais power the state bounds contributed —comforted I have say, regret I which, this recalling however, acknowledgment, in the more judges abstruse enigmatic is so Amendment as to themselves reverse had to I have than experienced power. on state its effect “liberty” the that is dissents of other assumption

The Amend- Fourteenth of the Clause Process Due which the literal the States by the denial against protects ment press” the or of speech of “freedom identical abridge. Congress only forbids Amendment First the me convinces in America libel of criminal history “incorporate” not did Amendment Fourteenth the that States of the Congress of powers First, that the the dimensions, and same are not subject this over it does this law enact could probably Congress because not. may the States not follow I. spoken or written punish power upon a limitation

As of in its context “liberty” Amendment words, Fourteenth mean and should meant has functions powers state in its context “freedom” from different quite something and functions.1 powers federal of libel criminal a federal sustained never has Court This close to 1798 was ofAct the Sedition section One Act. were convictions there Act.2 While libel” being “group abridging . . . no “Congress make law shall First Amendment: Amend press . . . Fourteenth or speech, freedom life, liberty, any person of deprive any State . nor shall . ment: process law due without property, or enacted, if That it “And be (1798) 2 1 Stat. §2: further any false, scandalous . . publish . write, print, utter person shall government of the against writings writing or malicious States, United Congress of house of States, either United it, under no attack on its validity reached this I Court. today’s think opinion better regards the enactment as a breach of First and certainly Amendment Mr. Justice Holmes and Mr. Justice thought Brandéis so.3 But even in the judicial absence condemnation, political dis- approval of the Sedition Act was so emphatic and sus- tained that federal prosecution of the press ceased for a century. It was resumed with indictment of The Indianapolis News and The New York World for dis- closures and criticisms of the Panama Canal acquisition. Both were indicted the District of Columbia and under the District Code, on the ground that some copies circu- lated there. That prosecution collapsed Judge when Anderson refused the application Government’s remove the Indiana defendants to the District of Columbia for trial.4

The World, circulated at West Point, was indicted in York New on the theory that an 1825 Act to pro or the President of the States, United with intent to defame the said government, or either house of the Congress, said or the said President, or bring to them, or them, either of into contempt or dis- repute . . . person such . . . punished shall be by a fine not exceed- ing two dollars, thousand by imprisonment exceeding two years.” Section 3: “. . .it shall be lawful for the defendant ... to give in evidence in defence, his the truth of the matter contained in publication the charged as a libel. jury And the who try shall the cause, shall right have a to determine the law fact, and the under the direction of court, the as in other cases.” 3Abrams States, v. United 616, U. S. 630. 4 United States v. Smith, 173 F. 227. In discharging the defend ants, Judge Anderson said: my “To mind that man has read history the of our institutions to purpose

little who does not look grave with apprehension upon the possibility of the success of a proceeding such as this. history If the liberty of anything, means if guaranties constitutional are worth anything, this proceeding must fail. “If the prosecuting officers have authority the to select the tribunal, if there be more than one tribunal to from, select if the law State York the New assimilated fortifications

tect came likewise venture That libel. criminal punishing that construction rejected Hough Judge when grief to this Court. upheld federal statute the of (1911). 1S. Co., 219 U. Publishing Press v. States United for a sources official from demand been a has there While not been has it prosecution, libel criminal of resumption federal such jeopardy the while Thus, to.5 acceded any decision removed been never has prosecutions enact federal of a validity think I Court, should this say doubtful, extremely be would this as such ment least. congressional on Amendment First effect receive did criminal utterance seditious make power War. World First of the aftermath in the consideration for the formulated Holmes Justice case, Mr. In such a pres “clear and case” every question “the as Court 47, States, S. 249 U. v. United test. Schenck danger” ent a “rule it as adhered Brandeis Mr. Justice He and 52. the rest thought they dissenting when reason,” 616, States, 250 S.U. Abrams United apostate. Court States, 251 S.U. v. United 628; Schaefer had in these cases and deliberation research Only after free- face the these Justices did perception their sharpened Holmes Mr. Justice which power state issue speech v. Colo- Patterson undecided, to, but left adverted first first Court’s they joined In 1922 rado, S. 454. 205 U. neither “. . . declared that subject, on decision provision other nor Amendment Fourteenth states drag from distant citizens power, and can has that government Cooley Judge then, tried, be nation, there to capital of the to the one, griev- of the where a revolution strange result says, this is parties right to send the assertion complained of was ances F., at 232. for trial.” abroad also 87 748. L. Rev. See Libel, 42 Col. Riesman, Group Cong. Rec. 5830-5841.

