220 N.E.2d 821 | Ohio Ct. App. | 1966
Appellant, defendant below, was convicted in the Municipal Court of Cincinnati of violating Section 901-s3 of the Ordinances thereof. The section is entitled "Scurrilous Pamphlet" and reads as follows:
"Whoever shall offer for sale or sell or give away any pamphlet or paper which contains an article or articles subjecting to ridicule or contempt any class or group of citizens on account of its or their race or religious belief, or which in any manner tends to promote racial hatred or religious bigotry, shall be fined not exceeding fifty dollars ($50.00)."
The specific charge was that the appellant "unlawfully gave away pamphlets and papers subjecting certain classes of citizens to ridicule on account of their race and religious beliefs, which literature also tends to promote racial hatred and religious bigotry."
The case was tried to the court, the defendant not being constitutionally entitled to a jury. Upon trial he was convicted *144
and fined. He did not offer any defense, relying solely upon the claim that the ordinance abridged his constitutionally protected rights under the
The evidence is quite simple. Police visited the office of the National States Rights Party in the city of Cincinnati, requested any literature available for distribution, and received from the defendant various items of printed material collectively identified in the record as Exhibit No. 3. The court found, without specifying which, that certain portions of the material included in Exhibit No. 3 were scurrilous. If such a finding were to be taken as the only basis for the conviction, the judgment would be obviously invalid for the reason that the word "scurrilous" appears only in the title of the ordinance. The title of the legislative act cannot be deemed to constitute the act itself. There is nothing scurrilous in the material as that phrase is defined by law. (See 38 Words and Phrases 371, and, more particularly, Brown v. Lamb,
Since the court did not specify what portion or portions of the allegedly unlawful material constituted the violation, some consideration of Exhibit No. 3, upon which the conviction is based, is necessary. Although the material is too extensive to justify complete reproduction here, it may be described generally as follows:
1. A tabloid-style newspaper entitled "The Thunderbolt" consisting of twelve pages;
2. A printed sheet of paper entitled "Propagandists Conceal Facts on Race." Subheadings are "Free Discussion of Race Question is Prevented" and "Scientist Reveals That Negro Blood Differs From White." It carries pictures of an *145 Australian Bushman and a South African Hottentot, which purport to show physical characteristics unique to such groups. It also carries a photograph of a boy and a woman, the boy allegedly being afflicted with "Sickle Cell" which is described as a blood disease peculiar to one race;
3. A mimeographed compilation entitled "Arrest by Race, 1956, as Reported by The FBI." This purports to demonstrate a disproportionate percentage of arrests for various major and minor crimes in one racial group;
4. A mimeographed paper entitled "The Truth About Those Negro Heroes" purporting to demonstrate by numbers and by attributed quotation that the racial group mentioned is lacking in military reliability, discipline and courage;
5. This appears to be a reprint of a news article appearing in the Chicago Tribune November, 1963. The article is headlined "Negro League Aids Indicted in Extortion."
All the material carries the stamped imprint of the National States Rights Party at the business address where it was received incident to the present prosecution.
The principal part of the exhibit is "The Thunderbolt" (No. 1 above). This has the form and appearance of a tabloid newspaper. It claims to be "the official white racial organ of the National States Rights Party." It is apparently published monthly in Birmingham, Alabama. It cannot be reproduced in full here but it can be somewhat abstracted. The lead article concerns the McCarran-Walter Immigration Bill and pending legislation before the Congress to amend the existing law to eliminate immigration quotas. The amendments have since become law. The article sets out, as its principal objection to the proposed changes, that persons of one religious or cultural group will be the primary beneficiaries thereof. It alleges that as amended the law would tend to encourage the migration of Communist citizens of one religious belief to this country. It urges persons to write their Congressmen.
The other article on the front page urges withdrawal from the United Nations on grounds related to race and religion. Also included in the exhibit is an article relative to the presence of Negroes in the United States Senate and House during reconstruction days. It forecasts the possibility of Negroes again being elected to important positions in government.
Another article alleges that certain food producers refused *146 to reveal the amounts paid religious officials for special foods. Another article points out the possible effect of federal voting registrars in southern states. Another article points out that persons can be hired and fired on the basis of race prior to the effective date of Civil Rights Laws. Another, that the Republican Party can be expected to nominate a Negro for the office of Vice President. Another article advocates confiscation of the property of a religious group and its redistribution.
