395
Per curiam:
The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio
Criminal Syndicalism statute for "advocat[ing] . . . the duty, necessity, or propriety [*445]
of crime, sabotage, violence, or unlawful methods of terrorism as a
means of accomplishing industrial or political reform" and for
"voluntarily assembl[ing]
with any society, group, or assemblage of persons formed to teach or advocate
the doctrines of criminal syndicalism."
Rev. Code Ann. § 2923.13. He
was fined $ 1,000 and sentenced to one to 10 years' imprisonment. The appellant
challenged the constitutionality of the criminal syndicalism statute under the
First and Fourteenth Amendments to the United States Constitution, but the
intermediate appellate court of
The record shows that a man,
identified at trial as the appellant, telephoned an announcer-reporter on the
staff of a
The prosecution's case rested
on the films and on testimony identifying the appellant as the person [***4]
who communicated with the reporter and who spoke at the rally. The State
also introduced into evidence several articles appearing in the film, including
a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the
speaker in the films.
One film showed 12 hooded
figures, some of whom carried firearms. They were gathered around a large
wooden cross, which they burned. No one was present [*446]
other than the participants and
[**1829] the newsmen who made the
film. Most of the words uttered during the scene were incomprehensible when the
film was projected, but scattered phrases could be understood that were
derogatory of Negroes and, in one instance, of Jews. n1 Another scene on the
same film
showed the appellant, in Klan
regalia, making a speech. The speech, in full, was as follows:
"This is an organizers'
meeting. We have had quite a few members here today which are -- we have
hundreds, hundreds of members throughout the State of
"We are marching on
Congress July the Fourth, four hundred thousand strong. From there we are
dividing into two groups, one group to march on
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n1 The significant portions
that could be understood were:
"How far is the nigger
going to -- yeah."
"This is what we are
going to do to the niggers."
"A dirty nigger."
"Send the Jews back to
"Let's give them back to
the dark garden."
"Save
"Let's go back to
constitutional betterment."
"Bury the niggers."
"We intend to do our
part."
"Give us our state
rights."
"Freedom for the
whites."
"Nigger will have to
fight for every inch he gets from now on."
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[*447]
The second film showed six hooded figures one of whom, later identified
as the appellant, repeated a speech very similar [***6]
to that recorded on the first film. The reference to the possibility of
"revengeance" was omitted, and one sentence
was added: "Personally, I believe the nigger should be returned to Africa,
the Jew returned to
The Ohio Criminal Syndicalism
Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws
were adopted by 20 States and two territories. E. Dowell, A History of Criminal
Syndicalism Legislation in the
the State that the State may
outlaw it. Cf. Fiske v.
speech which our Constitution
has immunized from governmental control. Cf. Yates v.
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n2 It was on the theory that
the Smith Act, 54 Stat. 670, 18
Smith Act, because the trial
judge's instructions had allowed conviction for mere advocacy, unrelated to its
tendency to produce forcible action.
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[3]
Measured by this test,
way refined the statute's
bald definition of the crime [*449] in terms of mere advocacy not distinguished
from incitement to imminent lawless action. n3
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n3 The first count of the
indictment charged that appellant "did unlawfully by word of mouth
advocate the necessity, or propriety of crime, violence, or unlawful methods of
terrorism as a means of accomplishing political reform . . . ." The second
count charged that appellant "did unlawfully voluntarily assemble with a
group or assemblage of persons formed to advocate the doctrines of criminal
syndicalism . . . ." The trial judge's charge merely followed the language
of the indictment. No construction of the statute by the
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[4]
Accordingly, we are here
confronted with a statute which, by its own words and as applied, purports to
punish mere advocacy and to forbid, on pain of criminal punishment, assembly
with others merely to advocate the described type of action. n4 Such a statute
falls within [**1831] the condemnation of the First and Fourteenth
Amendments. The contrary teaching of Whitney v.
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n4 Statutes affecting the
right of assembly, like those touching on freedom of speech, must observe the
established distinctions between mere advocacy and incitement to imminent
lawless action, for as Chief Justice Hughes wrote in De Jonge v. Oregon, supra,
at 364:
"The right of peaceable
assembly is a right cognate to those of free speech and free press and is
equally fundamental." See also
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Reversed.
CONCURBY: BLACK; DOUGLAS
CONCUR: MR. JUSTICE BLACK,
concurring.
I agree with the views
expressed by MR. JUSTICE DOUGLAS in his concurring opinion in this case that
the "clear and present danger" doctrine should have no place [*450]
in the interpretation of the First Amendment. I join the Court's
opinion, which, as I understand it, simply cites Dennis v.
MR. JUSTICE DOUGLAS,
concurring.
While I join the opinion of
the Court, I desire to enter a caveat.
The "clear and present
danger" test was adumbrated by Mr. Justice Holmes in a case arising during
World War I -- a war "declared" by the Congress, not by the Chief
Executive. The case was Schenck v.
"The question in every
case is whether the words used are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of
proximity and degree."
Frohwerk v. United States, 249 U.S. 204, also authored by Mr.
Justice Holmes, involved prosecution and punishment for publication of articles
very critical of the war effort in World War I. Schenck was referred to as a
conviction for obstructing security "by words of persuasion."
Debs v.
"If that was intended
and if, in all the circumstances, that would be its probable effect, it would
not be protected by reason of its being part of a general program and expressions
of a general and conscientious belief." Ibid.
In the 1919 Term, the Court
applied the Schenck doctrine to affirm the convictions of
other dissidents in World War I. Abrams v.
"It is only the present
danger of immediate evil or an intent to bring it about that warrants Congress
in [**1832] setting a limit to the expression of opinion
where private rights are not concerned. Congress certainly cannot forbid all
effort to change the mind of the country."
