Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GERALD C. MANN ATTORNEY GENERAL
Honorable Dallas Blankenship, Chairman Criminal Jurisprudence Committee House of Representatives Austria, Texas
Dear GIP!
Opinion No. 9-3221 No: Constitutionality of House Bill No. 85 (Sedition Act)
As Chairman of the Optimal Jurisprudence Committee, you have requested the opinion of this department upon the constitutionality of the provisions of House Bill No. 85, pending before the House of Representatives at this time, which said House Bill reads as follows:
"A 211.70 SE. 8511.16
"All ACT to make it unlawful for any person by word of mouth, writing, sign or symbol to vilfully and militarately advocate, advise or teach the doctrine that the government of the United States or of any state or of any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means; or any person who prints, publishes, excites, leases or sells any books, papers, documents or written or printed matter in any form containing or advocating, advising or teaching the doctrine that the government of the United States or of any state or of any political subdivision thereof should be overthrown by force, violence or any unlawful means, and who advocates, advises, teaches, or enforces the duty, necessity or propriety of adopting the doctrine contained therein; or any person who organizes or helps to organize or become a member of any society or group of persons which teaches or advocates that the government of the United States or of any state or of any political subdivision thereof shall be overthrown by force
*2 Honorable Dallas Blankenship, Pave 2
or violence or by any unlawful means, and providing a penalty and an emergency.
"BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
"SECTION 1. Any person who by word of mouth, writing, sign or symbol, wilfully and deliberately advocates, advises or teaches the doctrine that the government of the United States or of any state or of any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means; or
"(b) Any person who prints, publishes, edits, issues or sells any books, papers, documents or written or printed matter in any form containing or advocating, advising or teaching the doctrine that the government of the United States or of any state or of any political subdivision thereof should be overthrown by force, violence or any unlawful means, and who advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting the doctrine contained therein; or
"(c) Any person who organizes or helps to organize or become a member of any society or group of persons which teaches or advocates that the government of the United States or of any state or of any political subdivision thereof shall be overthrown by force or violence or by any unlawful means, shall be deemed guilty of a felony, and upon conviction thereof, shall be punished by confinement in the penitentiary for a period of not more than ten years.
"SECTION 2. The fact that Section 2 of Article 1 of the Constitution of the State of Texas says: 'The faith of the people of Texas stands pledged to the preservation of a repub-lican form of government, and, subject to this limitation only, they have at all time the in-
*3
Honorable Dallas Blankenship, Page 8
dietated to and dominated by fereign influenes are trying to overthrou our repubjiean form of goverament by force, violence and unlawful means, against the wishes and well-being of the majority, ereates an emergency and an imperative pub110 necessity that the Constitutional Pule requiring bilis to be read on three eoparate days be suspended, and said Pule is suspended, and this Aot shall take offeot imnediately from and after ite passage, and it is so enacted.
This Aot is pattermed, in general, after similar aete passed by many other states in the Union, notably the state of New York, Califormia, Illinois, and others. Bedi11on Aete have generally been uhhold as against the contention that they violated constitutional guarantees of free speech, free press, or freedo of assembly. G1t1ow v. New York, 187 B. Y. Supp. 783; Idem, 868 U. S. 652, 69 L. Ed. 1138; People v. L1oyd, 304 Ill. 23, 156 B. E. 605; state v. Tachin, 92 B. J. L. 269, 108 A. 148, affirmed in 93 B. J. L. 337, 108 A. 317; eases noted in 1 A. L. R. 336; 20 A. L. R. 1535; 73 A. L. R. 1494. Under these authorities, the oonstitutionality of Beetions 1(a) and 1(b) of House Bill No. 88 is not to be doubted.
Bention 1(e) of House Bill No. 88 we believe to be violative of the due prosess clauses of the state and the Federal Constitutions. It is to be noted that this section, as drafted, condemns the person whe organizes or helps to organize or beoones a member of a soelety or group of persons which teaches or advesates the overthrow of goveraments by violence or unIawful means.
As this section is now written, an unlawful intent or guilty knowledge of the oharaster and purpose of the group or soelety is not made an element of the offense. Organization of a soelety or group of persons for lawful discussions or purposea, though innesent in its inoeption, would becone a crime, and the organizer's subjeated to the punishment provided, if the group or soelety, without the organizers knowledge or ever his protest, shouldish or advocate the overthrou of the, government by unlawful means. Becoming a member of a soelety or group of persons is fraught with peril, for the soelety or group may have an unlawful oharaster or purpose not diselosed to the person joining.
*4 Honorable Dallas Blakkenship, Page 4
If the substance rather than the form is to be observed in respect to constitutional guaranties, a statute so broadly drawn cannot be established as "due process of law". A citizen is certainly entitled to organize an assembly to discuss issues of the day in a lawful manner, without being subjected to a penal responsibility for an unlawful character which the assembly, without him knowledge, or perhaps even against his vigorous opposition, later assumed. "Due process of law" must embrace an immunity from such arbitrary and unreasonable legislation as would attach to the innocent exercise of a constitutional right the saint of illegality because of the acts of others. As said by the Supreme Court of the United States, in the recent case of DeJonge v. State, 299 U. S. 353, 81 L. Ed. 278:
"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 constitutional question thus arising may be removed by rephrasing section 1(c) to read as follows:
"Any person who organizes or helps to organize a society or group of persons to teach or advocate, or who knowingly is or becomes a member of a society or group of persons which teaches or advocates, that the government of the United States or of any state or political subdivision thereof should be overthrown by forces, or violence or by any unlawful means shall be deemed guilty of a felony, and upon conviction thereof, shall be punished by confinement in the penitentiary for a period of not more than ten years."
Yours very truly
AFFORNEE GENERAL OF TEXAS
By
R. W. Fairchild
Assistant