*1 v. LOWRY, SHERIFF. HERNDON 26, April Argued February 8, 475. 1937. Decided Nos. 474 and *2 Whitney North Seymour, Mr. with whom Messrs. Sutherland, Wechsler, Herbert T. King W. and Carol A. for brief, appellant. were on LeCraw, J.Mr. Walter Assistant Solicitor General of Yeomans, with whom Messrs. M. J. Georgia, Attorney A. General, Boykin, and John Solicitor General, were on for brief, appellee. delivered the opinion of the Justice Roberts Mr. Court. appellant claims his conviction in a state court contrary him liberty guarantees of his
deprived Fourteenth Amendment. He assigns as error the Georgia of the Court Supreme action in overruling his him discharge refusing upon claim and habeas corpus. writ, for presented Superior to the petition Court appellant asserted the County, unlawfully Fulton as appellee sheriff under the supposed detained authority judgment pronouncing of a guilty him of at- tempting insurrection, incite as defined § 56 of sentencing Code, and him imprisonment Penal nor more than eighteen twenty years. not less than judgment and the indictment copies were Attached which the verdict and a statement evidence alleged were founded. The judgment petition and sentence were deten- appellant’s void judgment the statute under which he was con- illegal because tion restrains his freedom of illegally speech victed denies and assembly vague and is too indefinite to provide and of of guilt, ascertainable standard and further sufficiently adjudication no alleged that there had been court validity of the statute applied of the constitutional A appellee writ issued. The appellant’s conduct. to, strike, moved to so answered, specially demurred incorporated the evidence taken petition much of hearing evi- trial. At the the statement at the *3 to by identified and was the appellee was conceded dence to The court denied the motion be full and accurate. an objection the demurrer strike, special overruled and record, the trial the the admission of decided that to in the trial of the applied construed and statute, ap- of and liberty speech his of as- infringe did pellant, but ran afoul of the Fourteenth Amendment be- sembly to vague provide sufficiently and indefinite cause too guilt, prisoner’s of and the standard ordered ascertainable to custody. appellee from The took the discharge case assigning as rul- Georgia, Court of error the Supreme the motion, objection, and and the demurrer, his ing upon of the validity the statute. against appel- decision state also lant, practice, appealed, in accordance with the with error to his of assigning respect right the decision assembly. and The two were speech appeals free in single but considered opinion docketed separately judgment the on the and appellee’s appeal reversed which concluding: the appellant,1 affirmed on that of “Under 582; 1 182 E. 429. Ga. S. pleadings evidence,
the and the which the embraced record on the trial that in resulted the the conviction, the habeas in corpus proceeding, refusing court in erred, to prisoner remand the custody to the the officers.”
The federal questions manner presented, and the they which arise, appear from the appellant’s record of trial and conviction embodied the and petition, from opinions Supreme the State Court criminal proceeding. July
At the Term 1932 Superior of the Court of Fulton County an indictment charging against was returned appellant an attempt join to induce others com- to bined resistance authority to the lawful of the state with deny, defeat, intent and to overthrow such author- ity by open force, and means, violent unlawful al- acts; that leging insurrection was intended manifested accomplished by and unlawful and violent acts. in- specified dictment calling attempt by made attending public and speeches assemblies and making purpose organizing establishing groups and and combinations white and colored under persons Atlanta for purpose name uniting, combining, and conspiring to incite riots and impede orderly processes embarrass combined resistance to, and, by courts and offering force violence, overthrowing and defeating authority state; speech persuasion, appellant attempted solicit persons to join, solicited con- *4 with, become members of and the federate Young Communist League and the and introduced circulated, and state and aided the assisted in into intro- circulating, booklets, papers, ducing and and other writ- purpose. intent and with the same ings The charge was Code, 56 of the Penal §on one of founded four related defines 55 insurrection, Section 56 sections. § an defines insurrection, 57 prescribes incite attempt § to the death 246 in the for of the described
penalty conviction offenses jury the shall recommend two sections unless preceding intro- imprisonment, the by 58 mercy, penalizes, § purpose matter printed duction and circulation insurrection, riot, conspiracy, sec- etc. The inciting in copied margin.2 are tions brought to trial and He appellant The convicted. ground that, under the statute con- appealed on the by jury, trial instructions to strued court its guilty. no evidence sustain a verdict there was affirmed a broader judgment upon The Court Supreme appellant Act.3 different construction of the alia, that, as so inter contending, a rehearing, moved for Amend- the Fourteenth construed, violated statute the constitutional refused to pass ment. court explained raised, elaborated its con- quéstions thus de- original opinion, of the statute its struction 2 any resistance to shall consist in combined “55. Insurrection thereof, State, denial when with intent to the authority of lawful intended to be manifested acts is manifested or the same violence. otherwise, to attempt, by or induce Any persuasion others “56. authority the lawful any join in combined resistance State attempt insurrection. an to incite constitute shall insurrection, Any person convicted of the offense of or at- an “57. punished insurrection, death; shall with tempt or, incite be if mercy, penitentiary jury confinement for not less recommend to years. than nor more 20 than five bring, introduce, any person print, circulate, shall or If or cause “58. circulated, printed, introduced, assist, or or or aid or be in bringing, introducing, circulating, printing instrumental or manner circular, any paper, pamphlet, writing, or any this State for the within insurrection, riot, conspiracy, inciting or against resistance purpose of State, against authority lives of the lawful the inhabi- punished thereof, any part them, he shall be confine- tants longer not less penitentiary for than five nor ment 20 in the than Code, 1933, 26-904, (Georgia inclusive.) 26-901 to years.” §§ 3 Ga, State, 832; S. E. Herndon v.