the Constitution of imposes United States upon the States restrictions about ‘freedom of speech’ . . . .” Prudential Insurance Cheek, Co. v. 259 U. S. 530, 543.

However, these two Justices, who made only orig- inal contribution legal thought on the problems difficult up bound in these Amendments, soon reversed and took the view that the Fourteenth Amendment did impose some upon restrictions the States. But it was not pre- mised upon the First Amendment nor upon any theory it was incorporated in the Fourteenth. What they wrote, with care and I circumspection, accept as the wise and historically correct view of the Fourteenth Amend- ment. It was: general

“The principle speech, it seems to me, of free must be taken to be included in the Fourteenth Amendment, view of the scope that has been given to the word ‘liberty’ as there used, although perhaps it may he accepted with a somewhat larger latitude interpretation than is allowed to Congress by sweeping language that governs or ought govern the laws of the United States.” (Emphasis sup- plied.) Gitlow v. York, New 268 U. S. 652, That reasoning was echoed so recently as 1937, when the Court explicitly rejected the theory of incorporation and, through Mr. Justice Cardozo, a view, announced unanimous except for Mr. Justice Butler, that the Four- teenth did not deflect against the States the literal lan- guage of amendments designed to circumscribe federal power but qualified power state only by general such restraints as are essential to “the concept of ordered lib- erty.” Palko v. Connecticut, 302 S. 319, U. 324-325.

It is clear that these do not proscribe state criminal libel Acts. Justices Holmes and Brandéis 1931 joined Chief Justice Hughes, spoke who for the Court, in striking down a state Act because it authorized restraint by injunction wrong whatever “For He said: publication. to

