MR. JUSTICE SANFORD delivered [**5] the opinion of the Court.
By a criminal information
filed in the Superior Court of Alameda County, California, the plaintiff in
error was charged, in five counts, with violations of the Criminal Syndicalism
Act of that State. Statutes, 1919, c.
188, p. 281. She was tried, convicted on
the first count, and sentenced to imprisonment.
The judgment was affirmed by the District Court of Appeal. 57
n1 Statutes, 1919, c. 58, p. 88.
On the first hearing in this Court, the writ of
error was dismissed for want of jurisdiction.
The pertinent provisions of the Criminal Syndicalism Act are:
"Section 1. The term 'criminal syndicalism' as used in this act is hereby defined as any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning wilful and malicious physical damage or injury to physical roperty), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.
"Sec. 2. Any person who: . . . 4. Organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism. . .
"Is guilty of a felony and punishable by imprisonment."
The first count of the information, on which the conviction was had, charged that on or about November 28, 1919, in Alameda County, the defendant, in violation of the Criminal Syndicalism Act, "did then and there unlawfully, wilfully, [**7] wrongfully, deliberately and feloniously organize and assist in organizing, and was, is, and knowingly became a member of an organization, society, group and assemblage of persons organized and assembled to advocate, teach, aid and abet criminal syndicalism."
It has long been settled that this Court acquires no jurisdiction to review the judgment of a state court of last resort on a writ of error, unless it affirmatively appears on the face of the record that a federal question constituting an appropriate ground for such review was presented in and expressly or necessarily decided by such state court. Crowell v. Randell, 10 Pet. 368, 392; Railroad Co. v. Rock, 4 Wall, 177, 180; California Powder Works v. Davis, 151 U.S. 389, 393; Cincinnati, etc. Railway v. Slade, 216 U.S. 78, 83; Hiawassee Power Co. v. Carolina-Tenn. Co., 252 U.S. 341, 343; New York v. Kleinert, 268 U.S. 646, 650.
Here the record does not show that the defendant raised or that the State courts [**8] considered or decided any [*361] Federal question whatever, excepting as appears in an order made and entered by the Court of Appeal after it had decided the case and the writ of error had issued and been returned to this Court. A certified copy of that order, brought here as an addition to the record, shows that it was made and entered pursuant to a stipulation of the parties, approved by the court, and that it contains the following statement:
"The question whether the California Criminal Syndicalism Act. . . and its application in this case is repugnant to the provisions of the Fourteenth Amendment to the Constitution of the United States, providing that no state shall deprive any person of life, liberty, or property, without due process of law, and that all persons shall be accorded the equal protection of the laws, was considered and passed upon by this Court."
In Cincinnati Packet Co. v. Bay, 200
U.S. 179, 182, where it appeared that a federal question had been presented in
a petition in error to the State Supreme Court in a case in which the judgment
was affirmed without opinion, it was held that the certificate of that court to
the effect that [**9]
it had considered and necessarily decided this question, was sufficient
to show its existence. And see Marvin
v. Trout, 199 U.S. 212, 217, et seq.; Consolidated Turnpike v.
So -- while the unusual course here taken to show
that federal questions were raised and decided below is not to be commended --
we shall give effect to the order of the Court of Appeal as would be done if
the statement had been made in the opinion of that court when delivered. See Gross v. United States Mortgage
And here, since it appears from the statement in the order of the Court of Appeal that the question whether the Syndicalism Act and its application in this case was repugnant to the due process and equal protection clauses of the Fourteenth Amendment, was considered and passed upon by that court -- this being a federal question constituting an appropriate ground for a review of the judgment -- we conclude that this Court has acquired jurisdiction under the writ of error. The order dismissing the writ for want of jurisdiction will accordingly be set aside.
We proceed to the determination, upon the merits,
of the constitutional question considered and passed upon by the Court of
Appeal. Of course our review is to be
confined to that question, since it does not appear, either from the order of
the Court of Appeal or from the record otherwise, that any other federal
question was presented in and either expressly or necessarily decided by that
court. National Bank v.