247 nied rehearing.4 to appellant perfected appeal an claiming this court that he had federal timely raised questions we, had therefore, jurisdiction to decide them. jurisdiction.5 We held we were without his Upon commitment to serve his sentence writ sought he corpus. habeas
In the present proceeding Superior Court and Su- preme Court Georgia disposed have considered and the contentions based Federal Constitution. The scope of a corpus habeas proceeding the circumstances disclosed is a state and federal question not a and since courts state treated rais- as proceeding properly ing issues of juris- federal have right, constitutional we diction and all such open must, then, issues are here. We inquire whether the trial applied statute denied appellant rights Fourteenth safeguarded by the Amendment. judgment evidence on which the consists rests
appellant’s admissions and certain documents found his possession. The appellant told the officers state’s prior Com- joined time to arrest he some his Kentucky munist and later came to Atlanta as a paid organizer for party, his duties being call meetings, educate and disseminate information respecting the party, literature, distribute to secure members, to work organization an up of the party in Atlanta; and that he had held or attended three meet- ings called him. He made no further admission as an what he organizer, did what he said or did meetings. at the When arrested he a box con- carried taining documents. After he arrested he conducted his room where additional officers documents newspapers and periodicals bundles found, were which 4 Herndon v. State, 597; E. 179 Ga. S. 176 620. 5 Georgia, Herndon v. U. S. him from headquarters
he sent stated were *6 of the Party in He names gave Communist New York. At- organization members of the persons who were members lanta, only he five or six actual and stated had of member- The apprehension. at the of stubs time his enrolled box he in the indicated had ship found books no evidence There was more he stated. members than on any of material carried had distributed he of it any or had taken room, his found in his person and respecting or meetings, appeals to two circulars save confessedly innocuous. county are relief which and other pamphlets, periodicals, The newspapers, in- stated, he were, so his room documents found meetings. ap- These the his tended for distribution at Cer- in evidence. pellee concedes were not introduced when he was arrested possession tain in his documents classes: fall into five placed They were in evidence. of showing receipts small sums first, receipt books of containing certificates of contributions money, pads Party’s Campaign Election Presidential Communist post receipts box, for rent of a office and Com- Fund, membership books; Party secondly, printed munist consisting pamphlets, copies and magazines, matter Organ “Daily Worker,” styled the “Central Worker,” and the Party,” “Southern Communist newspaper an official also, party; apparently, Negro one “Life books, Struggles two and thirdly, George by Padmore, the other “Com- Toilers,” Analyzed munism and Christianism from Contrasted by Darwinian the Marxian and Points View” Rt. Rev. Brown, transcripts Montgomery D.; fourthly, William D. meetings apparently held of minutes Atlanta; circulars, fifthly, prepared by two one of which was appellant by of which had been him both circulated may All these County. Fulton be dismissed as falling within the first and irrelevant those except second from No groups. possession inference can be drawn mentioned, they the books either that embodied the repre- doctrines of the or that they Communist sented minutes appellant. views advocated of meetings nothing indicating contain purposes organization intent organized to overthrow government; contrary, merely indicate dis- they on the circulars, cussion of relief unemployed. for the two nothing admittedly appellant, distributed had do with the Party, its aims purposes, appeals were join party but were concerned with unemployment county relief in the and included appeals organize negro unemployed white and *7 and for represent county They the need further aid. Georgia were Supreme characterized the Court of “more less harmless.” activity of the first class disclose the documents organizer
of the appellant but, an this respect, add nothing to his admissions. appearing upon
The matter membership blanks upon innocent pernicious its face however foolish and it suggests. the aims Under heading “What is the Party?” appears: this Party vanguard “The is the working of the and class consists of the most best, class conscious, active, most courageous the most members of that class. incor- It porates the whole of body experience of the proletarian basing upon itself struggle, revolutionary theory Marxism representing the general and lasting inter- working ests of whole of class, the Party personi- unity proletarian fies the principles, proletarian will proletarian and of revolutionary action.
“We Party are working class. Consequently, nearly (in class the whole of that time of war and civil war, the class) whole of that should work under the guidance our Party, should create the closest contacts Party.” with our of an attempt falls short vague declaration
This within a immediately either bring about insurrection merely to a statement of amounts reasonable time but more however, indicate blanks, ultimate ideals. of the Communist specific for which members aims for They are to vote. are to vote Communist the ex- Insurance at Unemployment “1. and Social pense of the and employers. State Against wage-cutting policy.
“2. Hoover’s poor relief for the re- Emergency “3. farmers without government banks; exemption strictions taxes and from forced poor farmers from collection of or debts. rents rights Negroes
“4. Equal self-determina- for the Black Belt. tion Against capitalistic against
“5. terror: all forms suppression political rights of the workers. Against imperialist war;
“6. for the defense of the people Chinese Soviet Union.” of these aims is None criminal its face. one, As to 4th, the claim is that criminality may be found be- of extrinsic facts. cause Those facts consist possession of booklets and by appellant other literature of the sec- illustrating the party ond class doctrines. The State con- show that purposes tends these of the Communist Party were forcible subversion of the lawful authority of *8 contain, alia, They inter Georgia. statements the ef- party upon the bases itself the fect revolutionary theory Marxism, opposes wars,” of “bosses’ approves of Union, and desires the “smashing” the Soviet of the Na- M. T. Guard, C., the C. and the tional R. O. T. C. But. relies especially the State booklet entitled “The Negro Position on the Question,” on Communist the appears of map of which the United cover States hav- belt across certain Southern ing a dark states and the phrase “Self-Determination for the Black Belt.” The booklet affirms that the source of the Communist slogan “Right of Self-Determination of in Negroes the the Black Belt” is a resolution of the Communist International on the in Negro question the adopted United States in 1930, which the states that in the United been actively States has attempting to win increasing sym- pathy among negro the population, things that' certain have been advocated for the of Negroes benefit the in the states, Northern but that the portion Southern United States the Communist slogan Right be “The must of of Negroes the the Black Belt.” Self-Determination The resolution defines of meaning slogan the the “(a) Confiscation the landed property of the white capitalists for negro landowners and benefit farmers . . . revolutionary measure, Without this the agrarian revolution, right without self-deter- Negro population mination would only be a Uto- pia at would or, best, only remain on paper without changing any way the actual enslavement.” “(b) Establishment Unity State the Black right Belt If ... of self-determination of Ne- force, into it groes put is to is necessary pos- wherever bring together governmental sible to into one all dis- unit tricts of the South where the majority of the settled .” negroes consists . . population “(c) Right complete of Self-Determination. This means negro right majority gov- and unlimited to exercise authority in the territory ernmental entire of the Black Belt, decide upon as well the relations between their nations, and other territory particularly United all, right First of true . . . to self-determina- States negro majority tion