previous pub- his by commit, may has committed appellant the public both affords appropriately the State lications, amplified: This laws.” its libel redress private the for the abuse that punishment recognized it is “But protection to is essential press to accorded liberty that sub- rules law common that public, of the as offense, public for responsibility libeler ject the not abolished injury, are private as well The law . . . constitutions. our extended protection foundation.” secure upon libel rests of criminal Minnesota, 697, S. 283 U. Near Court, speaking a unanimous 1942, recently So words of libelous that punishment said power, state or tend injury inflict very utterance by their “which been has never peace” breach immediate an incite Chaplinsky problem. constitutional raise thought 571-572. 568, S.U. Hampshire, v. New extending while Constitutions, forty State than More respon- reserve press, speech protections broad rec- explicitly implicitly abuse for their sibility justified areWe libel laws.6 validity criminal ognize provisions, constitutional such following list of state is a in which of the Constitution adoption year of the coupled with the (1912), 12; I, Arizona (1901), Art. §§ they contained: Alabama are I, (1879), Art. II, §6; (1874), California Art. II, §6; Arkansas Art. I, §5; (1897), Art. II, §10; Delaware (1876), Art. §9; Colorado 16; 1, par. I, (1877), Art. Rts., 13; Georgia (1887), § Deck § Florida (1851), II, 4; Indiana (1870), Art. I, 9; Illinois (1890), § Art. Idaho § Rts., 11; (1861), Bill I, §7; Kansas (1857), § Art. I, §9; Iowa Art. I, §3; Maine (1921), Art. 9; (1891), Kentucky Louisiana §§ Michigan 40; Rts., Art. Maryland (1867), Decl. I, §4; (1876), Art. Mississippi (1857), I, §3; Art. II, §4; Minnesota (1909), Art. (1889), I, 8; (1945), Art. Montana Ill, 13; Missouri (1890), § Art. § I, (1864), I, 5; Art. (1875), Nevada Art. 10; Ill, Nebraska § Art. § II, (1912), Art. I, §6; Mexico (1947), New Jersey Art. §9; New I, (1876), Art. I, Carolina (1938), §8; North Art. 17; York New § assuming who sponsored men the Fourteenth Amendment in Congress, and those ratified it in who the State Legislatures, provisions of such knew then many of their State Constitutions. Certainly they were not consciously canceling calling them or them into question, or we would have some evidence of Congresses, it. dur- ing period the while this Amendment being was considered or was but freshly adopted, approved Constitutions of “Reconstructed” States that expressly mentioned state libel laws,7 and also approved similar Constitutions States erected out of federal the domain.8 §20; North (1889), Dakota I, §9; (1851), Art. I, 11; Ohio Art. § (1907), II, Oklahoma §22; Oregon Art. (1859), I, §8; Art. Penn- sylvania (1874), I, §7; Art. (1843), I, Rhode Island §20; Art. (1889), South VI, 5; Dakota (1870), Art. I, 19; Tennessee Art. § § (1876), I, 8; Texas Art. (1895), I, 15; Virginia Utah Art. (1902), § § I, 12; Washington Art. (1889), I,Art. §5; Virginia (1872), § West Ill, 7; Art. (1848), I, Wisconsin 3; Wyoming I, Art. § (1889), Art. § §20. 7Congress required that approve Reconstructed States State Con stitutions consistent with the Constitution, Federal and also that each ratify State the Fourteenth Examples Amendment. of state consti provisions tutional expressly referring libel, but which Constitu tions were approved by nevertheless Congress, follow: Arkansas: 1868, I, Const. 2 provides Art. coupled good that truth with § motives complete shall be a defense to a prosecution; criminal libel Arkansas by readmitted (1868); Stat. 72 1868, Florida: I, Const. Art. 10§ provides coupled that truth good with complete motives shall be a defense to a criminal libel prosecution; by Florida readmitted (1868); Stat. 73 Mississippi: 1868, I, Const. Art. enacts Fox’s § 4 Libel Act in substance; Mississippi by readmitted (1870); Start..67 South Carolina: I, Const. Art. 8 enacts Fox’s Libel Act in § substance, provides good that truth and motives shall be a com plete defense to a criminal libel prosecution; South Carolina read by mitted 15 Stat. 73 (1868); I, Texas: Const. Art. 6 enacts § Fox’s Libel in substance; Act Texas (1870). readmitted 16 Stat. 80 8In the case of States erected public out of the domain, one of two procedures generally followed. Congress Either would itself enact a admitting statute particular State, stating therein that the very the laws libel of state tolerance this

Certainly Amendment Fourteenth the partisans authors incorporate intending not were they either shows would it they believed Amendment First the incorporation Adoption of libel laws. federal prevent confining of either dilemma to the lead today theory would Federal giving Congress closely as the States govern to state appropriate latitude Government corroborates powers of libel The treatment ments. reached theory incorporationist against conclusions studies objective comprehensive most by the Amendment.9 Fourteenth adoption origin for restrict- single standard inappropriateness between disparity by indicated is and Nation ing State freedoms. to those in relation and duties their functions either upon power predicated defamation Criminality of reputa- integrity enjoy right to private protect to of these Neither tranquillity. to right public tion necessary when except cognizance federal objects are such delegated power, of some accomplishment the Fed- question was with consistent in State Constitution provide Congressional would Act Constitution; or else eral Constitution adoption of upon a its would be admitted the State the actual latter case In the Constitution. with the Federal consistent President. by of the proclamation occurred admission pro- substance, and Libel Act II, enacts Fox’s 10 Art. Colorado: § complete defense constitute good motives shall truth and vides that 665 (1875), 19 Stat. by 18 Stat. 474 prosecution; admitted libel in a substance; Libel Act Ill, Fox’s 10 enacts (1876); Art. Montana: § (1889); New Mexico: (1889), 1551 26 Stat. 676 25 Stat. admitted shall constitute good motives II, provides that truth 17 Art. § by 36 prosecution; admitted libel a criminal complete defense I, 15 like Colorado (1911); Utah: Art. (1910), § 37 Stat. 39 557 Stat. (1896); (1894), 29 Stat. 876 28 Stat. provisions; admitted by 26 admitted Stat. provisions; I, Wyoming: 20 like Colorado Art. § (1890). Amendment Morrison, Fourteenth Does the See Fairman L. 5-173. Rights? 2 Rev. Stan. Incorporate the Bill of protection of interstate commerce. When the Federal puts Government liberty press one scale, it has a very duty to personal limited reputation or local tranquillity weigh against it in the other. But affecting state action speech press can and should weighed be against and reconciled with these conflicting social interests.