The entire publication is a hodgepodge of racial, religious and political discussions and questions with emphasis on Negroes as a race and Jewish people as a religious group. It solicits membership in the National States Rights Party. It includes a news article concerning demonstrations by the party in Cincinnati against a Soviet medical exhibit at Music Hall — an incident that was covered in depth by news media.
The constitutional question is fairly presented by the record and requires a consideration again of the extent to which criminal sanctions may be enforced in spite of the guarantee of free press, free expression, and free assembly in both the federal and state Constitutions. Before passing to this question, however, it should be noted that the National States Rights Party is not a figment of some propagandist's imagination. Such a political party does exist, however insignificant, however extremist, and however counter it might be to the political beliefs and activities of overwhelming millions of citizens. As late as the 1964 presidential election this party received a recordable number of votes in three states where it was recognized. The fact that it is not an officially recognized party in the state of Ohio, where only two parties are recognized, will have no impact on the right to meet, speak and proselytize legally in this state and in the city of Cincinnati.
It is thus seen that the ordinance undertakes to control the extent of free expression in the fields of religious and political affairs, two fields which have been given the widest possible latitude by constitutional interpretation; and also in the field of race relations which, while not written directly into either the federal or state Constitutions, has nevertheless in present day society, by judicial interpretation of the
The principle is aptly expressed by Jefferson's statement inscribed in the monument to his memory in the national capital — "I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man." The tyranny over the mind of man, however misguided or myopic that mind may be, becomes no less, even if it takes the form of meaning that, while one may think as he wishes, he may not communicate his evil or unsocial or intolerant thoughts to another, particularly on the subject of race or religion, and most particularly not in the city of Cincinnati where there is an ordinance making any such written communication a crime.
Because one may not be criminally prosecuted for expressing feelings or convictions — even strong disapproval or intolerance of another because of his or his group's particular status — it does not mean that it is impossible to limit the right of free speech. Such areas of limitation however, both under the federal and state Constitutions, are exceedingly narrow, particularly when applied outside the area of individual libel and slander. Various general guide lines on allowable infringements in the particular fields of race and religion with which we are here concerned do exist. For instance, the constitutional protection does not depend upon the truth, popularity or social utility of the ideas and beliefs put forward. (Craig v. Harney,
Certain infringements have been permitted in narrow fields *148
by the law of Ohio, and certain others not prohibited. Section
The courts have been particularly zealous to permit the widest possible latitude of comment on religious and political affairs. De Jonge v. Oregon,
"These rights may be abused by using speech or press or assembly in order to incite to violence and crime. The people through their legislatures may protect themselves against that abuse. But the legislative intervention can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government."
That case, incidentally, would overrule the 1920 decision of this very court, wherein it was held in Burke v. American Legionof Ohio,
In Cantwell v. Connecticut,
In Chaplinsky v. New Hampshire,
In Terminiello v. Chicago,
Three years later, by an equally sharp division, the Supreme Court of the United States, in Beauharnais v. Illinois,
The court reiterated the same general line of thinking inNew York Times Co. v. Sullivan,
The Justice points out that while convictions were had and fines levied pursuant to the statute, the Act in question expired three years after its passage and the many convictions had were not tested constitutionally. It is observed, however, that a subsequent Congress repaid the fines that had been levied in the Sedition Act prosecutions. It was, in fact, this Act which evoked from Jefferson his quoted words above on tyranny over the mind of man. The Act also had the effect politically of destroying the then Federalist Party which never again became a serious factor in national political affairs.
Most recently, in Garrison v. Louisiana,
In support of the wide latitude of freedom of speech and assembly in this particular area, Mr. Justice Douglas attached to his concurring opinion a lengthy excerpt from an impassioned and inspired address by James Madison on the tragic and dangerous effects of the Sedition Act mentioned above. One paragraph from the excerpt referred to serves to illustrate the problem:
"* * * That this liberty is often carried to excess; that it has *151 sometimes degenerated into licentiousness, is seen and lamented,but the remedy has not yet been discovered. Perhaps it is an evilinseparable from the good with which it is allied; perhaps it isa shoot which cannot be stripped from the stalk without woundingvitally the plant from which it is torn. However desirable thosemeasures might be which might correct without enslaving thepress, they have never yet been devised in America. No regulations exist which enable the Government to suppress whatever calumnies or invectives any individual may choose to offer to the public eye, or to punish such calumnies and invectives otherwise than by a legal prosecution in courts which are alike open to all who consider themselves as injured."