means that and not the white territory minority entire administratively *9 Black right united exercises the of administering Belt governmental, judicial legislative, authority. At the present power time all this is concentrated in the hands bourgeoisie of the white and landlords. It is they who appoint they all it is officials, dispose public who prop- erty, taxes, it is who it is who they they determine the govern Therefore, and make the laws. the overthrow of this the Black Belt is unconditionally class rule neces- right in the for the sary struggle negroes’ to self-deter- This, however, means at the same time the mination. imperialism yoke overthrow of American in the Black Belt on which the forces of the local white bour- if Only way, only negro this geoisie depend. pop- Belt wins its from Ameri- of the Black freedom ulation point deciding even itself the imperialism can country governments, other its es- relations between will it win real and States, complete the United pecially begin- from One should demand self-determination. imperialism no forces of American should ning that armed territory of the Black Belt.” remain on pamphlet are: appearing Further statements yet raising does not warrant if the situation “Even one should not limit oneself uprising, question demand, ‘Right for the to Self- propaganda present at organize actions, should mass such Determination,’ but boycott movements, tax etc.” strikes, demonstrations, just possible negro it is for deny that “One cannot right Belt win the to self- the Black population it is clear perfectly but during capitalism; determination through possible only is success- this indubitable the American struggle power against revolutionary ful wresting negroes’ right self- bourgeoisie, through imperialism. Thus, from American determination a real slogan slogan right self-determination such, need considered as which, to be National Rebellion *10 by proclaiming struggle for com- supplemented the negro zone, at plete least not at separation present.” is same
There more of the refer- purport, particularly “revolutionary South,” ences trade unions in to the the “revolutionary struggle against ruling the white bourgeoi- “revolutionary of sie,” program the Communist Party.” is no the appellant any
There evidence distributed matter in the printed or found box he carried writings advocating arrested, any or other forcible when subversion authority. There no governmental ap- of is evidence the or advocated, written pellant by speech word, meetings at any or action elsewhere, implying or doctrine such forcible tending There is evidence to prove subversion. that the meetings held for the appellant purpose recruiting Party members the Communist and solicited contribu- tions support party and there is proof party doctrines which that in- espouses. Appellant’s insurrection, incite if it found, tent to is to be must rest members for the procuring his party’s of that literature possession and his when he was arrested. Georgia 55 of Penal
Section Code defines insurrec- tion as “combined resistance lawful authority State, with intent to the thereof, denial when the same is manifested intended or to be manifested acts by 6 of violence.” was not appellant indicted under this Section introduction, section. 58 denounces the printing, circulation, assisting print or circulate docu- “for the purpose inciting ment insurrection.” The was not under appellant indicted this section. 56,
Section which the under indictment is makes laid, except no by reference to force or phrase violence 6 supra. 2, Note authority lawful
“combined resistance evidently from importing Court Supreme State.” The the additional element § phraseology similar “manifested or intended section, namely, in that contained has violence,” decided to be manifested acts of essential resort to force an element intended § offense defined apply ap- ascertain how the Act is held to to the
To rulings we pellant’s conduct turn to state jury: courts trial court instructed the his case. The defendant, “In it must appear order convict the ... clearly by the evidence that serious violence immediate *11 to against Georgia expected be ad- State or guilty. In the jury vocated.” rendered a verdict urged Court the that the evidence was Supreme appellant under to sustain the verdict the law wholly insufficient the conviction as thus construed. That court sustained by construing the thus: statute contemplated, but, as said
“Force must have been either occurrence not include its above, statute does particular of the offense ingredient imminence as an its necessary guilt it that . . Nor would be charged. . have intended that an alleged offender should insur- at instantly any given time, follow but rection should it happen he intended at it would be sufficient influence, his he time, a result of those whom any 7 to incite.” sought further rehearing court elabo- application Upon meaning as to statute: views rated its contemplated, must have been but the statute “Force its occurrence or either imminence not include its does offense charged. Nor ingredient particular as an necessary guilt alleged it offender would E. 855, 174 S. Ga. 7 178
should have intended that an insurrection should follow instantly or at time, but as to this given element it would be if sufficient he intended that it should happen at any time might within which he reasonably expect his directly influence to to be operative causing continue such action by those whom sought to induce. . . he The affirmance of trial conviction record nec- essarily gives 56§ the construction that one who seeks members for or attempts organize local unit of a party which objects purposes has disclosed in evidence may guilty documents be found an attempt to incite insurrection. questions are whether this construction and appli-
cation the statute deprives the accused of right freedom of speech and of assembly guaranteed by the Amendment, Fourteenth and whether the statute so con- strued and applied a reasonably furnishes definite and ascertainable of guilt. standard
The appellant, while admitting that people may protect themselves against abuses of the freedom of speech safeguarded by the Fourteenth Amendment by prohibiting incitement violence and crime, insists that regulation may legislative go beyond measures fore- against “clear and fending present danger” of the use of *12 against the state. For this position force he relies upon our decisions under the Federal Espionage Acts9 and cognate legislation. These state made it criminal wilfully or attempt to cause to cause, or incite or attempt incite, insubordination, disloyalty, mutiny or refusal of duty in the or military naval of forces the United States wilfully attempt to obstruct or to obstruct the recruit or enlistment service of ing the United States or to con- 600, 8 179 Ga. 9 176 E. 622. S. 15, 1917, 30, 217, Act of June c. 219; 40 Stat. amended by Act of 16,
May 1918, 75, c. 40 Stat. 553. 256 these
spire We sustained the purposes. power of g'overnment or a the war operations state to protect United punishing intentional interference States however, with them. recognized, may We that words spoken that purposes or written for wilful various operations and intentional the described interference with government might time, be inferred from the place, question and circumstances “The case every act. is used circumstances whether words are used such and are such a nature create a clear and present as to about the danger they bring will substantive evils Congress right question has a It prevent. proximity and degree.”10 radically legislation under review differs from the it not deal Acts in that does with wilful at-
Espionage activity a described defined tempt to obstruct government. State, hand, on the other insists that our decisions criminal utterances making state which
uphold statutes tendency” towards the “dangerous subversion have a upon Gitlow New particularly It relies government. v. however, we dealt York, There, U. with a 268 S. Georgia 56 Criminal which, § unlike quite statute criminal certain carefully denounced acts Code, We described. said: adequately may penalize a State utterances which openly “And representative the overthrow con- advocate government the United form of stitutional States and by violence other unlawful means.” States, the several 668.) (p. 47, 52; 249 U. S. States, Frohwerk v. Schenck v. United 10 See 204; 211; Debs v. United States, S. 249 U. States, 249 U. S. United 616; 250 S. v. States, U. States, United v. United
Abrams
Schaefer
239;
States,
U.