For these reasons I not, should unless clearly required, confirm to the Federal Government such I latitude as think a State reasonably may require for orderly govern- ment of its manifold concerns. The converse prop- osition is I that would not limit power of the State with the severity appropriately prescribed for federal power.

As the principle by which to judge the constitutionality of this statute, I accept the dissent in Gitlow and the de- cision in Palko.

II. What restraints upon state power punish criminal libel implied are by the “concept of liberty”? ordered Experience by Anglo-Saxon peoples with defamation punish laws to it extends over centuries and the stat- ute and case books exhibit its teachings. If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression.

Oppressive application of the English libel laws was partially checked when Fox’s Libel Act of 1792 allowed the jury to determine whether an publication accused was libelous character and more completely when Lord Campbell’s Libel Act of 1843 allowed truth to proved be as a defense.

American experience teaches similar lessons. The lead- ing state case is People v. Croswell, 3 (N. Johns. Y.) 337. out, the Jef- points now this Court opinion as the

Since, was prosecutions sedition to federal objection fersonian’s over powers of state usurpation federal largely fear libels prosecute for them was consistent subject, it the named aptly of the Croswell, publisher law. under state rep- Jefferson libeling Thomas for indicted was Wasp, respect, confidence, of the unworthy him as resenting pro- judge The trial people. the and attachment and law a matter of libelous as his statements nounced whether except no question decide jury to the allowed The defendant them. published had accused the Hamil- by Alexander argued appeal, on his convicted Kent, equally. Justice divided court appellate the ton, vigorous characteristically learned however, filed a libelous char- must submit the trial court opinion printer its intent of and libelous article of the acter both determine which was entitled jury, decision early an was such that response public The fact. law and Kent’s substantially enacted Legislature session been en- judgment as no had Inasmuch contentions. at its division, court equal upon the earlier tered declaratory “in of this Term, consequence August trial.10 awarded a new unanimously statute,” time contained at York Constitution New provision the case led to a but speech provision no free both followed the Constitution included Campbell’s Act Lord anticipated Act Fox’s Libel of that State several Constitutions has remained since: publish speak, write and may freely