Another instance was Schaefer
v.
Those, then, were the World
War I cases that put the gloss of "clear and present danger" on the
First Amendment. Whether the war power -- the greatest leveler of them all --
is adequate to sustain that doctrine is debatable. [*452]
The dissents in Abrams, Schaefer, and Pierce show how easily "clear
and present danger" is manipulated to crush what Brandeis called "the
fundamental right of free men to strive for better conditions through new
legislation and new institutions" by argument and discourse ( Pierce v.
Amendment in time of a
declared war, I am certain it is not reconcilable with the First Amendment in
days of peace.
The Court quite properly
overrules Whitney v.
Mr. Justice Holmes, though
never formally abandoning the "clear and present danger" test, moved
closer to the First Amendment ideal
[***15] when he said in dissent
in Gitlow v.
"Every idea is an
incitement. It offers itself for belief and if believed it is acted on unless
some other belief outweighs it or some failure of energy stifles the movement at
its birth. The only difference between the expression of an opinion and an
incitement in the narrower sense is the speaker's enthusiasm for the result.
Eloquence may set fire to reason. But whatever may be thought of the redundant
discourse before us it had no chance of starting a present conflagration. If in
the long run the beliefs expressed in proletarian dictatorship are destined to
be accepted by the dominant forces of the community, the only meaning of free
speech is that they should
be given their chance and
have their way."
We have never been faithful
to the philosophy of that dissent.
[*453]
The Court in Herndon v. Lowry, 301
494, we opened wide the door,
distorting the "clear and present danger" test beyond recognition. n1
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n1 See McKay, The Preference
For Freedom, 34 N. Y. U. L. Rev. 1182, 1203-1212 (1959).
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In that case the prosecution
dubbed an agreement to teach the Marxist creed a "conspiracy." The
case was submitted to a jury on a charge that the jury could not convict unless
it found that the defendants "intended to overthrow the Government 'as
speedily as circumstances would permit.'"
justifies such invasion of
free speech as is necessary to avoid the danger. [***17]
'" n2
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n2 See Feiner
v.
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Out of the "clear and
present danger" test came other offspring. Advocacy and teaching of
forcible overthrow of government as an abstract principle is immune from
prosecution. Yates v.
360
Judge Learned Hand, who wrote
for the Court of Appeals in affirming the judgment in Dennis, coined the
"not improbable" test, 183 F.2d 201, 214, which this Court adopted
and which Judge Hand preferred over the "clear and present danger"
test. Indeed, in his book, The Bill of Rights 59 (1958), in referring to
Holmes' creation of the "clear and present danger" test, he said,
"I cannot help thinking that for once Homer nodded."
My own view is quite
different. I see no place in the regime of the First Amendment for any "clear
and present danger" test, whether strict and tight as some would make it,
or free-wheeling as the Court in Dennis rephrased it.
When one reads the opinions
closely and sees when and how the "clear and present danger" test has been applied, great misgivings are aroused. First,
the threats were often loud but always puny and made serious only by judges so
wedded to the status quo that critical analysis made them nervous. Second, the
test was so twisted and perverted in Dennis as to make [***19]
the trial of those teachers of Marxism an all-out political trial which
was part and parcel of the cold war that
has eroded substantial parts
of the First Amendment.
Action is often a method of
expression and within the protection of the First Amendment.
Suppose one tears up his own copy of the Constitution in eloquent
protest to a decision of this Court. May he be indicted?
[*455]
Suppose one rips his own Bible to shreds to celebrate his departure from
one "faith" and his embrace of atheism. May he be indicted?
Last Term the Court held in
"The issuance of
certificates indicating the registration and eligibility classification of
individuals is a legitimate and substantial administrative aid in the
functioning of this system. And legislation to insure the continuing
availability of issued certificates serves a legitimate and substantial purpose
in the system's administration." 391
[**1834]
But O'Brien was not prosecuted for not having his draft card available
when asked for by a federal agent. He was indicted, tried, and convicted for burning
the card. And this Court's affirmance of that
conviction was not, with all respect, consistent with the First Amendment.
The act of praying often
involves body posture and movement as well as utterances. It is nonetheless
protected by the Free Exercise Clause. Picketing, as we have said on numerous
occasions, is "free speech plus." See Bakery Drivers Local v. Wohl, 315
But none of these
considerations are implicated in the symbolic protest of the Vietnam war in the
burning of a draft card.
One's beliefs have long been
thought to be sanctuaries which government could not invade. Barenblatt is one example of the ease with which that
sanctuary can be violated. The lines drawn by the Court between the criminal
act of being an "active" Communist and the innocent act of being a
nominal or inactive Communist mark the difference only between deep and abiding
belief and casual or uncertain belief. But I think that all matters of belief
are beyond the reach of subpoenas or the probings of
investigators. That is why the invasions of privacy made by investigating
committees were notoriously unconstitutional. That is the deep-seated fault in
the
infamous loyalty-security
hearings which, since 1947 when President Truman launched them, have processed
20,000,000 men and women. Those hearings were primarily concerned with one's
thoughts, ideas, beliefs, and
[***22] convictions. They were
the most blatant violations of the First Amendment we have ever known.
The line between what is
permissible and not subject to control and what may be made impermissible and
subject to regulation is the line between ideas and overt acts.
The example usually given by
those who would punish speech is the case of one who falsely shouts fire in a
crowded theatre.
This is, however, a classic
case where speech is brigaded with action. See Speiser
v. Randall, 357
advocacy turns on the depth
of the conviction; and government has no power to invade that sanctuary of
belief and conscience. n3
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n3 See MR. JUSTICE BLACK,
dissenting, in Communications Assn. v. Douds, 339