466;
v.
S.
O’Connell v.
United
S.
Pierce
251 U.
142;
v.
Holm,
257 “By enacting the present statute the State has deter- mined, through its legislative body, that utterances advo- cating the overthrow of organized government by force, violence and unlawful means, are so inimical gen- eral welfare and involve such danger evil of substantive that may they penalized be in the police exercise of its power. That determination given great weight. must be Every presumption is to be indulged favor validity of the statute. Mugler Kansas, 623, v. 123 U. S. 661. And the case is to be light considered ‘in the the principle that the State is primarily the judge regulations required in the public safety interest of welfare;’ and that its police ‘statutes may only de- be clared they unconstitutional where arbitrary are un- attempts reasonable to exercise authority vested in ” State in public 668.) interest.’ (p. And it was in connection with the involved statute there quoted that court language relied and in below argument People from Lloyd, v. 23; here Ill. 505, N. E. to the effect that a compelled state is not delay adoption preventive such until the measures apprehended danger becomes certain. Out of excess caution the distinction was again clearly drawn between of the order of the Espionage Act acts the New York act review. under
“. the legislative . . when body has gen- determined in the erally, constitutional exercise of discretion, its of a certain kind utterances involve danger such of sub- they stantive evil may punished, question whether specific utterance coming within the pro- likely, hibited class is and of itself, to bring about evil, is open substantive to consideration. It suf- ficient that the statute itself be constitutional and that language the use of the comes within prohibition. its “It is clear that question in such entirely cases is from that different involved in those cases where the *14 involving danger the prohibits certain acts merely statute language to reference evil, any without substantive of language to its sought apply provisions it is itself, bringing of about purpose the by the defendant used that There, if it be results. contended prohibited by to the used applied language be cannot the statute freedom protection because the defendant its found, an necessarily it must be press, or of speech determination any without original question, previous body, specific language whether legislative bringing such likelihood of about the sub- involved used it of the deprive pro- as to constitutional stantive evil 670-671.) (pp. tection.” York sustaining that decision New
It is evident no for the appellee’s furnishes warrant contention statute mischief general description a law in its of the that under in- general equally remedied and be respect made the actor, guilt may the standard be tent his tendency” of words. “dangerous abridge power speech state freedom a than the rule and assembly exception is the rather utterances of defined character a must even penalizing in a of dan- justification apprehension reasonable find its legis- judgment organized government. The ger to limitation individual is unfettered. lature safety relation to the appropriate liberty must have which this need vio- Legislation goes beyond the state. a If, therefore, of the Constitution. principle lates the meeting in a penalize participation innocent statute state merely meet- purpose innocent because the an held with organization of an mem- auspices ing held under advocacy principles, of whose or the bership which, criminal, law, so construed and ap- denounced also abuses of freedom power to restrict goes beyond plied, of speech arbitrarily denies freedom.11 And, where a is so vague statute uncertain toas make criminal an utterance or an which may act be innocently said done with no or intent induce resort violence or on the hand may other be or purpose said done with a violently government, to subvert a conviction under such law cannot sustained. this Upon view bad a we held statute of California providing “Any person who dis- plays flag, red in any public ... place or meeting place or public assembly, from on any *15 building house, sign, or window symbol as or emblem of opposition organized government to is guilty ... of a felony.” pointing agitation
After out that peaceful change for a government of our form of within guaranteed is lib- erty speech, of we said of question: the act “A statute upon face, which its and authoritatively construed, as is so vague permit and indefinite as the punishment of the fair repugnant use this is opportunity guar- to the anty liberty contained the Fourteenth Amendment.” (p. 369.) right had a appellant constitutional to address organize
meetings parties and unless so he doing vio only lated of a statute. prohibition pro some valid hibition he is said to have violated is that of forbid 56§ incitement ding attempted incitement to insurrection If by the evidence fails show that he violence. did then, applied him, so incite, statute unreason ably speech assembly freedom of freedom of limits the Fourteenth are violates Amendment. We is opinion requisite proof lacking. that what From respect has above with to the been said evidence offered at 11 DeJonge Oregon, v. 353. 299 U. S. 12Stromberg v. 283 U. S. California,
the trial it is that apparent the documents found appellant’s person certainly, were some of the therein, peaceful aims stated innocent and consistent with change for a action the laws or the constitution. The wholly had read proof appellant fails show that documents; any them; these he had distributed all of the any princi that he believed advocated them, pro forth in or that he had ples and aims set those party approved to become members knew or cured these documents. question not the formal Thus, interpre the crucial Supreme by Georgia of the statute Court of tation given In application application but it. its soliciting offense made criminal is that of members for meetings political party conducting of a local unit party party, of that one of the doctrines when established reference to a document not shown to been anyone by accused, may have exhibited to said to be ultimate resort to violence at some indefinite against organized government. future time It is to be legislature Georgia borne in mind has not in the membership made unlawful dangerous supposed tendency reason of its even in the *16 question The is Georgia remote future. not whether what might, analogy to other states done, have so appellant The induced declare.13 others to become mem Party. the Communist Did he bers of thus incite to by reason of the fact that they agreed insurrection party, abide the tenets of some lawful, of them assumed, be others, may unlawful, as in the absence of brought that he proof unlawful aims to their notice, approved them, that he or that the fantastic program question 13 Seethe statutes drawn in in Gitlow York, v. New 652, 654, Whitney California, at and in v. 357, U. S. 274 U. S. they envisaged was of by anyone conceived as more than an ideal? Doubtless ultimate circumstantial evidence might question the answer if affect to the had appellant been shown to said that have be Black Belt should organized separate at once aas state and that that ob jective his was one of principal But circum aims. here opposite stantial evidence is to the The only all effect. objectives appellant is proved to urged have are thosé having to do with unemployment emergency relief which are of criminality. void His membership and his a few solicitation of members wholly fails to establish an attempt to incite others to Indeed, insurrection. so far he appears, had but a single copy of the objec booklet the State claims to be he tionable; copy retained. The same may said respect with to the other books and pamphlets, some of them purport. of more innocent In these circumstances, to make membership party and solicitation of members that party a criminal offense, punishable by death, jury, the discretion of is an unwarranted right invasion of the of freedom of speech. statute, as construed and applied in the ap trial, does furnish a