“Every citizen being responsible súbjects, on all sentiments his passed be no law shall right; and abuse of that or of liberty speech abridge restrain or indictments prosecutions In all criminal press. Y.) 337, (N. 3 Johns. for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and published with good motives and for justifiable ends, the shall party be acquitted; and the jury shall have the right determine the law and the fact.” It would not be an exaggeration to say that, basically, this provision of the New York Constitution states the common sense of American criminal libel Twenty- law. four States of the Union whose Constitutions were framed later substantially adopted it.12 Twelve States provide that press and speech shall be free but there shall be responsibility for the abuse.13 Five others provide sub stantially the same but add that truth may given be evidence in a libel Only five States, whose prosecution.14 Constitutions were framed earlier, were content with the generality about the press free similar to that of Massac But all of these States, apart from consti husetts.15 11Const. 1821, VII, Art. 8; 1846, Const. I, 8; § Art. Const. § 1894, I, 8; Art. 1938, Const. I, § Art. 8.§ 12Arkansas, California, Colorado, Delaware, Florida, Iowa, Kansas, Maine, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, Dakota, North Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Utah, Wisconsin, and Wyoming. For citations to article section, 6, supra. see n. 13Arizona, Georgia, Idaho, Kentucky, Louisiana, Maryland, Michi gan, Minnesota, North Carolina, Oregon, Virginia, Washington. Georgia provision (Const. 1877, I, 1, Art. par. 15), repre § sentative of the rest, reads: “. . . person may speak, write, and publish his sentiments, on subjects, all being responsible for the abuse liberty.” For citations to article section, 6, supra. see n. 14Alabama, Illinois, Indiana, Island, Rhode Virginia. West For citations to article and section, 6, supra. see n. 15Connecticut, 1818, Const. I, Art. 6; Hampshire, New § Const. 1784, I, Part 22; Art. Carolina, South Const. I,Art. §4; Ver mont, I, Const. e. Art. 13. The provision Massachusetts (Const. 1780, I, Part XVI) Art. reads as follows: liberty “The press is essential to security of freedom in a state ought it

not, therefore, to be restricted in this commonwealth.” recognized law decisional by have provision,

tutional prosecutions.16 libel criminal of validity pre- have laws libel state safeguards, these Because from that comparable press free to a threat no sented with inconsistent proved not have sources federal States by press on Attacks liberties. fundamental Minnesota, v. in Near Court this by frustrated were Co., 297 U. S. Press American v. Grosjean supra, half a century a Eor near laws. libel not were prosecutions libel criminal left state decisions Court’s this It is limitations. constitutional federal free of entirely provoked has often press notoriety that a matter horse- mobbed been have editors that hostility, been have not prosecutions libel but criminal whipped, been have they law, by state safeguarded and, frequent give journalism of American chronicles innocuous so mention.17 passing only them Amend Fourteenth by construction Court,

This safeguards addition one but imposed ment, has It is themselves. States upon taken voluntarily al punished, is or printed, oral expression, where or disorders injuries actually caused has it though likelihood so, the to do tendency have thought is but speculative. remote not be must consequence of such Mr. test which danger” present “clear and is the That eventually with Brandeis, Justice and Mr. Holmes Justice the First18 in both implied thought Court, support former although the Amendments,19 and Fourteenth 16 349; 121, 151 Commonwealth A. Gardner, Conn. 112 v. State Thorpe, N. H. Noyes v. 73 190; E. 424, 150 N. Szliakys, 254 Mass. v. 191; v. S. E. State Gurry, 161 163 S. C. 787; 481, 62 A. State of other States law A. Decisional 96, 126 Colby, Vt. 98 L. Rev. 258. Note, 1 Bflo. collected 17 1923). City, (Garden History Journalism of American Lee, A 47, 52. States, 249 U. S. v. United Schenck 652, 672. York, U. S. v. New Gitlow not bodily bound in up the latter. Any superficial incon- sistency between applying the same permit- standard but ting a wider range of action to the States is upon resolved reference to part the latter statement the for- mula: clear and present danger of those substantive evils legislature which the right has a to prevent. The evils at which Congress may aim, and in doing so come into conflict with free speech, will be relatively few since it is government of limited powers. may Because the States reach evils, more they will range punish have wider speech presents which clear present danger bring- ing about those evils.