The sole case which needs further examination in this field is the one which most closely supports the present conviction,Beauharnais v. Illinois,
Again, four of the Justices disagreed strenuously with the determination of the majority that the Illinois statute "as construed and applied in this case" did not infringe the constitutional right of free speech and free assembly. That case is obviously pertinent to the present question and, in fact, is the only one we have been able to find which deals with criminal libel as applied to groups or "collectivisms." It is not cited by either the appellant or appellee, or by the amicus curiae. It would seem, however, that the appellee city must be aware of the case, since an ordinance passed by its council subsequent to the present conviction and described as supplementary to the specific charge with which we are here concerned copies word for word the Illinois statute construed in the Beauharnais case. The opinion of the divided court delivered by Mr. Justice Frankfurter, after reviewing many of the related previous cases including some of those herein cited above, states that the question to be determined was whether the protection afforded by the Constitution prevents the state from punishing the libels — such *152 as calling individuals rapist, or robber, or a carrier of knives and guns and the user of marijuana — and may also, by the criminal statute, extend such prohibition when the libel is directed "at designated collectivities and flagrantly disseminated." The court states in this respect, "if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a state power to punish the same utterance directed at a defined group, unless we can say that this is a wilful and purposeless restriction unrelated to the peace and well-being of the state."
The court then proceeds to trace the historical experience of the state of Illinois in public disorders having a racial basis; from the murder of abolitionist Lovejoy in 1837 through a race riot in 1900 in Springfield, one in 1917 in East St. Louis, another in 1919, on through to the Cicero riots in 1951. It may well have added the expulsion of Mormons from Illinois and the destruction of their towns in 1846 as a similar example of religious bigotry which erupted into violence.
The court states, "we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented."
The court observes further in referring to Terminiello v.Chicago,
It is pointed out in a dissenting opinion by Mr. Justice Black that the statute is actually a "group libel law." It is stated that "this label may make the court's holding more palatable for those who sustain it, but the sugar-coating does not make the censorship less deadly * * * For as `constitutionally recognized' that crime has provided for punishment of false, malicious, scurrilous charges against individuals, not against huge groups. * * * Every expansion of the law of criminal libel so as to punish discussions of matters of public concern means a corresponding invasion of the area dedicated to free expression by the Frst Amendment." *153
In Garrison v. Louisiana,
As pointed out hereinabove, this becomes particularly pertinent and important when dealing with
The almost unlimited freedom of press for comment on public and governmental questions was again reiterated by the Supreme Court of the United States as recently as May 23, 1966, inMills v. Alabama (No. 957, October Term 1965),
"Whatever differences may exist about interpretations of the
The concurring opinion of Mr. Justice Douglas is even more pointed:
"* * * where
If it be necessary to draw a technical distinction between the present city ordinance and the decision in the Beauharnaiscase, it is merely pointed out that that case, as well as various other opposing but related cases, define and concern themselves with an alleged clear and present danger to the peace and welfare of the community, and most particularly with activities carried on in a public place, neither of which conditions accompany this conviction. The Cincinnati ordinance in question takes cognizance of neither limitation and, consequently, cannot be judged and interpreted in the manner of Beauharnais v. Illinois which, as pointed out above, is as close as the Supreme Court has come to upholding a collective type of criminal sanction and which has been consistently criticized since its pronouncement.
Accordingly, it is the opinion of this court that the above ordinance is an unconstitutional invasion of both the state and federal Constitutions in the realm of freedom of speech and press, freedom of religion, and freedom of assembly. This does not mean that the material distributed by the defendant herein upon specific request of police officers and in his own place of business receives even remotely the approval of this court as to either purpose or subject matter. It is not unfitting to observe that, fortunately, in the minds of the overwhelming millions of citizens much of the material is ridiculous rather than ridicule. As indicated by President Madison, above, it can only be hoped that full and fair comment on social conditions and public affairs is the greatest possible safeguard to the freedom of all.
The judgment is reversed, and the defendant ordered dismissed.
Judgment reversed.
HILDEBRANT, P. J., and LONG, J., concur. *155