pellant’s sufficiently ascertainable The Act guilt. standard of does not prohibit incitement, violent interference with given activity opera it, By tion the state. as construed, force the judge jury trying alleged an offender cannot appraise the character of the circumstances and defendant’s utterances begetting activities clear and present danger of particular obstruction of a forcible state function. Nor any specified conduct or utterance of the accused made an offense. guilt is thus test formulated Supreme state. Forcible action
Court of the must have been con- templated it would be sufficient to but sustain a con- *17 that an insurrection intended if the accused
viction any might within which he time rea- at happen “should influence continue to directly his to be sonably expect sought action those whom he causing in such operative that If conclude defendant jury to induce.” that act or utterance of contemplated should have advocating order or in to the established his opposition order, might, future, the distant in that change á to offer forcible resistance to in a combination eventuate if says, State believe jury he State, words that his would have “a have known should may then he be tendency” convicted. be dangerous To law, construed, a defendant need under not guilty He need to force. not teach any resort par- advocate its purview. to come within Indeed, doctrine ticular he formation of active a be combination or need not change for a in the agitate frame of govern- if he group his own intent. peaceful If, by however ment, forecast that, he can prophesy, as a result of exercise causation, following his proposed action a chain a at some future date which will arise resort group may make the prophesy force, is bound and abstain, he possibly of of punishment, execution. Every under pain existing conditions, agitates who attacks who person government, form of must in the take the risk change he be opinion ought if should have jury fore- that might in any contribute his utterances that measure seen resistance the existing govern- future forcible to some of the offense in- inciting convicted may be ment he fact believed Proof accused surrection. assault upon a violent the state cause his effort would It necessary to conviction. would be suffi- would reasonably might thought he foretell that jury if the cient join might, at some time party persuaded those he resort to forcible resistance future, the indefinite
263 question proposed jury The thus to a in- government. future speculation thought volves as to trends of pure reasonably one might Within what time ex- and action. of pect attempted organization that an the Communist in Party in United States would result violent action If jury special say- a returned a party? verdict ing years not twenty years fifty even verdict could construed, The wrong. law, be shown to be as thus own jury licenses to create standard in each case. its In in this what v. Cohen aspect was said States United Co., 255 Grocery 81, particularly apposite: U. S. is that the no or definite specific “Observe section forbids subject-matter investigation act. confines It it inhering which authorizes to no element essentially provides. open, the transaction as to which it It leaves therefore, inquiry, scope the widest conceivable can which no one foresee and the result no of which one guard against. can In adequately fact, foreshadow we see no reason doubt the soundness the observation below, opinion, the court its to the that, effect to enforce the section would be the attempt equiva- exact a carry lent of an effort to out statute which terms all punished merely penalized acts detrimental to the when public unjust interest in the esti- unreasonable . jury (p. mation the court and .” 89.) . relied
The decisions on the State held the Sherman a Law furnished reasonable of guilt standard because it long recognized by made a standard the common law the statutory test.14 statute, as construed and applied, amounts merely anyone which dragnet may enmesh agitates who for government if change jury
a. can persuaded ought he have foreseen words his would have some 14 86; 212 v. U. S. v. Texas, Waters-Pierce Oil Co. Nash United States, U. S. No reasonably of others. as- the future conduct
effect prescribed. vague So guilt certainable standard boundaries thus set to the free- are the indeterminate assembly necessarily law speech that the vio- dom liberty in the Four- embodied guarantees lates the teenth Amendment. is reversed and the cause is remanded judgment with opinion. further inconsistent this proceedings
Reversed. *19 dissenting. Devanter, Van Justice Mr. Georgia statute,
I of that the as construed opinion am in Hern- court of the State applied by supreme the and and ascertain- case, prescribes reasonably definite don’s the inno- by which to determine or guilt standard able right accused, of does not encroach on his cence and of assembly. or speech of freedom of I that the plainly appears, think, It offense defined convicted, was statute, and which Herndon was change government in the state advocating elec- by means, orderly lawful such an exertion con- state power tive franchise or to amend the in- to stitution, attempting but was that of induce to resistance join cite others to combined forcible authority of the State. lawful Georgia1 Penal 55, Sections 56 and 57 Code of insurrection, attempts insurrection, deal with to incite related therefor, closely so punishment and are mean- evidently bearing scope have a on the that all Section denounces insur- one of them. 55 ing it “any rection and defines combined resistance intent denial authority State, with to the lawful n thereof, or when the manifested intended same is by manifested 56 denounces acts violence.” Section 1Georgia 26-901, 26-902, Code 26-903. 1933. §§ an attempt to incite “any insurrection and defines it as attempt, by persuasion or otherwise, induce others join in any combined authority resistance to the lawful of the State.” prescribes Section 57 punishment each of these offenses.