In few subjects so much as libel does in law, spite local of varying historical influences, afford a consensus of legal opinion American as to what is reasonable and es- sential concept the of ordered government. The boundaries are roughly outlined, to be sure, and cannot be stated or applied with mathematical but precision, widely those accepted state constitutional provisions on which superimposed is the present “clear and danger” test for “tendency” cases seem to be our guide. best

I agree with the Court that a State has power to bring classes “of any race, color, creed, religion” within the protection of its libel if laws, indeed traditional forms do not already accomplish it.20 But I am equally clear that in doing so it is essential to our concept of ordered liberty that the protect State also by accused safeguards those the necessity for which is by legal verified history.

m. The Illinois statute, as applied this case, seems to me dispensed have with accepted safeguards for the ac- cused. Trial of this case ominously parallels the trial of

20 appears group It that libel was not unknown to common law. Scott, Publishing See News, False Can. B. Rev. 42-43. here Illinois court Croswell, in that the supra,

People that de- if it found that substance, jury, instructed guilty be found he must this leaflet published fendant libel. criminal effort precluded the trial court Rulings of their truth. proving by of fact statements justify recognition unvarying majority opinion concedes is a defense good motives plus truth the States trial court But here the libel. prosecution criminal as to proof offer refused defendant’s repeatedly prove an offer to published. matter Where truth of the imma- rejected element of defense the dominant con- to consider defendant’s hardly we can refuse terial, go through because he did question stitutional subsidiary of a element ceremony offering proof useless try him If would not let of the defense. the court spoke how could he show he prove spoke truth, he Furthermore, the record indicates good truth for ends? to state what he had meant that defendant was asked forming and the reason for phrases, the use of certain League apparently the White Circle —statements and ends. But the trial court bore on issue motive a sweeping objection sustained “to this whole line ex- amination.” of Illinois noted the Supreme Court proof exclusion, apparently offer of of truth and its went on to rule as a of law that the statement matter was not for At all published justifiable events, ends. it is that ruled clear the defense was out as matter of present law and defendant was never allowed to it for jury decision either a upon facts, practice court I think contrary overwhelming is to the verdict Anglo-Saxon history practice. I do not intimate that this defendant stood even a remote of justifying chance what impresses me, court, as it did the trial as reckless and vicious libel. But is point that his evidence, proffered purpose, for that was excluded being instead of pre- an Society received evaluated. has interest serving justification, truth as a however obnoxious A attack may publication effort be. which diffuses its over impersonal likely unnamed and multitudes is be harder to justify than one which concentrates its attack on named individuals, may properly but the burden be cast on an accused and failure to punishment follow carry it. may

The same be right upon said comment of public matters interest insofar as the in- statement cludes matters of opinion, point, however, which the may defense have inadequately raised. When natu- rally cohesive or artificially organized group possesses a racial sectarian solidarity may exploited which is or be public influence affairs, group legitimate becomes subject public comment. Of one course, only can de- plore the habitual intemperance disparagement and bitter which characterizes most such I support comment. While the right of a State to I place upon decent bounds am it, ready to hold group purposes, characteristics and histories are to be immunized from may comment or be discussed at only the risk of prosecution free all usual safeguards.

Another defense almost universally recognized, which it jury seems the were not allowed to here, consider is that of privilege. Petition for of grievances specifi redress cally privileged by many State Constitutions. I do not think we should hold this whole document to be consti tutionally privileged just because, part, it simulates a petition for redress of grievances. A jury court or could have found that primary purpose its petition was not to appeal but to for members and contributions to the White League. Circle If part some of it privileged, were that, it so has been held, does not extend constitutional protec

tion to unprivileged matter. Cf. Valentine v. Chresten sen, 316 U. S. 52. But the question of privilege seems and on court passed specifically have been