Commonwealth, 9 Wall. 353, 363; [**11] Edwards v.
Elliott, 21 Wall. 532, 557; Dewey v. Des Moines, 173 U.S. 193,
200; Keokuk & Hamilton Bridge Co. v. Illinois, 175 U.S. 626,
633; Capital City Dairy Co. v. Ohio, 183 U.S. 238, 248; Haire v. Rice, 204 U.S. 291, 301; Selover, Bates & Co. v. Walsh, 226
U.S. 112, 126.
The following facts, among many others, were
established on the trial by undisputed evidence: The defendant, a resident of
Shortly thereafter the Local Oakland withdrew from
the Socialist Party, and sent accredited delegates, including the defendant, to
a convention held in
In the light of this preliminary statement, we now take up, in so far as they require specific consideration, the various grounds upon which it is here contended that the Syndicalism Act and its application in this case is repugnant to the due process and equal protection clauses of the Fourteenth Amendment.
1. While it is not denied that the evidence warranted the jury in finding that the defendant became a member of and assisted in organizing the Communist Labor Party of California, and that this was organized to advocate, teach, aid or abet criminal syndicalism as defined by the Act, it is urged [**18] that the Act, as here construed and applied, deprived the defendant of her liberty without due process of law in that it has made her action in attending the Oakland convention unlawful by reason of "a subsequent event brought about against her will, by the agency of others," with no showing of a specific intent on her part to join in the forbidden purpose of the association, and merely because, by reason of a lack of "prophetic" understanding she failed to foresee the quality that others would give to the convention. The argument is, in effect, that the character of the state organization could not be forecast when she attended the convention; that she had no purpose of helping to create an instrument of terrorism and violence; that she "took part in formulating and presenting to the convention a resolution which, if adopted, would have committed the new organization to a legitimate policy of political reform by the use of the ballot"; that it was not until after the majority of the convention turned out to be "contrary-minded, and other less temperate policies prevailed" that the convention could have taken on the character of criminal syndicalism; and that as this was [**19] done over her protest, her mere presence in the convention, however violent the opinions expressed therein, could not thereby become a crime. This contention, while advanced in the form of a constitutional objection to the Act, is in effect nothing more than an effort to review the weight of the evidence for the purpose of showing that the defendant did not join and assist in organizing the Communist Labor Party of California with a knowledge of its unlawful character and purpose. This question, which is foreclosed by the verdict of the jury -- sustained by the Court of Appeal over the specific objection that it was not supported by the evidence -- is one of fact merely which is not open to review in this Court, involving as it does no constitutional question whatever. And we may add that the argument entirely disregards the facts: that the defendant had previously taken out a membership card in the National Party, that the resolution which the supported did not advocate the use of the ballot to the exclusion of violent and unlawful means of bringing about the desired changes in industrial and political conditions; and that, after the constitution of the California Party had been [**20] adopted, and this resolution had been voted down and the National Program accepted, she not only remained in the convention, without [*368] protest, until its close, but subsequently manifested her acaquiescence by attending as an alternate member of the State Executive Committee and continuing as a member of the Communist Labor Party.
2. It is clear that the Syndicalism Act is not repugnant to the due process clause by reason of vagueness and uncertainty of definition. It has no substantial resemblance to the statutes held void for uncertainty under the Fourteenth and Fifth Amendments in International Harvester Co. v. Kentucky, 234 U.S. 216, 221; and United States v. Cohen Grocery, 255 U.S. 81; 89, because not fixing an ascertainable standard of guilt. The language of § 2, subd. 4, of the Act, under which the plaintiff in error was convicted, is clear; the definition of "criminal syndicalism" specific.
The Act, plainly, meets the essential requirement
of due process that a penal statute be "sufficiently explicit to inform
those who [**21] are
subject to it, what conduct on their part will render them liable to its
penalties," and be couched in terms that are not "so vague that men
of common intelligence must necessarily guess at its meaning and differ as to
its application." Connally v.
General Construction Co., 269
And similar Criminal Syndicalism statutes of other
States, some less specific in their definitions, have been held by the State
courts not to be void for indefiniteness.