While 56 does not in direct § terms include force violence aas feature of the “combined to the resistance lawful authority of the State” the attempt to induce which it denounces, the has supreme court of the State construed section, doubtless reason relation by its to the others, as making vio- intended resort to force an lence essential of such element “combined resistance.” Therefore the section must be if em- expressly taken as bodying this construction. Hern- § It was under 56 that don indicted, tried and convicted.
By the indictment he was charged with attempting join induce others to in combined law- resistance to the ful authority of the “by open State violent force and means, acts,” attempted unlawful the modes of inducement being specified. Upon court the trial instructed the jury that neither “possession of literature insurrectionary in its nature” nor academic “engaging *20 or philosophical discussion of of eco- principles abstract political nomics or or subjects, other however radical revolutionary in their nature,” would warrant a convic- tion ; and that a guilt verdict of unless given could not be it clearly appeared from the evidence that “immediate serious against violence expected the State” was or advo- cated the accused.
In affirming the the supreme conviction the court State held that under the statute been “force must have contemplated,” but that it is not that guilt to necessary the accused have intended that an “should insurrection 2 State, 747; 201; 169 E. State, Carr v. Ga. S. 176 Herndon v. 178 855; 832, Ga. 174 597. S. E.
266 instantly or at any given time,
should follow but it would happen that he intended it to any time, sufficient be at persuasion intent of the statute a result” his —the any “to at its effort to overthrow being ineipiency arrest an where it takes the form of actual government, state attempt to incite others to insurrection.” sufficiency evidence,
Then, coming to consider said, “From stated: what has been supreme court simply this: did the evidence question here show any attempt induce others the defendant to made to any to combined resistance together come forcible con State?” the court authority the lawful And question by “The saying, its consideration of this cluded infer that was jury authorized violence amply were to induce attempt defendant intended and that did resistance to the lawful author others to combine such (Italics supplied.)3 ity of the State.” sought rehearing, largely because of his accused understanding opinion was in the court’s of what said time of the intended resort expected respecting rehearing denied, A was connection force. 4 said: court be by this should considered language “The used court 'at phrase implications. with the usual reasonable rehearing, in the motion for any as criticized time,’ future, in the indefinite mean at time not intended to An ac- however remote. any possible time, later at be the direct hardly expected now could tivity of a lapse after an insurrection producing cause of this purpose it not the and was great period time, any such requisite the mental suggest that as to court attempt anof ingredient be a sufficient intent would ‘at contrary phrase insurrection. On an incite 832, 855, 867; S. E. State, 178 Ga. Herndon v. *21 4 E. 597, 599; State, 179 Ga. S. Herndon v. have any necessarily intended, time’ was should time; mean within a reasonable that understood, been persuasion adopted within such time as one’s or other is, expected directly op- might reasonably means be to be causing in Accordingly, erative an insurrection. for quoted this as the motion re- statements court accepted following hearing are to sense: been contemplated, Force must have but statute imminence either its or its does not include occurrence Nor ingredient particular charged. offense as an guilt alleged it be that offender necessary would follow should have intended that an insurrection should given time, but as to this element instantly any or at if it happen it be sufficient he intended that should would might reasonably expect he at time within which directly operative to be his influence to continue whom he to induce. causing sought such action those in the statement, with what was said This considered the view this court as to original decision, represents of the statute under considera- proper construction say, the statute as thus we tion; interpreted, and under authorize before, that the evidence was sufficient above, In of what has been said view conviction. in the motion that all contentions made it would seem necessarily fail, based, they are, rehearing should (Italics of our decision.” construction upon an erroneous supplied.) that the case quite plain proceeded made
It thus is upon state courts, both end, beginning from by the statute and the offense denounced theory that attempting in- was that of in the indictment charged resist- join in combined incite others to duce and forcible jury that authority State; lawful ance to the upon theory; guilty returned a verdict supreme court held theory that it was the same *22 268 evidence, and supported was verdict jury’s
affirmed the conviction. judgment is not from that appeal present judgment subsequent a denying but from a
affirmance corpus.5 petition habeas appeal pro-
If it assumed that on this the evidence may in the' criminal be examined duced on the trial case I applied, opin- statute was am of to ascertain how the was examination, the statute ion, after such an resistance” therein applied as if the words “combined meaning were in “combined forcible resistance.” letter and present evidence, all of which embodied record, will be here stated reduced volume without omitting anything material. negro
Herndon is a and member of the Communist which A., the U. S. is a section of Com- Party of He was sent Kentucky International. from munist organizer paid party. as a for the At- Atlanta, Georgia, large area where there is a negro lanta is>within an Party and the Communist has been endeavor- population, membership and to that ing popu- to extend its activities organizer others. Herndon’s duties an among lation meetings, conduct were to call and to disseminate party, respecting distribute its litera- information and prospects members, secure to re- ture, to educate contributions, up and and to work ceive a sub- dues party. He organization called and con- ordinate which were meetings evidently secret, solicited ducted members, and received dues and contribu- and secured becoming when others, sub- members, He and tions. obligation saying undersigned “The declares to an scribed program and statutes of the Com- his adherence and the International munist Herndon, 582; Lowry 182 Ga. E. 186 S. v. agrees discipline to submit to the A., S. and U. actively its work.” engage party his arm box in he had under which When arrested collection which membership and books carrying was he books using pamphlets, been various he had structure, purposes to the documents, all pertaining Two or three had papers activities of party. him and disclosed he an active been prepared *23 “Unemploy- Committee” and the in “Section spirit the subordinate local of Committee,” agencies ment both the membership books, besides names party. showing The of those he to become whom had induced members dates and admission, from of their contained extracts the party statutes, of which read: some
“A can Party member of the every person be from the of who age eighteen accepts program the up and statutes of the Communist International and the Communist Party A., of the U. S. who becomes member of basic organization of the who Party, is active in organiza- this tion, who subordinates himself all decisions of the Comintern and of the Party, and regularly pays his membership dues.”