not to consideration. jury’s for the certainly was submitted or were jury nor found the court case, this neither In toor group, or person, any to any injury find to required any let alone any probability, to find nor public peace, Even of any to these. injury of danger, present and clear targets described as or were named though no individuals injury riot or caused in a if it resulted pamphlet, of this living refused being Negro, such as individual any to or apartment, or section, house in a particular quarters be no would certainly there employment, refused being lia- civil or criminal imposing obstacle constitutional no vio- But in this case actual results. actual bility charged proved. or was specific injury no lence as criminal punishable held simply leaflet probable conse- of its actual irrespective libel se per this case. complicates conspiracy No quences. charge the commission do not advocate themselves The words attribu- judicial on conviction rests crime. The how- court, The trial results. a likelihood of evil tion of find some it must charge jury ever, refused Court of Supreme and the danger,” and present “clear opinion, its because, conviction sustained Illinois peace. a breach of the tendency cause used had words danger present doctrine the clear Referring to I States, said: U. S. Dennis United ‘rule as a application unmodified, for it, “I would save it devised. for which was kind of case in the of reason’ on speech a hot-headed criminality of the issue When incendiary pam- a few corner, or circulation a street flag, or a red behind zealots parading some phlets, flag, to salute our children of school a handful refusal process judicial beyond capacity it is not necessary materials weigh comprehend, gather, present danger a clear it is whether for decision or a off of is letting substantive evil harmless steam. It not a for the in prophecy, danger such cases has matured by the time of trial it present. or was never The test applies and meaning sought has where a conviction is be based on speech writing directly or which does not or explicitly tendency advocate crime but to which such sought is to be by implica- attributed construction or tion from external in circumstances. The formula such cases favors freedoms that society, and, are vital to our even if applied sometimes too the generously, conse- quences grave. cannot be . . .”

Not the least of the virtues of this formula such tendency cases is that it compels prosecution the to make up its mind particular what sought evil it is seeking or prevent. It must relate its speech interference with or press to some prevented. identifiable evil to be Words on their own account are not punished to be in such cases but are only reachable punishable as the root of evils. of printed

Punishment words, based on their tendency either to cause peace breach of the or injury persons or groups, my opinion, justifiable is if only prosecu- tion survives the “clear present danger” test. It is just most yet workable standard evolved for de- termining criminality of words injurious inciting whose tendencies are not demonstrated the event but are ascribed to them on probabilities. the basis of application

Its important in this case because it takes account of particular form, time, place, and manner of communication in question. “The moving picture screen, radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, dangers. abuses and Each, my view, is a law . unto itself . . .” Kovacs v. Cooper, 336 U. S. 97. It would consider whether a leaflet is so emotionally ex- citing to immediate spoken action as the word, especially v. Terminiello speech. public incendiary street York, S. 340 U. New Kunz 13; 1, S. 337 U.

Chicago, publication this whether inquire It will ends, own its to defeat as and extreme foul obviously so cooling effect ahas money appeals its whether —which inflammatory its negative many persons on —would passer-by impress it would not whether effect, examination. needed mental who irresponsible of an work danger test present and of the clear the merits One of the reali- into account take would of fact the triers is that fanned smouldering fires be any and relations ties race of warrant well might consideration Such holocausts. into differ- in another it when would here a conviction ent environment. desire a commendable represent statutes

Group libel expression— our freedoms abuses sinister reduce apart tear learn can I had occasion have abuses elements, persecute, its dominant society, brutalize laws minorities. While extermination, its even hatreds or sectarian racial not alleviate might prosecutions martyr- specious awith scoundrels may even invest a con- the States from to foreclose I be loath should dom, Such this field. experimentation latitude siderable fore- justify do not frenetic applied, properly if efforts, most present But acts liberty. these bodings of crushed thoughtful as problems, and technical policy difficult compre- problem more canvassed who have writers opinion in a have judicial appropriate than hensively out.21 pointed well should prosecution particular interest group

No in some on the other foot may be the shoe forget matters, our as in other these, In tomorrow. prosecution Riesman, Q. 261; De L. Group Libel, Cornell Tanenhaus, Libel, 42 L. Rev. Group Col. mocracy and Control Defamation: L. 727; Note, 1 Bflo. Rev. also see

CO tO o guiding spirit should be that each freedom is balanced with a responsibility, every power of the State must be checked with safeguards. Such spirit is the of our American law of criminal libel, which concedes power to the State, but only power by recognition restrained rights. individual I cannot escape the conclusion that as the Act has applied been in this case it lost sight of the rights.

Case Details

Case Name: Beauharnais v. Illinois

Court Name: Supreme Court of the United States

Date Published: Jun 9, 1952

Citation: 343 U.S. 250

Docket Number: 118

Court Abbreviation: SCOTUS