State v. Hennessy, 114
3. Neither is the Syndicalism Act repugnant to the equal protection clause, on the ground that, as its penalties are confined to those who advocate a resort to violent and unlawful methods as a means of changing industrial and political conditions, [**23] it arbitrarily discriminates between such persons and those who may advocate a resort to these methods as a means of maintaining such conditions.
It is settled by repeated decisions of this Court that the equal protection clause does not take from a State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary; and that one who assails the classification must carry the burden of showing that it does not rest upon any reasonable basis to these methods as a means of maintaining such conditions.
It is settled by repeated decisions of this Court
that the equal protection clause does not take from a State the power to
classify in the adoption of police laws, but admits of the exercise of a wide
scope of discretion, and avoids what is done only when it is without any
reasonable basis and therefore is purely arbitrary; and that one who assails
the classification must carry the burden of showing that it does not rest upon
any reasonable [**24]
basis, but is essentially arbitrary. Lindsley v.
National Carbonic Gas Co., 220
[*370] A statute does not violate the equal
protection clause merely because it is not all-embracing. Zucht v.
The Syndicalism Act is not class legislation; it
affects all alike, no matter what their business associations or callings, who come within its terms and do the things prohibited.
4. Nor is the Syndicalism Act as applied in this case repugnant to the due process clause as a restraint of the rights of free speech, assembly, and association.
That the freedom of speech which is secured by the
Constitution does not confer an absolute right to speak, without
responsibility, whatever one may choose, or an unrestricted and unbridled
license giving immunity for every possible use of language and preventing the
punishment of those who abuse this freedom; and that a State in the exercise of
its police power may punish those who abuse this freedom by utterances inimical
to the public welfare, tending to incite to crime, disturb the public peace, or
endanger the foundations of organized government and threaten its overthrow by
unlawful means, is not open to question.
By enacting the provisions of the Syndicalism Act
the State has declared, through its legislative body, that to knowingly be or
become a member [**27] of or assist in
organizing an association to advocate, teach or aid and abet the commission of
crimes or unlawful acts of force, violence or terrorism as a means of
accomplishing industrial or political changes, involves such danger to the
public peace and the ecurity of the State, that these
acts should be penalized in the exercise of its police power. That
determination must be given great weight.
Every presumption is to be indulged in favor of the validity of the
statute, Mugler v.
The essence of the offense denounced by the Act is the combining with others in an association for the accomplishment of the desired ends through the advocacy and use of criminal and unlawful methods. It partakes of the nature of a criminal conspiracy. See Peole v. Steelik, supra, 376. That such [**28] united and joint action involves even greater danger to the public peace and security than the isolated utterances and acts of individuals, is clear. We cannot hold that, as here applied, the Act is an unreasonable or arbitrary exercise of the police power of the State, unwarrantably infringing any right of free speech, assembly or association, or that those persons are protected from punishment by the due process clause who abuse such rights by joining and furthering an organization thus menacing the peace and welfare of the State.
We find no repugnancy in the Syndicalism Act as applied in this case to either the due process or equal protection clauses of the Fourteenth Amendment on any of the grounds upon which its validity has been here challenged.
The order dismissing the writ of error will be vacated and set aside, and the judgment of the Court of Appeal
MR. JUSTICE BRANDEIS, concurring.
Miss Whitney was convicted of the felony of assisting in organizing, in the year 1919, the Communist Labor Party of California, of being a member of it, and of assembling with it. These acts are held to constitute a crime, because the party was [**29] formed to teach criminal syndicalism. The statute which made these acts a crime restricted the right of free speech and of assembly theretofore existing. The claim is that the statute, as applied, denied to Miss Whitney the liberty guaranteed by the Fourteenth Amendment.
The felony which the statute created is a crime very unlike the old felony of conspiracy or the old misdemeanor [*373] of unlawful assembly. The mere act of assisting in forming a society for teaching syndicalism, of becoming a member of it, or of assembling with others for that purpose is given the dynamic quality of crime. There is guilt although the society may not contemplate immediate promulgation of the doctrine. Thus the accused is to be punished, not for contempt, incitement or conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only remotely. The novelty in the prohibition introduced is that the statute aims, not at the practice of criminal syndicalism, nor even directly at the preaching of it, but at association with those who propose to preach it.