“The Party Discipline strictest is the most solemn duty all Party of members and all Party organizations. The decisions Cl and the Party Convention of the CC and of leading all committees of the Party, must be promptly carried out. Discussion of questions over which there have been differences must not continue after the decision has been made.” Party
“The vanguard is the of the working class and best, consists of most class conscious, most active, the courageous most members that class. It incorporates body whole of experience of the proletarian struggle, basing itself revolutionary theory Marxism representing general and lasting interests of the working personifies class.
whole The principles, proletarian will unity proletarian proletarian revolutionary action.” “Every collection books contained statement bullet into the boss class.” dollar collected is a fired collection been sent to membership books had from main party Herndon New York office him, using and he had by securing use been them collecting contributions. members and dues and With two or three him exception papers prepared mentioned, carry- the literature which he was heretofore when had ing under his arm arrested been sent to him many with office, together pamphlets, from the same other for use and distribution publications, books and organizer. him in work as an The literature which his produced him evidence he had with when arrested described, chiefly by now extracts and will titles and (italics supplied).
“Appeal Young to Southern Workers.” League champion Young “The *24 but of the only young especially white workers Young negro young workers. oppressed doubly system of fights against Communist whole League racial, political, and for full race discrimination stands . . equality and of all workers. . economic social League tois aim the Communist “The chief Young against a struggle for organize young workers system. against profit the whole bosses and fights for: Young League “The for the equality negro and racial social political, “Full workers. Union! the Soviet Defend
“Against bosses’ wars! Guard, M. T. C. and the C. the National “Smash R. T. C.” O. Struggles Negro
“Life and Toilers.” country “In no other so-called civilized the world badly human as are treated as these million beings They the United under a negroes per- live [in States]. petual regime They absolutely of white terror. . . . are at the mercy every fiendish mob incited white landlords capitalists.” and
“Communism and Christianism.” “Banish the Gods from the Skies and from Capitalists Earth and the World safe Industrial Com- make munism. every
“The with reformatory trouble socialism of mod- is, ern times it that undertakes impossibility fruit changing capitalist state that of into one, communistic changing organ- without the political but ism; impossible to do gather grapes is from figs from thorns thistles. Hence an uprooting (a replanting necessary are revolution a-rejorma- tion) give which will the world a new tree of state. no
“Capitalism longer grows (foods, the fruits clothes necessary are all houses) which to the sustenance of dug world. Hence it must be up the roots order organized that a tree which so it will bear these may necessities for the whole world planted its place.
“The Russia people accomplished have this uproot- (this replanting revolution) ing and the case their nation are state, every destined to do those way another, in one each according same to its his- development, torical economic some with much vio- lence, most, hope, I with but little.” *25 Negro Question.” the
“Communist Position on This is a booklet of pages several bears on the front its cover a map showing of of the United States a dark Georgia of portions across considerable stretching
belt of here Parts the text are other southern eight states. copied. occupies of self-determination slogan right
“The of the Negro struggle in the liberation place the central of against yoke Belt the Ameri- in the Black population it, slogan, But as we see must be imperialism. can this two basic de- out connection with other only carried be kept there are three basic demands Thus, mands. following: Belt, namely, Black the in mind “(a) the landed the white property of of Confiscation capitalists negro landowners and for benefit of in the property The land hands of white farmers. most important constitutes the ma- exploiters American system of the entire of national oppression terial basis Negroes the Black Belt. More serfdom the than all farmers are bound in three-quarters Negro here the farms and of the white plantations serfdom to actual exploiters by system cropping.’ the feudal of ‘share measure, revolutionary agra-
“Without this without revolution, of self-determination of the right rian or, best, at Negro population only Utopia would be a only remain on without paper changing way would the actual enslavement.
“(b) Unity Establishment of State Black Negro At time present Belt. this precisely zone— purpose facilitating oppression national arti-—is ficially split up divided into number of various include localities having majority states which distant If the right population. white self-determination put force, is to be into it Negroes necessary bring possible together govern- wherever into one unit all South where mental districts the majority population negroes. of the settled consists Within *26 the limits of this state there will remain a fairly course significant minority white which must submit to right negro self-determination of the . majority. . .
“(c) Right of Self-Determination. This means com- plete and unlimited right negro of the majority to exer- governmental cise authority territory entire Black Belt, well as to decide the relations between their territory nations, and other particularly the United States.” if
“Even the situation not does yet warrant the raising question uprising, one should not limit oneself at present to for propaganda the demand, ‘Right to Self- but should organize actions, mass such as Determination/ demonstrations, strikes, boycott tax movements, etc.” “A question direct of power is also the demand of con- of the land of the white exploiters in the South, fiscation as well as the demand of the negroes that the entire Black amalgamated Belt be into a State unit.
“Hereby, every single fundamental demand of the lib- struggle eration negroes the Black Belt is such that —if thoroughly once understood by the negro masses adopted slogan as their will lead them into the —it for struggle the overthrow the power of the ruling bourgeoisie, which is impossible without such revolution- ary struggle. deny One cannot just is possible it for negro population of the Black Belt to win the right during self-determination capitalism; it but perfectly clear and indubitable that this is possible only through revolutionary struggle for power successful against through the American bourgeoisie, wresting right of self-determination negroes’ American im- from Thus, slogan right perialism. to self-determina- slogan of which, tion is a real National Rebellion such, supplemented by need not be pro- considered negro complete separation of struggle for the claiming at present. zone, at least fight in the forefront of the must “(d) Communists and must do their utmost liberation movement national mass and its revolu- of this movement the progress Negro clearly must dissociate *27 Communists tionization. negro in the move- bourgeois currents from all themselves influ- oppose spread of the indefatigably must ment, working negroes.” on the bourgeois groups ence negro to the masses must be: call constant “Their bour- against ruling white struggle Revolutionary revolutionary with the fighting alliance through a geoisie, proletariat!' white fighting Bolsheviks, members of a
“We are only that the to the working class, who know road revo- capitalism and the lutionary overthrow establishment through welding together unity iron of Communism is into our idealogy penetrates ranks, of class which as the struggle against prerequisite to the the class en- effective emy physically.” testimony that Herndon
There no direct distrib- was just No described. member of literature uted forward to tell what he in Party came did inducing them to become meetings their members. strange regard Nor does this seem when is had to the members and to the im- obligation discipline taken there was evidence from posed. Nevertheless which dis- reasonably him could be tribution inferred. It was sent member, shown that he was an active was to Atlanta subject and was paid organizer, party discipline; aas he received literature distribution in the also that it, together copies course of his work and had with cur- membership rent and collection books, under his arm when he arrested; was and further that he had been soliciting securing members, which part of the work in which the literature was to be used. He had declared his “adherence program to the and statutes” of the party and had taken like declarations from those whom he secured members; this tended strongly to show only not that he understood the party program and statutes as ip outlined the literature also but brought he them to the attention of others whom he secured as members. Besides, at the trial he made an extended statement jury court and his defense,6 did not but refer wise to the literature deny that he had been using or distributing it. Thus there was the evidence merely some but adequate undisputed for inferring basis that he had been using literature for the purposes for which he received it. Evidently, reason, and with jury drew this inference.
It should not be overlooked that Herndon negro was a *28 organizer member and in the and was engaged actively inducing chiefly in others, southern negroes, to become members of the party partici- and pate in effecting its purposes program. and The litera- ture in placed his hands by the for party that purpose particularly adapted was appeal to negroes to in that section, for it pictured their condition as an unhappy one from resulting wrongs asserted on part of white landlords and employers, sought and by alluring state- ments resulting advantages to them join induce in an carry effort into effect the measures which the proposed. literature These measures a revolu- included tionary uprooting of the existing capitalist it state, termed; confiscation of the property landed of white landowners and capitalists for the benefit of negroes; es- Georgia 1933, 38-415.
6 See Code § independent State, the black belt of an tablishment from States; secession followed United possibly boy- organization demonstrations, of mass strikes and tax measure; a al- adoption fighting aid this cotts revolutionary proletariat; liance with the white revolu- tionary overthrow of and establishment of capitalism through struggles Communism effective physical against enemy. Proposing nothing the class these measures was all advising violence, short of resort force and for know that such measures be effected otherwise. could only so, Not but the literature makes such use repelling “revolution,” rebellion,” “national “revolu- terms “revolutionary overthrow,” “effective tionary struggle,” Guard,” “mass “smash the National struggle,” physical “violence,” leave no strikes,” as to doubt unlawful intended. use of force an sense is effect of literature, such when purpose probable prosecution against in a like that under consideration appro- and determined with Herndon, are to be tested of those capacity and circumstances regard to the priate In influenced.7 this instance sought to be who are people past whose largely directed to literature is give them to unusual would lead circumstances present inciting features. inflaming and to its credence and consideration of And so is that examination it supreme court me convince evidence conformably opinion, to its statute, applied the State incite others induce and attempt an making criminal lawful to the au- resistance join combined forcible thority the State. speech freedom of guaranty of
That constitutional protection or afford not shield assembly does *29 forcible resistance to to incitement intentional acts deci- by repeated settled a State is authority of lawful 7 328, 335. S. 274 U. States, Burns v. United
277
Court;8
Georgia
of this
and the
decisions are
sions
same effect.9
Under
statute as construed and
it
applied
is es-
sential
intended to
combined
accused
induce
presence
aggra-
forcible resistance. The
intent
brings
vates the inducement and
it more certainly within
power
the State
denounce it as a crime than
it would be.
supreme
otherwise
court of the State
of its
dealing
both
with a
opinions
statute and
in which
charge
the intent of the accused was an element
In
of the offense.
the original opinion the court
in-
“it
cautiously said
would be sufficient that he
it
intended
[the
any
combined and forcible
at
happen
resistance]
In
time.”
its
on
it
opinion
rehearing
phrase
said
“at
any time” had not been
any
intended
mean
time
future;
by way
indefinite
avoiding
such
meaning the
changed
court
that part
original
making it
opinion by
read “at
time within which he
might reasonably expect his
influence
continue to be
directly operative
causing
action by
such
those whom
sought
he
to induce.”
I do not
perceive
this puts
guilt
large
the standard of
inadmissibly
at
renders it
vague. The accused must intend that-combined forcible
resistance shall proximately result from
act of
his
induce-
ment. There is no uncertainty in that. The intended
point of time
must
within the period during which he
“might
reasonably
his
expect”
inducement
to remain
directly operative in
causing
combined forcible re-
sistance. The words “might reasonably expect” have as
precision
much
as is
admissible
such a matter, are not
8
652,
Gitlow v.
York,
666,
268
U. S.
New
seq.; Whitney
v. Cali
et
357,
274
fornia,
371;
U.
385;
S.
Fiske v.
380,
274 U. S.
Kansas,
v.
Stromberg
359,
283
California,
368;
U. S.
Near v.
Minnesota,
283
697,
U. S.
v.
55;
Ga.
State,
827,
166 E.
Carr
103;
S.
167 E.S.
Carr v.
State,
No. 638. March 1937. Decided Texas, 86, 108-111; v. 212 U. S. Nash v. Oil Co. Waters-Pierce 373, States, 229 376-378. U. S. United