Depsite arguments to the
contrary which had seemed to me persuasive, it is settled that the due process
of the Fourteenth Amendment applies to matters of substantive law as well as to
matters of procedure. Thus all
fundamental rights comprised within the term liberty are protected by the
Federal Constitution from invasion by the States. The right of free speech, the right to teach
and the right of assembly are, of course, fundamental rights. See Meyer v.
[*374] It is said to be the function of the
legislature to determine whether at a particular time and under the particular
circumstances the formation of, or assembly with, a society organized to
advocate criminal syndicalism constitutes a clear and present danger of
substantive evil; and that by enacting the law here in question the legislature
of California determined that question in the affirmative. Compare Gitlow
n1 Compare Frost v. R.R. Comm. of California, 271 U.S. 583; Weaver v. Palmer Bros. Co., 270 U.S. 402; Jay Burns Baking Co. v. Bryan, 264 U.S. 504; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393; Adams v. Tanner, 244 U.S. 590.
This Court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present; and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgement of free speech and assembly as the means of protection. To reach sound conclusions on these matters, we must bear in mind why a State is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence.
[*375] Those who won our independence believed that the final end of the State was to make men [**33] free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. n2 They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed [**34] remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence [*376] coerced by law -- the argument of force in its worst form. Reognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
n2 Compare Thomas Jefferson: "We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors and especially when the law stands ready to punish the first criminal act produced by the false reasonings; these are safer corrections than the conscience of the judge." Quoted by Charles A. Beard, The Nation July 7, 1926, vol. 123, p. 8. Also in first Inaugural Address: "If there be any among us who would wish to dissolve this union or change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it."
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. n3 Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however, reprehensible morally, is not a justification for denying free speech where the advocacy falls sort of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, [**36] between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.
n3 Compare Judge Learned
Hand in Masses Publishing Co. v. Patten, 244 Fed. 535, 540; Judge
[*377] Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity [**37] for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. n4 Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.
n4 Compare Z. Chafee, Jr., "Freedom of
Speech", pp. 24-39, 207-221, 228, 262-265; H. J. Laski,
"Grammar of Politics", pp. 120, 121; Lord Justice Scrutton
in Rex v. Secretary of Home Affairs, Ex parte
O'Brien,  2 K.B. 361, 382: "You really believe in freedom of
speech, if you are willing to allow it to men whose opinions seem to you wrong
and even dangerous;. . . " Compare
Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society. A police measure may be unconstitutional merely because the remedy, although effective as means of protection, is unduly harsh or oppressive. Thus, a State might, in the exercise of its police power, make any trespass upon the [*378] land of another a crime, regardless of the results or of the intent or purpose of the trespasser. It might, also, punish an attempt, a conspiracy, or an incitement to commit the trespass. But it is hardly conceivable that this Court would hold constitutional a statute which punished as a felony the mere voluntary assembly with a society formed to teach that pedestrians had the moral right to cross unenclosed, unposted, waste lands and to advocate their doing so, even if there was imminent danger that advocacy would lead to a trespass. The fact that speech is likely to result in some violence or in destruction of [**39] property is not enough to justify its suppression. There must be the probability of serious injury to the State. Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly.
The California Syndicalism Act recites in § 4:
"Inasmuch as this act concerns and is necessary to the immediate preservation of the public peace and safety, for the reason that at the present time large numbers of persons are going from place to place in this state advocating, teaching and practicing criminal syndicalism, this act shall take effect upon approval by the Governor."
This legislative declaration satisfies the
requirement of the constitution of the State concerning emergency
legislation. In re McDermott, 180
Whether in 1919, when Miss Whitney did the things
complained of, there was in
[*380] Our power of review in this case is limited
not only to the question whether a right guaranteed by the Federal Constitution
was denied, Murdock v. City of
MR. JUSTICE HOLMES joins in this opinion.